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John I. Purtle, Justice.
Appellant’s motion to vacate sentence under A.R.Cr.P., Rule 37, alleging a denial of his right to a speedy trial and ineffective assistance of counsel was denied without a hearing by the court. On appeal the appellant argues the court erred in failing to vacate the sentence or in the alternative that appellant is entitled to an evidentiary hearing. We agree that he was entitled to a hearing based upon the allegations of his motion.
The facts of the case establish that the Oak Forest Drug Store was robbed by an individual armed with a sawed off shotgun on December 16, 1980. About a week later, apparently on December 23, 1980, the appellant was picked up when a sawed off shotgun was found in his possession. Witnesses identified the appellant from a lineup and his fingerprints were identified on a piece of tape found at the scene. Apparently some type of arraignment or hearing was held on December 24, 1980 and the result was that appellant’s parole was revoked. He was returned to the Arkansas Department of Corrections where he has been incarcerated since that date. On January 28, 1981, an information was filed charging appellant with the aggravated robbery of Oak Forest Drug Store. A bench warrant was delivered to the Pulaski County Sheriff’s office. The warrant was dated by the Circuit Clerk on February 2, 1981 but was stamped received by the sheriff’s office on January 3, 1981. In any event the warrant was not served upon the appellant until December 23, 1981, according to the return by the Pulaski County Sheriff’s office.
Appellant was arraigned on January 21, 1982. At that time the information had been filed one year, lacking one week. On March 24, 1982, he withdrew his not guilty plea and entered a plea of guilty. The public defender’s office represented appellant at the time of the entry of the guilty plea. Shortly after being returned to Cummins he filed the present motion which was denied without a hearing.
The allegations contained in the appellant’s verified petition state he was confined in the facilities of the Arkansas Department of Correction from December 24,1980 until he pled guilty on March 24,1982. The information was clearly filed on January 28,1981. If these allegations are true the appellant is entitled to be free unless there are excludable periods of time as provided by Rule 28.3. It is not entirely clear that the sheriff’s office held the warrant for 11 months before serving it. In any event the time commences to run, without notice to the defendant, from the date of the filing of the information, unless the defendant is already in custody on the same offense or an offense based upon the same conduct, in which case time is computed from the date of the arrest.
Rule 28.1 (b) provides that if a defendant is incarcerated in prison in this state he shall be entitled to have the charge dismissed with an absolute bar to prosecution if not brought to trial within twelve (12) months from the time provided in Rule 28.2, excluding authorized delays as allowed in Rule 28.3.
We agree that entry of a guilty plea waives the requirements of the speedy trial rule. A.R.Cr.P., Rule 30.2, Clark v. State, 274 Ark. 81, 621 S.W.2d 857 (1981). However, appellant alleged ineffective assistance of counsel. We have set forth the presumptions and proof required to determine whether counsel was ineffective in the case of Blackmon v. State, 274 Ark. 202, 632 S.W.2d 184 (1981). Our rules for a speedy trial are an effort to comply with the requirements of our state and federal constitutions and they are not to be considered as loopholes or havens for criminals. If our criminal justice system is to succeed, it must pull together as a team. Therefore, we remand this case to the trial court for the purpose of a hearing on the allegation of ineffective assistance of defense counsel at the time the guilty plea was entered.
Remanded. | [
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Robert H. Dudley, Justice.
We affirm the trial court under Rule 9 (e) (2). The pleadings include a complaint, an attachment, an answer, a bond for retention of possession of property after attachment, a complaint to proceed against the bond after judgment, a second answer, a motion for summary judgment by the plaintiff and a motion for summary judgment by the defendant. None are abstracted.
The proceedings include a trial and a later proceeding on the opposing motions for summary judgment. None of the testimony, documentary evidence or stipulations, if any, are abstracted, nor is the manner of proceeding explained.
The complete abstract of record consists of a three sentence abstract of the original judgment along with a five sentence abstract of the subsequent summary judgment on the bond. From these eight sentences it is impossible for us to understand the pleadings, proceedings, evidence and issues which were before the trial court. Thus, we cannot reach the merits of the appeal and we must affirm for noncompliance with Rule 9 (d).
Affirmed. | [
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Steele Hays, Justice.
On September 5, 1978, Airport Construction and Materials, Inc. entered into a contract with the United States for the repair of streets at the Little Rock Air Force Base. On April 11,1979, ACM subcontracted with Bivens for part of the work. A dispute arose as to the amount ACM was to pay Bivens, and this suit was brought by Bivens against ACM and its bonding company, National Bonding and Accident Insurance Company.
ACM defended on the ground that Bivens was not a licensed contractor under Ark. Stat. Ann. § 71-701 and therefore under § 71-713 Bivens was not permitted to bring any action in law or equity to enforce a contract entered into in violation of § 71-701. ACM also disputes the amount awarded Bivens. National Bonding made a motion to dismiss the complaint, on the grounds that the state court was without jurisdiction, that under the Miller Act (40 U.S.C. § 270a-270e), the suit must be brought in federal court. The motion was denied. The trial court found § 71-701 and § 71-713 inapplicable to the case and awarded $19,479.25 to Bivens. ACM and National Bonding have appealed.
I
ACM argues that the trial court erred in refusing to dismiss the case for appellee Bivens’ failure to comply with the licensing statute which would preclude him from bringing suit under § 71-713. Bivens relies on Leslie Miller Inc. v. State of Arkansas, 352 U.S. 187 (1956). In that case the U.S. contracted with Miller for construction work on an Air Force base in Arkansas. Miller was not licensed under § 71-701 and the state filed an information accusing him of violating § 71-713, which makes such an activity a mis demeanor. Miller was found guilty, this court affirmed, 225 Ark. 285, 281 S.W.2d 946 (1955), and the U.S. Supreme Court reversed. ACM’s basic contention is that while that case involved a contractor in a direct relationship with the federal government, the contract here is a private matter and the federal government is only coincidentally involved. ACM points out that the subcontract was made seven months after its contract with the U.S. and consequently the prime contract was in no way influenced by ACM’s subcontract with Bivens.
A reading of Miller, however, supports the trial court’s finding that the statutes in question are inapplicable to this case, and the stated rationale of that case would extend to the subcontractor here. This is not simply a private contract with the federal government coincidentally involved. The Miller court reviewed and compared federal and state requirements for licensing contractors and found conflict with the action each would take to ensure reliability of persons and companies contracting with the federal government. “Subjecting a federal contractor to the Arkansas contractor license requirements would give the state’s licensing board a virtual power of review over the federal determination of [the best candidate] and would thus frustrate the expressed federal policy of selecting the lowest responsible bidder.” Miller at 258.
Amplification of this policy makes it clear that were even the subcontractor subject to state regulations, the federal policy would be frustrated. Miller goes on to quote from Johnson v. State of Maryland, 254 U.S. 51, 41 S.Ct. 16 (1920):
“It seems to us that the immunity of the instruments of the United States from state control in the performance of their duties extends to a requirement that they desist from performance until they satisfy a state officer upon examination that they are competent for a necessary part of them and pay a fee for permission to go on. Such a requirement does not merely touch the Government servants remotely by a general rule of conduct; it lays hold of them in their specific attempt to obey orders and requires qualifications in addition to those that the Government has pronounced sufficient. Miller at 259.
As Miller points out, when the government determines whom it will choose as the “responsible bidder” (pursuant to the Armed Services Procurement Act) a number of factors are considered. “[I]t involves an evaluation of the bidder’s experience, facilities, technical organization, reputation, financial resources and other factors.” The Court notes that the Armed Services Procurement Regulations defining a responsible contractor include:
(c) Has the necessary experience, organization, and technical qualifications and has or can acquire the necessary facilities (including probable subcontractor arrangements) to perform the proposed contract. 32 CFR § 2-406-3, Miller at 258. (our emphasis)
The government has chosen a specific bidder because it has determined that bidder can adequately fulfill the above stated requirements, including the choice of a competent subcontractor. Whether the federal government had relied specifically on a certain subcontractor, does not change the reasons for the policy. Were a government contract subject to interruption because of varying state requirements, when the federal government has already determined that the contractor has the capability to fulfill its requirements and control the project to its satisfaction, the supremacy policy would be largely undermined.
ACM also notes that the State of Arkansas has a legitimate interest in the standards of [bidder] responsibility, but such a point is without merit where the contract, as here, is made by the federal government, for work to be performed on federal property for federal use.
II
National Bonding argues that the trial court erred in its refusal to dismiss the complaint as to National for lack of jurisdiction. The bond furnished by National was a Miller Act Bond (required for specified federal construction projects under 40 U.S.C. § 270a-270e), which National argues gives federal courts exclusive jurisdiction. The requirement of a performance bond and payment bond is found in 40 U.S.C. § 270a. Section 270b (b) dictates the proper U.S. District Court in which any suit on a Miller Act Bond must be brought. Bivens argues that § 270b (b) is only a venue statute, and such a suit may be brought in state court as well as federal. We agree that this section indicates venue, but only in the context of venue within the federal system. It appears well settled that federal jurisdiction is exclusive on any Miller Bond suit. See 40 U.S.C. § 270b, n.7; 100 ALR 2d 456.
Bivens argues further that his suit was not based on the Miller Act, but rather on National’s liability under its payment bond under state law. But the plain language of the Miller Act under § 270a clearly requires both a performance and a payment bond under this contract. Bivens offers no basis for release from that clear language. He does cite Lichter v. Henke, 35 F.Supp. 388 (W.D. Mo. 1940), but that case does not sustain the point. There, the plaintiff sued on a bond under the Miller Act in federal court, but maintained a second count for breach of contract. The district court rrferely held that the breach of contract action was not within the jurisdiction of that court and must be brought in state court.
A similar contention was made in General Equipment Inc. v. U.S. Fidelity and Guaranty Insurance Co., 292 So.2d 806 (La. App. 1974). Appellants claimed that apart from the payment bond under the Miller Act, there existed a separate surety agreement upon which they were suing. The court found the claim unsubstantiated by the evidence. But the court stated and the appellants agreed that a “suit against a surety on a performance and payment bond [under the Miller Act] must be brought in the U.S. District Court.” (our emphasis) General Equipment at 807.
111
Finally, ACM argues that the trial court erred in calculating the amount due Bivens under his subcontract. The judgment includes two items which ACM disputes:
Item 4 1,100 tons SB2 at $8.00 $8,800.00
Item 8 1,903 tons SB2 at $8.00 $15,224.00
ACM insists that Bivens did not furnish the 1,100 tons of SB2 under item 4, nor the 1,903 tons of SB2 under item 8 and contends there is no evidence that items 4 and 8 were furnished by Bivens. Admittedly, there is confusion over these items, which doubtless stems from a change in the specifications of the contract which the parties agreed to while the contract was in progress. Bivens testified that after the work had progressed for several days he was asked by ACM if he would agree to switch to asphalt in place of SB2 as a base material in the patching process, which would enable the work to move more rapidly. (T. 88-92). He testified that he agreed on the understanding that ACM was to supply the asphalt. Evidently the trial court accepted that testimony and while we cannot independently verify these two disputed items, we are satisfied that the trial court accurately computed what was due. For one thing, Bivens submitted an invoice to ACM dated August 17,1979, showing a balance of $19,479.25 due him. When ACM answered on September 17, 1979, it acknowledged in effect the correctness of “Item 4, Base Course 1,100 tons, $8.00, $8,800.” Thus, the argument that Bivens is not entitled to this amount loses its force. As to item 8, we are unable to identify it in the testimony, but we can rely, and do, on the fact that two exhibits to Bivens’ testimony were introduced in evidence consisting of copies of his itemized invoices to ACM showing the balance due of $19,470.25, which coincides (approximately) with the amount determined by the trial court to be due, i.e. $19,282.00. We conclude that the trial court’s calculations are not clearly erroneous. ARCP 52.
The judgment is affirmed as to appellant, Airport Construction and Materials, Inc., and reversed and dismissed as to appellant, National Bonding and Insurance Company.
71-701. Contractor defined — Exceptions. — For the purposes of this Act [§§ 71-701 — 71-720], a “contractor” is defined to be any person, firm, partnership, copartnership, association, corporation, or other organization, or any combination thereof, who for a fixed price, commission, fee or wage attempts to or submits a bid to construct, or contracts or undertakes to construct, or assumes charge, in a supervisory capacity or otherwise, or to manage the construction, erection, alteration, or repair, or has or have constructed, erected, altered, or repaired, under his, their or its direction, any building, highway, sewer, grading or any other improvement or structure, except single-family residences, when the cost of the work to be done, or done, in the State of Arkansas by the contractor, including but not limited to labor and materials, is twenty thousand dollars ($20,000.00), or more,[.] It is the intention of this definition to include all improvements or structures, excepting only single-family residences.
Architects and engineers, whose only financial interest in a project shall be the architectural or engineering fees for preparing plans, specifications, surveys, and such supervision as is customarily furnished by architects and engineers, are specifically excluded from this Act.
71-713. Penalties for operating without certificate or giving board false evidence. — Any contractor who for a fixed price, commission, fee or wage, attempts to or submits a bid or bids to construct or contracts to construct, or undertakes to construct, or assumes charge in a supervisory capacity or otherwise, of the construction, erection, alteration or repair, of any building, highway, sewer, grading or any other improvement or structure, when the cost of the work to be done by the contractor, including but not limited to labor and materials, is twenty thousand dollars ($20,000.00) or more without first having procured a license to engage in the business of contracting in this state, or who shall present or file the license certificate of another, or who shall give false or forged evidence of any kind to the Board, or any member thereof, in obtaining^ certificate of license, or who shall impersonate another, or who shall use an expired or revoked certificate of license, shall be deemed guilty of a misdemeanor, and shall be liable to a fine of not less than one hundred dollars ($100.00), nor more than two hundred dollars ($200.00) for each offense, each day to constitute a separate offense. No action may be brought either at law or in equity to enforce any provision of the contract entered into in violation of this act [§§ 71-701 — 71-720]. The doing of any act or thing herein prohibited by any applicant or licensee, shall in the discretion of the Board constitute sufficient grounds to refuse a license to an applicant or to revoke the license of a licensee. | [
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Per Curiam.
Petitioner Eugene Wallace Perry was convicted by a jury of capital felony murder and sentenced to death. We affirmed. Perry v. State, 277 Ark. 357, 642 S.W.2d 865 (1982). Petitioner now seeks a further stay of mandate and permission to proceed in circuit court for postconviction relief pursuant to A.R.Cr.P. Rule 37.
Petitioner first argues that he is entitled to postconviction relief because the sentence imposed on him was in violation of the Constitution and laws of the United States and this State. He has enumerated twenty-two allegations of constitutional error: (1) the trial court erred in refusing a request for a second change of venue; (2) the trial court erred in denying a request for a handwriting expert at state expense; (3) the trial court erred in refusing to suppress identification testimony by witnesses participating in pretrial photographic and physical Jine-ups; (4) the trial court erred in denying a motion for directed verdict since the evidence was all circumstantial; (5) the trial court erred in sustaining an objection to a hypothetical question by the defense to witness Linda Godwin; (6) the trial court erred in excluding the testimony of Dr. Stevens regarding identification witness testimony; (7) the trial court erred in not allowing expenses for out-of-state defense witnesses and subpoena power; (8) the prosecuting attorney in three instances made improper comments during closing argument; (9) the trial court erred in admitting State’s Exhibit No. 64, a fingerprint card; (10) the trial court erred in failing to grant a mistrial because of a prejudicial television news account shown on July 16, 1981; (11) the trial court erred in overruling a defense objection to the testimony of Chantina Ginn regarding statements by co-defendant Anderson; (12) the trial court erred in refusing a request to sequester the jury; (13) through comparative appellate review this Court should reduce the death sentence; (14) the trial court erred in denying a motion to acquit based on petitioner’s indictment by information rather than by grand jury; (15) the trial court erred in admitting State’s Exhibit Nos. 1, 2, 3 and 4, photographs of the victims’ bodies; (16) the trial court erred in refusing to grant a mistrial based on the jury’s observation of a newspaper headline; (17) the trial court erred in failing to declare Chantina Ginn an accomplice; (18) the evidence was insufficient to convict because Ginn was an accomplice whose testimony was not corroborated; (19) death by electrocution is cruel and unusual punishment; (20) the trial court erred in establishing the juror’s qualifications through prejudicial voir dire examination; (21) the trial court erred in permitting the State to empanel a death qualified jury; and (22) Ark. Stat. Ann. §§ 43-1507 and 43-1518 (Repl. 1977) are unconstitutional.
All twenty-two issues were raised on direct appeal and decided adversely to petitioner. Rule 37 was not intended to permit a petitioner to again present questions addressed on appeal. Neal v. State, 270 Ark. 442, 605 S.W.2d 421 (1980); Hulsey v. State, 268 Ark. 312, 595 S.W.2d 934, reh. denied, 268 Ark. 315,599 S.W.2d 729 (1980). Furthermore, no factual support is provided for the allegations. Conclusory statements without substantiation do not justify postconviction relief. Hill v. State, 278 Ark. 194, 644 S.W.2d 282 (1983); Bosnick v. State, 275 Ark. 52, 627 S.W.2d 23 (1982); Cooper v. State, 249 Ark. 812, 461 S.W.2d 933 (1971).
Petitioner also makes five conclusory allegations of ineffective assistance of counsel. He initially contends that counsel failed to request a second change of venue; but since an impartial jury was empaneled, petitioner has demonstrated no prejudice. Counsel cannot be found ineffective absent some showing of prejudice. Hill, supra; Blackmon v. State, 274 Ark. 202, 623 S.W.2d 184 (1981).
Petitioner next alleges that counsel should have requested funds to employ a handwriting expert. Again, petitioner fails to allege any prejudice resulting from counsel’s failure to act. As we said on appeal, the State did not use expert testimony to establish the author of any writing. Petitioner has given no reason to support his claim that counsel erred in failing to ask for his own expert.
The trial court sustained the State’s objection to a defense question asked of witness Linda Godwin. Petitioner does not specify where in the record the specific objection can be found as he should have done. See Hill, supra. We assume that he is referring to the objection raised on appeal wherein the defense asked a hypothetical question of God-win which was disapproved as assuming a fact not in evidence. If so, he has not alleged or shown that a proffer was called for under the circumstances. Defense counsel asked the witness:
If it were developed in the course of this trial that seven (7) people will testify under oath that Gene Perry was in Alabama at the time this occurred, would that change your testimony in any way?
As the trial court said, the question assumed facts not in evidence. The question was not proper and we cannot agree with petitioner that counsel was remiss in not making a proffer of it.
Petitioner alleges that counsel failed to object to an unspecified jury argument by the State which amounted toa comment on petitioner’s decision not to testify. We must again assume that petitioner has reference to a point also raised on appeal since he does not quote the State’s comment or otherwise identify it. The portion of the State’s argument which was questioned on appeal as a comment on petitioner’s exercise of his right to remain silent reads as follows:
Obviously there is a lot of stuff being done here to disguise the names of people. What name is given for Damon when he is down in Florida? Damon Malantino. Why was that name used? Who can tell. It is obviously one thing; it was not the name of Wallace Eugene Perry on any of this stuff. And why not? . . . You do not have eye witnesses. Nobody is going to come in here and say here, I robbed, and I have shot. Whose fault is that? It’s the defense’s fault. There are no witnesses. You know, criminals are the ones that pick the witnesses for crimes, because criminals are the ones that decide the time and the place of the crime.
Petitioner argued on appeal that this court should reverse because these remarks were an improper comment even though no objection was made. We declined, stating that the lack of an objection and the total context of the closing argument caused us to conclude that this was not a comment on the right to remain silent. We now hold that even if there had been an objection, the remarks when considered with the argument as a whole did not prejudice petitioner to the degree that he was denied a fair trial. There is a presumption of effective assistance of counsel. Hill, supra; Thomas v. State, 277 Ark. 74, 639 S.W.2d 353 (1982); Hoover v. State, 270 Ark. 978, 606 S.W.2d 749 (1980); Irons v. State, 267 Ark. 469, 591 S.W.2d 650 (1980). To overcome that presumption, a petitioner must show by clear and convincing evidence that he suffered prejudice by the representation of counsel and that the prejudice which resulted was such that he did not receive a fair trial. Blackmon v. State, 274 Ark. 202, 623 S.W.2d 184 (1981). Petitioner has not shown that he was denied a fair trial by counsel’s failure to object.
Finally, petitioner asserts that counsel failed to make a proper objection to the hearsay testimony of Chantina Ginn. He does not cite any specific testimony as being objectionable hearsay. We found no reversible error when a similar issue involving Ginn’s testimony was raised on appeal. We have no way of knowing whether it is this same testimony that petitioner has reference to in this petition. If so, he has not provided any support for the allegation on which counsel could be found ineffective.
Petitioner’s total fáilure to substantiate any of the allegations of constitutional error or ineffective assistance of counsel may indicate that he is merely seeking to exhaust state remedies with this petition. See Reynolds v. State, 248 Ark. 153, 450 S.W.2d 555 (1970). In any event, there is no ground for relief which warrants an evidentiary hearing or other postconviction relief. Accordingly, the petition for relief under Rule 37 and the petition for further stay of mandate are denied.
Petitions denied. | [
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Darrell Hickman, Justice.
James F. Miller is a licensed bail bondsman and he filed this original action with us seeking a writ of prohibition against six Pulaski County judges. He asks that an order they entered on November 1, 1982, be declared void and they be prohibited from enforcing it. He also asks that an oral order entered by Judge Floyd Lofton, apparently denying a criminal defendant bail on a bond Miller had written for an appearance in Little Rock Municipal Court, also be declared void.
The petition concedes that the judges have some jurisdiction regarding bail but not to enter the order they did, which is a comprehensive local order concerning bail in their courts. It is argued that the Insurance Department has the sole power to license and regulate bail bondsmen in Arkansas by virtue of Act 400 of 1971. Furthermore, it is argued that Act 400 repealed by implication Act 268 of 1979 in which the General Assembly recognized that trial courts had authority to deal with bail and bail bondsmen. It is also stated Judge Lofton’s order violates A.R.Cr.P., Rule 9.
We deny the petition for the writ of prohibition because it is not in order. A writ of prohibition is an extraordinary writ and is only granted when the lower court is wholly without jurisdiction, there are no disputed facts, there is no adequate remedy otherwise, and the writ is clearly warranted. Webb v. Harrison, 261 Ark. 279, 547 S.W.2d 748 (1977). The true test of whether appeal is an adequate remedy is answered in determining if the lower court is without jurisdiction. Springdale School District v. Jameson, 274 Ark. 78, 621 S.W.2d 860 (1981).
The order in question is quite sweeping, and obviously contains some questionable features, but we do not reach those features because prohibition is not the proper remedy in this case for several reasons. First, the trial judges do have some inherent jurisdiction and authority in the matter; second, the nature of the so-called oral order of Judge Lofton — at one point it is referred to as an explanation of the written order — is not exactly clear. The State does not concede such an “order” was given. Finally, to grant a writ of prohibition in this case we would have to determine exactly all of the jurisdiction and authority of the lower court judges in the matter of bail, reconcile Acts 268 and 400, or determine if the latter repealed the former by implication, rule on orders that have already been entered, and anticipate all the questions that could arise from the broad order of the lower court judges.
These are the very reasons that a writ of prohibition, a narrow, extraordinary writ, should not be granted, even if part of the order is beyond the jurisdiction of the judges. Those questions can be properly raised on appeal.
Writ denied.
Purtle, J., dissents. | [
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Robert H. Dudley, Justice.
Mark Christian Henderson, the appellant, was convicted of the January 30, 1982, capital felony murders of Steve Francis and Diane Francis in Arkadelphia. He was sentenced to life imprisonment without parole. We reverse and remand for a new trial. Jurisdiction in is this Court pursuant to Rule 29 (1) (b).
We first address appellant’s meritorious argument that the trial court erroneously limited cross-examination of the accomplice.
Two people were murdered during the course of a robbery. The appellant, Mark Henderson, was charged with both capital felony murders. He was subjected to the penalties of death or life imprisonment without parole. Ark. Stat. Ann. § 41-1501 (Repl. 1977). In contrast, Jeffrey A. Brown, an admitted accomplice, was allowed to plead guilty to murder in the first degree which carries a penalty of not less than ten nor more than forty years, or life with the possibility of parole. Ark. Stat. Ann. §§ 41-901 and 41-1502 (Supp. 1981). The admitted accomplice, who had been allowed to plead guilty to the lesser charge, took the stand during the State’s case-in-chief and testified that the appellant was the one who actually murdered the victims. The defense attorney, in cross-examining the accomplice, asked, “What kind of a deal are you getting for yourself, Mr. Brown?” The prosecuting attorney objected and the court sustained the objection.
The ruling was erroneous. We have consistently taken the view that full cross-examination should be allowed in order to show bias. Simpson v. State, 274 Ark. 188, 623 S.W.2d 200 (1981). This is especially true in the case of an accomplice since his testimony is the direct evidentiary link between the defendant and the crime. Rhodes v. State, 276 Ark. 203, 634 S.W.2d 107 (1981). In Klimas v. State, 259 Ark. 301, 305-06, 534 S.W.2d 202, 205 (1976), we stated:
It is generally permissible for a defendant to show by cross-examination anything bearing on the possible bias of the testimony of a material witness. Bethel v. State, 162 Ark. 76,257 S.W. 740; Ringer v. State, 74 Ark. 262, 85 S.W. 410; Annot. 62 A.L.R.2d 611 (1958). This rule applies to testimony given under expectation or hope of immunity or leniency or under the coercive effect of his detention by authorities. Stone v. State, [162 Ark. 154, 258 S.W. 116]; Boyd v. State, [215 Ark. 156, 219 S.W.2d 623]. See also Campbell v. State, 169 Ark. 286, 273 S.W. 1035; Alford v. U.S., [282 U.S. 687(1930)]. The test is the expectation of the witness and not the actuality of a promise. State v. Little, [87 Ariz. 295, 350 P.2d 756]; Spaeth v. United States, 232 F.2d 776, 62 A.L.R.2d 606 (6 Cir., 1956).
* # *
Denial of cross-examination to show the possible bias or prejudice of a witness may constitute constitutional error of the first magnitude as violating the Sixth Amendment right of confrontation. Davis v. Alaska, 415 U.S. 308, 94 S. Ct. 1105, 39 L.Ed.2d 347 (1974).
Indeed, the State does not contest the argument that the ruling was erroneous. Instead, it contends that no proffer was made and thus no reversal should be had on this point. Ark. Unif. Rules of Evid. 103 (a) and 103 (a) (2) provide:
Rule 103. Rulings on evidence. — (a) Effect of Erroneous Ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and
* * *
(2) Offer of proof. In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.
Normally, we will not consider a point involving the exclusion of evidence when there was no proffer of excluded evidence because we have no way of knowing the substance of the evidence. Parker v. State, 268 Ark. 441, 597 S.W.2d 586 (1980). However, there is no need for a proffer in either of two situations. First, there is no need for a proffer where the substance of the offer was apparent from the context within which the questions were asked. Rule 103 (a) (2). Here, the distinction between charges of capital felony murder with a possible sentence of death and murder in the first degree with a maximum sentence of forty years or life with the possibility of parole is obvious to one trained in law. A jury is not trained in criminal law and might not understand that the accomplice may well have taken a desperate option and prevented risking his own life by blaming the appellant. This is the very type of evidence of bias which the defendant is entitled to present for a jury to weigh. The substance of the answer to the question objected to is apparent to us. Second, in this situation it is normally only the prosecutor and the accomplice who know what expectation, if any, the state is holding out for the accomplice. The defendant and his attorney do not usually have this information. Rule 103 (a) (2) does not contemplate a proffer of evidence when the information is unavailable to the cross-examiner. The exclusion of evidence of possible bias or possible prejudice by the accomplice is sufficient. A proffer was not necessary.
The error is prejudicial and requires that we reverse the case. However, we must also address appellant’s next argument in great detail because, he argues, it requires not only reversal but also dismissal. That issue is whether there was sufficient corroboration, independent of the testimony of the admitted accomplice, to sustain the conviction.
The testimony of an accomplice must be corroborated by other independent evidence which tends to connect the defendant with the commission of the crime. It is not sufficient to prove that the crime was committed and the circumstances of the crime. Ark. Stat. Ann. § 43-2116 (Repl. 1977); Pollard v. State, 264 Ark. 753, 574 S. W.2d 656 (1978). The test for determining, the sufficiency of corroborating evidence is whether, if the testimony of the accomplice were totally eliminated from the case, the other evidence independently establishes the crime and tends to connect the accused with its commission. Bly v. State, 267 Ark. 613, 593 S.W.2d 450 (1980), citing Froman v. State, 232 Ark. 697, 339 S.W.2d 601 (1960); Anderson v. State, 256 Ark. 912, 511 S.W.2d 151 (1974). Corroboration must be evidence of a substantive nature since it must be directed toward proving the connection of the accused with the crime and not directed toward corroborating the accomplice’s testimony. Olles v. State, 260 Ark. 571, 573, 542 S.W.2d 755, 758 (1976), citing Yates v. State, 182 Ark. 179, 31 S.W.2d 295 (1930). In addition to being substantive, the corroborating evidence must be substantial. Olles, at 573, 542 S.W.2d at 757. Substantial evidence is stronger evidence than that which merely raises a suspicion of guilt. It is evidence which tends to connect the accused with the commission of the offense charged. However, it is something less than that evidence necessary in and of itself, to sustain a conviction. Olles, at 573, 542 S.W.2d at 757-58; Klimas v. State, 259 Ark. 301, 534 S.W.2d 202 (1976). The corroborating evidence may be circumstantial, but it must be of a material nature and legitimately tend to connect the accused with the commission of the crime. Pollard at 756, 574 S.W.2d at 658, citing Roath v. State, 185 Ark. 1039, 50 S.W.2d 985 (1932). Corroboration may be furnished by the acts, conduct, declarations or testimony of the accused. Olles, at 574, 542 S.W.2d at 758. False statements to the police and flight by an accused may constitute corroborating evidence. Bly, at 619-20, 593 S.W.2d at 454. On the other hand, an explanation by the accused of suspicious circumstances may be considered in determining whether the corroborating evidence is sufficient. Olles, at 575, 542 S.W.2d at 759, citing King v. State, 254 Ark. 509, 494 S.W.2d 476 (1973).
To test the sufficiency of the corroborating evidence in this case we eliminate the testimony of Jeffrey Brown, the accomplice, and determine whether the testimony of the other witnesses establishes the crime and tends to connect the accused with the commission of that crime.
Brian Francis, the older brother of victim Steve Francis, testified that Steve was a regular seller and consignor of marijuana. Often he would consign marijuana to comeone in order for that person to resell it and pay him. Brian Francis testified that on the evening of January 30, 1982, Steve Francis had between an ounce and two and one-half ounces of marijuana in a brown bag. Steve also had $90 in his billfold. Robert Cooper and Mark Batson, both Arkadelphia policemen, testified that they found the victims Steve Francis and Diane Francis in their Chevrolet automobile on Hunter Street in Arkadelphia shortly after 5:00 a.m. on January 31. Both were dead. Dr. Fahmy A. Malak, the State Medical Examiner, testified that both victims died between 10:00 and 11:00 p.m. on January 30, 1982 from contact gunshot wounds to their heads. He removed the bullet fragments and supplied them to the State Crime Laboratory.
Ralph Turbyfill, the Chief Latent Fingerprint Expert with the State Crime Laboratory, examined the victims’ Chevrolet automobile but found only the victims’ fingerprints. He found mud on the back seat floorboard which indicated at some time someone entered the back seat from the passenger side and exited on the driver’s side. He also found the brown bag in which the victim usually kept marijuana. It contained one plastic bag containing marijuana and a number of unused baggies.
Jack Ursery of the Arkansas State Police searched the pockets of the victims’ clothing and found only four pennies in one of Steve Francis’ pockets. His billfold did not contain any money. This chain of evidence establishes the murders in the course of robbery and proves the circumstances surrounding the crime. However, it does not tend to connect appellant with the crimes.
The following evidence tends to connect the appellant with the robbery and murders. Don Holmes, appellant’s half-brother, testified that for six weeks prior to the murders appellant had lived in a room of his home. Holmes identified a .22 caliber pistol which he had kept under a diaper box and discovered missing four weeks before the crimes. One week later, three weeks before the crimes, he found the gun in his home and hid it under his mattress. The day after the murders, the police came to his house to search appellant’s room. The fully loaded .22 caliber pistol was still under Holmes’ mattress. He gave the pistol to the police.
Robert Phillips, the Firearms and Tool Mark Examiner with the State Crime Laboratory, testified that he performed a comparison of the bullets removed from the victims and test bullets fired from Holmes’ .22 caliber pistol and he could neither identify nor eliminate the pistol as the one which fired the fatal bullets but testified that the fatal bullets were fired “from this weapon or one just like it.”
Jeff Buford testified that on the night of January 30 he drove to the Holmes residence for the purpose of visiting appellant. He stated that the Francises’ Chevrolet automobile was parked in front of that residence and he parked about one and one-half car lengths from their car. He testified that he did not see either of the victims. On direct examination he stated that the time of this observation was between 9:45 and 10:20 p.m. but on cross-examination he stated that he did not have a watch on and his car did not have a clock but guessed that it was later than 9:00 p.m. and before 11:00 p.m. He testified that the appellant stated he was about to purchase a quarter of a pound of marijuana and would meet him later at a car wash and sell some of it to him. However, appellant never met him at the car wash.
Ricky Arnold and Bruce Golden testified that around 11:00 p.m. the appellant was at Arnold’s apartment. Golden testified that at that time the appellant had a zip-lock bag half full of marijuana while Arnold testified that the bag was full. Both testified that the appellant left Arnold’s apartment within the hour. Around midnight, and after appellant had left, Arnold and Golden went to a local nightclub, the Watergate Club. There Arnold saw the appellant rolling a marijuana cigarette.
Charles Lambert, a criminal investigator for the Arkansas State Police, testified that he and Sergeant Jack Ursery interviewed appellant in North Little Rock three days after the crimes and appellant denied that he had known the victims, denied that he knew the accomplice and denied having any marijuana on the night of the crimes.
The appellant testified that his livelihood came from collecting welfare and selling marijuana. He stated that Steve Francis, one of the victims, was his regular supplier of the drug and on the evening of the crimes came by to sell him $90 worth of marij uana. Appellant stated that he paid $30 at the time and Francis gave him $60 credit until the next morning. He intended to sell the marijuana that night at the Watergate Club. He stated that the Francises then drove away and he went to Lavonne Todd’s house, then to Bennie Lee Barnes’ house, then to Ricky Arnold’s apartment and then to the Watergate Club to sell the marijuana. He admitted to having about $100 in cash at the club and admitted he had only $30 earlier. He testified that he acquired the money from marijuana sales but could account for only one $5 sale. The next morning he waited for Francis to come by his residence to collect the $60. He waited until 2:30 in the afternoon and he and the accomplice went to his cousin’s house in Hot Springs “to party.” After that he went to a relative’s home in North Little Rock. He said he was not attempting to flee as he did not take all of his clothes; he took only one pair of pants and two shirts. Appellant denied killing the Francises. He testified that he had no motive to kill them because Steve Francis was his main supplier of marijuana.
Appellant readily admitted trying to pawn his half-brother’s pistol some weeks before the crimes as described by Doug White. He stated this was done in order to get money to purchase marijuana. He admitted lying to the police about knowing Steve Francis because he thought he was being arrested for selling marijuana which he had purchased from Francis.
The summary of testimony establishes six items of evidence to be weighed in order to determine if there is something more than suspicion for corroboration. Those six are as follows: (1) Appellant was seen standing near the victims’ family automobile for a short period of time. The time was estimated by the witness to be as early as 9:00 and as late as 10:20 p.m. The estimate of the time of death of the victims is between 10:00 and 11:00 p.m. Therefore, appellant could have been near the victims' car shortly before or as much as two hours prior to the deaths. The jury may have concluded these times coincided and that inference is permissible under the proof. (2) Appellant possessed half of a bag of marijuana shortly after one of the victims had been robbed of his marijuana. This possession of marijuana could be viewed as incriminating when examined with the other evidence. (3) Appellant had access to Don Holmes’ .22 caliber pistol. The victims were murdered with shots fired from a .22 caliber pistol. (4) At 2:30 on the afternoon following the murders the appellant went to Hot Springs and later to North Little Rock. He had not returned on February 3 when suspicion began to center on the accomplice and him. He had not told his half-brother, Don Holmes, he was leaving town. (5) Appellant, upon first being questioned, gave the police a statement which included three pieces of false information: (a) he denied that he knew the victims; (b) he denied that he knew the accomplice, Jeffrey Brown; and (c) he denied having any marijuana on the night in question. Appellant’s explanation of the above factors may be considered in determining whether there is a sufficient link in a chain of circumstances making the corroborating evidence sufficient. In his testimony he admitted that he lied about all three points when he was first questioned. He stated that he thought the police were there to arrest him for selling drugs which he had purchased from Steve Francis. The credibility of appellant’s explanation of why he gave false statements was for the jury to decide. (6) Appellant’s friend, Jeff Buford, was a reluctant witness for the State. He testified that as he was driving by appellant’s house, he saw appellant coming out to the Francis vehicle. When appellant saw Buford he flagged him down and had a conversation with him: “He kind of told me what was going on, that he was going to get some marijuana, a quarter of a pound, and to meet him at the car wash in an hour. He didn’t say where he was going to get this quarter of a pound, but he said he was going to get. He was going to cop one, is what he said.” On cross-examination Buford tried to minimize the word “cop” as meaning “to buy.” But the word is well recognized as a slang for “steal.” Webster’s New Unabridged Dictionary, 2d Edition, defines “cop” as “to steal, or to rob, especially on the spur of the moment.”
The corroborating evidence is sufficient to sustain the conviction. Therefore, even though prejudicial error occurred in limiting cross-examination, we only reverse and remand for new trial.
Most of the other assigned points of error are not likely to arise again upon retrial. The issues regarding the qualification of the jury for the death penalty are now moot. Fuller v. State, 246 Ark. 704, 439 S.W.2d 801, cert. denied, 396 U.S. 930 (1969); Sneed v. State, 159 Ark. 65, 255 S.W. 895 (1923).
Reversed and remanded.
Hays, J., dissents. | [
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Robert H. Dudley, Justice.
This appeal is from a derivative action by shareholders who asserted a corporate right of action against the president of the corporation. A jury returned a verdict of $35,000 in favor of the corporation. The only point raised on appeal is the sufficiency of the evidence. We affirm. The case was certified to this Court by the Court of Appeals.
In Arkansas, derivative actions by shareholders are provided for by rule, statute, and case law. See ARCP Rule 23.1; Ark. Stat. Ann. § 64-223 (Repl. 1980); Parrish, A Look at the Derivative Suit, 24 Ark. L. Rev. 89 (1970). The shareholder’s suit is one in equity even if the right to be enforced is a legal right of the corporation. Red Bud Realty Co. v. South, 153 Ark. 380, 241 S.W. 21 (1922); 13 Fletcher Cyclopedia Corporations § 5944 (Perm. Ed. 1980). This derivative action was filed in circuit court and tried before a jury. However, since the issue of subject matter jurisdiction is not before us, we are required to apply the standard of review of actions in law and we affirm if there is any substantial evidence to support the finding of the jury. Thrifty Rent-A-Car v. Jeffrey, 257 Ark. 904, 520 S.W.2d 304 (1975). In determining the sufficiency of the evidence we review the evidence and all reasonable inferences deducible therefrom in the light most favorable to appellee. Green v. Harrington, 253 Ark. 496, 487 S.W.2d 612 (1972).
The law imposes a high standard of conduct upon an officer or director of a corporation, predicated upon the fact that he has voluntarily accepted a position of trust and has assumed control of the property of others. Raines v. Toney, 228 Ark. 1170, 313 S. W.2d 802 (1958). Such a person occupies a fiduciary relation to the corporation and may not acquire, in opposition to the corporation, property in which the corporation has an interest or which is essential to its existence. Certainly, the president of a corporation owes a duty not to do an unfair or fraudulent act which will result in his private gain at the expense of the corporation. Raines, 228 Ark. at 1179. Such an act would be a breach of the fiduciary capacity of the president.
In the case before us there was substantial evidence from which the jury could find that the president breached his position of trust for his own private gain. The appellees, Gayle and Jane Terry, owned fifty percent of the common stock of the Christian Book Center, Inc., a Russellville business. Edjuana Taylor and her husband, appellant Lee Taylor, owned the other half of the stock. From the inception of the corporation in September, 1977, appellant served as president. By March 1978, the two couples were unable to agree on the conduct of the business affairs and, according to the appellees, the appellant president stated that he and his wife would operate the business. The appellees testified that they were told by appellant in April that they, the appellees, were out of the business. The parties discussed selling their common stock to each other. According to appellant, the corporation was not profitable. Shortly thereafter, a promissory note by the corporation to the Peoples Bank and Trust Company of Russellville became due and appellant testified there “was no point in making contact with Mr. Terry [appellee] about extending the note because we were not working together.” A bank official and appellant’s attorney at that time asked the bank’s attorney to file suit and foreclose on the assets of the corporation. The suit was filed on July 28,1978. No summons was issued and, viewing the facts most favorably to appellees, appellees were not given notice of the action prior to the decree of foreclosure. The corporation answered on July 31,1978. The foreclosure decree was entered on August 3,1978. Since July 29, 1978 came on a Saturday and July 30 on Sunday, the foreclosure, from complaint to decree, took just four work days. At the foreclosure sale the appellant, while still president of the corporation, purchased all of the assets of the corporation in his own name. The appellant made the purchase by simply refinancing with the same bank. No additional security was pledged. No payment was made on the principal. Appellant then continued doing business with the same assets, in the same location, except in his own name.
An accountant reconstructed the financial status of the corporation and challenged the appellant’s statement that the corporation was not profitable. He testified that on September 30, 1978, less than thirty days after the foreclosure, the business showed a net profit of $7,300.00 and that by the date of the trial, November 3, 1981, the business had a net worth of $72,614.72.
Thus, there was substantial evidence from which the jury could find that the president of the corporation breached his position of trust in favor of his own private gain.
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Steele Hays, Justice.
Appellant filed this suit in Pulaski County, Arkansas, where she resides, for personal injuries sustained in a motor vehicle collision which occurred in Pickens County, Alabama on September 13, 1980. The defendant (appellee) is a resident of Alabama and was served with summons in Alabama. The complaint asserts that jurisdiction is based on Ark. Stat. Ann. § 27-610.1 (Repl. 1979). The defendant (appellee) moved to dismiss the suit pursuant to ARCP Rule 21 alleging the court had no jurisdiction over the defendant and the subject matter of the law suit. The trial judge granted the motion and appellant has appealed. We affirm.
Appellant cites Ark. Stat. Ann. § 27-2502, which lists a number of activities that will render a person answerable to suit in Arkansas, including a provision that a court of this State may exercise jurisdiction “on any other basis authorized by law.” Appellant points to Ark. Stat. Ann. § 27-610.1 as such “other basis.” It reads:
Actions for damages for personal injury or death by wrongful act, where the accident which caused the injury or death occurred outside this State, shall be brought in the county in this State where the person injured or killed resided at the time of injury or in any county in which the defendant, or one [1] of several defendants, resides or is summoned.
But the argument has a fatal defect — § 27-610.1 is a venue statute and is not to be regarded as an attempt to give Arkansas courts jurisdiction over a non-resident motorist involved in an out-of-state collision. Section 27-610.1 assumes that jurisdiction exists over the defendant, and where that is so, the statute gives the plaintiff a choice of forums. See 15 Ark. L. Rev. 456: “Venue Where Out-of-State Accident Gives Rise to Personal Injury or Wrongful Death Action.”
Here the appellee resides in Alabama, the accident occurred in Alabama and for the purposes of this case, we may assume the appellee has never been in Arkansas. It is thoroughly settled that under the due process clause of the Fourteenth Amendment, where a resident of another state has no contacts with Arkansas, engages in no activities that would establish a “presence” here to render him amenable to suit, he is not subject to the in personam jurisdiction of this State. Pennoyer v. Neff, 95 U.S. 714 (1877). International Shoe Co. v. Washington, 326 U.S. 310 (1945). See Leflar, American Conflicts Law, 3rd Edition, Section 19.
If appellant could achieve her objective here, it would mean that a resident of California could motor to Maine, become involved in a collision, return to California and bring suit, thus forcing upon the Maine resident, not to mention the witnesses, the burden of defending a suit tried at the opposite end of the country.
Those restrictions [the due process clause] are more than a guarantee of immunity from inconvenient or distant litigation. They are a consequence of territorial limitations on the power of the several states. However minimal the burden of defending in a foreign tribunal, a defendant may not be called upon to do so unless he has had “minimal contacts” with that State that are a prerequisite to its exercise of power over him. Hanson v. Denckla, 357 U.S. 235 (1958) at 251.
The case was properly dismissed and the judgment is affirmed. | [
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Richard B. Adkisson, Chief Justice.
The Saline County Probate Court refused to allow appellant, Bonnie Sue Pierce, to revoke her consent to the adoption of her child by appellees, Bobby Joe Pierce and Phyllis Kay Pierce. On appeal we affirm.
The facts are not in dispute. The child was born on September 8, 1978. On May 11, 1981, appellant signed a “consent to adoption and relinquishment of parent and child relationship” and on that same day appellees, who are the brother and sister-in-law of appellant, took custody of the child. On June 19, 1981, the probate court approved appellees’ petition to adopt and entered an interlocutory order to that effect. On September 17,1981, appellant filed a motion to revoke her consent, alleging that the adoption was not final under Ark. Stat. Ann. § 56-213 (Supp. 1981) because the child had not lived in the adoptive home for six months. On January 22, 1982, the probate court denied appellant’s attempted revocation of consent to adoption.
We considered the question of whether a natural mother can withdraw her consent to the adoption of her child after an interlocutory decree had been entered but before a final decree has been entered in the recent case of McCluskey v. Kerlen, 278 Ark. 338, 645 S.W.2d 948 (1983). Under McCluskey, it is settled that consent to adoption can be withdrawn after an interlocutory order only upon a proper showing of fraud, duress, or intimidation. Here the only reason appellant gave in her motion for wanting to revoke her consent was that the adoption was not final. Appellant neither pled nor proffered any evidence of fraud, duress, or intimidation at the hearing. Under these circumstances the probate court did not err in denying appellant’s motion to revoke her consent.
Affirmed. | [
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Per Curiam.
Petitioner, Byron Hooper, by his attorney, George W. Mason, has filed a motion for rule on clerk. His attorney admits that the record was tendered late due to his negligence in meeting the ninety-day limit for filing the record in this court. See Ark. R. App. P. 5(a).
We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See Terry v. State, 272 Ark. 243, 613 S.W.2d 90 (1981); In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).
A copy of this opinion will be forwarded to the Committee on Professional Conduct. In Re: Belated Appeals in Criminal Cases, 265 Ark. 964. | [
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Steele Hays, Justice.
Charles Fisher and Cindy Fisher filed this suit in the Circuit Court of Crawford County against Home Mutual Fire Insurance Company and five other defendants to recover the proceeds of a fire insurance policy and for other incidental relief. The other defendants are Citizens Bank of Lavaca, holder of a first mortgage, Richard Organ, agent for Home Mutual, Carlisle Adjustment Company, which adjusted the fire loss and Verda Raybourn and Donna Roberds, real estate brokers. The defendants moved to dismiss under Ark. R. Civ. P. 12(b)(6), failure to state a claim for which relief could be granted, and the trial court ordered a dismissal as to all claims except those involving Raybourn and Roberds, reciting that it was a final judgment pursuant to Ark. R. Civ. P. 54(b).
Rule 54(b) permits an appeal from an order dismissing some of the claims or parties when a final order disposing of all claims has not yet been rendered. Under the rule the trial court “may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.” The order from which this appeal is brought merely repeats the language of Rule 54(b) without stating any facts in support of the finding there is no just cause for delay.
In Arkhola Sand & Gravel Co. v. Hutchinson, 291 Ark. 570, 726 S.W.2d 674 (1987), and again in Austin v. First National Bank, 305 Ark. 456, 808 S.W.2d 773 (1991), we gave express notice that merely tracking the language of Rule 54(b) will not suffice; the record must show facts to support the conclusion that there is likelihood of hardship or injustice which would be alleviated by an immediate appeal rather than at the conclusion of the case. Those essential findings, and the facts which undergird them, are wholly lacking in this order. The rule is not intended to create an avenue for two stages of review simply by citing Rule 54(b). It is intended to permit review before the entire case is concluded, but only in those exceptional situations where a compelling, discernible hardship will be alleviated by an appeal at an intermediate stage. There is nothing in the order itself, nor, so far as we can determine, in the litigation, suggesting in the slightest what hardship might await and, thus, why the case cannot first proceed to termination at the trial level. If appeal is allowed at this juncture it could well produce two appeals rather than one with the attendant burden on litigants, courts and system.
Appeal dismissed. | [
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Jack Holt, Jr., Chief Justice.
This appeal arose over a dispute as to whether the appellant, Smackover State Bank (Bank), was negligent in establishing a certificate of deposit account as a joint tenancy with right of survivorship, with appellee, Phillip Oswalt, as the surviving joint tenant. The case was certified from the Arkansas Court of Appeals under Ark. Sup. Ct. R. 29(l)(o), as it presents a question in the law of torts.
From the trial court’s finding that the Bank had been negligent in setting up the account, the Bank appeals, raising three points for reversal: 1) the action is barred by the statute of limitations, 2) the Bank substantially complied with the statutory requirements for setting up the account, and 3) the Bank is not bound by a prior decision of the probate court, to which the Bank was not a party. Mr. Oswalt cross-appeals as to the amount of damages awarded. We affirm the trial court’s decision.
Mr. Oswalt’s mother, Claudia Oswalt, conducted business with Smackover State Bank for many years, before her death in 1983. Beginning in 1976, Mrs. Oswalt purchased a number of certificates of deposit, all of which were made payable to Mrs. Oswalt or Phillip Oswalt. It was the Bank’s practice to have Mrs. Oswalt sign the back of the certificate on or following the date of maturity and, at that time, reissue a new certificate in accordance with her instructions. The certificates were the only evidence of the account and no copies were made.
On November 22,1982, Mrs. Oswalt signed the reverse side of a certificate evidencing a balance of $15,000 made payable to “Claudia A. Oswalt or Phillip R. Oswalt, either or survivor.” The certificate had been issued May 24, 1982, and matured the day Mrs. Oswalt signed it. On that same day, a new certificate was issued evidencing the same balance and again certifying the depositor as “Claudia A. Oswalt or Phillip R. Oswalt, either or survivor.” The maturity date was May 23, 1983.
On May 14, 1983, Mrs. Oswalt died. Phillip Oswalt presented the certificate to the Bank on May 25,1983, signed the reverse side, and obtained the proceeds of the account in the form of two cashier’s checks made payable to each of his two children.
In 1987, Mr. Oswalt’s sister filed an objection, in the Probate Court of Ouachita County, to the accounting of Mr. Oswalt. Mr. Oswalt had been appointed personal representative of Mrs. Oswalt’s estate. It was claimed the $15,000 certificate of deposit was estate property. The probate court agreed and issued its order on April 28, 1988, finding that the intended joint and survivor account had not been created in accordance with then Ark. Stat. Ann. § 67-552(a) and ordered Mr. Oswalt to reimburse the estate in the amount of the certificate, plus interest, which he did.
On May 13,1988, Mr. Oswalt filed suit in the Union County Circuit Court, alleging the Bank negligently failed to establish the account with right of survivorship and seeking judgment in the amount of $15,000, plus prejudgment interest. Following a hearing and the submission of post-trial briefs, the circuit court held Mr. Oswalt’s claim was not barred by the statute of limitations and that the Bank was negligent in carrying out Mrs. Oswalt’s wishes that the certificate reflect a survivorship interest. Mr. Oswalt was awarded $10,000 (one third of the $15,000 having already been distributed to him through the estate), plus interest from April 28, 1988, (the date of the probate court’s order) to the date of the circuit court’s order. From this decision, the Bank appeals.
I. STATUTE OF LIMITATIONS
The Bank first argues that Mr. Oswalt’s complaint, which recites only a claim for negligence, is barred by the three year statute of limitations, under Ark. Code Ann. § 16-56-105 (Supp. 1991).
Without question, the three-year statute of limitation of section 16-56-105 applied to Mr. Oswalt’s claim of negligence. See Courtney v. First Nat’l Bank, 300 Ark. 498, 780 S.W.2d 536 (1989). However, where we apply the statute of limitation, we must first determine when the statute began to accrue and whether or not the statute has been tolled. In answering these questions, we refer to our previous cases.
Recently, we reaffirmed the traditional rule that, in cases of professional malpractice, the statute of limitations commences running not when the negligent act is discovered, but when the act occurs. Chapman v. Alexander, 307 Ark. 87, 817 S.W.2d 425 (1991). This principle was utilized in Courtney v. First Nat’l Bank, supra.
Courtney involved a certificate of deposit issued in the names of Richard or David Courtney. No mention was made of right of survivorship. Upon Richard’s death, David claimed the proceeds of the certificate over and against the estate. We affirmed the trial court’s decision that David’s claim was barred by the three-year statute of limitations, agreeing that the statute began running at the time the certificate was issued in 1982, rather than when Richard died in 1986, as the alleged act of negligence occurred at the time the bank failed to obtain a separate writing concerning the survivorship clause of the certificate of deposit.
Likewise, the Bank’s alleged negligence, here, i.e. its failure to properly establish a survivorship account, occurred when it issued the final certificate on November 22, 1982. Mr. Oswalt’s claim began to accrue at that time.
We note that the present case and Courtney are distinguishable from Corning Bank v. Rice, 278 Ark. 295, 645 S.W.2d 675 (1983), a case cited by Mr. Oswalt. In Corning Bank, Melvin Rice purchased several certificates of deposit in which he requested that they be made payable on his death to his brother, Marlin. A controversy later arose between Marlin and the administrator of Melvin’s estate. We recognized the equally established principle that “a statute of limitations does not begin to run until the plaintiff has a complete and present cause of action,” and held that the statute could not have commenced running until Melvin’s death, “for until then, Melvin was free to change the alternative payee or to cash the CD’s himself.” 278 Ark. at 300, 645 S.W.2d at 678.
Unlike Marlin Rice, David Courtney and Mr. Oswalt had access to the proceeds from the moment the certificates were issued, as alternatives payees. They were not required, as was Marlin Rice, to wait until the death of the depositor to bring a cause of action regarding their rights to the proceeds, as they could have withdrawn the money at any time.
Our analysis does not conclude here. We must next consider our rule that the statute of limitation may be tolled during the time a putative plaintiff is prevented from bringing an action to which the statute of limitation applies. Stroud v. Ryan, 297 Ark. 472, 763 S.W.2d 76 (1989).
In Stroud, the negligent act of the attorney resulted in a default judgment against the plaintiff. The judgment was subsequently set aside by the trial court, but then was reinstated by the court of appeals. While acknowledging our continued adherence to the traditional rule, we held the running of the statute of limitations was tolled while the default judgment was set aside. “During that time, although the alleged negligent act had occurred, Stroud had no claim against Ryan, as he could have shown no injury.” 297 Ark. at 474, 763 S.W.2d at 78. “In essence, the injury ceased for a time to exist.” Id.
Here, although the statute commenced running upon the issuance of the certificate, Mr. Oswalt’s claim against the Bank ceased to exist once he was paid the amount of the deposit, six months later. The running of the statute was tolled until the probate court issued its order on April 28, 1988, disallowing the accounting, and Mr. Oswalt’s complaint, filed only two weeks after that date, was thus timely.
Our holding on this issue differs from the trial court, which reasoned the tort cause of action did not accrue until the day Mr. Oswalt’s sister objected to the accounting filed in Mrs. Oswalt’s estate. Yet, by tolling the statute of limitations during the time Mr. Oswalt had no injury, we reach the same conclusion. We will sustain a trial court’s ruling if it reached the right result, even though it announced the wrong reason. West v. Searle & Co., 305 Ark. 33, 806 S.W.2d 608 (1991).
Mr. Oswalt’s claim also includes breach of contract. Although this claim was not specifically pled, the complaint does state that Phillip Oswalt was the beneficiary of the agreement between Mrs. Oswalt and the Bank to create a joint tenancy with right of survivorship. At trial, both sides agreed the pleadings should be amended to conform with the proof, whereupon Mr. Oswalt’s attorney informed the court that Mr. Oswalt was proceeding on a negligence theory, as well as a third party beneficiary claim for breach of contract. Actions by third persons based on written contracts which are made for their benefit are generally held to be within the five-year statute of limitations governing actions on written contracts. H. B. Deal & Co. v. Bolding, 225 Ark. 579, 283 S.W.2d 855 (1955).
The trial court found the cause of action for breach of contract did not accrue until the probate court issued its order. We find it unnecessary to determine the correctness of this ruling since both theories of recovery are based on the same alleged acts of negligence, and Mr. Oswalt has clearly filed an action, based on his initial theory of negligence, within the applicable statute of limitations.
II. STATUTORY COMPLIANCE
The Bank next claims the trial court erred in finding the Bank did not comply with Mrs. Oswalt’s wishes in establishing a joint survivorship.
The applicable statute is former Ark. Stat. Ann. §67-552 (1965). The statute was subsequently amended by Act 843 of 1983 and is now codified at Ark. Code Ann. § 23-32-1005(l)(A); however, the amendment does not apply retroactively, Courtney v. Courtney, 296 Ark. 91, 752 S.W.2d 40 (1988), and since the certificates of deposit were all created before 1983, they come within the earlier statute.
Section 67-552(a) provides in pertinent part:
If the person opening such account, or purchasing such certificate of deposit, designates in writing to the banking institution that the account or the certificate of deposit is to be held in “joint tenancy” or in “joint tenancy with right of survivorship”, or that the account or certificates of deposit shall be payable to the survivor or survivors of the persons named in such account or certificate of deposit, then such account or certificate of deposit and all additions thereto shall be the property of such persons as joint tenants with right of survivorship.
(Emphasis added.) We have long held there need not be a strict and literal compliance with the wording of the Act, but there must be substantial compliance. Cook v. Bevill, 246 Ark. 805, 440 S.W.2d 570 (1969); Walker v. Hooker, 282 Ark. 61, 667 S.W.2d 637 (1984). No survivorship interest is created when the decedent does not affix his signature to an instrument complying with the statutory requirement; in other words, we require a writing, signed by the purchaser, and an indication of intention. Walker v. Hooker, supra.
Unfortunately, although there was ample evidence that both the Bank and Mrs. Oswalt intended to create a survivorship interest in Phillip Oswalt, the bank did not substantially comply with the statute in issuing the certificate. We held, in Martin v. First Security Bank, 279 Ark. 273, 651 S.W.2d 70 (1983), that even when the language of the certificate makes a reference to survivorship, the statute requires that the purchaser of the certificate sign a writing stating her intention that the funds be paid to the alternative payee upon the purchaser’s death. There need not be a separate instrument indicating her intention, but there should be a separate writing. See Walker v. Hooker, supra.
Here, the unsigned certificate issued on November 22, 1982, was the only evidence of the account; no copies were made, nor was there any other proof of Mrs. Oswalt’s intention such as a signature card or receipt. Under these circumstances, we cannot say the trial court erred in finding the Bank failed to establish a right of survivorship in favor of Mr. Oswalt.
III. PROBATE COURT DECISION
For its third point of error, the Bank contends that since it was not a party to the Ouachita County Probate proceedings, it cannot be bound by the decision from that court. The Bank argues that, had it been given an opportunity to present evidence in that proceeding, the outcome may have been different.
This matter is not before us; first, because the issue was not raised below, and second, because our review is confined to the circuit court proceedings.
IV. CROSS-APPEAL
Recognizing that, as a beneficiary of Mrs. Oswalt’s estate, Mr. Oswalt had regained a third of the amount of the certificate, the trial court awarded him $10,000, plus interest from the date of the probate court judgment until the date of its own judgment, at the rate of 6% annum, for a total of $11,164.44.
Mr. Oswalt cross-appeals from this award, claiming that the judgment should be modified to reflect the damage he suffered as the result of the probate court decision. That court ordered Mr. Oswalt to repay the amount of the certificate, $15,000, plus interest at 7 '/i% per annum from May 23, 1983, (the date of Mrs. Oswalt’s death) until the estate was repaid. The total amount was $20,612.57. Thus, Mr. Oswalt argues, he should receive two-thirds of this amount, for a total of $13,741.71, plus interest at 6 % from the date of the probate court judgment to the date of the circuit court judgment.
Mr. Oswalt presented no argument below on this issue nor has he cited any authority or offered convincing argument to this court; we therefore decline to consider it. See RLI Ins. Co. v. Coe, 306 Ark. 337, 813 S.W.2d 783 (1991).
For the foregoing reasons, we affirm. | [
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Jack Holt, Jr., Chief Justice.
The appellant, R. T. Edwards, applied to the Arkansas Alcoholic Beverage Control Division (ABC) to transfer his retail liquor and beer permits from Fayetteville, Arkansas, to County Road 397, which is adjacent to U.S. Highway 412, in Springdale Township, Arkansas. Mr. Edwards’ retail liquor store in Fayetteville had been destroyed by fire.
The Director of the ABC denied Mr. Edwards’ request to transfer, and the ABC Board upheld the denial. Rudy Leach and Eunice Leach were allowed to intervene, on behalf of residents opposing the application, when Mr. Edwards appealed to circuit court. The circuit court affirmed the Board’s decision, and Mr. Edwards now appeals contending the Board’s decision was arbitrary and capricious, an abuse of discretion, and not supported by substantial evidence. In addition, Mr. Edwards claims the ABC Director and Board have entered into a course of conduct that violates federal and state antitrust laws and denies him equal protection of the laws. Our jurisdiction is pursuant to Ark. Sup. Ct. R. 29(l)(c).
Arkansas Code Ann. § 25-15-212(h) (1987 and Supp. 1991), of the Arkansas Administrative Procedures Act, provides that the circuit court may reverse or modify the Board’s decision if the decision was, among other things, “not supported by substantial evidence of record,” or was “arbitrary, capricious, or characterized by abuse of discretion.” Our review is similarly limited, and we review the decision of the Board, not that of the circuit court. See Singleton v. Smith, 289 Ark. 577, 715 S.W.2d 437 (1986); Green House, Inc. v. Arkansas Alcoholic Beverage Control Div. 29 Ark. App. 229, 780 S.W.2d 347 (1989).
Arkansas Code Ann. § 3-4-201 (b) (1987 and Supp. 1991) states that the Board is empowered to determine “whether public convenience and advantage will be promoted by issuing the permits. . . .” ABC regulations set out a number of factors to be considered in making this determination, including the number and types of alcoholic permits in the area, economic impact, traffic hazards, remoteness of the area, degree of law enforcement available, input from law enforcement or other public officials in the area, and comments from area residents in opposition or support of the permit.
In this case the proposed site is located on a sharp curve of two-lane U.S. Highway 412, just before White Bridge, and borders on Beaver Lake. It is just over fifteen miles to the Washington County Sheriifs Department and approximately eight miles from the city limits of Springdale.
Hollis Spencer, a retired agent for the ABC Enforcement Division, submitted a written opinion that Mr. Edwards’ permit should be denied based on the dangerous location of the proposed site, its proximity to the lake, the inability of law enforcement officials to police the area, opposition from area residents, and the fact that no material changes had occurred in the area since the last applications, for the same site, were denied by the Board.
Attorneys for the ABC Board and intervenors submitted a petition bearing some 264 names of residents in the surrounding area, indicating opposition to the proposed liquor store. The Board also considered a survey submitted by Mr. Edwards, in which residents expressed their support of the transfer. The Board found, however, that the survey did not actually reflect the views of all who live within the immediate area as it was not a radius survey and included only those residents living within one mile from the site, in a certain area. Letters from state legislators, advocating both sides, were also introduced.
Although we have said the number or official position of persons who object to, or support, the issuance of retail liquor permits is not significant under the statute, the reasons for the support or opposition may be very significant. Green v. Carder, 282 Ark. 239, 667 S.W.2d 660 (1984). As the circuit court noted, the “crux” of Mr. Edwards’ problem in obtaining the transfer is probably the fact that the proposed site is located on lakefront property and is easily accessible to boaters. This concern was expressed by Hollis Spencer, two state legislators who represent residents of the area, and a witness who testified on behalf of residents in the surrounding area.
James Dudley lives in the log cabin Mr. Edwards’ proposes to convert into the liquor store, and runs a boat storage facility next door. Mr. Dudley testified there was a large volume of traffic due to the boat storage and adjoining bait and tackle shop, and that he planned to double the boat storage units. Although Mr. Dudley testified the incline from the lake to the log cabin was very steep, photographs of the site indicate that there is a boat launch below the cabin and that access to the proposed store, from the lake, is quite feasible.
The sum of this evidence supports the Board’s conclusion that “the primary purpose of [Mr. Edwards’] application is not necessarily to serve the people in the immediate area, but rather is to serve people who are using the Beaver Lake facilities.”
The Board further noted that a number of previous applications had been made, concerning the same area, all of which had been denied, and that no changes had been made in the area to justify granting the transfer this time. Edwards argues the sole mention of the previous applications was by opposing attorney Larry Douglas; however, as the circuit court noted, the record reveals a number of other references to previous applications, including the testimony of Mr. Maggard, the owner of the log cabin and bait store, who stated he had applied and been rejected for a license in 1986.
The only recent changes to the area have been improvements in the widening of the highway shoulders and the installation of a stop sign on adjoining County Road 397. Mr. Edwards submitted a report from Larry Wood, Director of the Northwest Arkansas Regional Planning Commission, stating that in the future, Highway 412 would be expanded to four lanes and would be a significant east/west route. Presently, however, the only evidence indicating that “public convenience” would be served by the requested license transfer is the fact that the nearest liquor store is seven miles away, and many of the area residents favor the transfer. These are valid considerations, and future highway developments may generate a need for Mr. Edwards’ proposed store. However, the record before the Board contained evidence in support of both sides, and the question is not whether the testimony would have supported a contrary finding, but whether it supports the finding that was made. Green v. Carder, supra.
It is our responsibility to examine the entire record to determine if there was substantial evidence that would support the finding of the administrative agency. In doing so, we find the Board’s action in refusing the transfer was not arbitrary or capricious and was, in fact, supported by substantial evidence.
Throughout his appeal of the Director’s decision, Mr. Edwards has claimed that the reason for the denial of his application is the ABC’s “conspiracy” to preserve the monopoly of liquor store ownerships held by Mr. Harold Hewitt. Mr. Hewitt controls seven of the eight liquor permits in Springdale Township, the closest of which is some seven miles from the proposed site. In addition, Mr. Edwards points to the fact that no new permits have been granted in that area for the past twenty years.
Mr. Edwards raises several arguments with regard to discovery and cross-examination on the issue of conspiracy, in addition to a claim that such conduct, on the part of the ABC, violates anti-trust laws and equal protection. We find it unnecessary to address these arguments, however, as they are irrelevant to a determination of whether the denial of the application was predicated on the fact that the proposed location was unsuitable for transfer of the license.
For the foregoing reasons, we affirm. | [
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Steele Hays, Justice.
In late April 1990, Little Rock and Pulaski County experienced several aggravated robberies. On April 26 a county liquor store was robbed and two clerks were murdered. Appellant Prince Johnson, sixteen years of age, was charged with two counts of aggravated robbery committed on April 22,1990, and with two counts of capital murder committed on April 26, 1990. He was tried and convicted in separate trials.
Appellant has appealed from the judgments of conviction and the two appeals are consolidated because they present an issue common to both: whether inculpatory statements Johnson made to police officers should have been suppressed. A second point of error concerns the trial court’s denial of a motion to transfer the aggravated robbery counts to Juvenile Division.
I
Appellant challenges the denial of his motion to suppress on three grounds: 1) The police initiated questioning after appellant had asserted his right to remain silent; 2) appellant was not brought before a judicial officer in a timely fashion; and 3) the statements were involuntary under the totality of the circumstances.
Appellant was arrested and booked at 10:30 p.m. on Thursday, May 3, 1990. Carl Beadle, a detective with the Pulaski County Sheriffs Department, first talked to appellant about 8:30 the next morning. At the suppression hearing Beadle was first asked whether the appellant wanted to talk about the murders:
Q: Okay. And did you ask Prince Johnson if he wanted to talk to you about it at that time?
A: Yes.
Q: And what did he say?
A: He did not.
Q: All right, and what did you do?
A: Uh—
Q: Let me ask this before you answer. What did he want to do?
A: He wanted to talk about some incidents at Little Rock.
Q: Okay. Some other crimes?
A: Yes.
Q: All right. And what did you do after hearing that?
A: We contacted Little Rock Police Department.
Appellant was then picked up by the Little Rock police who questioned him about the previous robberies. Appellant was returned to the sheriffs department late that afternoon and Beadle questioned him again. The court summarized the testimony concerning the sequence of events of May 3:
Defendant proceeded to speak of robberies he committed in Little Rock. Defendant was then turned over to Little Rock Police officers who again advised the defendant of his rights pursuant to Miranda. Defendant then gave voluntary statements to Little Rock officers concerning the alleged Little Rock aggravated robbery charges. While he was speaking with Little Rock officers, defendant gave spontaneous statements regarding the alleged murders in this case. According to testimony, Little Rock officers did not question the defendant about the alleged homicides, nor did they take a written or recorded statement, but instead advised the defendant to wait to talk about that case to Pulaski County deputies when he returned to the Pulaski County jail. At approximately 4:30 p.m. on the same day, the defendant gave a full and voluntary statement to Sergeant Beadle after having been rewarned of his rights pursuant to Miranda.
A.
Right to Remain Silent
Appellant contends the 4:30 p.m. statement to Beadle was in violation of Miranda because he had indicated earlier in the day that he did not want to talk to police — that he gave a statement only after further interrogation.
Custodial statements are presumed involuntary and the state has the burden of proving otherwise. Shaw v. State, 299 Ark. 474, 733 S.W.2d 827 (1989). In reviewing the trial court’s denial of the motion to suppress, this court makes an independent determination based on the totality of the circumstances and reverses the trial court only if the decision was clearly against a preponderance of the evidence. Ryan v. State, 303 Ark. 595, 798 S.W.2d 679 (1990). The credibility of the witnesses who testify to the circumstances surrounding the defendant’s custodial statement is for the trial court to determine. Smith v. State, 286 Ark. 247, 691 S.W.2d 154 (1985). In reviewing a ruling on a motion to suppress evidence, we view the evidence in the light most favorable to the state. Moore v. State, 303 Ark. 514, 798 S.W.2d 87 (1990).
Within the context of an independent review our search focuses on whether the accused wished to remain silent and gave such expression to that desire that any statements made thereafter in response to interrogation are in violation of Miranda-.
The individual is always free to exercise the privilege to remain silent and thus, if he “indicates in any manner, at anytime prior to or during questioning, that he wishes to remain silent, the interrogation must cease,” Miranda v. Arizona, 384 U.S. 436 (1966).
Appellant concedes that Beadle’s later testimony characterized appellant’s remarks as unresponsive:
Q: Did the Defendant ever say that he did not want to talk to you about Art’s Liquor Store murders?
A: No.
Q. Okay. And when the Defendant was brought back to Pulaski County Sheriffs Office that afternoon, did the Defendant ever — Did he want to talk to you then about the Art’s Liquor Store murders?
A: Yes.
Q: Okay.
Q: He wanted to talk to you about the liquor store, I mean, the Little Rock aggravated robberies at first?
A: Right.
Q: And you weren’t involved in that case?
A: That’s correct.
Q: So, you called Little Rock to have him picked up? A: Right.
Q: But at no time during the whole day, the morning, or in the afternoon or the evening, did he ever say he didn’t want to talk to you about the Arch Street liquor store?
A: That’s true.
Beadle was questioned further by the trial judge:
Q: Deputy Beadle, I want to make sure I understand what was said here.
A: Yes, sir.
Q: Did this Defendant, during this session after eight thirty or eight forty, ever refuse to tell you that he did not want to give you a statement about this Arch Street affair?
A: No, sir, he did not.
Q: So, when you said he wouldn’t, did you mean that he didn’t, or that he refused to give you one, sir?
A: We told him that we wanted to talk to him about the
Arch Street liquor store, and he said that he didn’t know anything about that, and then he went right into some stuff at the Little Rock Police Department.
Q: So, he never did, in fact, say I don’t want to talk to you about that or anything of that nature to you in regard to that statement?
A: No, sir, he did not.
Appellant contends we should construe Beadle’s testimony as indicating that appellant expressed a desire not to talk about the murders. But while Beadle’s initial response is arguably ambiguous, it is clear from his testimony as a whole that appellant did not assert a right to remain silent and such discrepancies are for the trial court to resolve. The trial judge explored that aspect of the suppression testimony with some care and we are not persuaded that he erred in his ruling.
B.
Appellant Was Not Brought Before a Judicial Officer in a Timely Fashion
Appellant urges he was not brought before a judicial officer in a timely fashion as required by Ark. R. Crim. P. 8.1 and Duncan v. State, 291 Ark. 521, 726 S.W.2d 653 (1987).
Appellant was arrested at 10:30 p.m. on Thursday, May 3, 1990, and arraigned at 9:00 a.m. on Monday, May 7. He argues this was not a timely fashion as required by Rule 8.1 and, therefore, the confessions taken during that period should be suppressed. There is no merit to the argument.
In Duncan, supra, we established a three part test to determine when a statement should be suppressed for a violation of Rule 8.1: 1) The delay must be unnecessary, 2) the evidence must be prejudicial, and 3) the evidence must be reasonably related to the delay. Appellant argues all three prongs have been met.
While the evidence was clearly prejudicial, the trial court found that the delay was not unnecessary and that the statements by appellant were not reasonably related to any delay. Appellant disputes both these findings.
Unnecessary Delay
The record indicates the county municipal court does not ordinarily sit on Friday unless specific arrangements are made. Appellant argues there was evidence that a particular form, his Arrest and Disposition Report (ADR), was deliberately misplaced. He contends the missing ADR prevented his being arraigned until Monday morning, May 7.
Appellant points out that his statement about the robberies to the Little Rock police was given at approximately 10:40 a.m. on Friday and the statement about the murders to the Pulaski Sheriffs Office was given about 4:30 p.m. that same day. He argues that had he been arraigned on Friday, court would have been held about 10:00 a.m., that he would have been provided with an attorney, that the attorney would have advised him not to make a statement, and any statement taken without his attorney would have been a violation of Massiah v. United States, 377 U.S. 201 (1964). However, the proof concerning the misplacement of the ADR was conflicting and appellants brief concedes it is not clear what happened. The trial court found there was no deliberate action by the police and we cannot say that finding was clearly against the preponderance of the evidence.
While we concur in the trial court’s finding in this regard, appellant’s reference to a recent decision of the United States Supreme Court, County of Riverside v. McLaughlin,_U.S. _, 111 S. Ct. 1661 (1991), prompts additional comment.
In McLaughlin the Supreme Court fixed the maximum delay for arraignment at forty-eight hours, pointing out at the same time that a probable cause determination would not pass constitutional muster simply because it is occurs within forty-eight hours:
Such a hearing may nonetheless violate Gerstien if the arrested individual can prove that his or her probable cause determination was delayed unreasonably. Examples of unreasonable delay are delays for the purpose of gathering additional evidence to justify the arrest, a delay motivated by ill-will against the arrested individual, or delay for delay’s sake.
After forty-eight hours, however, the burden of proof shifts to the state:
Where an arrested individual does not receive a probable cause determination within 48 hours, the calculus changes. In such a case, the arrested individual does not bear the burden of proving an unreasonable delay. Rather, the burden shifts to the government to demonstrate the existence of a bona fide emergency or other extraordinary circumstance. The fact that in a particular case it may take longer than 48 hours to consolidate pretrial proceedings does not qualify as an extraordinary circumstance. Nor, for that matter, do intervening weekends. A jurisdiction that chooses to olfer combined proceedings must do so as soon as is reasonably feasible, but in no event later than 48 hours. [Our emphasis.]
Thus, under McLaughlin a delay in excess of forty-eight hours is constitutionally unreasonable even if an intervening weekend caused the delay. The court elaborated on this point:
The record indicates, however, that the County’s current policy and practice do not comport fully with the principles we have outlined. The County’s current policy is to offer combined proceedings within two days, exclusive of Satur days, Sundays, or holidays. As a result, persons arrested on Thursday may have to wait until the following Monday before they receive a probable cause determination. The delay is even longer if there is an intervening holiday. Thus, the court’s regular practice exceeds the 48-hour period we deem constitutionally permissible, meaning that the County is not immune from systemic challenges, such as this class action.
It should be noted that no issues of suppression of custodial statements were decided in McLaughlin and that decision does not direct a different result in the case now before us. McLaughlin involved a class action challenging by declaratory judgment the county’s procedure for probable cause determinations. Thus, although the delay in appellant’s arraignment exceeds the time specified in McLaughlin, that is simply one prong of the Duncan test, which we now address.
Relationship of Evidence to Delay
In order to suppress evidence taken during confinement, under Duncan, a causal connection between the delay and the confession must be shown. No connection has been shown in this case. As the trial court pointed out, appellant waived his rights and agreed to give a statement before any judge would have been available. Consequently, appellant’s statement to the police was not attributable to the delay.
In Ryan v. State, 303 Ark. 595, 798 S.W.2d 679 (1990), confronted with a similar argument, we found that inculpatory statements were not related to a delay of comparable duration, but rather to the desire of the accused to negotiate a favorable plea bargain with authorities. This was evidenced by Ryan’s request at the first available opportunity, and before the delay, to talk to federal authorities. By like token, Prince Johnson made it clear at the outset that he was willing to talk to the police about crimes he had been involved in and the trial court correctly found that there was no causal connection between appellant’s statements and any delays.
C.
The Statements Made by Appellant Were Involuntary When the Totality of All the Circumstances Are Considered.
Appellant maintains that under the totality of the circumstances his statements to the police and deputies were not voluntary. Appellant relies on his immaturity, inexperience with the law, the absence of an adult family member when the statements were made and the delay in his arraignment, which we have already discussed. But we are not persuaded by the argument. The trial court rejected these contentions after hearing testimony in considerable detail establishing that the confessions were knowingly and voluntarily made. We are not willing to overturn those findings. See Shaw v. State, 299 Ark. 474, 773 S.W.2d 827 (1989).
II
On June 22, 1990, appellant filed a motion requesting transfer of the case involving aggravated robberies to juvenile court, pursuant to Ark. Code Ann. § 9-27-318 (1987). At an omnibus hearing on October 26,1990, the motion to transfer was considered by the trial court and denied. The evidence presented by appellant was limited to his age and the representation by his counsel that appellant had no prior involvement with the law. The only evidence presented by the state was that the crimes involved violence. Appellant contends the trial court erred in not ordering a transfer to juvenile court.
In Vickers v. State, 307 Ark. 298, 819 S.W.2d 13 (1991), the law affecting transfer to juvenile court was summarized:
[O]ur holdings are now clear that the standard for review is whether the circuit court’s denial of a transfer was clearly erroneous.
In making the transfer decision, the circuit court must consider the following factors:
(1) The seriousness of the offense, and whether violence was employed by the juvenile in the commission of the offense.
(2) Whether the offense is part of a repetitive pattern of adjudicated offenses which would lead to the determination that the juvenile is beyond rehabilitation under existing rehabilitation programs, as evidenced by past efforts to treat and rehabilitate the juvenile and the response to such efforts; and
(3) The prior history, character traits, mental maturity and any other factor which reflects upon the juvenile’s prospects for rehabilitation.
Arkansas Code Ann. § 9-27-318(e) (1987). If the court finds that a juvenile should be tried as an adult, it must do so by clear and convincing evidence.
We have held in this regard that a criminal information is sufficient evidence to establish that the offense charged is of a serious and violent nature. We have further held the circuit court is not required to give equal weight to each of the above-mentioned statutory criteria. Nor is the court required to make specific findings of fact in a juvenile transfer case.
Under the above standards and guidelines, did the trial court err in failing to grant the motion to transfer? We hold it did not.
We considered the sufficiency of violence attached to a crime as a sufficient factor to refuse transfer in Walker v. State, 304 Ark. 393, 803 S.W.2d 502 (1991). The crime in Walker was first degree murder whereas the offenses in this case are aggravated robbery. Since counsel’s representation to the trial court that appellant had no prior criminal record does not constitute evidence (see Walker v. State, supra), the question before us is whether multiple counts of aggravated robbery are sufficient to withstand a motion for transfer when the opposing evidence is essentially the defendant’s age.
In Walker, the trial court had before it several factors favoring transfer: some evidence tended to negate premeditation; several witnesses testified that the defendant was “an average fourteen-year-old” and was polite, helpful, honest and neighborly, who played baseball, liked to fish and who had shown no previous tendency toward violence. Notwithstanding such testimony, we held the trial court’s reason for refusing transfer was sufficient.
While the charge here is not identical to Walker, it is nonetheless serious. First degree murder and aggravated robbery are both class Y felonies. The difference is that in murder, violence is necessarily present and though aggravated robbery can be completed without the actual use of violence [Ark. Code Ann.' § 5-12-103 (1987)], nevertheless, there are policy reasons why the offenses are treated comparably by the legislature and the trial court could take note of that parity. While we are not here concerned with murder, as in Walker, the mitigating factors presented in Walker are largely lacking here and this appellant is two years older than in Walker.
Bradley v. State, 306 Ark. 621, 816 S.W.2d 605 (1991), involved sixteen and seventeen-year-old defendants who were charged with aggravated assault, Ark. Code Ann. § 5-13-204 (1987), a class D felony, for a shooting that occurred while appellants were in a crowd of people at Riverfest. That was the only evidence presented by the state and appellants presented no evidence to support transfer. Based on the state’s evidence we could not say that the trial court’s finding was clearly against the preponderance of the evidence. Nor can we here conclude the trial court’s finding was clearly against the preponderance of the evidence.
Pursuant to Rule 11 (f) of the Rules of the Supreme Court and Court of Appeals of the State of Arkansas, and pursuant to Ark. R. Crim. P. 36.24, an examination of the complete record has been made for any prejudicial error which may have been objected to below, but not argued on appeal.
For the reasons stated, the judgment appealed from is affirmed. | [
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Donald L. Corbin, Justice.
Appellant, Dary Purifoy, urges this court to reverse his convictions of first degree murder and second degree battery. A Union County jury returned the convictions, and sentenced appellant to prison terms of thirty-five years for the murder conviction and six years for the battery conviction. We affirm.
Appellant presents four arguments for reversal. Each of appellant’s first two arguments encompasses dual challenges to the sufficiency of the evidence and to a variance in the charge contained in the information and the proof presented at trial. Appellant’s first argument focuses on the battery conviction and his second argument focuses on the murder conviction. However, we confine our discussion of appellant’s first two arguments to a single analysis given the similarities in each argument’s relevant facts and applicable law.
The state presented the following proof at trial. On July 8, 1990, appellant was at Crab Apple Point in Calion, Arkansas. Appellant became angry with his girlfriend, Angela Lowery, after Lowery talked to another man at the club. Appellant and Lowery began pushing and hitting each other, and this altercation led to a fight breaking out between several men at the club. The fighters included appellant, David Nesbit, James Wright and Fred Hall on one side, and Scotty Hall and Renford Green on the other side. Another man, Aric Steve Lemons was at the club during the fight, but the state presented proof that Lemons was not involved in the fight. Following the fight, appellant and David Nesbit left Crab Apple Point, and Scotty Hall, Aric Lemons, and Green went down to the lake.
Appellant and David Nesbit returned to the area a few minutes later carrying loaded guns. Appellant was armed with a shotgun and Nesbit carried a .22 rifle. Appellant and Nesbit walked toward the lake where some of the men involved in the earlier fight were standing. Other than appellant and Nesbit, no one in the area was armed. When Lemons decided to go to his car, someone yelled, “There he is,” and appellant and Nesbit began shooting at Lemons. Lemons sustained two gunshot wounds in his chest and shotgun wounds in his right hand, neck, right leg, and right foot. He subsequently died.
During the shooting incident, the crowd at the lake began to run. Testimony indicated that appellant and Nesbit fired toward the crowd. James Wright, a member of the crowd, sustained bullet wounds in both legs, and testified that a .22 bullet remained in one of his legs.
The state subsequently filed an information charging appellant and David Nesbit with first degree murder for causing the death of “Arie Steve Lemons.” The information also charged appellant alone with first degree battery for causing physical injury to James Wright by means of a deadly weapon.
Appellant asserts three specific challenges to the sufficiency of the evidence supporting his convictions. We interpret his primary argument to be that sufficient evidence does not exist to support either the murder or battery conviction because the state’s proof indicated that Lemons’ fatal wounds and Wright’s leg wounds were inflicted with a .22 rifle. Appellant relies on the proof that established Nesbit was armed with a .22 rifle while appellant carried a shotgun.
We must affirm if we find substantial evidence to support appellant’s convictions. Smith v. State, 306 Ark. 483, 815 S.W.2d 922 (1991); Lewis v. State, 295 Ark. 499, 749 S.W.2d 672 (1988). In determining whether there is substantial evidence, we consider only the evidence that is favorable to the state and supports appellant’s convictions. Smith, supra; Crossley v. State, 304 Ark. 378, 802 S.W.2d 459 (1991). In cases such as the instant one, where the theory of accomplice liability is implicated, we affirm a sufficiency of the evidence challenge if substantial evidence exists that the defendant acted as an accomplice in commission of the alleged offense. Ark. Code Ann. § 5-2-402(2) (1987).
The state’s evidence illustrated the intertwined nature of the activities of appellant and David Nesbit on the evening of July 8, 1990. Scotty Hall testified that appellant and Nesbit fought together in the altercation at the club. Curtis Clark, appellant’s half-brother, testified that appellant and Nesbit took a shotgun and a .22 rifle out of Clark’s vehicle and “took off’ together. Testimony regarding the shooting incident itself indicates that one of the two men threw a gun to the other man, and that both appellant and Nesbit shot at Aric Lemons and then shot towards the crowd at the lake.
Ark. Code Ann. § 5-2-403(a)(2) (1987) provides that a person acts as an accomplice of another person in the commission of an offense if, with the requisite intent, he aids, agrees to aid, or attempts to aid the other person in commission of the offense. Nelson v. State, 306 Ark. 456, 816 S.W.2d 159 (1991); Pilcher v. State, 303 Ark. 335, 796 S.W.2d 845 (1990). We have stated that the following factors are relevant in determining the connection of an accomplice with the crime: presence of the accused in the proximity of a crime, opportunity, and association with a person involved in the crime in a manner suggestive of joint participation. Hooks v. State, 303 Ark. 236, 795 S.W.2d 56 (1990).
In this case, the proof at trial was amply sufficient in illustrating the joint nature of appellant’s and Nesbit’s activities. While appellant argues that he never discussed hurting anyone and never intended to help Nesbit hurt anyone, we have held that concert of action to commit an unlawful act may be shown by circumstantial evidence, without direct proof of a conspiracy agreement. King v. State, 271 Ark. 417, 609 S.W.2d 32 (1980). We have further held that under the accomplice liability statute, a defendant may properly be found guilty not only of his own conduct, but also by that conduct of his accomplice. Id. When two or more persons assist one another in the commission of a crime, each is an accomplice and criminally liable for the conduct of both. Parker v. State, 265 Ark. 315, 578 S.W.2d 206 (1979). There is no distinction between principals on the one hand and accomplices on the other, insofar as criminal liability is concerned. Id. As the proof at trial was amply sufficient in illustrating the joint nature of appellant’s and Nesbit’s activities, the fact that Nesbit’s shots may have actually inflicted Lemon’s fatal injuries and Wright’s leg wounds is irrelevant to the question of appellant’s criminal liability for the offenses.
Appellant’s second challenge to the sufficiency of the evidence argues that the state did not prove appellant possessed the requisite intent to be convicted of first degree murder or second degree battery. Ark. Code Ann. § 5-10-102(a)(2) (Supp. 1989) provides that a person commits murder in the first degree if he causes the death of another person with the purpose of causing the death of another person. This court has recognized that intent or state of mind is seldom capable of proof by direct evidence and must usually be inferred from the circumstances surrounding the killing. Williams v. State, 304 Ark. 509, 804 S.W.2d 346 (1991); Starling v. State, 301 Ark. 603, 786 S.W.2d 114 (1990). The factors relevant in inferring the intent necessary for first degree murder include the type of weapon used, the manner of its use, and the nature, extent, and location of the wounds. Williams, supra. In the instant case, the state produced testimony that appellant fired a shotgun at an unarmed Aric Lemons from an approximate distance of fifteen feet. The pathologist who conducted the autopsy on Lemons testified that Lemons sustained a series of shotgun injuries in his neck and limbs. Based on this evidence, it is certainly reasonable to conclude that appellant acted purposefully as an accomplice to David Nesbit in causing the death of Aric Lemons.
Ark. Code Ann. § 5-13-202 (1987) sets out the elements of second degree battery:
(a) A person commits battery in the second degree if:
(1) With the purpose of causing physical injury to another person, he causes serious physical injury to any person;
(2) With the purpose of causing physical injury to another person, he causes physical injury to any person by means of a deadly weapon;
(3) He recklessly causes serious physical injury to another person by means of a deadly weapon[.]
We have held that the only specific intent required by the statute is the intent to cause physical injury. Holmes v. State, 288 Ark. 72, 702 S.W.2d 18 (1986). In this case, the state presented evidence that appellant fired a shotgun directly at the crowd of which Mr. Wright was a member. Based on this evidence, a jury could certainly conclude that appellant possessed the necessary intent to cause injury required by the second degree battery statute.
Appellant’s third challenge to the sufficiency of the evidence argues that the trial court erred in instructing the jury under subsections (a)(1) and (a)(3) of the second degree battery statute because the state failed to prove James Wright suffered a “serious physical injury.” Ark. Code Ann. § 5-1-102(19) (1987) defines serious physical injury as an injury that creates a substantial risk of death or that causes protracted disfigurement, protracted impairment of health, or loss or protracted impairment of the function of any bodily member or organ. Mr. Wright testified that he. spent a week in the hospital to recover from his gunshot wounds. He further testified that one of his legs still “gives out” on him. We have held that the question of whether injuries constitute a temporary or protracted impairment of a function of bodily member or organs is for the jury to decide. Harmon v. State, 260 Ark. 665, 543 S.W.2d 43 (1976). Based on Mr. Wright’s testimony as to the permanent nature of his injury, we believe sufficient evidence of serious physical injury exists. See also Tarentino v. State, 302 Ark. 55, 786 S.W.2d 584 (1990).
Appellant combined his sufficiency of the evidence challenges with challenges to variances in the charges contained in the information and the proof produced at trial. Appellant argues that he was not adequately apprised of the charges against him because the information filed by the state charged appellant as a principal rather than as an accomplice.
An information is not defective if it sufficiently apprises the defendant of the specific crime with which he is charged to the extent necessary to enable him to prepare a defense. Richard v. State, 286 Ark. 410, 691 S.W.2d 872 (1985). As this court has held that there is no distinction between principals and accomplices for purposes of establishing criminal liability, Parker, supra, we find that the allegations contained in the information were sufficient to apprise appellant of the crimes with which he was charged.
Appellant also alleges he was prejudiced by omissions of the language “or another” in both the information and the trial court’s instructions on first and second degree battery. This court has refused to consider trivial variances in wording that have no prejudicial effect on a defendant’s rights. Tackett v. State, 298 Ark. 20, 766 S.W.2d 410 (1989); Hall v. State, 276 Ark. 245, 634 S.W.2d 115 (1982). Since appellant does not present any argument concerning the manner in which omission of the language prejudiced him, we reject his argument concerning the omission.
Appellant’s initial arguments regarding appellant’s accomplice liability also dwell on the fact that David Nesbit was not charged with the offense of battery. Ark. Code Ann. § 5-2-405 (1987) provides:
In any. prosecution for an offense in which the liability of the defendant is based on conduct of another person, it is no defense that:
(2) The other person has not been charged with, prosecuted for, convicted of, or has been acquitted of any offense or has been convicted of a different offense or degree of offense, based upon the conduct in question[.]
This section clearly indicates that the absence of a battery charge against Nesbit is irrelevant to the question of appellant’s liability. See also Roleson v. State, 277 Ark. 148, 640 S.W.2d 113 (1982). Since we find sufficient evidence that appellant’s activities on the night in question satisfied the requirements of first degree murder and second degree battery, we affirm the trial court’s refusal to direct a verdict in favor of appellant.
Appellant’s third argument for reversal concerns the misspelling in the information of the murder victim’s name. The state charged appellant with the murder of “Arie Steve Lemons.” However, the proof at trial established that the victim’s name was “Aric Steve Lemons.” The doctrine of idem sonans provides that a variance between allegation and proof of a given name is not material so long as the pronunciation or sound remains substantially the same. Taylor v. State, 72 Ark. 613, 82 S.W. 493 (1904); Black’s Law Dictionary. In the instant case, the variance involves a silent “e” and a pronounced “c” in “Aric.” The trial court discussed the idem sonans doctrine in overruling appellant’s argument concerning the misspelling of Aric Lemons’ name. The court stated that idem sonans applied in this case because the misspelling of Mr. Lemon’s name in the information was not misleading.
This court has stated that a variance in the spelling of a name is not fatal in cases where the inaccuracy is not misleading. Bennett v. State, 84 Ark. 97, 104 S.W. 928 (1907). Furthermore, Ark. Code Ann. § 16-85-405(a)(2) (1987), provides that a defect in an indictment does not render the indictment insufficient so long as the defect does not prejudice the substantial rights of the defendant. When an offense is described with sufficient certainty to identify the act, section 16-85-405(c) provides that an erroneous allegation as to the person injured is not material. In the instant case, appellant does not allege the manner in which the misspelling of the murder victim’s name prejudiced him, and we see no indication of any confusion surrounding the identity of the victim. Therefore, we affirm the trial court’s ruling that the minor misspelling of the victim’s name in the information did not constitute a fatal defect.
Appellant’s final argument for reversal alleges that the trial court erred in refusing to instruct the jury on causation. At the close of the evidence, appellant proffered the following instruction:
In these instructions you have been told that the State must prove that Dary Purifoy caused a particular result. Causation exists when the result would not have occurred except for the conduct of Dary Purifoy operating either alone or together with another cause, unless the other cause was clearly sufficient to produce the result and the conduct of Dary Purifoy was clearly insufficient by itself.
The trial court refused to instruct the jury as appellant requested.
This court has held that there is no error in refusing to give an instruction where there is no evidence to support the giving of that instruction. Blaney v. State, 280 Ark. 253, 657 S.W.2d 531 (1983); Couch v. State, 274 Ark. 29, 621 S.W.2d 694 (1981). In this case, no evidence exists to support the theory that the death of Aric Lemons and the wounding of James Wright resulted from any cause other than the shooting activities of appellant and Nesbit. The trial court properly instructed the jury on the requirements for accomplice liability, and we have determined that sufficient evidence existed to support appellant’s convictions as an accomplice. Since appellant bases his causation argument solely on the erroneous proposition that he cannot be held liable for his accomplice’s actions, we find no evidence to support a causation instruction. We therefore affirm the trial court’s refusal to give appellant’s requested instruction.
Affirmed. | [
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Robert H. Dudley, Justice.
Appellant was convicted of possession of a controlled substance with intent to deliver and of possession of drug paraphernalia. He appeals and argues that the evidence at trial was insufficient to sustain the verdict. There is no merit in the argument and, accordingly, we affirm.
Appellant and his co-defendant, Tiffany Mitchell, were arrested when police searched the house they were occupying and found drugs and drug paraphernalia. The testimony introduced at appellant’s trial is as follows. Three police officers went to the residence located at 320 North Laurel in North Little Rock pursuant to a search warrant. They first knocked on the kitchen door and loudly announced themselves as police officers. A voice, that one officer recognizes as appellant’s, responded, “Who is it? Just a minute.” This phrase was repeated several times with the speaker’s voice getting fainter, sounding as if he were moving towards the back of the house. The officer testified he also heard footsteps which sounded like a large man running in the house. Appellant is a large man. An officer heard movement in the bathroom area. At that time the officers burst in the residence and found appellant in bed attempting to pull a sheet up over himself and found Tiffany Mitchell hiding in the bedroom closet. They found twenty-one (21) rocks of crack cocaine in the bathtub and on the floor around the toilet and three (3) razor blades containing traces of cocaine on the kitchen table and cabinet.
Various documents were found in the drawers of, and on top of, a dresser, and inside appellant’s briefcase. Several of the documents, including a letter written to appellant and his car insurance policy, reflected that his address was 320 North Laurel. Other documents found indicated appellant’s address was elsewhere, and two (2) documents listed a Rehema Settles as residing at 320 N. Laurel.
The State proved additional facts which linked appellant to the address: When police conducted the search, they found a small dog, which appellant identified as his. In addition, the bedroom closets were full of men’s clothing, and the police testified they saw no women’s clothing in the closets. The clothes appeared to be appellant’s size. An officer testified that a “buy” of cocaine by a confidential informant had taken place at 320 North Laurel approximately three (3) hours prior to the search. Additionally, the officer observed appellant going into the residence shortly before the buy took place. This'officer also testified that he had participated in surveillance of the residence for a year prior to the search and had observed appellant at the residence on a regular basis. Testimony was given by a utility bill collector that he had gone to 320 North Laurel in mid-afternoon of the day of the search to collect the electric bill which was due for that address, and that appellant was there and paid the bill.
Appellant and co-defendant Mitchell both testified. Appellant testified that he was purchasing the duplex located at 320 and 322 North Laurel, but that 320 was rented to a Rehema Settles at the time of the search. Appellant claimed he knew nothing about the drugs. Both appellant and co-defendant Mitchell stated that, at the time of their arrest, they had just returned from a week-long trip to New Orleans and had been in the duplex only a few hours before the search occurred. They testified that they had picked up the key to that side of the duplex from Rehema Settles on their way back into town. Mitchell testified that neither she nor appellant had used the bathroom while they had been there. Appellant testified that he lived elsewhere.
In reviewing the sufficiency of the evidence, this court reviews the evidence in the light most favorable to the appellee and affirms the verdict if there is substantial evidence to support it. Lewis v. State, 295 Ark. 499, 749 S.W.2d 672 (1988). Substantial evidence is defined as evidence which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or another, without resorting to speculation or conjecture. Jones v. State, 269 Ark. 19, 598 S.W.2d 748 (1980).
In order to prove a defendant is in possession of a controlled substance, constructive possession is sufficient. Osborne v. State, 278 Ark. 45, 643 S.W.2d 251 (1982). Neither exclusive nor actual, physical possession of a controlled substance is necessary to sustain a charge. Cary v. State, 259 Ark. 510, 534 S.W.2d 230 (1976). Constructive possession can be implied when the contraband is found in a place immediately and exclusively accessible to the accused, or when it is in the joint control of the accused and another. Osborne, supra. However, joint occupancy alone is not sufficient to establish possession or joint possession; there must be some additional factor linking the accused to the contraband. Id. See also Embry v. State, 302 Ark. 608, 792 S.W.2d 318 (1990). In Plotts v. State, 297 Ark. 66, 759 S.W.2d 793 (1988), we announced that, in addition to joint occupancy, the State must show additional facts and circumstances indicating the accused’s knowledge and control of contraband.
Using the foregoing factors, there was sufficient evidence of constructive possession of the drugs and drug paraphernalia in this case. There was substantial evidence from which the finder of fact could have found that appellant had an ownership interest in the duplex, lived there, and was present when the search was conducted. His voice was initially heard at the front of the house, which was near the kitchen. The razor blades with traces of cocaine were found in the kitchen. There was evidence that an officer heard footsteps and could tell that appellant ran toward the back of the house where the bedroom and bathroom were located. Drugs were discovered in the bathroom area, and appellant was found in the bedroom. Such evidence is circumstantial evidence from which the finder of fact could have concluded that appellant was attempting to dispose of the drugs in the bathroom when the police broke in and thus had knowledge and control of contraband.
Affirmed.
Holt, C.J., not participating. | [
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Per Curiam.
Petitioner, Albert Eldon Williams, by his attorney, Rae Rice Perry, has filed a motion for rule on the clerk. His attorney admits that the record was tendered late due to her misunderstanding of the fact that it is not sufficient merely to file a motion to be relieved of counsel with the lower court before notice of appeal is filed, but that such motion must be granted by the lower court before notice of appeal is filed. See Ark. Sup. Ct. R. 11(h).
We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See per curiam dated February 5, 1979, 265 Ark. 964; Terry v. State, 272 Ark. 243 (1981).
A copy of this opinion will be forwarded to the Committee on Professional Conduct. In re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979). | [
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Jack Holt, Jr., Chief Justice.
This case involves whether the trial court properly granted summary judgment in favor of the appellee, Farm Bureau Insurance Company (Farm Bureau).
The underlying facts of this case show that on October 29, 1988, Lloyd Douglas was driving a car owned by his step-father, Jeff Baker, who was a passenger in the car at the time of the incident. Both men were intoxicated.
Messrs. Douglas and Baker encountered the appellants, Clifford McAnally and Staci Douglas (Lloyd Douglas’s estranged wife), in Ms. Douglas’s car. The Douglas’s daughter was in the car with Mr. McAnally and Ms. Douglas. Mr. Douglas got out of Mr. Baker’s car and approached his wife’s car. He then ostensibly attempted to slap his wife and remove his daughter from his wife’s car, at which time Ms. Douglas and Mr. McAnally drove away. Mr. Douglas returned to Mr. Baker’s car and tried to overtake them in a high-speed chase during which time Mr. Douglas fired a pistol. Ms. Douglas’s car left the road and overturned, resulting in injury to the occupants.
Farm Bureau filed a declaratory judgment action against Messrs. Baker and Douglas, Mr. McAnally, Ms. Douglas, and other parties who were in Ms. Douglas’s car at the time of this incident seeking a declaration that insurance coverage did not exist because its policy specifically excluded damage caused by intentional acts.
Mr. Baker filed a motion for summary judgment, after which Farm Bureau and Mr. McAnally and Ms. Douglas also filed motions for summary judgment. All of these motions were denied by the trial court because disputed issues of fact existed. Mr. Douglas and the other named parties failed to file an answer, and a default judgment was entered against them.
Farm Bureau then amended its complaint to allege that the occurrence did not arise out of the “ownership, maintenance, or use” of Mr. Baker’s automobile, as required by the insurance policy, and added theories of joint venture and agency to impute Mr. Douglas’s actions to Ms. Baker.
Again, Farm Bureau and Mr. Baker filed motions for summary judgment. The trial court denied Mr. Baker’s motion for summary judgment, but granted that of Farm Bureau stating:
* * * *
4. The intentional act of Lloyd Daniel Douglas in pointing a gun at the vehicle driven by Duree Hodges and firing said gun at or near said vehicle was the proximate cause of said vehicle leaving the road and overturning as a result of which some of the occupants of said vehicle were allegedly injured.
5. Said occurrence did not arise out of the ownership, maintenance, or use of the insured vehicle.
6. Therefore, there exists no coverage for Baker for this occurrence, under Plaintiffs policy of insurance issued to Baker, and there is no duty on Plaintiff to defend Baker . . . nor is there any obligation on the part of Plaintiff to pay any judgment rendered against Baker therein.
* * * *
Mr. McAnally and Ms. Douglas appeal and assert three points of error: 1) that the trial court erred in granting summary judgment in favor of Farm Bureau, 2) that the trial court erred in failing to grant summary judgment in favor of them and Mr. Baker, and 3) that the trial court erred in granting summary judgment to Farm Bureau as to a disputed issue of fact.
The appellant’s first and third arguments on appeal both assert that the trial court erred in granting summary judgment in favor of Farm Bureau.
In Register v. Oaklawn Jockey Club, Inc., 306 Ark. 318, 811 S.W.2d 315 (1991) (citing Rickenbacker v. Wal-Mart Stores, Inc., 302 Ark. 119, 788 S.W.2d 474 (1990)), we noted that Ark. R. Civ. P. 56 provides that summary judgment is appropriate where the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact. On appeal, in determining whether there is an issue of fact, the proof is viewed most, favorably to the party resisting the motion, with all doubts and inferences resolved against the moving party. The burden of proving that there is no genuine issue of material fact rests with the party moving for summary judgment.
In this case, the issue is whether the actions of Mr. Baker, the named insured under Farm Bureau’s insurance policy, preclude coverage under his policy. Farm Bureau’s policy apparently provides that it covers, “bodily injury and property damage . . . caused by an accident” but excludes “bodily injury or property damage caused by [the expected or unexpected results of] intentional acts.”
Essentially, Farm Bureau attempts to preclude coverage by asserting imputed liability and agency theories against Mr. Baker; Mr. Baker, however, refutes these claims and argues negligent entrustment of his automobile to Mr. Douglas. Also, whether this incident and resulting injuries occurred as the result of the discharge of the gun during the chase or the manner in which the automobile was driven is another matter contested by the parties. Consequently, there are genuine issues of material fact still in dispute, and the trial court’s granting of summary judgment was in error.
With regard to the appellants’ argument that the trial court erred in failing to grant summary judgment in their favor, we will not consider the matter since the denial of a motion for summary judgment is not subject to review on appeal, even after a trial on the merits. McElroy v. Grisham, 306 Ark. 4, 810 S.W.2d 933 (1991) (citing Rick’s Pro Drive 'N Ski Shop, Inc. v. Jennings-Lemmon, 304 Ark. 671, 803 S.W.2d 934 (1991)).
Reversed and remanded.
Glaze, J., not participating. | [
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Robert H. Dudley, Justice.
This case determines our standard for the admissibility of novel scientific evidence and the standard for the admissibility of calculations as to probabilities arising from that novel scientific evidence.
The prosecutrix, a seventeen-year-old girl, was raped in a laundromat in southwest Little Rock. She called the police. They quickly responded and began searching the area for the offender. After only a few minutes, the victim spotted the appellant and identified him as the man who had attacked her. He was arrested. She was taken to the University Hospital where her vagina was swabbed to collect samples of secretions. The swab samples, along with blood samples taken from both the prosecutrix and the appellant, were sent to the laboratory of the Federal Bureau of Investigation (FBI) in Washington, D.C. There, the FBI conducted deoxyribonucleic acid (DNA) print identification tests.
The State gave the appellant notice that, at trial, it would offer evidence to prove that appellant’s DNA profile matched that found in the swab samples, and that it would offer evidence that the probability of selecting a person at random from an unrelated black population and getting the same profile was only 1 in 3,700. The appellant objected to the proposed evidence. A preliminary hearing was held, and the trial court ruled that the evidence was admissible. It was then admitted at trial, and the appellant was convicted. This court has taken the case as it involves a case of first impression involving a significant legal issue.
1. THE STANDARD
The majority approach for determining the admissibility of novel scientific evidence continues to be the test enunciated in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). Under that standard, courts admit novel scientific evidence only when the theory upon which the evidence is based has gained general acceptance within the relevant scientific community. Id. at 1014. This court has never adopted the Frye standard even though we signaled it as “see” in a per curiam opinion. See Dumond v. State, 294 Ark. 379, 743 S.W.2d 779 (1988). Several states have rejected the Frye standard. In doing so the Supreme Court of Georgia wrote: “[T]he Frye rule of ‘counting heads’ in the scientific community is not an appropriate way to determine the admissibility of a scientific procedure. . . . The significant point is that the trial court makes this determination based on the evidence available to him rather than by simply calculating the consensus in the scientific community.” Caldwell v. State, 260 Ga. 278, 285-86, 393 S.E.2d 436, 441 (1990).
A growing number of jurisdictions, now numbering about one-third, have adopted a more liberal standard of admissibility. Imwinkelried, The Standard for Admitting Scientific Evidence: A Critique from the Perspective of Juror Psychology, 28 Vill. L. Rev. 554,557-59 (1983). This more liberal standard, and the one which we adopt, is based upon the relevancy approach of the Uniform Rules of Evidence. The pertinent rules are the following:
A.R.E. Rule 401:
Definition of “relevant evidence". — “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. [Emphasis added.]
A.R.E. Rule 402:
Relevant evidence generally admissible — Irrelevant evidence inadmissible. — All relevant evidence is admissible, except as otherwise provided by statute or by these rules or by other rules applicable in the courts of this State. Evidence which is not relevant is not admissible. [Emphasis added.]
A.R.E. Rule 702:
Testimony by experts. — If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experi ence, training, or education, may testify thereto in the form of an opinion or otherwise. [Emphasis added.]
The relevancy approach requires that the trial court conduct a preliminary inquiry which must focus on (1) the reliability of the novel process used to generate the evidence, (2) the possibility that admitting the evidence would overwhelm, confuse or mislead the jury, and (3) the connection between the novel process evidence to be offered and the disputed factual issues in the particular case. See 3 J. Weinstein & M. Berger, Weinsteins Evidence ¶ 702[03] at 702-18 to 702-20 (1991).
A. RELIABILITY
Under this relevancy approach, reliability is the critical element. See United States v. Downing, 753 F.2d 1224, 1238 (3d Cir. 1985) for a list of cases so holding. The relevancy approach, unlike the Frye standard, permits, but does not require, a referendum by the relevant scientific community to determine the reliability of the technique. Many times that factor alone will determine the issue. On the other hand, courts may look to a number of other factors which bear upon reliability. These include the novelty of the new technique, its relationship to more established modes of scientific analysis, the existence of specialized literature dealing with the technique, the qualifications and professional stature of expert witnesses, and the non-judicial uses to which the scientific techniques are put. Andrews v. State, 533 So. 2d 841 (Fla. Dist. Ct. App. 1988) (citing United States v. Downing, 753 F.2d at 1238-39, and Weinstein & Berger, supra, at ¶ 702[03]).
The frequency of erroneous results produced by a novel scientific technique is an important component of reliability. At one extreme, a technique which yields erroneous results more often than correct ones would be of no value to the trier of fact. At the other extreme, a technique which is always correct would be of significant value. In addition to the rate of error, the trial court might examine the type of error which could occur.
Another important component of the reliability of scientific evidence is proof of the use of the correct protocol during the specific test. This proof is fundamental to the question of reliability. To illustrate, we quote from Imwinkelried, The Debate In The DNA Cases Over the Foundation For the Admission of Scientific Evidence: The Importance of Human Error As a Cause of Forensic Misanalysis, 69 Wash. U. L.Q. 19, 25:
When the issue, however, is the trustworthiness of scientific evidence, courts generally cannot dismiss the possibility of error as purely theoretical or minimal. Studies have established impressive evidence of a substantial error margin in contemporary laboratory analysis. In the 1950s the American Academy of Forensic Sciences’ Toxicology Section conducted a study of the accuracy of blood alcohol analyses. That study unearthed indications of “a great degree of error.” In the mid-1970s, Dinovo and Gottschalk undertook to evaluate the proficiency of laboratories conducting drug analyses. They too reported significant variations in the level of proficiency from laboratory to laboratory.
Later in .the same decade the Law Enforcement Assistance Administration funded a much larger test, the Laboratory Proficiency Testing Program. Two hundred and forty laboratories participated. The researchers sent the participating laboratories twenty-one sets of blind samples for analysis. On three of the twenty-one sets, fewer than half the participating laboratories reported correct, complete findings. One of the lead researchers reluctantly concluded that the tests demonstrated that “a disturbingly high percentage of laboratories are not performing routine tests competently. . . .”
In the early 1980s, other researchers administered a proficiency test to 105 toxicology laboratories in forty-nine states. Like the Laboratory Proficiency Testing Program researchers, these researchers found the laboratories’ performance “disappointing.” They discovered “considerable” variation in proficiency, especially in quantitative analysis. On some samples, the coefficient of variation was 133 percent.
In the mid 1980s, several organizations published proficiency studies of laboratories conducting immunoassay tests to detect the presence of contraband drugs in urine samples. The studies were conducted under the auspices of such respected organizations as the College of American Pathologists. Two researchers for the Office of Technology Assessment of the United States Congress bluntly summarized the studies by generalizing that “error rates continue to be high.”.A study conducted by the Centers for Disease Control yielded particularly disturbing findings. One laboratory reported erroneous results on 66.5 percent of 160 samples analyzed.
In 1987, Collaborative Testing Services made public the results of a proficiency test of laboratories engaged in electrophoretic analysis of enzymes and proteins. Sixty-eight laboratories participated in the test. Sixteen of the laboratories (23.5%) erred on one or both samples.
More recently, the Forensic Science Foundation released the results of proficiency tests of document examiners. Like the studies described in the preceding paragraphs, these tests disclosed an alarmingly high incidence of misanalysis. The percentages of error were in the double figures. The incidence of error was so high that it “should provide anyone with cause for concern.”
In sum, extensive hard evidence exists of a substantial margin of error in modern forensic analysis. When an opposing party points to a brief gap in chain of custody to challenge the trustworthiness of an item of physical evidence, a court plausibly can dismiss the challenge as raising only theoretical risks of error. However, when the challenge is directed at a forensic laboratory analysis, the court cannot reject the challenge summarily. [Footnotes omitted.]
The lengthy quotation is set out to impress upon the trial judge his or her heavy responsibility in determining whether the correct protocol was followed in the particular test at issue. If the laboratory that performed the test did not follow reliable procedures to ensure accurate test results, the test should not be admitted. State v. Schwartz, 447 N.W.2d 422 (Minn. 1989). As one court aptly wrote, “[W]e are not, at this juncture, holding that DNA fingerprinting is now admissible willy-nilly.” Cobey v. State, 80 Md. App. 31, 43, 559 A.2d 391, 398 (Md. Ct. Spec. App. 1989).
When a proponent of scientific evidence seeks to have admitted not only novel scientific evidence, but, in addition, seeks to have admitted the mathematical probabilities arising from that scientific evidence, the trial judge must also make a preliminary determination of the reliability of the process used to calculate those probabilities. To illustrate this type of evidence, we quote from a paragraph from the case of State v. Brown, 470 N.W.2d 30, 31 (Iowa 1991):
In this case, four “fragments” of Brown’s known DNA samples were matched with four fragments of the crime scene DNA. The probability of an individual possessing the particular genetic pattern for those four segments were, respectively, one in 25,094; one in 441; one in sixty; and one in 194. When these figures are combined, the likelihood of a person matching in all four fragments, according to the State’s expert, would be one in several billion.
Under the standard we adopt, a trial judge would have to make a preliminary determination of the reliability of such things as population genetics databases which are used in calculating such probabilities before allowing an expert to extrapolate calculations as to the probabilities in a particular case. Again, this determination places a heavy responsibility upon the trial judge.
In sum, novel scientific evidence coupled with evidence of mathematical probabilities should be admitted only when the proponent of that evidence makes a preliminary showing of reliability of both the novel scientific evidence and of the process underlying the calculations. The opponent of the evidence may cross-examine and attack the showing of reliability with his own experts at the preliminary hearing. If the evidence is determined to be reliable and admissible, the opponent may, after its admission at trial, cross-examine or directly attack the evidence since the jury must determine the weight and credibility to be given it.
B. NOT MISLEADING
After assessing the reliability of the evidence, the trial court must also weigh any danger that the evidence might confuse or mislead the jury. The danger that scientific evidence will mislead the jury may be the greatest where the jury is not presented the data on which the expert relies, but instead, must accept the expert’s assertions as to the accuracy of his conclusions. See United States v. Downing, 753 F.2d at 1239 (citing Weinstein and Berger, supra, 702[03] at 702-20 n. 18). The trial court must then weigh its assessment of the reliability of the novel scientific evidence against the danger that the evidence, even though reliable, might nonetheless confuse or mislead the finder of fact. In that weighing process, the trial judge must keep in mind the “presumption of helpfulness” accorded expert testimony generally under A.R.E. Rule 702. “The relevancy approach favors admissibility whenever the general conditions for admissibility of evidence have been met.” Weinstein and Berger, supra, ¶ 702[03] at 702-21.
This Rule 702 determination of whether the evidence might confuse or mislead the jury is separate from a Rule 403 weighing. Under the relevancy approach, the proponent of the evidence must first prove that it is reliable and will not confuse or mislead the jury. If the court rules that it is admissible under Rule 702, the opponent of the evidence might then object to it on the basis that its probative value is outweighed by unfair prejudice, or it is a waste of time, or it is needless presentation of cumulative evidence. A.R.E. Rule 403.
C. HELPFUL
The third general consideration under the Rule 702 relevancy analysis is whether the proposed expert testimony is sufficiently tied to the facts of the case to aid the trier of fact in resolving the dispute. The proponent of the evidence must show the trial court precisely how the expert’s testimony is relevant and helpful to the case. Failure to make this proof is a sufficient ground to exclude the evidence. United States v. Downing, 753 F.2d at 1242 (citing United States v. Fosher, 590 F.2d 381, 383 (1st Cir. 1979)).
II. FACTS OF THIS CASE
A. DNA IDENTIFICATION
The evidence in this case and the holding of cases from other jurisdictions clearly establish that the procedures involved in DNA profile analysis have been widely used in laboratories for research and diagnostic purposes for many years. It is only the transfer of this technology to a forensic setting which has recently occurred.
The background of DNA identification is set out below. The background information is taken from the testimony in this case and the following articles: Burk, DNA Identification Possibilities & Pitfalls Revisited, 31 Jurimetrics J. 53 (1990); Imwinkelreid, The Debate In The DNA Cases Over the Foundation For the Admission Of Scientific Evidence: The Importance Of Human Error As A Cause Of Forensic Misanaly sis, 18 Wash. U. L.Q. 19 (1991); Moenssens, DNA Evidence And Its Critics - How Valid Are Challenges?,31 Jurimetrics J. 97 (1990); Thompson & Ford, DNA Typing: Acceptance And Weight Of The New Genetic Identification Tests, 75 Va. L. Rev. 45 (1989); Note, Evidence Of DNA Fingerprinting Admitted For Identification Purposes In Rape Trial, 12 U. Ark. Little Rock L.J. 543 (1989-90).
In the early 1800’s scientists started to look inside the cell and learned that it had a nucleus. In the 1860’s scientists identified chromosomes, which are rodlike bodies within the nucleus, and then they were able to distinguish individual chromosomes within a cell by their size and shape. As research progressed, scientists discovered that there are forty-six (46) chromosomes in each ordinary human cell. The Austrian monk Gregor Mendel manipulated pea nuclei and established that traits such as color and shape are controlled by heredity factors; these factors came to be called genes, which are specific regions on the chromosomes. Continuing to push forward the limits of human knowledge, other scientists discovered a substance that was called deoxyribonucleic acid, DNA, which is the building block of chromosomes, and thus the basic genetic material.
In 1953, two (2) scientists, Watson and Crick, discovered the exact nature of DNA, which they described as a double helix. The experts in this case, and some courts, have described DNA as appearing like a spiral staircase. Research continued as scientists attempted to discover the components of the DNA molecule and began to unravel the basic genetic code within the strands of DNA. It was learned that the DNA strands are composed of four (4) nucleotide bases. These bases pair up, or hybridize, in certain ways to form the DNA molecule. The sequence of the bases along the strand determine the message the DNA carries.
It was then discovered that there are certain enzymes that cut DNA at very specific sites, or loci, on a strand. These findings ultimately led to the discovery of DNA probes, which are produced by recombinant DNA techniques. A DNA probe is simply a single strand of DNA which will attach to another strand of DNA when it finds a complimentary sequence. These probes were first used for diagnosis of genetic diseases, and later to look for DNA sequences that differentiate each individual. The research also established that the DNA in every cell of an individual is the same and remains so during the lifetime of that individual, at least in a general sense. Finally, it has been postulated, and this has not been disproven to date, that the DNA of one person is different from the DNA of all other people, with the exception of identical twins.
DNA testing does not evaluate all of the genetic information carried by a person’s DNA. Rather, the tests identify variations in the structure of the DNA molecule. These structural variations are revealed by cutting DNA strands into pieces with restriction enzymes that break the DNA only at certain recognition sites. The recognition sites may be absent in some people; the uncut region of DNA from such a person will be longer than that from persons who have the recognition site. These variations of DNA fragments are called restriction fragment length polymorphisms, or RFLPs.
In order to visualize these characteristic fragment variations, the DNA fragments are separated on the basis of size. Native DNA exists as an intertwined double helix of two strands of nucleotide bases; these are separated into single strands which are cut by restriction enzymes, and the DNA fragments are placed into wells cut at one end of an agarose gel. The gel looks something like a slab of grey gelatin. When an electric current is applied, the pull of the current causes the electrically charged DNA fragments to move through the gel. The smaller fragments move more quickly through the gel than do the larger fragments. This migration, by size, in the direction of the current creates lanes of DNA with different sized fragments separated into bands. This process is known as electrophoresis.
For the ease of handling, the bands are transferred to a filter through a process called Southern blotting; if the blotting process is done properly, the fragment bands on the filter will occupy the same positions as they did in the gel. The bands are then visualized through the use of a radioactive DNA probe that binds to an RFLP fragment of interest. Probes may be single-locus, identifying only a single band at a time, or they may be multilocus, identifying many RFLPs simultaneously. Photographic film is then placed next to the filter, and the radioactive probe will expose the film at the location of the DNA fragments which have hybridized with the probe, creating an autoradiograph that reveals the positions of the RFLP bands.
The banding pattern revealed by the autoradiographic patterns indicates the RFLPs carried by the particular person. Because these characteristics are inherited, they can be used to show relatedness, which has led to the use of such tests in paternity cases. See Ark. Code Ann. § 9-10-108 (Supp. 1991). RFLP banding may also be used to link suspects with materials from the scene of the crime, or as was done in this case, link the appellant with the crime by linking his RFLPs with those in the DNA found in the victim’s vagina.
The interpretation of the autoradiographs to determine if the band patterns from the known and unknown samples match is conducted as follows: Assuming the autoradiographs produce banding patterns suitable for comparison, the examiner first determines whether a match may be called by visually comparing the bands. If the bands in the lanes containing the known DNA and the unknown DNA do not align with each other, they are declared not to match, and the examiner then determines whether the non-match should be interpreted as inconclusive or as excluding the donor of the known sample as a possible donor of the DNA in the questioned sample.
If the donor of the known sample is not excluded, a computerized measurement is made by comparing the bands from the known sample and the questioned specimen to the size markers located on the autoradiograph. This comparison allows the examiner to extrapolate the length (the number of base pairs) of the bands of DNA from the evidentiary samples. If the bands from the known and questioned samples otherwise appear to be consistent, they are said to match if they fall within a “match window” of + /- 2.5% of the band’s size.
The following courts have held DNA testing is admissible as forensic evidence under the Frye standard: Smith v. Deppish, 248 Kan. 217, 807 P.2d 144 (1991); State v. Schwartz, 447 N.W.2d 422 (Minn. 1989); State v. Davis, No. 71694, 1991 WL 134460 (Mo. July 23, 1991); State v. Ford, 392 S.E.2d 781 (S.C. 1990); Glover v. State, 787 S.W.2d 544 (Tex. Ct. App. 1990); State v. Woodall, 385 S.E.2d 253 (W. Va. 1989).
DNA profiling has been upheld under relevancy standards such as ours. See Andrews v. State, 533 So. 2d 841 (Fla. Dist. Ct. App. 1988); Caldwell v. State, 260 Ga. 278, 393 S.E.2d 436 (1990); State v. Brown, 470 N.W.2d 30 (Iowa 1991); Spencer v. Commonwealth, 238 Va. 275, 384 S.E.2d 775 (1989). One state has taken judicial notice of DNA typing reliability. State v. Woodall, 385 S.E.2d 253 (W. Va. 1989).
No court has held DNA profiling evidence to be inadmissible per se. A few courts have questioned the results in a particular case or in some way limited the testimony. See State v. Schwartz, supra (DNA evidence reliable only if performed in accordance with appropriate laboratory procedures); State v. Woodall, supra (DNA profiling reliable but test results not admitted because inconclusive); People v. Castro, 144 Misc. 2d 956, 545 N.Y.S.2d 988 (N.Y. Sup. Ct. 1989) (evidence of inclusion inadmissible because of failure of testing lab to use generally accepted scientific techniques).
In sum, we have no hesitancy in affirming the trial court’s ruling that DNA testing is such a sufficiently reliable scientific procedure that it may be admitted in evidence. The issue then becomes whether the laboratory protocol was shown to be reliable.
Harold Deadman, a Ph.D. in organic chemistry, a supervisory special agent with the FBI, and a member of the DNA analysis unit testified that he used proper protocol in conducting the analysis. He additionally testified to the quality control steps and the in-house proficiency testing which the FBI uses in its DNA analysis unit.
Dr. James Hardin, an associate professor of medicine, biochemistry, and molecular biology at the University of Arkansas for Medical Sciences, and associate director of research at the Arkansas Cancer Research Center, testified that the FBI’s testing procedures were “very reliable, very conservative, and very well settled.” He further testified that he was familiar with the correct protocol from his years of experience in a molecular biology laboratory. Dr. Gary Bannon, assistant professor in the Department of Biochemistry and Molecular Biology at the University of Arkansas for Medical Sciences, testified the FBI’s methodology was “very reliable.”
The appellant’s expert witness, Dr. Helen Benes, assistant professor in the Department of Biochemistry and Molecular Biology at the University of Arkansas for Medical Sciences, agreed with the protocol followed and testified:
In my examination of Doctor Deadman’s notes that he sent to me I could basically detect no human error. I believe that the sample was handled appropriately, that the DNA was extracted appropriately, that the distinction between the male and female DNA was also done appropriately and I have some disagreement with or inconsistencies with some of the numbers, but that we’ll come to later, but I do not believe that they have anything to do with human error and I’m sure that Doctor Deadman can explain these. The interpretation of the DNA patterns I am essentially with the DNA patterns. I will tell you that when Doctor says that there is a band I also believe that there is a band. When Doctor Deadman says that there is no band present I also find no band present. The opposite you might consider if he claims there is a band I agree with that. He makes no claims to a band that I do not see. So we are basically in agreement with that aspect of the analysis.
The protocol was thus shown to be sufficiently reliable. The examination then shifts to determining the reliability of the interpretation of the autoradiographic patterns. Dr. Deadman first testified about the banding revealed by the autoradiographs. He testified that he ran four (4) probes in this case. One (1) was inconclusive. Two (2) showed that the upper bands from the sample taken from the victim’s vagina were consistent with the upper bands of the samples taken from the appellant. On the fourth probe, Dr. Deadman, at first, could not get a banding pattern due to the insufficiency of the sample, but, by reprobing with a longer radiation exposure, was able to declare a match of both the upper and lower bands.
The appellant’s expert, Dr. Helen Benes, testified that there was only one (1) clear match of the upper bands; that two (2) of the others were unclear, although she could understand how others would see them as matches.
In rebuttal, the State then called Dr. Gary Bannon and Dr. Jim Hardin. They testified they did not agree with Dr. Benes’s criticisms of Dr. Deadman’s work and instead fully agreed with Dr. Deadman’s matching of the bands.
The evidence established that autoradiographs may sometimes be ambiguous or difficult to interpret and that the analyst can err in measuring the bands and in interpreting the results. Determining whether two (2) samples match can involve subjective judgement. Just as it is difficult to distinguish between two (2) individuals on the basis of blurry photographs, it may be difficult to distinguish between (2) different DNA types if the bands are unclear. A misidentification may occur if two (2) different types are mistaken for one another. The trial court, in deciding whether the testimony about matching of bands was reliable, considered the possibility of a mistake in the subjective judgment of the scientists. The trial court heard Dr. Deadman on the issue, heard Dr. Benes’s criticisms of his judgment, and heard Drs. Bannon and Hardin’s rebuttal. The admissibility of expert testimony rests on the broad discretion of the trial court, Sims v. Safeway Trails, Inc., 297 Ark. 588, 764 S.W.2d 427 (1989), and we cannot say the trial court abused its discretion in ruling that the protocol used in administering this test was reliable and that the interpretations were sufficiently reliable to be admitted in evidence.
B. EXTRAPOLATING CALCULATIONS AS TO PROBABILITIES
Evidence of a DNA match made by a scientist who followed the proper laboratory protocol is admissible without drawing any statistical inferences. The scientist could simply testify to having performed the necessary steps and having determined that the two (2) samples examined match. The next step of extrapolating calculations as to the probability of random matches is not an essential step to DNA identification testing but, because of its impact, the State sought to add it to the testimony.
These calculations, arrived at by using population genetics, have been questioned by at least three (3) courts and one commentator. The Supreme Court of Minnesota questioned its tendency to prejudice a jury and limited the use of such statistics. See State v. Schwartz, 447 N.W.2d 422 (Minn. 1989). As of 1989, nineteen (19) jurisdictions had refused to follow the reasoning of the Schwartz doctrine. See State v. Schwartz, 447 N.W.2d at 429 (Kelly, J., concurring). The Supreme Court of Alabama has also expressed concern over the potential tendency the statistics have to prejudice a jury. See Ex parte Perry, 586 So.2d 242 (Ala. 1991). In Perry, the court adopted an approach similar to the one we adopt in that they separated the determination of the reliability of the statistical population genetics portion of the analysis from the determination of the reliability of the DNA “matching” evidence. The Superior Court of the District of Columbia, criminal division, felony branch, in United States v. Porter, No. 706277-89, 1991 WL 319015 (D.C. Super. Sept. 20, 1991), in applying the Frye test, held that the government failed to demonstrate general acceptance within the scientific community of the calculations of probabilities. In addition, Dr. Eric Lander, a mathematician, has raised questions about the adequacy of existing population genetics databases which are used in calculating the probabilities. See Moenssens, DNA Evidence And Its Critics - How Valid Are The Challenges?, 31 Jurimetrics J. 97 (1990).
While calculations as to probabilities based upon population genetics have been questioned, they are clearly relevant and, if proven to be reliable, would be helpful to a jury, particularly in rape cases such as this one where there are no witnesses other than the victim and the accused. Thus, under our standard, if the extrapolations are reliable, they should be admitted in evidence.
Once two or more DNA patterns derived from loci that are known to be polymorphic (different among individuals) have been matched, the question arises whether this matching is coincidental. This is the point at which statistics begin to play a role.
In order to establish estimates of probability, the F.B.I. employs a technique called fixed bin analysis. This system is used to determine population allele frequencies and, in turn, to determine the frequency of an allele in an evidentiary sample. This approach is designed to compensate for the inability to precisely measure alleles.
First, the F.B.I. constructs tables of allele frequencies. In order to construct these tables, DNA profiles, using the same RFLP process and probes previously discussed, are run by the F.B.I. on a population. In this case, we are concerned only with the data from the black population since the appellant fits within that group. These blood samples come from studies at the Baylor University School of Medicine in Houston, Texas, from a crime laboratory in Dade County, Florida, and from the University of South Carolina Medical School in Charleston, South Carolina.
For each of the four (4) probes, the allele or alleles resulting from the profile are assigned to bins, a category of alleles which all fall within a predetermined size range defined by the size markers which are run with each DNA test. As to each probe, the frequency for each bin is calculated by dividing the total number of alleles falling within it by the total number of alleles resulting from the profiling of all the samples for that probe. The first size marker occurs at 640 base pairs; so the first bin, which is called bin 1, contains alleles measuring between 1 and 639 base pairs. The second category, or bin 2, contains alleles measuring between 640 and 672 base pairs, and so on through twenty (20) bins.
Once the frequencies of the bins are established for each probe, the tables of allele frequencies are used to determine the estimate of the probability that a person of the population relevant to the suspect, picked randomly, would have a DNA profile matching the profile displayed by the DNA from the samples from the same population group.
The likelihood of a coincidental match decreases as the number of matching bands and the rarity of those bands increases. Suppose, for example, there is a matching of two (2) bands, one reflects a band found in 10 % of the group’s population and the other one reflects a band found in 50% of the group’s population. An analyst would conclude that the probability of coincidental match is .10 X .50 = .05, or a 5 % probability. This approach assumes that the probability of one band occurring does not affect the probability of any other band occurring. This assumption is valid only if the entire population being studied is in a condition known as Hardy-Weinberg Equilibrium. Dr. Deadman testified for the State that the population genetics were appropriate in every manner.
Dr. Benes, in testifying for the appellant, expressed concern that the database for black people was not representative of the population group at-large. She also expressed concern as to whether the databases were in Hardy-Weinberg Equilibrium.
Dr. Deadman and Dr. Jim Hardin testified in rebuttal that probabilities given in this case were “conservative.” The significance of the “conservative” rebuttal testimony is that in the best known case on this subject, People v. Castro, 144 Misc. 2d 956, 545 N.Y.S.2d 985 (N.Y. Sup. Ct. 1989), the court, in quoting an expert on the issue, wrote: “Conservative or reduced calculations may also correct the Hardy-Weinberg deviation problems.” Id. at 993, 545 N.Y.S.2d at 993.
Upon reviewing the foregoing evidence we cannot say that the trial court abused its discretion in admitting the calculations as to probabilities. However, just because there was no meaningful attack upon the population genetics in this case does not mean that there can not be a successful attack in future cases. In fact, there was such a successful attack in the case of United States v. Porter, No. 706277-89 (D.C. Super. Ct., Sept. 20, 1991). Just how small the sample population may be, how the sampling is done, and the assumptions that underlie the probability calculation from the sample may all be the subject of dispute. In short, the population criterion against which DNA identification matches are declared is not a closed issue.
III. APPOINTMENT OF EXPERT WITNESS
The appellant was charged by information, made bond, was determined to be an indigent, and an attorney was appointed for him. He stood trial on October 26 and 27,1989 and, at that trial, challenged the admissibility of the DNA testing. The jury heard Dr. Deadman’s testimony for the State on DNA testing. The presiding special judge ruled the DNA results were not admissible and declared a mistrial because the jury had heard the DNA-testing testimony.
The State gave notice that it intended to retry the appellant and asked for a rehearing on the admissibility of DNA profiling. The appellant asked for funds to employ an expert on DNA testing. Three (3) days later, on November 30, 1989, the regularly elected judge held a hearing and ruled that DNA testing was admissible but, because of a shortage of county funds, declined to appoint an expert in DNA analysis for the appellant. That ruling was in error.
DNA tests should not be ruled admissible before the accused’s expert has had a chance to examine the evidence, procedures, and protocol. Ideally, an accused should even be provided with the actual DNA samples in order to reproduce the tests. As a practical matter, this may not be possible because, as in this case, the samples were so small that the entire sample was used in the proponent’s testing of the evidence. Consequently, access to data, methodology, and actual results are crucial. An accused must be given the opportunity for independent expert review before a determination of reliability is made.
However, the regular trial judge subsequently ordered that funds be provided to employ an expert witness for the appellant. Appellant obtained the service of Dr. Benes. The State’s data, including the autoradiographs, methodology, and results were supplied to the appellant’s expert, Dr. Benes. She apparently had sufficient time to examine all of the materials. Later, at trial, the appellant’s attorney used the materials to cross-examine the State’s witnesses. Dr. Benes, a most competent witness, testified on direct examination in great detail about the specific nature of her disagreement with Dr. Deadman’s interpretation of the DNA profile analysis. Given that the accused was afforded an expert to testify about these matters, and that the accused has not shown any prejudice as a result of the expert’s late appointment, we decline to reverse the judgment of conviction. We do not reverse for trial error in absence of prejudice. Berna v. State, 282 Ark. 563, 670 S.W.2d 434 (1984), cert. denied, 470 U.S. 1985 (1985).
IV. SUFFICIENCY OF EVIDENCE
The appellant’s final argument is that the evidence is not sufficient to support the verdict. We treat the argument in summary fashion. On appeal, we review the evidence in the light most favorable to the appellee. Jones v. State, 297 Ark. 499, 763 S.W.2d 655 (1989). We affirm a conviction if substantial evidence exists to support it. Evidence is substantial if the jury could have reached its conclusion without having to resort to speculation or conjecture. Id. The testimony of the rape victim satisfies the substantial evidence requirement in a rape case. Id. The testimony of the prosecutrix alone is thus sufficient to support the verdict. Additionally, appellant attacks the prosecutrix’s testimony. However,the credibility of witnesses is the province of the jury. We will not disturb the jury’s judgment. Taylor v. State, 296 Ark. 89, 752 S.W.2d 2 (1988).
Affirmed.
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Jack Holt, Jr., Chief Justice.
This case involves the interpretation of Ark. Code Ann. § 5-13-202 (a)(4)(C)(1987), which provides as follows:
(a) A person commits battery in the second degree if: * * * *
(4) He intentionally or knowingly without legal justification causes physical injury to one he knows to be:
* * * *
(C) An individual sixty (60) years of age or older or twelve (12) years of age or younger; ....
On February 26,1991, the appellee, Willie Edward Joshua, was charged by amended felony information with battery in the second degree on the allegation that he caused injury on July 11, 1990, to Bobby Johnson, Jr., a minor who he knew to be twelve years of age or younger.
At a pretrial hearing in the Pulaski County Circuit Court on March 1, Joshua made an oral motion to dismiss on the basis that Bobby Johnson was twelve years, five months, and four days old at the time of the incident and, therefore, did not come within the definition of the statute. The trial court announced from the bench that Joshua’s motion would be granted and subsequently entered the corresponding order on March 8, 1991.
The appellant, State of Arkansas, asserts a single point of error on appeal and argues that the trial court erred when it concluded that an individual who has attained his twelfth birthday, but who has not yet reached his thirteenth birthday, is not an individual “twelve years of age or younger” for purposes of application of the definition of second degree battery as set forth in section 5-13-202.(a)(4)(C). We find that the State’s argument has merit.
In interpreting statutes, our basic rule is to give effect to the intention of the legislature, Fairchild v. State, 286 Ark. 191, 690 S.W.2d 355 (1985), making use of common sense, Henderson v. Russell, 267 Ark. 140, 589 S.W.2d 565 (1979), and assuming that when the legislature uses a word that has a fixed and commonly accepted meaning that the word at issue is presumed to have been used in its fixed and commonly accepted sense. Muhammed v. State, 300 Ark. 112, 776 S.W.2d 825 (1989); Bass v. State, 285 Ark. 341, 686 S.W.2d 441 (1985). We interpret the statute at issue in such a way as to give meaning and effect to every word in the statute, Locke v. Cook & Cook, 245 Ark. 787, 434 S.W.2d 598 (1968), but even penal statutes should not be interpreted so strictly as to reach absurd consequences that are clearly contrary to legislative intent. Russell v. State, 295 Ark. 619, 751 S.W.2d 334 (1988).
The interpretation of similar statutes in other jurisdictions has produced divergent views. Compare State v. Carlson, 223 Neb. 881, 394 N.W.2d 669 (1986) (the Supreme Court held that as used in a statute setting forth the crime of sexual assault of a child, the phrase “fourteen years of age or younger” designated persons whose age is less than or under 14 years, and also designated persons who have reached or passed their 14th birthday but have not yet reached their 15th birthday); People ex rel. Makin v. Wilkins, 22 A.D.2d 497, 257 N.Y.S.2d 288 (1965) (the court held that a child 10 years and 3 months of age was “a child ten years of age” until such child reached its 11th birthday, so that the felony provisions of the questioned statute were activated); State v. Hansen, 404 So.2d 199 (Fla. App. 1981) (the Supreme Court adopted the rationale of the court of appeals when it found that an 11 year, 3 month old victim was within the plain language of the statute addressing the sexual battery of “a person 11 years of age or younger”); and Phillips v. State, 588 S.W.2d 378 (Tex. Crim. App. 1979) (the court held that the statutory language, “a child who is 14 years of age or younger,” included in its protection all children who had not attained their fifteenth birthday and protected the 14 year, 1 month, and 5 days old victim in that case), with State v. Jordan, 528 A.2d 731 (R.I. 1987) (the Supreme Court held that the phrase “thirteen years of age or under,” as used in a first-degree child molestation sexual assault statute, referred only to victims who were assaulted on or before their 13 th birthday, and not to victims who were between 13 and 14 years of age at the time of the assault); State v. McGaha, 306 N.C. 699, 295 S.E.2d 449 (1982) (the Supreme Court held that for purposes of the statute defining a sex offense in the first degree as engaging in sex with a child “of the age of 12 years or less,” that once a child passed his twelfth birthday he was over 12 years of age); and Knott v. Rawlings, 250 Iowa 892, 96 N.W.2d 900 (1959) (the Supreme Court held that under the statute prohibiting the commission of lascivious acts with “a child of the age of sixteen years, or under,” a child who was 16 years, 6 months and 3 days old, was not 16 years or under as that phrase was used in the statute).
In State v. Carlson, supra, the Supreme Court of Nebraska based its decision on the following rationale:
If “less, than fourteen years of age” or “under fourteen years of age” had been used in [the statute], the protection of that statute would terminate when a child reached the 14th birthday. Because “less than” or “under” is absent from [the statute], while fourteen years of age or younger” appears in the statute, the compelled logical conclusion is that the statute’s protection extends into and throughout the year immediately following a person’s 14th birthday. When the plain and unambiguous language of [the statute] is considered, to the ordinary person “fourteen years of age” means that one has passed the 14th birthday but has not reached the 15th birthday. Thus, “fourteen years of age” is a temporal condition existing on the 14th birthday and continuing until the 15th birthday. Any other construction of “fourteen years of age” would be a perversion of popular parlance.
(Citations omitted.)
We agree with this reasoning and hold that the phrase “twelve years of age or younger,” as used in section 5-13-202(a)(4)(C), designates persons whose age is less than or under twelve years, as well as persons who have reached and passed their twelfth birthday but have not reached their thirteenth birthday.
As an additional matter, Joshua contends in his brief that the State’s appeal should be dismissed because the State filed its notice of appeal sixteen minutes before the trial court filed its final order.
We noted in Edmonds v. State, 282 Ark. 79, 665 S.W.2d 882 (1984) (citing Caskey v. Pickett, 272 Ark. 521, 615 S.W.2d 359 (1981)), that a notice of appeal must be filed within 30 days from entry of the judgment, decree or order appealed from, and even if the appeal is filed before entry of judgment, it is treated as being filed on the date the judgment was entered. Consequently, the State’s notice of appeal was timely.
However, the United States Supreme Court has held in Finch v. United States, 433 U.S. 676 (1977), that jeopardy attached where the trial court held, on an agreed statement of facts, that the information failed to state an offense and dismissed the case without a formal finding of guilt or innocence. Here, as in Finch, the trial court held under the stipulated facts that the defendant did not come within the language of the statute at issue and dismissed the case. In substance, that was a judgment of acquittal on the facts, and once a defendant has been acquitted, he cannot be retried regardless of how “egregiously erroneous” the legal ruling leading to that acquittal may be. Sanabria v. United States, 437 U.S. 54, 75 (1978) (citing Fong Foo v. United States, 369 U.S. 141 (1962)).
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Steele Hays, Justice.
This cause originated as a Petition for Access to Records Under the Arkansas Freedom of Information Act (FOIA) filed in the Jefferson Circuit Court. The petition was filed by appellants, Mike Hengel and Donrey, Inc., d/b/a Pine Bluff Commercial. It sought to compel the City of Pine Bluff and Police Chief Bobby Brown to provide access to the jail log, shift sheet, incident and arrest reports and any other records prepared by the offices of the City of Pine Bluff. The records requested were documents regarding the arrest of a suspect in the December 13, 1990, murder of Lenora King.
Acting on a tip that a suspect had been arrested in the King case and having checked police records on December 21st and 22nd without finding mention of an arrest, police reporter DeAnn Smith went to the police department on December 24,1990, and requested a copy of the jail log. The sergeant informed her that the record would not be available until Wednesday, December 26th at 8:00 a.m. the next regular business day.
Later that day a police officer confirmed there had been an arrest and Smith was told she needed to talk to the information officer, Captain Mossburg. Mossburg was uncertain whether there had been an arrest and told Smith she should talk to Captain Adkins, the shift captain, who said he was not aware of an arrest. Adkins refused to let Smith see the jail log and referred her to Chief Bobby Brown. Chief Brown said he did not know if there had been an arrest and doubted whether anyone could provide her with that information. Ms. Smith turned her information over to a fellow reporter, Scott Ritter, who called Chief Brown and requested a copy of the jail log on December 24,1990. Brown refused to permit inspection of the jail log because he was concerned that it would jeopardize the case.
Smith returned to the police department on December 26th and jail logs covering Friday afternoon of December 21, 1990, through December 26 were shown to her. The logs did not reflect an arrest in the Lenora King murder. Smith then requested the jail log for Thursday December 20th through Friday afternoon December 21st. The logs were finally released to her and there was an arrest for capital murder, however, the name and address of the person had been blacked out. Upon further inquiry, Smith was referred to the prosecuting attorney’s office and was informed that charges had been filed earlier that day against James Jones, Jr. for the murder of Lenora King. Smith subsequently learned that Jones had been arrested on December 20, and jailed on December 21st.
After a hearing the court held that the jail log, shift sheet, incident reports, arrest reports and all other reports and records kept in the usual operation of the Pine Bluff Police Department are public records within the meaning of the Arkansas FOIA, Ark. Code Ann. § 25-19-105 (1987), and should be open to inspection and copying during the regular hours of the custodian of the records. Despite its finding that the documents are public records, the court further found that the appellees did not violate the FOIA because release of the information to the public would jeopardize an ongoing investigation, therefore, the records fall within the scope of the “undisclosed investigation” exception to the Act.
The question is now before this Court on appeal by the Pine Bluff Commercial. Three issues are presented: (1) whether the trial court erroneously applied the “undisclosed investigation” exception to the records requested; (2) whether the Pine Bluff Police Department violated the FOIA when it excised portions of a public record; and (3) whether the trial court erred in holding that the police department’s public records only have to be made available for inspection between 8:00 a.m. and 4:00 p.m., Monday through Friday, excluding holidays.
The trial court held, and the parties do not dispute, that the jail logs, arrest records and shift sheets are “public records” for purposes of the FOIA. The appellants assert, however, that these records are not “undisclosed investigations” and, therefore, are not exempt from disclosure.
The Arkansas Freedom of Information Act, Ark. Code Ann. § 25-19-105(a) and (b)(6) (Supp. 1991) provides:
(a) Except as otherwise specifically provided by this section or by laws specifically enacted to provide otherwise, all public records shall be open to inspection and copying by any citizen of the State of Arkansas during regular business hours of the custodian of the records.
(b) It is the specific intent of this section that the following shall not be deemed to be made open to the public under the provisions of this chapter:
(6) Undisclosed investigations by law enforcement agencies of suspected criminal activity.
The newspaper contends that it has a statutory right of routine access to the police department jail log, arrest records and shift sheet.
The record is unclear as to the precise form of these documents however, the information contained in them is apparent. The jail log includes the time a suspect is brought to the jail, the name of the arresting officer, the charge and the time and date of booking. The arrest record contains pertinent personal information about the person arrested such as the suspect’s name, sex, race and date of birth, what the person is charged with, and it may or may not state facts surrounding the arrest.
Upon arrival for duty a jailer on each shift inspects the shift sheet listing the people that are incarcerated to make sure all prisoners are accounted for. The shift sheet also includes what each person was arrested for, the prisoner’s sex, who the trustees are that are available for work, and the names of the jailer and matron.
Prior decisions of this Court that deal with the “undisclosed investigation” exception to the FOIA are not helpful because they either involved a request for records which were clearly “investigative” or concerned an investigation that had been closed and, thus, outside the exception. Arkansas Gazette v. Goodwin, 304 Ark. 204, 801 S.W.2d 284 (1990); Martin v. Musteen, 303 Ark. 656, 799 S.W.2d 540 (1990); McCambridge v. City of Little Rock, 298 Ark. 219, 766 S.W.2d 909 (1989); City of Fayetteville v. Rose, 294 Ark. 468, 743 S.W.2d 817 (1988).
While we find no cases that address this issue, there are opinions of the Attorney General that conclude that certain arrest reports are subject to disclosure under the FOIA. Arkansas Att’y Gen. Op. 87-115 (reports concerning traffic violations); Arkansas Att’y Gen. Op. 82-59 (arrest records). According to J. Watkins, The Arkansas Freedom of Information Act 72 (1988), the records that the Attorney General has concluded are not exempt under subsection (b) (6) are “apparently not sufficiently investigative in nature to qualify for the exemption, since they are not internal ‘work product’ materials containing details of an investigation.” Professor Watkins reason that withholding such records would not serve any of the policy goals underlying the law enforcement exemption even though privacy or reputational interests of the suspect may be implicated. He concludes that those interests are outweighed by the strong public concern with official government action that marks the beginning of the criminal justice process. Id.
Almost every state has some type of open records law similar to the Arkansas FOIA and although our provision is unique, other states have provisions which except records dealing with the investigation of crime. See generally City of Fayetteville v. Rose, supra; Caledonian Record Publishing Co. v. Walton, 154 Vt. 15, 573 A.2d 296 (1990); A Practicable Review of State Open Record Laws, 49 Geo. Wash. L. Rev. 720 (1981). In analyzing this issue we are guided by decisions from other states dealing with arrest records. With some exceptions, the cases dealing with arrest records and the like have generally held such records not to be exempt from public disclosure. K. Gorier Karnezis, Annotation, Validity, Construction, And Application of Statutory Provisions Relating To Public Access To Police Records, 82 A.L.R.3d 19 (1978). The Vermont Supreme Court, for example, concluded that arrest records are not records dealing with the detection and investigation of crime under the exception from disclosure within the Vermont Access To Public Records Act, but rather, are the product of such investigation subject to required disclosure under the Act. Caledonian Record Publishing Co. v. Walton, 154 Vt. 15, 573 A.2d 296 (1990).
Likewise, in State v. Lancaster Police Dept., 38 Ohio St.3d 324, 528 N.E.2d 175(1988), the court held that the arrest record docket book, which is a continuous chronological listing of the daily arrest, detention and citation activity of the Lancaster Police Department, is not a confidential law enforcement investigatory record within the exception of the Ohio Public Record Law, and is therefore subject to disclosure.
Particularly instructive is a Texas case in which the Houston Police Department maintained several different types of records relating to criminal activities that a newspaper sought access to the under the Texas Open Records Act. Houston Chronicle Publishing Co. v. City of Houston, 531 S.W.2d 177 (Tex. Civ. App. 1975). The police department refused to disclose the information relying on the provision of the Open Records Act which exempts from disclosure “records of law enforcement agencies that deal with the detection and investigation of crime. . . .” The Texas Court of Civil Appeals construed the exception to include only such matters as “officers’ speculations of a suspect’s guilt, officers’ views as to the credibility of witnesses, statements by informants, ballistics reports, fingerprint comparisons, or blood and other laboratory tests.” Id. at 187. The court reasoned that providing access to such records might reveal the names of informants, creating a threat of intimidation of potential prosecution witnesses and endanger the State’s position in criminal prosecutions by the use of such materials to the disadvantage of the prosecution. Id. The court then held that the offense report, which included such documentation as that information that the court construed as fitting into the exception to the Act was not open to the public. The court concluded, however, that the arrest records, which contained information about an arrestee such as name, race, aliases, place and date of birth, physical description, history of arrests, the offense charged with, time of arrest, booking number and arresting officers, were an entirely different matter and must be disclosed in the public’s interest.
In addition to the guidance provided by Caledonian Record Public Co., Lancaster Police Dept., and Houston Chronicle Publishing Co., there are additional factors that persuade us that the records requested in this case should be open to the public under the Arkansas FOIA. First, the record is insufficient to sustain a holding that the jail log, arrest record, and shift sheet were investigatory in nature to fit within the exception to public disclosure. While the testimony elicited provides a description of what information each record contained, that information does not indicate that the records are sufficiently investigative in nature to qualify for the exemption. There was testimony by Chief Brown explaining that there were two suspects in the case and the department was trying to keep Jones’ name out of the paper so that the other suspect would not abscond to avoid apprehension, but, there was no proof regarding the existence of another suspect nor were there other arrests in the Lenora King murder. The appellees argue that the decision to reveal the name of a suspect should be based on whether or not it would hinder an investigation and that assessment should be made on a case by case basis by the officer in charge of the investigation. But that reasoning would broaden the “undisclosed investigation” exception and that comes within the province of the legislature rather than this Court.
Second, the rules of statutory interpretation that have been applied to the Arkansas FOIA convince us these records must be disclosed. In the first opinion interpreting the FOIA this Court ruled that the Act was passed for the public benefit and was to be liberally construed. In Laman v. McCord, 245 Ark. 401, 432 S.W.2d 753 (1968) the Court stated:
Whether a statute should be construed narrowly or broadly depends upon the interests with which the statute deals. As a rule, statutes enacted for the public benefit are to be interpreted most favorably to the public. In the act now before use the General Assembly clearly declared the State’s public policy: “It is vital in a democratic society that public business be performed in an open and public manner.” We have no hesitation in asserting our conviction that the Freedom of Information Act was passed wholly in the public interest and is to be liberally interpreted to the end that its praiseworthy purposes may be achieved.
Id. at 404-405, 432 S.W.2d at 755; See also J. Watkins, The Arkansas Freedom of Information Act 4-8 (1988).
The Court in Laman also concluded that in accordance with this principle, FOIA exceptions are to be narrowly construed. That holding was reaffirmed in Ragland v. Yeargan, 288 Ark. 81, 702 S.W.2d 23 (1986):
We conclude that the objectives of the FOIA are such that whenever the legislature fails to specify that any records in the public domain are to be excluded from inspection, or is less than clear in its intendments, then privacy must yield to openness and secrecy to the public’s right to know the status of its own affairs. We hold, therefore, that the burden of confidentiality rests on the legislation itself, and if the intention is doubtful, openness is the result.
Id. at 85-86; 702 S.W.2d at 25; See also Watkins, supra.
Accordingly, we hold that for purposes of the FOIA the jail log, arrest records and shift sheet are not records containing undisclosed law enforcement investigations and are subject to disclosure pursuant to Ark. Code Ann. § 25-19-105 (1987).
The Commercial also contends that it is a violation of the FOIA to alter public records, or to black out information in the jail log as occurred here. We have no hesitation in agreeing with that contention. To expunge, excise or alter in any way information open to public inspection is a denial of the rights granted by the FOIA, thus, clearly in violation of the Act.
Appellants’ final argument is that it was error for the circuit court to hold that the public’s access to the records of the Pine Bluff Police Department was limited to 8:00 a.m. to 4:00 p.m., Monday through Friday, excepting legal holidays. We cannot sustain that holding. The Arkansas FOIA provides that public records are to be open to inspection “during regular business hours of the custodian of the records.” The Pine Bluff Police Department operates twenty-four hours a day, seven days a week. When the nature of an agency of the public of necessity operates twenty-four hours a day, it follows in the absence of some showing to the contrary that those are its “regular business hours.” That being so, its records must be available for reasonable inspection at all times during those hours of operation.
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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(l)(c). Charlotte Nixon Berry was injured in a car accident on December 4, 1987. Appellants Bobby and Lois Nixon, as parents and next friend of Berry, sued appellee H & C Electrical Company for damages caused by its employee, Wayne Head, while acting within the scope of his employment. H & C Electrical Company’s insurance policy limit was $65,000. As there were other persons injured in the same accident, appellants anticipated that the policy limit of $65,000 would not cover all the damages resulting from the accident. They therefore amended the complaint to include Berry’s insurance carrier, appellee Farm Bureau, as a defendant. Appellants claimed that Farm Bureau was obligated to Berry under the underinsured motorist clause of her policy. Farm Bureau moved for summary judgment on the basis that Berry did not have underinsured motorist coverage as of the date of the accident. The trial court granted Farm Bureau’s motion for summary judgment. The case was then tried to the court and judgment was entered against H & C Electrical Company for $61,172.99. Appellants received $28,895.10 from H & C Electrical Company’s policy, thereby leaving Berry underinsured in the amount of $32,277.89. From the order granting summary judgment in favor of Farm Bureau comes this appeal. We affirm.
On appeal, appellants claim Berry is entitled to recover from Farm Bureau under the underinsured motorist coverage stated in her policy declaration effective December 4,1987, the date of the accident. Appellants claim that Ark. Code Ann. § 23-89-209 (Supp. 1989), which was effective July 20, 1987, requires Farm Bureau to have provided Berry with underinsured motorist coverage on December 4, 1987. Section 23-89-209 states that “[ejvery 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[.]” (Emphasis supplied.)
Farm Bureau claims there was no underinsured motorist coverage in Berry’s policy which was in effect on December 4, 1987. Berry’s policy was renewed on July 5, 1987; Farm Bureau maintains it was not required to offer Berry under insured motorist coverage until January 5,1988, the first renewal date of Berry’s policy after the effective date of section 23-89-209.
In support of their argument, appellants claim section 23- 89-209 is unambiguous and as such, must be given effect as it reads without resorting to construction or interpretation. Kansas City So. Ry. Co. v. Pledger, 301 Ark. 564, 785 S.W.2d 462 (1990). Appellants cite the following quotation, “The first rule to be applied in statutory construction is to give the words in the statute their usual and ordinary meaning. If there is no ambiguity we give a statute effect just as it reads.” Chandler v. Perry-Casa Public Schools Dist. No. 2, 286 Ark. 170, 172, 690 S.W.2d 349, 351 (1985).
Appellee Farm Bureau points out that since the time of Berry’s accident, section 23-89-209 has been amended. 1991 Ark. Act 209 had an effective date of February 21, 1991, and amended section 23-89-209 to require that underinsured motorist coverage be rejected in writing. 1991 Ark. Act 1123 amended section 23-89-209 to provide that “[t]he notice to policy holders regarding the right to reject the coverage required in this section applies to policies issued after February 21, 1991, or the first renewal after February 21, 1991, of an existing policy[.Y’ (Emphasis supplied.) Farm Bureau argues that the amendments reflect the legislature’s intent that section 23-89-209’s requirement of offering underinsured motorist coverage apply to new policies issued on or after July 20, 1987, section 23-89-209’s effective date, and to existing policies on the first renewal after July 20, 1987.
The amendments to section 23-89-209 indicate the legislative intent that underinsured motorist coverage be offered to every insured and that rejection of such coverage be written. We hold the specific expression in 1991 Ark. Act 1123 that the written rejection requirement be effective on “February 21,1991, or the first renewal after February 21, 1991” indicates the legislative intent that the initial requirement of offering the underinsured motorist coverage be effective on July 20,1987, or the first renewal after July 20, 1987. See Nathaniel v. Forrest City School Dist. No. 7, 300 Ark. 513, 780 S.W.2d 539 (1989).
This holding is consistent with the following statements of the general rule of the effective dates of statutes concerning insurance policies:
An insurance policy is governed by statutes existing when it [is] issued, .... Statutes subsequently enacted ordinarily do not affect contractual rights, whether the concern be with policies of personal, property, or liability insurance, or bonds; however, where an existing policy is renewed, although the results vary, the better rule is to regard the statute as applicable to the extended contract.
Appleman, 12 Insurance Law and Practice § 7041 at 171-176 (1982).
Insurance statutes are usually considered to operate prospectively only, and not retroactively, so as not to affect contracts issued prior to the date of passage of such act.
Appleman, 19 Insurance Law and Practice § 10326 at 54 (1982).
In M.F.A. Mutual Ins. Co. v. McKinley, 245 Ark. 326, 328, 432 S.W.2d 484, 485 (1968), a case involving the application of our uninsured motorist statute to an accident occurring after the effective date of the statute, we stated “we cannot give the statute a retroactive effect that would cut off a valid defense available to the insurer before the passage of the act.” Although McKinley involved facts distinctly different from the present case, we think it is a statement of our inclination to follow the above-quoted general rule.
In granting Farm Bureau’s summary judgment the trial court held that “because the policy in question was renewed on July 5, 1987, prior to the effective date of the Underinsured Motorist Act which was July 20, 1987, Farm Bureau was not required to offer underinsured motorist coverage to Berry at that time.” Summary judgment is an extreme remedy and should only be granted where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Morris v. Valley Forge Ins. Co., 305 Ark. 25, 805 S.W.2d 948 (1991). On appeal, we need only decide if the granting of summary judgment was appropriate based on whether the evidentiary items presented in support of the motion left a material question of fact unanswered. Barraclough v. Arkansas Power & Light Co., 268 Ark. 1026, 597 S.W.2d 861 (1980). There is no question of fact involved here, only the question of law regarding the interpretation of a statute. Thus, we cannot say the trial judge erred in granting summary judgment.
Affirmed.
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Per Curiam.
Warren H. Webster, Bar Id. 73125, has petitioned this Court to accept the surrender of his license to practice law. We note that the affidavit attached to the petition refers to a “plea agreement” that Mr. Webster’s license would be voluntarily surrendered for at least three years. However, there is no provision in the Rules of this Court for a conditional surrender of a license to practice law, such surrenders are absolute. There is provision for later requests for reinstatement.
Upon the recommendation of the Committee on Professional Conduct we accept the surrender of the license of Warren H. Webster without qualification. | [
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Jack Holt, Jr., Chief Justice.
This is a tort of outrage case.
The appellant, Dr. Robert Ross, treated the appellee, Dorothy Patterson, as a patient in his OB/GYN practice in Pine Bluff, Arkansas. During the course of Mrs. Patterson’s pregnancy, and unknown to her at that time, Dr. Ross developed a substance abuse problem with drugs and alcohol.
The day before Mrs. Patterson went into labor in September 1984, Dr. Ross received a complaint and notice of hearing from the Arkansas State Medical Board that he was to appear before them in December on charges of falsifying drug prescriptions. Dr. Ross, who later admitted his alcohol and drug addictions, immediately made arrangements for treatment of his substance abuse and left Pine Bluff to be admitted to an impaired physician’s rehabilitation center in Mississippi, leaving his wife to handle the transfer of responsibility of his patients to a medical group of which he was a member.
As a result of Dr. Ross’s absence when Mrs. Patterson went into labor and when she was admitted into Jefferson Memorial Hospital, Dr. Siva Kaipa, one of the physicians who took calls for Dr. Ross as part of the medical group, became Mrs. Patterson’s attending physician and delivered her baby, who died several hours after birth. After the baby’s funeral, Mrs. Patterson learned that Dr. Ross’s absence was due to his efforts to address his substance abuse.
The estate of the deceased infant, Christopher Patterson, filed a medical malpractice suit against Dr. Ross, his nurse, Frances Vanlandingham, Dr. Kaipa, and Jefferson Memorial Hospital. Mrs. Patterson also asserted a personal claim against Dr. Ross, Nurse Vanlandingham, and the Jefferson Memorial Hospital for deceit and the tort of outrage.
Prior to trial, the appellees entered into a settlement agreement with the hospital. A jury trial was held between December 5 and December 21, 1989, and the medical malpractice claim against Dr. Kaipa resulted in a mistrial. Dr. Ross and Nurse Vanlandingham were both found not liable for medical malpractice or deceit in connection with the infant’s death. The jury also found that Nurse Vanlandingham was not liable for the tort of outrage; however, it returned a verdict against Dr. Ross in this regard and awarded Mrs. Patterson $175,000 in compensatory damages and $50,000 in punitive damages.
On appeal, Dr. Ross asserts three points of error: 1) that there was not substantial evidence to support the jury’s verdict against him for the tort of outrage, 2) that the trial court abused its discretion in admitting unfairly prejudicial evidence of his substance abuse, and 3) that the trial court erred in the manner in which it instructed the jury on the issues of tort of outrage and punitive damages.
We have taken a very narrow view of claims for the tort of outrage, also known as the intentional infliction of emotional distress, see Harris v. Arkansas Book Co., 287 Ark. 353, 700 S.W.2d 41 (1985) (citing Givens v. Hixson, 275 Ark. 370, 631 S.W.2d 263 (1982)), and we continue to do so here. We find that there was not substantial evidence to support the jury’s verdict against Dr. Ross for the tort of outrage, and we reverse and dismiss.
In Sterling Drug, Inc. v. Oxford, 294 Ark. 239, 743 S.W.2d 380 (1988) (citing M.B.M. Co., Inc. v. Counce, 268 Ark. 269, 596 S.W.2d 681 (1980)), we stated that one is subject to liability for outrage if he or she willfully or wantonly causes severe emotional distress to another by extreme and outrageous conduct: conduct that is 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 civilized society. Furthermore, the emotional distress for which damages may be sought must be so severe that no reasonable person could be expected to endure it. Tandy Corp. v. Bone, 283 Ark. 399, 678 S.W.2d 312 (1984).
Furthermore, the tort of outrage is not easily established and requires clear-cut proof; merely describing the conduct as outrageous does not make it so. Givens v. Hixson, supra.
In Sterling Drug, we found that where a corporate employer suspected that an employee had reported it to the General Services Administration for pricing violations, and had entered on an eighteen-month campaign to force the employee to resign even though agents of the employer knew that the employee was under pressure because of a recent divorce, the employer’s conduct did not rise to a sufficient level to support a verdict for outrage as recognition of the tort of outrage did not open the doors of the courts to every slight insult or indignity one must endure in life.
Likewise, in Sterling v. Upjohn Healthcare Servs., Inc., 299 Ark. 278, 772 S.W.2d 329 (1989), we held that where an employee’s supervisor had taken a dislike to him and made various atempts to undermine his authority with his employees and to have him fired by falsely accusing him of always being drunk and of making untrue statements on his job application, by delaying the processing of his expense vouchers, by having employees watch him and report back to his supervisor, by instructing him not to communicate with other employees, and by cursing him, the conduct did not meet the standard required for the tort of outrage.
In Neff v. St. Paul Fire & Marine Ins. Co., 304 Ark. 18, 799 S.W.2d 795 (1990), we also noted that where the hospital was doing no more than it had a legal right to do — releasing the seventeen-week-old fetal remains to one of the parents without consulting the other — the conduct, even if improper, would not equate with outrageous conduct necessary for the tort of outrage. See generally Deason v. Farmers and Merchants Bank, 299 Ark. 167, 771 S.W.2d 749 (1989); Bell v. McManus, 294 Ark. 275, 742 S.W.2d 559 (1988); and Webb v. HCA Health Servs. of Midwest, Inc., 300 Ark. 613, 780 S.W.2d 571 (1989).
In contrast, where an employer interrogated an employee, whom it suspected of theft, at thirty minute intervals for most of a day, denied him valium when he was under obvious stress, and threatened him with arrest, we found that there was substantial evidence to support the jury verdict for outrage and placed special emphasis on the fact that even though the employer knew of the employee’s lower than normal emotional stamina, it refused to permit him to take his medication during the interrogation. Tandy Corp. v. Bone, supra.
In Hess v. Treece, 286 Ark. 434, 693 S.W.2d 792 (1985), cert. denied, 475 U.S. 1036 (1986), Treece, a police officer, sued Hess, the Little Rock City Director, for outrage. Hess, who was angry with Treece over a personal matter, conducted surveillance of Treece, communicated to other individuals that he would have Treece fired at any cost, and apparently made false reports concerning Treece’s employment conduct. Basing our decision in part on the fact that Hess’s actions continued over a two year time span, we found substantial evidence to support the jury verdict for outrage.
We also found sufficient evidence to support a finding that corporations operating a perpetual care cemetary had committed the tort of outrage where the corporations’ agents had repeatedly driven heavy equipment across two gravesites of members of the appellees’ family in an attempt to alleviate a drainage problem which the corporations had caused and which could have been solved in other ways, and had continued construction even after the vaults had been exposed and the distress to the appellees had become apparent. Growth Properties I v. Cannon, 282 Ark. 472, 669 S.W.2d 447 (1980).
In viewing the facts of this case, we cannot find substantial evidence to satisfy the requirements of the tort of outrage set out in Sterling Drug, Inc. v. Oxford, supra, or Tandy Corp. v. Bone, supra. To the contrary, Mrs. Patterson was not aware during the course of her pregnancy that Dr. Ross had a substance abuse problem. When Dr. Ross was confronted with the complaint from the Arkansas State Medical Board, he enlisted the help of his wife to handle the necessary communications for the transfer of responsibility for his patients to the “call group” (of which he was a member) consisting of Drs. Kaipa, Devi, and Bracy. Although there was initially some confusion at the hospital as to which doctor would be responsible for Dr. Ross’s patients when Mrs. Patterson first went to the hospital, the confusion was resolved by the time that she was actually in labor and admitted to the hospital.
Mrs. Patterson claims that she suffered severe emotional distress because Dr. Ross never saw her during the last month of her preganancy and because he failed to personally inform her that he was leaving town.
Even if we were to accept Mrs. Patterson’s claim as true that she was upset because Dr. Ross did not see her during the last month of her pregnancy, which fact is disputed by Dr. Ross and Nurse Vanlandingham as well as office records of her visits, Mrs. Patterson testified that she always had the utmost faith and confidence in Dr. Ross, even in the last month of her pregnancy, and that she had resisted suggestions from family members that she change doctors.
Additionally, Dr. Reid Pierce, another physician with an OB/GYN practice in Pine Bluff, Arkansas, testified that Dr. Ross’s decision to ask his wife to handle the transfer of responsibility for his patients to a physician on call for him was professionaly acceptable. Mrs. Patterson had also signed a form acknowledging that he might be unavailable at the time of her delivery and consenting to treatment by another physician.
Mrs. Patterson’s own psychologist testified that her depression stemmed primarily from the death of her child, the unfortunate occurrence of which the jury had found Dr. Ross to be not liable. In fact, Mrs. Patterson testified that her severe emotional distress did not begin until after the death of her baby, when she learned the reason for Dr. Ross’s absence.
Although there is some testimony that Mrs. Patterson suffered from “post-partum emotional distress” brought about by her realization of Dr. Ross’s alcohol and drug abuse and that she blamed herself for “trusting” him, it is insufficient to sustain the jury’s findings.
While we cannot and do not sanction Dr. Ross’s intemperate use of alcohol, drug abuse, and lack of professionalism in not assisting in making final arrangements for Mrs. Patterson’s delivery, there is no clear-cut proof, as we require in all tort of outrage cases, that his conduct toward Mrs. Patterson was so outrageous in character and so extreme in degree as to rise to the level necessary for the tort of outrage.
In sum, then, there is a lack of substantial evidence to support Dr. Ross’s liability for the tort of outrage. Consequently, we need not discuss Dr. Ross’s remaining two points of error.
Reversed and dismissed.
Glaze, Corbin and Brown, JJ., dissent. | [
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Per Curiam.
Appellant’s attorney John Hollis is directed to appear before this court at 9:00 a.m. on January 27,1992, to show cause why he should not be held in contempt of court for failure to file a brief in this case. | [
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Donald L. Corbin, Justice.
This appeal involves appellee’s petition to discontinue a spur track providing service to appellant in Sebastian County. Pursuant to Ark. Code Ann. § 23-12-607 (1987), appellee filed with the Arkansas Highway Commission a petition to discontinue the spur track. Appellant was not represented by counsel at the hearing held on May 24,1990, at which the Commission granted appellee’s petition. Appellant filed a motion for reconsideration and a motion to recuse on July 26, 1990. The Commission denied both motions on August 1, 1990.
Appellant appealed to the Pulaski County Circuit Court, which affirmed the Commission’s order on March 28, 1991. Appellant appealed the circuit court’s decision to this court pursuant to Ark. Code Ann. § 23-2-425 (1987). Appellee filed a motion to amend the judgment pursuant to ARCP Rule 52(b), which the trial court denied. Appellant appealed again and appellee cross-appealed. Appellant then filed a motion to set aside the judgment pursuant to ARCP Rule 60(b) and attached as an exhibit thereto a letter from the Commission to the circuit court stating the Commission had applied the wrong standard of proof in the hearing below. The Commission filed a petition to intervene on the basis that it applied the wrong standard of proof and asked the trial court to remand for application of the proper standard of proof. Both the motion to set aside the judgment and the petition to intervene were denied by the trial court on June 12, 1991. Appellant appealed to this court again.
Our standard of review of Arkansas Highway Commission cases is a product of both statutory law and case law. Section 23-2-425(b)(3) provides the procedure for judicial review of the Commission’s order and states in pertinent part that “any finding of fact by the circuit court shall not be binding on the Supreme Court, and the Supreme Court may and shall review all the evidence and make such findings of fact and law as it may deem just, proper, and equitable.” In Arkansas Commerce Comm’n v. St. Louis S.W. Ry., 247 Ark. 1032, 448 S.W.2d 950 (1970), we interpreted this statute to mean that we review the Commission’s cases in the same manner as chancery cases, therefore our review is de novo. However, in making the de novo review, we do not completely ignore the findings of the Commission. Torrans v. Arkansas Commerce Comm’n, 246 Ark. 930, 440 S.W.2d 558 (1969). Thus, our review on appeal is de novo, however, we must affirm if the Commission’s decision is not contrary to the preponderance of the evidence. Id.; see Transport. Co. v. Champion Transp., Inc., 298 Ark. 178, 766 S.W.2d 16 (1989).
On appeal, appellant asserts two points of error. First, appellant contends the trial court erred in not reversing the Commission’s decision because it relied on the wrong standard of proof in considering the application to discontinue the spur track. Second, appellant argues the trial court erred in not reversing the Commission’s decision because the Commission’s act in hearing the petition created an appearance of bias. On cross-appeal, appellee makes two arguments. First, appellee argues appellant’s objection to the Commissioners’ hearing this case was untimely and therefore waived. Second, appellee argues the circuit court erred in finding the Commissioners should have disqualified themselves. We affirm the trial court’s judgment in all respects.
Appellant’s first argument is that the Commission applied the wrong standard of proof when it considered appellee’s petition to discontinue the spur track. In the order granting appellee’s petition, the Commission stated that section 23-12-607 requires the Commission to hear and consider all petitions filed with it for the discontinuance of railroad spurs and that Ark. Code Ann. § 23-12-611 (1987) provides the standard of proof to be used in determining whether the spur track should be abandoned. The order also stated that City of Caraway v. Arkansas Commerce Comm’n, 248 Ark. 765, 453 S.W.2d 722 (1970), a case involving the abandonment of an agency station, was persuasive and controlling in the current matter before the Commission.
Upon receipt of the Commission’s order, appellant filed a motion for reconsideration arguing that “[t]he standard of proof relied upon by the Commission was improper because it is the standard of proof for considering an application to discontinue an agency station, rather than abandonment of a spur. The Commission’s reliance on the standard of proof in Ark. Code Ann. § 23-12-611 was legal error.” Because section 23-12-611 and Caraway, supra, both involve agency stations rather than spurs, appellant claims the Commission erred in relying on them to determine the standard of proof applicable to the spur petition. Noticeably absent from appellant’s motion for reconsideration is a statement of what appellant believed to be the correct standard of proof applicable to appellee’s petition to discontinue the spur track. Because of this omission, we conclude appellant is precluded from raising this argument on appeal.
We recognize that on appeal to the circuit court and in its brief to this court, appellant argued that the standard of proof to be applied to appellee’s petition is found in Ark. Code Ann. § 23-11-209(6) and (7) (1987). However, a proffer at this late stage of what the correct standard of proof should be does not preserve appellant’s point for our review. We have stated that an objection below must be specific enough to appraise the lower court of the particular error complained of. See Bohannan v. Underwood, 300 Ark. 110, 776 S.W.2d 827 (1989). We think the current situation is analogous to the objection to instructions of law. In order to preserve the issue for appellate review, when objecting to the giving of an erroneous instruction, one must make a timely and specific objection to the instruction the trial court intends to give; when objecting to the trial court’s failure to give an instruction, the objector must offer an alternative instruction which he or she believes to be the correct statement of the law. Thomas Auto Co., v. Craft, 297 Ark. 492, 763 S.W.2d 651 (1989); ARCP Rule 51. This requirement is consistent with the principle that the trial court should be informed of the particular error of which the objector is complaining. The trial court’s ruling on the proffered matter then provides a record for appellate review. Without a proffer to the trial court and its ruling thereon, there is nothing for our review.
It is likely that appellant was not aware that the Commission was applying the standard of proof for the abandonment of agency stations in section 23-12-611 to appellee’s petition until it received the Commission’s written order stating it had indeed applied that standard. Therefore, it was not until it filed its motion for reconsideration that appellant was required to proffer a statement of what it believed to be the correct standard of proof. Appellant’s failure to proffer an alternative standard of proof left the Commission unaware of the particular error of which appellant complained. Appellant’s failure results in the following situation described in the circuit court’s judgment:
The Court finds that Ark. Code Ann. § 23-11-209 (6) and (7) (1987), which the Appellant argues is the applicable statute, does not contain a standard of proof. The Commission chose the standard set forth in Ark. Code Ann. § 23-12-611(1987) which is applicable to the discontinuance of agency stations. Until such time as the legislature provides an explicit standard of proof in Ark. Code Ann. § 23-12-607 (1987) for the removal of spur tracks, there is no basis for the Court to reject the standard adopted by the Commission.
Accordingly, there is no basis for us to affirm or reverse the application of the standard used by the Commission and we hold appellant has failed to preserve this issue for our review.
Because appellant’s second point on appeal and appellee’s points on cross-appeal are interrelated, we consider them together. Appellant contends it was error for the trial court to affirm the Commission’s decision because there was an appearance of bias in that counsel for appellee was simultaneously representing the Commission and its members in two pending lawsuits. Appellant did not discover the alleged appearance of bias until after the Commission entered its order in this case. At the time appellant discovered the potential appearance of bias, appellant filed a motion to recuse as part of its motion for reconsideration which the Commission denied without explanation. On cross-appeal, appellee contends appellant’s objection to the appearance of bias was untimely and therefore appellant has waived this argument on appeal. Appellee also contends the trial court erred in finding the Commissioners should have recused. Appellee argues this finding is inconsistent with the trial court’s ruling affirming the Commission’s decision.
In support of its argument that the trial court erred in not reversing the Commission’s denial of the motion to recuse, appellant cites the following rule of law:
[A]ny. tribunal permitted by law to try cases and controversies not only must be unbiased, but also must avoid even the appearance of bias.
Commonwealth Coatings Corp. v. Continental Casualty Co., 393 U.S. 145, 150 (1968).
There is no doubt that we have adopted the “appearance of bias” standard with respect to judges. City of Jacksonville v. Venhaus, 302 Ark. 204, 788 S.W.2d 478 (1990); Arkansas Code of Judicial Conduct, Canon 2. We have extended the appearance of bias standard to lawyers, even though this particular standard is not expressly stated in the Rules of Professional Conduct. This extension of the standard is made because the meaning of the appearance of bias standard pervades the Rules of Professional Conduct and embodies their spirit. First Am. Carriers, Inc. v. Kroger Co., 302 Ark. 86, 787 S.W.2d 669 (1990). The Arkansas Highway Commission is authorized by statute to decide all matters which come before it. Ark. Code Ann. § 23-2-211 (1987). There is a right of appeal of the Commission’s decisions to circuit court and to this court. Ark. Code Ann. § 23-2-425 (1987). Thus, the members of the Commission, although not judges and therefore not subject to the appearance of bias standard in the Judicial Code of Conduct, perform a quasi-judicial function and therefore, by analogy, should be subject to the appearance of bias standard for judges. This extension of the standard is consistent with the extension of the standard to lawyers acting in a non-judicial capacity. See Kroger, supra.
When applying the appearance of bias standard to the facts of this case, we conclude the representation of both appellee and the Commissioners by appellee’s counsel created an appearance of bias or impropriety on the Commissioners’ part mandating their recusal from consideration of appellee’s petition. However, we recognize, as did the trial judge, the absence of a procedure for the appointment of special Commissioners to hear this case. The trial court was correct in concluding:
The Court further finds, however, there must be a remedy for persons subject to regulation by the Commission. If this case were to be remanded to the Commission with instructions that the Commissioners recuse themselves, there would be no one to hear it. There is no procedure in place for the appointment of special Commissioners. The Court will not relegate a case to such status, where in effect it would be lost to further action by the Commission for the indefinite future, pending possible legislative action creating authority to appoint special commissioners.
Although without expressly stating so, the trial court applied the rule of necessity as an exception to the Commissioners’ disqualification. The rule of necessity, as stated in terms particularly applicable to administrative officers, is as follows:
Under the doctrine or rule of necessity, it has been held that administrative officers or bodies are not disqualified because of bias, prejudice, or prejudgment of the issues where they alone have the power and authority to act and where, if they are disqualified, action cannot otherwise be taken, particularly where a failure of justice would result if they are not permitted to act. . . .
The doctrine or rule of necessity has been held to apply only where the disqualification of the alleged prejudiced member or members of the tribunal would destroy the tribunal itself, leaving no competent tribunal to function or to act.
73 C.J.S. Public Administrative Law and Procedure § 61(b) (1983).
We have previously adopted the rule of necessity in Wheatley v. Warren, 232 Ark. 123, 128, 334 S.W.2d 880, 883 (1960), where we held that an exception to disqualification occurs “where the authority of the administrative officer is exclusive, and no legal provision for calling in a substitute is provided.” Accordingly, we conclude that although the Commissioners’ hearing this case created an appearance of bias that would ordinarily have required them to disqualify themselves from considering appellee’s petition, the rule of necessity, as implicated by the absence of a procedure to appoint special Commissioners, excepted their disqualification. Thus, because there was no statutory procedure in place for the replacement of the Commissioners, it was necessary for them to hear appellee’s petition and they did not commit reversible error by doing so. We note that the absence of the procedure for appointment of special Commissioners is an area of the law which the legislature may choose to reconsider.
With respect to appellee’s points on cross-appeal, we note that our application of the rule of necessity precludes consideration of appellee’s waiver argument. We also note there is neither error nor inconsistency in the lower court’s finding that the Commissioners should have recused and its ultimate holding that recusal was not warranted because there would be no one to hear the case. The rule of necessity cures any initial appearance of inconsistency, for the rule is itself an exception to the requirement of disqualification.
Based on the foregoing, we conclude the circuit court’s decision is not against the preponderance of the evidence. The decision is thus affirmed on appeal and cross-appeal.
Act 153 of the First Extrordinary Session of 1989 abolished the Arkansas Transportation Commission and repealed the procedure for the appointment of special Commissioners. | [
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Per Curiam.
Petitioner requests this court for a writ of mandamus compelling the respondents, as members of the Board of Apportionment (Board), to file their report of apportionment with the Secretary of State as required by Art. 8, § 4, of the Arkansas Constitution, as amended by Amendments 23 and 45 to the Constitution. Petitioner asserts the Board’s plan of apportionment was adopted on October 29, 1991, but never filed. Respondents answered, stating that the Board’s plan is under the jurisdiction of the federal court in Jeffers v. Clinton, 740 F. Supp. 585 (E.D. Ark. 1990), and petitioner is premature until the federal court relinquishes jurisdiction of the Board’s plan. Respondents do not deny Petitioner’s claims that the Board adopted its apportionment plan on October 29,1991, and has failed to file it with the Secretary of State.
Section 4 of Article 8 provides as follows:
On or before February 1 immediately following each Federal census, said board shall reapportion the State for Representatives, and in each instance said board shall file its report with the Secretary of State, setting forth (a) the basis of population adopted for representatives; (b) the number of representatives assigned to each county; whereupon, after 30 days from such filing date, the apportionment thus made shall become effective unless proceedings for revision be instituted in the Supreme Court within said period. [As amended by Const. Amends. 23 and 45.] (Emphasis added.)
Further, Section 5 of Art. 8 places original jurisdiction with this court in reviewing the Board’s apportionment duties and reads as follows:
Original jurisdiction (to be exercised on application of any citizens and taxpayers) is hereby vested in the Supreme Court of the State (a) to compel (by mandamus or otherwise) the board to perform its duties as here directed and (b) to revise any arbitrary action of or abuse of discretion by the board in making such apportionment; provided any such application for revision shall be filed with said Court within 30 days after the filing of the report of apportionment by said board with the Secretary of State; if revised by the court, a certified copy of its judgment shall be by the clerk thereof forthwith transmitted to the Secretary of State, and thereupon be and become a substitute for the apportionment made by the board. [As amended by Const. Amends. 23 and 45.]
From the above, the Board had the duty to file its report with the Secretary of State and that report becomes final unless revision proceedings are instituted within thirty days after its having been filed. Clearly, the Board is not relieved of its duty to file its report as directed under Article 8 of the Arkansas Constitution merely because litigation related to apportionment is pending in federal court. Original and exclusive jurisdiction is vested in this court to compel the Board to perform its duties as are provided by the Arkansas Constitution. See Rockefeller v. Smith, 246 Ark. 819, 440 S.W.2d 580 (1969). Because the Board’s plan of apportionment was adopted on October 29,1991, and never filed with the Secretary of State, we order the Board to file its plan forthwith. Petitioner’s other requests for relief, including revision of the Board’s apportionment plan, are premature until the plan is filed. | [
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Robert L. Brown, Justice.
This is an appeal from an order of the chancery court denying the appellant, the Estate of Virgie Hastings, an incompetent, judgment on the pleadings against the appellee, Planters and Stockmen Bank. It is also a cross appeal by the cross appellant Bank from an order denying the Bank summary judgment on grounds of laches. We affirm on direct appeal and dismiss the cross appeal.
On December 28, 1983, Richard Hastings and Laveda Hastings, his wife, who were the owners of a sports business named Sportshaven in Jonesboro, executed a promissory note in conjunction with Virgie Hastings, the grandmother of Richard Hastings, in the amount of $169,000 in favor of the Bank. As security for this note, Virgie Hastings assigned a promissory note made payable solely to her by Louis Ahrent in the principal amount of $256,000. On December 7, 1984, a guardian of the person and the estate of Virgie Hastings was appointed due to her incompetency.
On October 3, 1985, the Bank sued to collect on its promissory note and joined Virgie Hastings as a party defendant. The Estate answered and counterclaimed, denying execution of the note and raising lack of mental capacity to make the note. On July 15, 1986, the Bank obtained summary judgment against Richard and Laveda Hastings. On December 11, 1987, the Estate amended its counterclaim to include a prayer for repayment of all sums paid the Bank from the Ahrent proceeds or, alternatively, for any overage paid the Bank by the Estate. On January 4, 1988, the circuit court expanded its summary judgment order to include the Estate of Virgie Hastings and terminated all issues pending between the Bank and the Estate.
On the first appeal by the Estate, this court reversed the circuit court’s expanded summary judgment order on the basis that material facts concerning Virgie Hastings’s execution of the note remained to be determined and the order was not final. See Estate of Hastings v. Planters and Stockmen Bank, 296 Ark. 409, 757 S.W.2d 546 (1988). On remand the Bank first moved for summary judgment on grounds that the Estate’s counterclaim was barred by laches. This motion was denied. The Bank then moved to transfer the case to equity due to its laches defense and in that motion declared that it “requests no relief from the Estate of Virgie Hastings, the incompetent.” The Estate moved for judgment on the pleadings on grounds that this statement in the Bank’s motion evidenced an abandonment of its claim against the Estate. On February 21, 1990, the circuit court denied the Estate’s motion for judgment and transferred the case to chancery. By order entered December 29, 1990, the chancery court, after a full hearing, found that the money from the Ahrent note had overpayed the Estate’s obligation to the Bank, and that the Estate was entitled to judgment against the Bank in the amount of $60,196.23. In that same order the chancery court found that Virgie Hastings was competent when she executed the note to the Bank and assigned the Ahrent note on December 28, 1983.
The Estate first argues that the chancery court erred in denying its motion for judgment on the pleadings under Ark. R. Civ. P. 12(c) (1991). The thrust of the Estate’s argument is that the Bank “pled itself out of court” by stating that it requested no relief against the Estate in its motion to transfer.
There was an obvious reason for the Bank to relinquish its claim against the estate — it had been paid in full by the proceeds from the Ahrent note. To argue now, as the Estate does, that this relinquishment somehow voids the Bank’s prior cause of action and mandates repayment of all payments made to the Bank on behalf of Virgie Hastings, as prayed for in the Estate’s counterclaim, does not logically follow.
It is the position of the Estate that a party must put on proof and take judgment before it can be made whole. The Estate gives much weight to the fact that the Bank did have judgment against the Estate when it collected the Ahrent proceeds to pay off the Hastings note. There was also a stipulation between the Bank and the Estate at the time the Ahrent proceeds were paid which stated that payment would not affect the Estate’s counterclaim against the Bank in the event that the judgment against the Estate was reversed on appeal.
But the fact that the summary judgment against the Estate was reversed by this court does not automatically mean that the Ahrent note proceeds paid to the Bank in satisfaction of Virgie Hastings’ obligation must be returned. The chancery court after full hearing found that Virgie Hastings was lucid on December 28,1983, and knew what she was doing when she signed the note and assigned her interest in the Ahrent proceeds. That is what decides this matter. The fact that a valid judgment was not in effect at the time of payment is not determinative especially since the Estate had its day in court and was able to raise its defenses and present evidence on its counterclaim.
Motions for judgments on the pleadings are not favored by the courts. Reid v. Karoley, 229 Ark. 90, 313 S.W.2d 381 (1958); see also 71 C.J.S. Pleadings §§ 424-425. Such a judgment should be entered only if the pleadings show on their face that there is no defense to the suit. Brunson v. Little Rock Road Machinery Co., 251 Ark. 721, 474 S.W.2d 672 (1972). When considering the motion, we view the facts alleged in the complaint as true and in the light most favorable to the party seeking relief. Smith v. American Greetings Corp., 304 Ark. 596, 804 S.W.2d 683 (1991); Battle v. Harris, 298 Ark. 241, 766 S.W.2d 431 (1989).
Here, for the Estate to prevail on its counterclaim, it needed to establish fraud, incompetence, or undue influence at the time Virgie Hastings executed the note and assignment. The pleadings — that is, the amended complaint, answer and amended counterclaim, and answer to amended counterclaim — on their face did not resolve these issues, which is argument enough against a judgment on the pleadings. Moreover, the Estate went outside of the pleadings in making its Rule 12(c) motion and pulled allegations of abandonment of the claim from the Bank’s motion to transfer. A motion is clearly not a pleading. See Ark. R. Civ. P. 12(b); see 2A Moore’s Federal Practice ¶ 7.05 (2d ed. Supp. 1991). The chancellor did not err in denying the Estate’s motion for judgment.
For its second issue the Estate covers much of the same ground and argues that the Bank waived its claim against the Estate in its motion to transfer and should not be permitted to retain the Ahrent proceeds because, again, it deprived the Estate of the ability to raise its defenses and claims. We do not agree. The Estate was able to and, indeed, did advance its defenses and counterclaim against the Bank and prevailed on its claim that the Bank had been overpaid. The Estate argues specifically that it was denied the ability to contest an assignment of the Ahrent note. The Estate, though, offered no proof at trial that Virgie Hastings’s assignment of the Ahrent note was invalid. It merely raised the issue in argument at the end of the hearing. We will not consider arguments on appeal that were not fully developed at the trial level. See Goldsmith v. Arkansas Dept. of Human Services, 302 Ark. 98, 787 S.W.2d 675 (1990). We further note that there was nothing to prevent the Estate from amending its counterclaim in timely fashion and presenting whatever proof it deemed necessary to prevail on this point. The Estate failed to do this.
Finally, on cross appeal the Bank challenges the chancery court’s ruling which denied the Bank’s motion for summary judgment on grounds of laches. According to the Bank, the Estate was unreasonably dilatory in asserting overpayment of the note with the Ahrent proceeds. The Bank brings its cross appeal in an improper form. We have long held that denial of summary judgment is not an appealable order or subject to review after a trial on the merits. See McElroy v. Grisham, 306 Ark. 4, 810 S.W.2d 933 (1991); Rick’s Pro Dive ‘n Ski Shop, Inc. v. Jennings-Lemon, 304 Ark. 671, 803 S.W.2d 934 (1991).
Affirmed on direct appeal and dismissed on cross appeal. | [
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David Newbern, Justice.
This case presents the question whether a chancery court has jurisdiction of an action to enjoin a nuisance, and if so, whether a claim upon which relief could be granted was stated. We hold that the Court has jurisdiction of the subject matter and that a claim upon which relief could be granted was stated. We reverse the Chancellor’s decision that the Court lacked jurisdiction.
The complaint of the appellant, Manitowoc Remanufacturing, Inc., alleged that in the early 1920s, the Rock Island Railroad acquired an easement across land presently owned by the appellees, William and Debra Vocque. The purpose of this easement was to place railroad tracks. During the time the easement was used by Rock Island, it was located on an elevated dump. Rock Island Railroad later declared bankruptcy, and the easement was abandoned.
Prior to the abandonment, Reynolds Metal purchased the property subject to the easement and established a mining operation on the property. Hurricane Creek surrounded the operation, and in the 1940s, Reynolds built dikes to contain the creek’s floodwaters and thus protect the business. These dikes and the elevated railroad dump served as a dam to keep the high waters of Hurricane Creek from flooding underground mining operations conducted south of the easement. Reynolds later built an extension of the dam in order to channel Hurricane Creek away from its original course and away from the mining operation.
In 1987, Reynolds sold the property which had been the location of the mining operation to the appellant, Manitowoc Remanufacturing, Inc. Manitowoc operates a manufacturing business on its portion of the former Reynolds property. Reynolds later sold to the Vocques the portion of the tract on which the elevated railroad dump continued to serve as a dam preventing Hurricane Creek from flooding the Manitowoc property.
Manitowoc’s claim is that the Vocques removed gravel from the dump creating a gap which caused the creek to flood the Manitowoc property, temporarily shutting down its operation. Manitowoc claims a prescriptive right in the continued maintenance of the easement as a flood control device and that the Vocques’ action in removing the gravel constituted a nuisance. Manitowoc requested a temporary restraining order and a permanent injunction prohibiting the Vocques from altering the course of Hurricane Creek by removing gravel from the dam. Manitowoc also claimed as damages lost profits, costs, and attorney’s fees.
In the motion to dismiss, the Vocques argued a landowner has no affirmative duty to maintain an artificial condition regulating the flow of water onto an adjacent landowner’s property. The Chancellor dismissed the suit without prejudice, but the order stated only that he “lacked equitable jurisdiction.”
The record before us consists only of the pleadings, the motion to dismiss, a response to the motion, briefs to the Chancellor from both sides arguing the issue whether a cause of action has been stated, an affidavit attached to Manitowoc’s response by a former Reynolds employee purporting to verify the history stated in the complaint, and the Chancellor’s order stating the Court lacked jurisdiction.
If possible, we decide chancery cases without remand. The record in this instance does not permit us to resolve this case altogether. We can, however, decide, in addition to the jurisdiction question, that Manitowoc stated a cause of action.
1. Jurisdiction
An injunction is an equitable remedy of which a chancery court has jurisdiction. Fort Smith Symphony Orchestra, Inc. v. Fort Smith Symphony Association, Inc., 285 Ark. 284, 686 S.W.2d 418 (1985); McKenzie v. Burris, 255 Ark. 330, 500 S.W.2d 357 (1973). A private nuisance is conduct on land which disturbs the quiet use and enjoyment of nearby property, and if injury to nearby property is certain and substantial, an injunction may issue. Arkansas Reliance Guidance Foundation v. Needier, 252 Ark. 194, 477 S.W.2d 821 (1972); Clark v. Hunt, 192 Ark. 865, 95 S.W.2d 558 (1936). It was error to hold the Chancery Court lacked jurisdiction.
2. Cause of action
a. Prescription
Manitowoc claims a prescriptive right in the continuance of the dam for its benefit. One asserting an easement by prescription must show by a preponderance of the evidence that one’s use has been adverse to the true owner and under a claim of right for the statutory period. Teague v. Raines, 270 Ark. 412, 605 S.W.2d 485 (1980). Some circumstance or act in addition to, or in connection with, the use which indicates that the use was not merely permissive is required to establish a right by prescription. Craig v. O’Bryan, 227 Ark. 681, 301 S.W.2d 18 (1957). Overt activity on the part of the user is necessary to make it clear to the owner of the property that an adverse use and claim are being exerted. Stone v. Halliburton, 244 Ark. 392, 425 S.W.2d 235 (1968). Mere permissive use of an easement cannot ripen into an adverse claim without clear action placing the owner on notice. Fullenwider v. Kitchens, 223 Ark. 442, 266 S.W.2d 281 (1954). If prescription is to be the basis of Manitowoc’s claim, one of these bases must be found.
b. Reliance
In its brief to the Chancellor Manitowoc argued it had stated a claim upon which relief could be granted because it had a right to rely on the continued existence of the dump or dam citing, among many other cases, Mitchell Drainage Dist. v. Farmers Irr. Dist., 256 N.W. 15 (Neb. 1934), and Greisinger v. Klinhart, 282 S.W. 473 (Mo. App. 1926). Manitowoc quoted from the Greisinger case a passage dealing with reciprocal easements created with respect to an artificial lake and stating that subsequent grantees from a common owner cannot alter the artificial condition absent “mutual agreement or joint action.”
The general rule is that an owner of property may create an artificial condition upon a portion of the owner’s land, benefitting another portion of the land, causing the condition to be regarded as the natural state of the property by subsequent grantees purchasing the property with notice of the condition. 3 Farnham, The Law of Waters and Water Rights, § 830 (1904). If an owner of land artificially creates a condition favorable to one portion of his property and then sells that portion, the grantee takes it with the right to have the condition continued. 3 Farnham, supra, § 833.
When an owner uses a part of his or her land for the benefit of another part, a quasi-easement has been held to exist. The part of the land benefitted has been referred to as the quasi-dominant tenement, and the land utilized for the benefit of the other property has been referred to as the quasi-servient tenement. When the owner of the land subject to a quasi-easement in favor of another part conveys the quasi-dominant tenement, an easement corresponding to the pre-existing quasi-easement is vested in the grantee of the land. The quasi-easement must be of an apparent, continuous, and necessary character. 3 Tiffany, The Law of Real Property § 781 (1920). These easements have been referred to as implied easements corresponding to pre-existing quasi-easements.
The doctrine originated in Lampman v. Milks, 21 N.Y. 505 (1860). A landowner diverted a stream flowing across his property through an artificial channel to benefit another portion of the property. The owner conveyed the land benefitted by the condition to the plaintiff and shortly thereafter conveyed the remaining property to the defendant. Four years later, the defendant attempted to eliminate the artificial channel which would have resulted in flooding the plaintiffs property.
The Court stated tile general rule that no easement exists if there is unity of ownership. Once a severance occurs by a sale of a portion of the property, easements or servitudes are created corresponding to the benefits and burdens existing at the time of the sale. When the owner of an estate sells a portion of it, the purchaser takes the land subject to the benefits and burdens appearing at the time of the sale. If a burden is imposed upon the portion sold, the purchaser takes subject to the burden provided it was open and visible. Specifically, the Court held “[t]he parties are presumed to contract in reference to the condition of the property at the time of the sale and neither has a right, by altering arrangements then openly existing, to change materially the relative value of the respective parts.”
An implied easement corresponding to a pre-existing quasi-easement is similar to an implied easement by necessity. This Court has recognized that when, during unity of title, a landowner imposes an apparently permanent and obvious servitude on part of his property in favor of another part, and at the time of a later severance of ownership the servitude is in use and is reasonably necessary for the enjoyment of the part of the property favored by the servitude, the servitude survives the severance and becomes an easement by implication. The servitude must be obvious, apparently permanent, and reasonably necessary for the enjoyment of the property. “Necessary” has been held to mean there could be no other reasonable mode of enjoying the dominant tenement without the easement. Kennedy v. Papp, 294 Ark. 88, 741 S.W.2d 625 (1987); Greasy Slough Outing Club, Inc. v. Amick, 224 Ark. 330, 274 S.W.2d 63 (1954).
The facts recited in Manitowoc’s complaint stated a claim upon which relief may be granted. As the Chancery Court had jurisdiction of the claim, we reverse and remand for further proceedings consistent with this opinion.
Reversed and remanded.
Glaze, J., not participating. | [
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Tom Glaze, Justice.
Appellants appeal the Lawrence County Chancery Court’s dismissal of their request to enjoin as a nuisance the appellee’s placement of a funeral home in appellant’s neighborhood. They argue the chancellor was clearly erroneous in finding that the funeral home was not a nuisance. Also, the appellants contend the chancellor erred in inspecting or viewing the proposed site and other property without first obtaining the consent of the parties.
The facts are largely undisputed. Appellee planned to convert a two-story house into a funeral home to be located on the southwest corner of the intersection at U.S. Highways 62/63 and State Highway 115 in the town of Imboden. Many of the appellants’ houses are situated across from the proposed site and along the north side of Highway 62/63. Other residences are located on the south side of 62/63 and are both east and west of appellee’s proposed funeral home. Four or five commercial businesses are nestled in this same area. A used car lot owned by the town’s mayor is situated on the northwest corner of the same block where the appellee proposes to establish its business. A repair shop is directly behind the car lot. A car wash and a convenience store are located on the north side of Highway 62/63 within two blocks east of the funeral home site. And finally, a beauty shop is located approximately two blocks from appellee’s site and about one block south of the corner where the car lot is located. In addition to these businesses, a home for the elderly and a federal housing project are approximately within the general two-block area of the proposed site.
At trial, appellants presented testimony that a funeral home would lower their property values and would also interfere with the peaceful enjoyment of their homes because the business would be a constant reminder of death and dead bodies. Appellee offered evidence that classified the area as being mixed residential and commercial. Appellee argued that the appellants would not be any more adversely affected by the placement of a funeral home in the neighborhood than they already had been by having the other businesses already located in the area. Based on the foregoing evidence, the chancellor held that the establishment of a funeral home on the proposed site would not be a nuisance.
This court has established the following general principles with regard to preventing establishment of funeral homes:
A funeral home is not a nuisance per se. The intrusion of a funeral home into an exclusively residential district would constitute a nuisance. It may be a nuisance in an area essentially residential in character. If, however, transition of the district from residential to business has so far progressed that the value of the surrounding property would be enhanced as business property, rather than depreciated as residential property, the establishment of a funeral home would not constitute a nuisance.
Mitchell Funeral Home v. Bearden, 255 Ark. 888, 503 S.W.2d 904 (1974); see also Miller-Elston Mortuary v. Paal, 261 Ark. 644, 550 S.W.2d 771 (1977); Blair v. Yancy, 229 Ark. 745, 318 S.W.2d 589 (1958); Powell v. Taylor, 222 Ark. 896, 263 S.W.2d 906 (1954).
While appellants take issue with the chancellor’s finding that the two-block area surrounding the proposed site is mixed residential and commercial, we conclude the evidence clearly supports such a finding. In fact, appellants concede that some of the businesses located in the area actually became operational after appellants’ houses had been built. Appellants point to language in the Bearden case when arguing that the law does not require the area surrounding a proposed funeral home site to be “exclusively” residential before a funeral home can be enjoined as a nuisance. Instead, appellants claim that they may be entitled to injunctive relief when the area is “predominately” residential. While the court in Bearden indicated considerable weight is given to the predominance of either commercial or residential property in the area, the court in no way broadened or enlarged the rules that the intrusion of a funeral home into an “exclusively” residential district would ordinarily constitute a nuisance or may constitute a nuisance in an area “essentially” residential in character. As we review the evidence, we believe it both supports the views that the area involved here is mixed residential and commercial and that it has slowly changed its character to include additional business ventures.
Appellants emphasize that all of the value evidence presented at trial reflected that their homes’ residential values would be lowered if a funeral home business was located in the neighborhood. Appellee responds, pointing out that it is reasonable to expect residential values to be lowered whenever any commercial establishment moved into a residential area. As pointed out earlier, commercial establishments here were located in the appellants’ neighborhood years before appellee advanced its plans to build a funeral home in this same area. Whether or not these businesses have enhanced appellants’ properties for commercial purposes is unclear because neither appellants nor the appellee offered value testimony on this issue.
In summation, it is clear that the neighborhood here is not exclusively residential, and appellants clearly are not entitled to enjoin the appellee’s funeral home business on that basis. Nor can we conclude from the evidence that the area is essentially residential. Instead, we believe the chancellor’s characterization of the area as mixed residential and commercial is thoroughly supported by the evidence. Thus, based upon the law and the evidence presented, the chancellor was not required to determine that appellee’s funeral business would constitute a nuisance. At the very least, we are unable to say the chancellor was clearly wrong when he refused to find a nuisance would result from the establishment of appellee’s funeral home.
In their second point for reversal, they argue the chancellor erred in making an unannounced view of the area in question and other properties along Highway 62/63 as it traverses through the entire town of Imboden. Sometime after trial, the chancellor apparently counted the businesses and residences along the highway and mentioned those numbers in his findings. Appellants challenge those numbers as being incorrect and also argue those businesses and residences are not material or relevant to the nuisance issue concerning the two-block area involved in this case. See Powell v. Taylor, 222 Ark. 896, 263 S.W.2d 906 (1954) (where the court limited its characterization of “essentially residential” to a sixteen-block area in Gurdon, Arkansas, stating that, in a relatively small city, an area of this size may well be treated as a district in itself, else there might be no residential districts in the whole community.) Although appellants may be correct on both points, those errors are harmless and do not require the reversal of the chancellor’s finding that appellee’s funeral home is no nuisance.
While personal inspections of property are permissible and proper as an aid to a better understanding by the chancellor of what witnesses had testified to, such views are limited to that purpose and a judge’s personal observations on the site are not considered evidence of facts. Mitcham v. Temple, 215 Ark. 850, 223 S.W.2d 817 (1949); Clark v. Clark, 4 Ark. App. 153, 632 S.W.2d 432 (1982). In the present case, the chancellor not only viewed the two-block area involved in the dispute between appellants and appellee, but also he inspected and referred to businesses and residences along Highway 62/63 outside the area which the parties addressed at trial. In this latter respect, the chancellor erred. Nevertheless, the limited two-block area here was properly characterized as mixed residential and commercial as we have previously discussed. Thus, even excluding the chancellor’s references to businesses outside the pertinent area involved, we are required on de novo review to uphold the chancellor’s finding that no nuisance would result from appellee’s business since that finding is not clearly erroneous.
We affirm. | [
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Robert H. Dudley, Justice.
The plaintiff, in her capacity as personal representative, filed suit against the defendant, a fraternal benefit society, for the proceeds of a life insurance policy on the decedent. The trial court ruled that the suit was not brought within the contractual period of limitation and granted summary judgment. The plaintiff appealed to the court of appeals. In an unpublished opinion issued on April 3, 1991, a division of three judges reversed the judgment of the trial court. The defendant insurance carrier petitioned for rehearing and, upon a hearing by the full court, three of the judges voted to deny rehearing. It takes a majority of the court to grant rehearing, see Ark. Code Ann. § 16-12-114 (1987), so rehearing was denied on the three-to-three vote. See Ferguson v. The Order of United Commercial Travelers of America, 35 Ark. App. 100, 811 S.W.2d 768 (1991).
We have traditionally granted certiorari for the review of tie-vote court of appeals’ decisions that affirm a judgment of the trial court. This was the first case in which we were asked to grant certiorari because of a tie vote denying rehearing. We concluded that the same policy should be applicable in both situations and granted certiorari. On the merits of the case, we affirm the ruling of the trial court granting summary judgment.
This case concerns the applicable limitation period for filing suit on a fraternal benefit society insurance contract. The trial court had before it the pleadings, the insurance contract, and other documents. These materials established the following facts. Plaintiff-appellant, Joyce Cook Ferguson, is the widow of Carter Ware Ferguson, the executrix of his estate and the beneficiary of a policy of accident insurance on the life of Carter Ware Ferguson. The policy was issued by appellee, the Order of United Commercial Travelers of America (UCT). UCT is an incorporated fraternal benefit society. Fraternal benefit societies are treated, in part, separately from other types of insurance companies. See Ark. Code Ann. §§ 23-74-102, -103 (1987). The policy provided for the payment of $20,000.00 to the beneficiary in the event of Mr. Ferguson’s accidental death. He sustained injuries in an automobile accident in November 1983 which were the alleged cause of his death on February 4,1984. On February 27, 1984,the plaintiff provided to UCT proofs of loss in accordance with the terms of the policy. On June 28, 1984, UCT denied the claim, asserting that the cause of death was not the accident. The plaintiff did not file suit until February 2, 1989, or more than three years after the proof of loss was required.The policy contained the following provision: “No action at law or equity . . . shall be brought after the expiration of three years after the time written proof of loss is required to be furnished.”
UCT moved for summary judgment because the plaintiff’s cause of action was not filed within the above quoted contractual limitation period. The trial court granted the motion. On appeal, the plaintiff argues that summary judgment for UCT was in error for either of two reasons: (1) UCT waived the contractual limitation period, or (2) there was an ambiguity in the contract as to whether the contractual period or a longer statutory limitation period should be applied.
The plaintiff argues that, in the “Additional Provisions” section of the policy, UCT expressly waived the contractual three-year limitation. “Additional Provision 4” states: “Any provision of this certificate which, on its effective date, is in conflict with the statutes of the state in which the member resides on such date, is hereby amended to conform to the minimum requirements of such statutes.” Plaintiff concludes that, because of this additional provision, the contractual limitation period must be made to conform with the five-year statute of limitations for actions on writings under seal. See Ark. Code Ann. § 16-56-111(b) (1987). If the five-year statute of limitations was the minimum requirement for fraternal benefit societies the argument might have merit, but that is not the case. Ark. Code Ann. § 23-74-121(c)(l) (1987), a statute applicable to fraternal benefit societies at the time this suit arose, provided that no life benefit certificate could be issued by a society with a limitation of action period of less than two (2) years. Because the contractual limitation period contained in the policy did not conflict with the minimum requirement of Arkansas law, there was no need to amend the contractual period. Thus, there is no express waiver of the contractual three-year limitation by the “Additional Provision” of the policy.
The plaintiff relies upon cases from other jurisdictions in support of her waiver argument. However, those cases are not applicable. They involve implied waiver and illustrate the general rule that:
While a company may insert a contractual period shorter than the statutory period of limitations, it cannot avail itself of such provision if it has deceived the insured into believing that the provision would be waived. Thus, if a delay in instituting suit is due to the fault of the insurer, the action is not barred.
20A J.A. & J. Appleman, Insurance Law and Practice § 11639 (rev. vol. 1980). In the present case, there is no indication that UCT did anything to cause the plaintiff to delay or to prevent her from bringing her action within the contractual period. Thus, UCT neither expressly nor impliedly waived the three-year limitation.
The plaintiff’s next point of appeal is that the quoted contractual limitation period and the quoted “Additional Provisions” paragraph together create an ambiguity as to whether the contractual limitation or the statutory limitation should apply. This argument also is without merit. The mere fact that the contractual limitation is shorter than a general statutory limitation does not create an ambiguity. It has long been the rule in Arkansas that parties are free to contract for a limitation period which is shorter than that prescribed by the applicable statute of limitations, so long as the stipulated time is not unreasonably short and the agreement does not contravene some statutory requirement or rule based upon public policy. City of Hot Springs v. Nat’l Surety Co., 258 Ark. 1009, 531 S.W.2d 8 (1975). Because the three-year contractual limitation is longer than the minimum two-year period of Ark. Code Ann. § 24-73-121 (c)(1), it is not per se unreasonable.
In addition, it is not unreasonable under our case law. We have said that:
A period of time so short as to amount to an abrogation of the right of action would be unreasonable. But it is implicit in the decisions on the subject that the stipulated period is not unreasonable if the time allowed affords a plaintiff sufficient opportunity to investigate his claim and prepare for the controversy. [Citations omitted.]
City of Hot Springs v. Nat’l Surety Co., 258 Ark. at 1013, 531 S.W.2d at 10. In that case, we approved a two-year limitation period in a surety bond contract. Moreover, in Insurance Co. v. Brodie, 52 Ark. 11, 11 S.W. 1016 (1889), we approved a six-month contractual limitation of action in an insurance policy. The three-year period in the present case gave appellant sufficient opportunity to investigate her claim and prepare her case against the insurance company. The record contains no explanation for her delay. Because the contractual limitation is reasonable, the statutory limitation does not prevail.
Summary judgment is an extreme remedy which should be allowed only when there is no issue of fact to be litigated. Culpepper v. Smith, 302 Ark. 558, 792 S.W.2d 293 (1990). In the present case, the contractual period of three (3) years is clearly applicable. There is no dispute that appellant did not file her action on the certificate within three (3) years of the time that proof of loss was required to be furnished to appellee. Because her action was not filed within the applicable limitation period, it is barred, and there remains no issue of fact to be decided.
The decision of the court of appeals is reversed, and the trial court’s ruling is affirmed. | [
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Steele Hays, Justice.
The question raised by this appeal is whether the Commissioner of Revenues is required to disclose information concerning motor fuel taxes pursuant to the Freedom of Information Act (Act 93 of 1967) and the Arkansas Motor Fuel Tax Act (Act 383 of 1941), in light of the Arkansas Tax Procedure Act (Act 401 of 1979). Our jurisdiction attaches under Rule 29(l)(c).
Appellant, as Commissioner of Revenues, is the official custodian of all records filed under Arkansas tax laws. Earl Yeargan, appellee, is an individual residing in Pope County, Arkansas. On June 12, 1985 Yeargan asked the Commissioner for the names of persons, companies, or corporations that are licensed, bonded fuel dealers, wholesalers, or distributors currently on the Commissioner’s books. Noting that he was required to disclose the information under the Freedom of Information Act and the Arkansas Motor Fuel Tax Act, but prohibited from disclosing confidential tax records under the Arkansas Tax Procedure Act, the Commissioner filed a petition for declaratory judgment in the Pulaski Chancery Court.
Relying on Section 6(a) of the Tax Procedure Act, the chancellor declared that Yeargan had the right to inspect and copy the motor fuel tax records requested except those pertaining to a natural person, that is, an individual taxpayer. The Commissioner has appealed. We affirm the chancellor.
The earliest of these acts is the Motor Fuel Tax Act of 1941 which provides in part:
Section 24. Public Inspection of Records. — The records of the Commissioner of Revenues pertaining to motor fuel taxes shall at all reasonable times be open to the public, with the approval of the Commissioner.
Next came the Freedom of Information Act in 1967 which expresses the public policy of Arkansas to be one of open government, in these terms:
Section 2. Declaration of Public Policy. It is vital in a democratic society that public business be performed in an open and public manner so that the electors shall be advised of the performance of public officials and of the decisions that are reached in public activity and in making public policy. Toward this end, this act is adopted, making it possible for them or their representatives, to learn and to report fully the activities of their public officials.
The Freedom of Information Act goes on to provide:
Except as otherwise specifically provided by laws now in effect, or laws hereafter specifically enacted to provide otherwise,... all records which by law are required to be kept and maintained shall be open to inspection and copying by any citizen of the State of Arkansas during the regular business hours of the custodian of records. (Our italics).
Elsewhere in the FOIA (Section 4) an exception from public inspection is made for state income taxes, medical, scholastic, and adoption records, and the like. But those exceptions have no bearing on the records involved here. Thus, the Motor Fuel Tax Act specifically, and the Freedom of Information Act generally, provide for the inspection and copying of motor fuel tax records kept by the Commissioner of Revenues. This was the status of the law for nearly forty years when the Arkansas Tax Procedure Act was enacted in 1979.
On appeal the Commissioner submits that language of the Tax Procedure Act, notably Section 6(a) and 6(c) suggests that all tax returns of any taxpayer are confidential. Section 6(a) of the act reads:
Records and files of Commissioner confidential and privileged — Exception—Inspection.—(a) The Commissioner is the official custodian of all records and files required by any State tax law to be filed with the Commissioner and is required to take all steps necessary to maintain their confidentiality. Except as otherwise provided by this act [§§ 84-4701 — 84-4744], the records and files of the Commissioner concerning the administration of any State tax law are confidential and privileged. These records and files and any information obtained from these records or files or from any examination or inspection of the premises or property of any taxpayer shall not be divulged or disclosed by the Commissioner or any other person who may have obtained these records and files. It is the specific intent of this act that all tax returns, audit reports and information pertaining to any individual tax returns not be subject to the provisions of Act 93 of 1967 [§§ 12-2801 — 12-2807], as amended.
Section 6(c) also uses inclusive language:
(c) The provisions of this section shall be strictly interpreted and shall not permit any other disclosure of information concerning a taxpayer contained in the records and files of the Commissioner relating to income tax or any other State tax.
Appellee Yeargan points out that the final sentence of Section 6(a) limits the application of the FOIA to individual tax returns, and on that basis the chancellor held that records of motor fuel taxpayers except those of individuals are not excluded from inspection and copying. While there is room for considerable doubt as to what was intended under the wording of the Tax Procedure Act, the only specific lifting of the disclosure requirements of the FOIA found in the Tax Procedure Act is limited to individual tax returns and we think that language must govern.
The Commissioner contends it would be incongruent to exempt the motor fuel tax returns of individuals, while denying that protection to corporations and partnerships. We concede some merit to the argument, though not enough to compel us to rewrite the enactment. The financial records of corporations and other business entities have traditionally enjoyed less privacy than individuals and that may have influenced the language used in the Tax Procedure Act.
We recognize the principle that enactments on the same subject are to be read in pari materia, with each to be given effect whenever possible, Vandiver v. Washington County, 274 Ark. 561, 628 S.W.2d 1 (1982). The only means by which we can give these enactments equal effect is to reach the same conclusion as the chancellor and limit the confidentiality of motor fuel tax records to those involving individual taxpayers. To do otherwise would require two things, equally undesirable: we would have to repeal by implication that portion of the Motor Fuel Tax Act making those records public, a form of judicial legislating which we do not favor, Nance v. Williams, 263 Ark. 237, 564 S.W.2d 213(1978), and we would have to apply a narrow construction to the Freedom of Information Act against a line of our cases and authorities urging the contrary. Baxter County Newspapers, Inc. v. Medical Staff of Baxter General Hospital, 273 Ark. 511, 622 S.W.2d 495 (1981); North Central Assn. of Colleges and Schools v. Troutt Bros., Inc., 261 Ark. 378, 548 S.W.2d 825 (1977); Ark. Gazette v. Pickens, 258 Ark. 69, 522 S.W.2d 350 (1975); Laman v. McCord, 245 Ark. 401, 432 S.W.2d 753 (1968); See “Access to Public Records Under the Arkansas Freedom of Information Act,” Professor John J. Watkins, 37 Ark. Law Review 742.
We conclude that the objectives of the FOIA are such that whenever the legislature fails to specify that any records in the public domain are to be excluded from inspection, or is less than clear in its intendments, then privacy must yield to openness and secrecy to the public’s right to know the status of its own affairs. We hold, therefore, that the burden of confidentiality rests on the legislation itself, and if the intention is doubtful, openness is the result.
The order appealed from is affirmed.
Purtle, J., not participating.
These acts are codified, respectively, as Ark. Stat. Ann. § 12-2801 et seq., Ark. Stat. Ann. § 75-1101 et seq. and Ark. Stat. Ann. § 84-4701 et seq. | [
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Darrell Hickman, Justice.
The Pulaski County Circuit Court issued a. writ of mandamus ordering the Arkansas Health Planning and Development Agency to issue certificates of need to eight nursing homes. The court erred in issuing this writ because the matter was still in the process of administrative review and appeal and no clear duty existed to issue the certificates until the procedure was over.
The appellants are the state agency AHPDA ordered to issue the certificates and Hillcrest Nursing Home of Harrison. The appellees are eight of sixteen nursing homes awarded the right to have new beds.
In August, 1984, the Statewide Health Coordinating Council lifted a moratorium on nursing home beds and approved the need for 481 new beds in Northwest Arkansas. Forty-five nursing homes applied for the new beds. On February 28, 1985, the appellant state agency approved 16 of the applications, allotting all the new beds. Twenty-nine applications were denied. Hill-crest’s request for 33 beds was one of those denied.
Within 30 days, as required by regulation, Hillcrest asked for administrative review of the decision. Hillcrest also timely asked the agency to reconsider its decision, but the reconsideration was denied. Hillcrest took the position that the entire allocation of beds was being contested. The agency agreed because the contest by Hillcrest would necessarily mean that some nursing homes granted new beds would lose them if Hillcrest prevailed. So the agency decided in writing that the decision on the entire allocation was at issue and the issuance of the certificates of need must be delayed pending review.
The agency requested the governor to appoint a state agency to conduct the administrative review on May 31, 1985. The Department of Finance and Administration was appointed on June 21, 1985, and a hearing officer was appointed August 14, 1985.
Pending review, this suit was filed in circuit court on August 9,1985. The relief sought was mandamus which is a writ to require, in this case, a state agency to perform an act which is an established, clear and specific legal right. Chandler v. Perry-Casa Public Schools, 286 Ark. 170, 690 S.W.2d 349 (1985). It must be to enforce the performance of a legal right after it has been established and not to establish a right. Wells v. Purcell, 267 Ark. 456, 592 S.W.2d 100 (1979). There must be no discretion available to the ordered party to perform the act. Chandler v. Perry-Casa Public Schools, supra.
There is no doubt that the appellant agency is empowered to issue the certificates. The question is when. The regulations provide that any decision by the state agency to issue or deny a certificate of need, upon request, will be reviewed by an independent state agency appointed by the governor. In such a case the decision by the reviewing agency is deemed the final decision.
It is the appellees’ assertion that the request for the review in this case only concerned the denial of Hillcrest’s beds; the approval of the appellees’ beds was not part of that request for review. So, as to the appellees, the argument is made that the order was final.
That raises the question of whether the agency was right in treating this as a review of the decision made regarding all applications and all 481 beds. Hillcrest immediately notified the appellant agency that it considered all applications in issue. The agency agreed. We have stated that although the agency’s interpretation of its own rules is persuasive, it is not binding upon the court. The interpretation will be controlling unless plainly erroneous or inconsistent. Clinton v. Rehab Hospital Services Corp., 285 Ark. 393, 688 S.W.2d 272 (1985). In a letter from the director of the agency to the attorney for the appellee nursing homes, it was stated:
Since all beds were allocated, the reversal of a denial would require the reduction or reversal of an approval: i.e., if Mr. Brown [Hillcrest’s attorney] succeeds in gaining beds for his client then another applicant or applicants will lose beds. Thus, the appeal of any denial must be regarded as an appeal of all approved applications.
The agency based its decision on Statewide Health Coordinating Council v. General Hospitals of Humana, Inc., 280 Ark. 443, 660 S.W.2d 906 (1983). In that case we held that AHPDA was without authority to issue certificates of need for the construction of beds which exceed the number established by the state health plan. The agency, correctly in our judgment, decided that if Hillcrest were awarded any beds they had to come from the 481 allotted. So, the nursing homes granted beds were necessarily affected by the review proceedings and could not receive their certificates of need until Hillcrest’s complaint was resolved. Since the review was in process when this writ was granted, no clear duty existed for the agency to issue the certificates. The appropriate remedy for the appellees was not to seek mandamus; instead they must await the review process. Mandamus is improper when there is an adequate alternative remedy, which in this case was administrative review.
Reversed and dismissed.
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Robert H. Dudley, Justice.
The appellee, Game Sales Company, Inc., holds a judgment of $39,079.20 against appellants, Bill and Pamela Waggoner. The appellee sued for a writ of garnishment of appellant’s funds held by the Union National Bank of Little Rock. The garnishee bank answered that it held $1,490.48 in the joint names of appellants. The appellants filed a claim for exemption, pleading that the funds came from disability payments by the Civil Service Retirement System. The appellant subsequently proved that the funds did, in fact, come from Civil Service disability payments. The trial court denied the exemption. We reverse.
Appellants contend that 5 U.S.C. § 8346(a) provides an exemption for funds paid from the Civil Service Retirement Disability Fund. The argument is well taken. The statute, in the pertinent part, provides: 11 The money mentioned in this sub-chapter . . .is not. . .subject to. . . garnishment or other legal process, except as otherwise provided by Federal laws.” (Emphasis added.)
By this clearly expressed provision Congress makes the exemption applicable to “the money mentioned in this sub-chapter.” The statute, unlike some others, does not base the exemption upon whether the government holds the money. Under this broad grant of immunity, the exemption attached to the money itself and, when the money was paid to the recipient, it was free from garnishment by a judgment creditor. Accord, In re Dickerson’s Estate, 5 N.Y.S.2d 86, 168 Misc. 54 (Surr. Ct. 1938). (Interpreting earlier statute using the same language.)
Two courts have reached the opposite result and have held that the exemption does not apply .after the money reaches the recipient. In re Estate of McGreevy, 445 Pa. 318, 286 A.2d 355 (1971) and In re Prestien, 427 F.Supp. 1003 (S.D. Fla. 1977). The Supreme Court of Pennsylvania based its decision upon Congressional intent and “the general rule is that language relating to exemptions is to be strictly construed.” In reading the statute and examining the legislative history of the act, we are unable to find anything to demonstrate a Congressional intent to limit the exemption to funds held by the Federal government. In fact, the Senate Report on a 1978 amendment to § 8346(a) provides: “Under existing law 5 U.S.C. § 8346(a), payments under the civil service retirement system are not assignable or subject to . . . garnishment. . . .” (Emphasis added.) S. Rep. No. 95-1084, 95th Cong., 2d Sess. [1978] U.S. Code Cong. & Ad. News 1379, 1380. In addition, our general rule, unlike Pennsylvania’s, is that exemptions are to be liberally construed. Williams v. Swann, 220 Ark. 906, 251 S.W.2d 111 (1952).
Similarly, we are not persuaded by the reasoning expressed by the Federal District Court in Florida. That court based its opinion on the Pennsylvania case, and on the case of McIntosh v. Aubrey, 185 U.S. 122 (1902). There is no need for further discussion of the Pennsylvania case, and the case from the Supreme Court of the United States is clearly distinguishable. In that case, based upon an entirely different statute, the exemption applied to “money due, or to become due, to any pensioner.” The language operated to exempt only payments due and future payments, in other words, funds still in the hands of the government, and not to funds already paid.
We are of the opinion that the better rationale is to follow the clear language of the statute and to hold that the money which came from disability payments by the Civil Service Retirement System is exempt from garnishment by a judgment creditor under the provisions of 5 U.S.C. § 8346(a).
Reversed.
Purtle, J., not participating. | [
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David Newbern, Justice.
This is an appeal from denial of relief sought by the appellant in the trial court pursuant to Ark. R. Crim. P. 37. The appellant contends that his trial counsel was ineffective because the lawyer failed to move for dismissal of the charge against him on the ground that he had not received a speedy trial. We agree that the motion should have been made, and thus the conviction must be reversed.
Our criminal procedure rule, Ark. R. Crim. P. 28.1 (c), provides that a defendant charged with a crime in circuit court and lawfully at liberty awaiting trial is
. . . entitled to have the charge dismissed with an absolute bar to prosecution if not brought to trial within eighteen (18) months from the time provided in Rule 28.2, excluding only such periods of necessary delay as are authorized in Rule 28.3.
Rule 28.2(a) says the time begins to run when the charge is filed. Rule 28.3(a) provides, in part, for exclusion of:
The period of delay resulting from other proceedings concerning the defendant, including but not limited to an examination and hearing on the competency of the defendant and the period during which he is incompetent to stand trial, hearings on pretrial motions, interlocutory appeals, and trials of other charges against the defendant.
It is undisputed that the appellant was tried more than eighteen months after he was charged. His trial attorney did not move to dismiss the charges on that ground. Rule 28.1 (f) provides that failure to move for dismissal pursuant to Rule 28.1(c) constitutes waiver of the right to a speedy trial.
As the appellant was precluded by waiver from appealing the prima facie violation of the speedy trial rule, he sought relief from the trial court on the basis that his trial counsel had been ineffective. See Rule 37; Carrier v. State, 278 Ark. 542, 647 S.W.2d 449 (1983). The trial court refused to grant relief under Rule 37 because he found that the appellant had made a motion for an omnibus hearing pursuant to Rule 20 and had then waived the hearing fifty-five days after having made the motion. The court held the running of the eighteen-month period was tolled for those fifty-five days. Although the judge did not say so, he obviously was denying relief under Rule 37 on the premise that a motion for dismissal for failure to provide a speedy trial would have been denied, thus counsel’s failure to make the motion did not constitute ineffective assistance.
We would agree with the trial court if the motion for an omnibus hearing had caused a delay in the holding of the trial. In this case, however, no trial date was set until almost a year after the appellant waived the hearing. The hearing was waived on April 12, 1982. On March 21, 1983, the trial was set to be held July 7, 1983. The record contains no explanation of the delay which occurred between April 12, 1982, and July 7, 1983. The appellant clearly was not holding up the trial during that time.
The state cites People v. Chiofalo, 73 A.D.2d 673, 423 N.Y.S.2d 210 (1979), in which an “omnibus motion” made by the defendant caused the prosecutor to request and receive a continuance to permit trial beyond the New York statutory time limit. The court made it clear that the delay beyond the limit was directly caused by the defendant’s motion.
Also cited by the state is State v. Gowe, 13 Ohio App. 3d 358, 469 N.E.2d 909 (1983). There the defendant asked for a pretrial hearing on a misdemeanor traffic offense charge. The pretrial hearing was set for some five days before the thirty-day speedy trial time limit ran. The defendant’s attorney failed to attend the hearing, and the court then rescheduled the trial on a date eleven days after the limit. The appellate court said that in these circumstances, where a defendant who was required to be tried in thirty days asked for two court hearings, it was not unreasonable to allow extra time. The case does not say whether the Ohio law required dismissal in the event the time limit is exceeded or permitted any “reasonable” delay.
We appreciate the Attorney General’s candor in citing, for comparative purposes, Rodman v. County Court, 694 P.2d 871 (Colo. App. 1984). The issue on appeal was again whether a motion for a pretrial conference was a basis for excluding time from the speedy trial calculation. The case is much like the one before us now, as the trial court did not have to postpone any set trial date. The Colorado Court of Appeals said:
Here . . . there is nothing in the record to indicate that Rodman’s timely request for the pretrial conference necessitated a delay or postponement of the trial date. Also, there is nothing in the record to indicate that Rodman had rejected a proposed trial date within the statutory period . . . that he or his attorney requested a continuance . . . nor that the court set the trial beyond the six month statutory limit to accommodate the defense attorney’s schedule.
What is evident is that in requesting a pretrial conference Rodman was merely seeking to invoke the power of the trial court to enter orders which would govern the future course of the proceedings. The fact that a disposition of the case might result from such conference, while perhaps hoped for, is only one of the possible results to be achieved. Here, there is no indication that Rodman had any understanding or knowledge that such request might result in a postponement of his trial, nor, in our view, should he believe that a request for a pretrial conference, as a matter of course, would constitute a waiver of his speedy trial right. [Citations omitted.]
The state also cites three Arkansas cases for the proposition that when the defendant’s motion has made the trial impossible for a time, that time should be excluded from the speedy trial calculation. Williams v. State, 275 Ark. 8, 627 S.W.2d 4 (1982); Divanovich v. State, 273 Ark. 117, 617 S.W.2d 345 (1981); and Foxworth v. State, 263 Ark. 549, 566 S.W.2d 151 (1978). In each of those cases, the court had set a timely trial date which had to be delayed because the defendant’s motion made it impossible to hold the trial on the date planned. The distinction of those cases from the one before us is obvious. Here no trial date was delayed because of the defendant’s motion.
We note also that the court did not make a written order or docket entry showing a number of excluded days as Rule 28.3 (i) requires. The state argues the court fulfilled that requirement when he denied the Rule 37 petition. Our view is that there was no failure to meet this requirement because there were no excludable days.
We are not holding that in order for time to be excluded from the speedy trial period a trial must be postponed from a set date. We can imagine situations in which delays caused by the defendant could preclude setting the trial during the time within which he is required to be tried. In such an instance we could find, in the words of Rule 28.3(a), a “period of delay resulting from other proceedings concerning the defendant.”
Once the defendant has moved for dismissal and has shown that the trial was being or to be held after the speedy trial period expired, the prosecutor has the burden of showing the delay beyond the speedy trial period was the result of the defendant’s conduct. Williams v. State, 275 Ark. 8, 627 S.W.2d 4 (1982); State v. Lewis, 268 Ark. 359, 596 S.W.2d 697 (1980). That burden should have been placed on the prosecution in this case. Had the dismissal motion been made, it would have been error not to have granted it. We thus hold the failure to make the dismissal motion was ineffective assistance of counsel, the defendant suffered prejudice from it, and we have no alternative but to reverse the conviction and dismiss the case. Clark v. State, 274 Ark. 87, 622 S.W.2d 171 (1981).
Reversed and dismissed.
Purtle, J., not participating. | [
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Smith, J.
The state of Arkansas brought suit in the Sebastian chancery court, Fort Smith District, for the confirmation of title to numerous town lots and tracts of land which had been forfeited and certified to the state for the nonpayment of taxes. The suit was begun under authority conferred by act 119 of the Acts of 1935, p. 318. Section 6 of this act reads as follows:
“ Section 6. Any person, firm, corporation, or improvement district claiming any interest in any tract or parcel of land adverse to the state shall have the right to-be made a party to the suit, and, if made a party, the claims of any such person, firm, corporation, or improvement district shall be adjudicated, If any person, firm, corporation or improvement district sets up the defense that the sale to the state was void for any cause, such person, firm, corporation or improvement district shall tender to the clerk of the court the amount of taxes, penalty and costs for which the land was forfeited to the state, plus the amount which would have accrued as taxes thereon had the land remained on the tax books at the valuation at which it was assessed immediately prior to the forfeiture, provided, that there shall be credited on the amount due, any taxes that may have been paid on the land after it was forfeited to the state.
“In case any person, firm, corporation or improvement district so made a party defendant to the proceed ing as hereinabove provided, shall establish a valid defense, a decree of the court shall be rendered in favor of such defendant, with respect to the tract so affected and shall quiet the title thereto in such defendant, free from any claim of the state therein, upon payment by said defendant of the total amount of taxes, penalty and costs as hereinabove mentioned.”
Two lots in the city of Fort Smith, which are the subject-matter of this litigation, were involved in this confirmation suit, it being alleged that said lots had been sold to the state in 1934 for the non-payment of the taxes due thereon for the year 1933. • Appellees, respective owners of the two lots here in question, filed an intervention, pursuant to the authority of § 6 of this act 119, above copied, and alleged that the sale of their lots was void for numerous reasons. They made the tender required 'by § 6, and the sum tendered was deposited with the clerk of the court, subject to the order of the court, and they prayed that their title be quieted.
Appellant J. B. Hirsch had purchased both lots from the state, and received a separate deed for each lot, and it was prayed that Hirsch be made a party defendant. This was done, and Hirsch filed an answer to each intervention, denying the invalidity of the forfeiture and sale to the state. The same issues are involved, and arise out of facts identical in each intervention, and we will discuss the cases as if there were only one case.
The court held the sale of the lots void for various reasons and granted the interveners the relief prayed, and from that decree is this appeal.
The court made numerous findings of fact, in each of which it was declared that the sale was void for the reasons there stated.
One of the findings was that the sale was void for the reason that the county clerk had not posted up in or about his office the delinquent list of lands for one year. This requirement appears in § 10084, Crawford & Moses’ Digest, and it had been held that failure to comply with it invalidated the tax sale. Tedford v. Emison, 182 Ark. 1054, 34 S. W. 2d 214.
But when thé sale here in question was made, this requirement was not in effect. Section 10084, Crawford & Moses’ Digest, was amended by act 250 of the acts of 1933. This amendatory act re-enacted § 10084, Crawford & Moses’ Digest, by omitting the last sentence thereof, which reads as follows: “He (the county clerk) shall also keep posted up in or about his office such delinquent list for one year.” The effect of this amendment of § 10084, Crawford & Moses’ Digest, by § 5 of act 250 was to dispense with this requirement, and as that duty .is. not now imposed and was not required when the tax sale was had, non-compliance therewith does not now operate, and has not, since the passage of act 250, operated to-invalidate tax sales on that account.
Act 250 of the acts of 1933 was not published in the printed acts of 1933. Under that number appears the notation: “Held unconstitutional by the Supreme Court.” This was an error on the part of the secretary of state in omitting to include act 250 in the acts of 1933 as published. .
This act 250 contains provisions fixing the fees of various county officers, and that portion of the act was held unconstitutional in the case of Smith v. Cole, and Brown v. Pennix, 187 Ark. 471, 61 S. W. 2d 55, for the reason that it violated the inhibition of amendment'No. 14 to the constitution against passing local laws, but it was said in that case that “the fact that §§ 5 and 6 of act 250 of 1933 are general in their nature and valid will not validate local and special provisions in § 2 of the same act.” See,- also, Tindall v. Searan, 192 Ark. 173, 90 S. W. 2d 476.
Sections 5 and 6 of this act 250 amended § § 10084 and 10085, Crawford & Moses ’ Digest, respectively, and that portion of the act was upheld in the case of Matthews v. Byrd, 187 Ark. 458, 60 S. W. 2d 909, it being the opinion' of the court that these § § 5 and 6 were separable from the remainder of the act, which fixed fees and salaries. Section 5 of act 250 was, therefore, valid legislation, as was also § 6, and, as we have stated, the effect of § 5 was to eliminate the requirement contained in § 10084, Craw ford & Moses ’ Digest that the county clerk post and keep posted up in and about his office such delinquent list for one year.
Other findings of the court holding that the tax sale was invalid are to' the following* effect: . No proper certificate of delinquency was filed by the collector with the county clerk; nor was the certificate which was filed, filed within the time required by law; nor was the list of delinquent lands entered upon the record within the time and manner required 'by law. The court further found that the clerk had failed to attach to the tax books the warrant required by law authorizing and directing the collector to make collection of the taxes entered upon the tax books.
There was read into the record a certificate as follows :
“State of Arkansas, County of Sebastian. I, Earl Dawson, county clerk within and for the county and state aforesaid, do hereby certify that a notice of the filing of the foregoing list of real estate returned delinquent for the year 1933 was published in the Southwest-Times Record Company, a newspaper of said county and district. The first notice of the delinquent land sale was published on 9th day of November, 1934, and the second notice on the 16th day of November, 1934, as the law requires.
“In testimony whereof, 1 have hereunto set my hand and affixed the seal of said office this 22nd day of November, 1934.”
Following this reading the clerk was asked: “Q. Is the notice actually set out in that record” and he answered: “A.. No, sir.”
It is uncertain to what document or record this question and answer related. There does not appear to have been any other record of the “List of Real Estate Returned Delinquent for the Tear 1933.” If this delinquent list had not been entered upon a permanent record, usually referred to as the record of lands returned delinquent, the sale was void for that reason. If this was the record, and not merely the delinquent list filed by the collector with the county clerk, the entry therein was not sufficient, for the reason that the record was not made until November 22, 1934, which was subsequent to the date of sale, the sale having been made November 19,1934.
Section 10082, Crawford & Moses’ Digest, required the collector to file the list of delinquent lands, duly verified, with the county clerk by the second Monday in May, and it was held essential to the validity of the sale of these lands that the list be filed on or before that date. Boyd v. Gardner, 84 Ark. 567, 106 S. W. 942; Ramsey v. Long Bell Lumber Co., 195 Ark. 528, 112 S. W. 2d 951. The county clerk was required to compare this delinquent list with the tax book and the record of tax receipts. Section 10084 required the county clerk to publish the list of delinquent lands as corrected, and by § 10085 it was required that “The clerk of the county court shall record said list and notice in a book to be kept by him for the purpose,” and shall certify at the foot of the record the newspaper in which the list was published, and the date of publication, and for what length of time the same was published before the second Monday in June- next ensuing. These statutes were construed as requiring that not only should this record be made, but that it must be made before the day of sale, and that if not made, or not made until after the day of sale, the sale was invalidated. Magness v. Harris, 80 Ark. 583, 98 S. W. 362.
The insistence is, not that these requirements were met, but, that they have been dispensed with by act 250 of the 1933 regular session of the General Assembly, and by act 16 passed at the special session thereof (Acts Special Session 1933, page 61), and that it is not now required that the clerk shall certify anything’ more than to state in what newspaper the notice of delinquent lands was published, and that it is not required that this certificate shall be made before the sale.
It becomes necessary, therefore, to consider in what respect the law as it appears in 'Crawford & Moses’ Di gest, supra, lias been changed by subsequent legislation, as applied to the record in this case.
As we have said, § 5 of act 250 amended § 10084, Crawford & Moses’ Digest, by eliminating the requirement that tbe delinquent list as published shall be posted in the clerk’s office.
Section 6 of act 250 amends § 10085, Crawford & Moses ’ Digest. This amendatory section is not found in the published acts of 1933, but is set out in the opinion in the case of Union Bank & Trust Co. v. Horne, 195 Ark. 481, 113 S. W. 2d 1091, except, as there published, there is omitted the last paragraph of that section which reads as follows: “The list of delinquent lands recorded as provided in § 5 hereof shall have attached thereto, by the county clerk, a certificate at the foot of said record, stating’ in what newspaper said notice of delinquent land sale was published, and the dates of publication, and such record, so certified, shall be evidence of the facts in said list and certificate contained. ’ ’
The portion of this amendatory § 6, copied in the opinion in the case of Union Bank & Trust Co. v. Horne, supra, provides that “There shall be published once weekly for two weeks between the second Monday in May and the second Monday in June, in each year, . . . ., a notice to the effect that the delinquent lands, tracts, lots or parts of lots so entered in said delinquent land book will be sold, .... Said notice of sale of delinquent real estate for taxes shall occupy a space of not more than six inches double column in each publication ...”
This amendatory § 6 then provides that “Said notice shall be in substance as follows: ‘NOTICE OF DELINQUENT TAX SALE. The lands and lots and parts of lots returned delinquent in . county for the year 19., together with the taxes and penalties charged. thereon agreeable to law, are contained and described in a list or record on file in the office of the clerk of the county court; . . .’ ” Thereafter follows the last paragraph of the amendatory § 6, copied above, which was omitted from the opinion in the case of Union Bank & Trust Co. v. Horne, supra.
We perceive, in this amendatory legislation, no intention to dispense with the requirement that a permanent record be made and kept of lands returned delinquent, nor as to the time of making such record, that is, prior to the sale.
The effect of this amendatory § 6 is to make such a record more important than ever; indeed, under this amendatory section, such a record becomes indispensable. This amendatory section dispenses with the necessity of publishing the list and description of the delinquent lands. A six-inch, double column notice advises that delinquent lands will be sold, but does not describe the land to be sold. That information cannot be obtained from the published notice, but can only be had by examining the permanent record in which the delinquent list of lands has been copied. If the continued keeping of that record is not required, then there was no permanent record where anyone might look to ascertain what lands were returned delinquent. The notice for which the act provides refers to the record where the delinquent lands are described, and the last paragraph of this § 6 requires that a certificate be made at the foot of that record stating in what newspaper the notice was published.
Act 16 of the Special Session of 1933 changes the time for collecting taxes, and permits their payment in installments, and amends act 250 to conform to this change in time for payment and for certifying delinquency in payment of taxes. Later legislation affecting time of payment need not be here considered.
■Section 5 of this act 16 amends § 6 of act 250 by providing the time and manner of publication of “Notice of delinquent land sale,” and provision is made for the publication of “A notice to the effect that the delinquent lands, tracts, lots or parts of lots so entered in said delinquent land book will be sold . . .” But this act 16 also dispenses with the necessity of describing the lands to be sold by providing that “Said notice of sale of delinquent real estate for taxes shall occupy a space of not more than six inch.es, double column in each publication. ’ ’ Then follows the form of this notice, which, without describing the lands to be sold, recites that these lands “are contained and described in'a list or record on file in the office of the clerk of the county court; . . . ” Thereafter follows a parag’raph identical with the last paragraph of § 6 of act 250, above copied.
We conclude, therefore, that the requirement of $ 10085, Crawford & Moses’ Digest, that the clerk of the county court shall record said list and notice in a book to be kept by him for that purpose, has not been dispensed with, and as that requirement was not complied with, the tax sale was void for that reason.
The court also found that the clerk had failed to comply with the requirements of § 10016, Crawford & Moses’ Digest, that “The clerk of the county court of each county shall, on or before the first Monday in January in each year, make out and deliver the tax-books of his county to the collector, with his warrant thereunto attached, under his hand and the seal of his office, authorizing said collector to collect such taxes.” This section of 'Crawford & Moses’ Digest was amended by § 3 of act 16, supra, the amendment being to the effect that the clerk shall deliver the tax-books to the collector on or before the third Monday in February, instead of on or before the first Monday in January. The provision that he shall do so, with his warrant thereto attached, was unchanged. It has been held that the failure of the clerk to attach his warrant to the tax-books avoids the sale. Stade v. Berg, 182 Ark. 118, 30 S. W. 2d 211; Keith v. Freeman, 43 Ark. 296; Hooker v. Southwestern Improvement Association, 105 Ark. 99, 150 S. W. 398.
In the Stade Case, supra, the tax books were delivered with warrant attached, but not until January 22, and this delay was held to have invalidated the tax sale.
The court below found that the warrant had not been attached to the tax books; and that finding does not appear to be contrary to a preponderance of the evidence, and the sale must be held invalid for that reason.
There is a companion case to the one we have just discussed, which may he disposed of in this opinion, this being case No. 5401.
Three lots belonging to different owners were embraced in this confirmation suit, but those owners did not intervene until after the confirmation decree had been rendered. A lot belonging to one of these owners had been sold in 1931 for the taxes of 1930. Two other lots had been sold.in 1933 for the taxes of 1932, and those sales had been confirmed.
In this act 119 of the acts of 1935 there appears a provision in § 9 thereof that “The owner of any lands embraced in the decree may, within one year from its rendition, have the same set aside insofar as it relates to the land of the petitioner by filing' a verified motion in the chancery court that such person had no 'knowledge of the pendency of the suit, and setting up a meritorious defense to the complaint upon which the decree was rendered. The chancellor shall hear such defense according to the provisions of this act as though it had been presented at the term in which it was originally set for trial.”
The owners appeared within a year of the date of the confirmation decree and moved to set it aside as to their lots, upon the allegations that they had no knowledge of the pendency of the confirmation suit and had a meritorious defense to the complaint upon which the decree was rendered. Those lots had been sold by the state, and the .purchaser from the state was made a party defendant. The act, as appears from the portion above copied, allows one year in which this showing might be made.
These parties attacked the sales under which their lots had been sold to the state upon numerous grounds, several of which were sustained by the court, and upon this showing of a meritorious defense against the confirmation decree, that decree was vacated and their title was quieted upon their tendering the sum. required by the act. This second and separate appeal which we are now discussing was prosecuted from that decree.
The sale of the lot in 1931 for the 1930 taxes was made before § 10084, Crawford & Moses’ Digest, was amended by act 250 of the session of 1933, and § 10084, Crawford & Moses’ Digest, was in full force and effect when the sale for the taxes was made in the year 1931. It was, therefore, required, under the law as it existed at the time the sale for the 1930 taxes was made, that “. . . the clerk shall also keep posted up in and about his office such delinquent list for one year.” The testimony shows that this was not done, and the sale in 1931 was void for that reason. There was a showing in the case of the sales for both years that the clerk had failed to attach his warrant authorizing the collector to collect the taxes, and both sales were void for that reason.
The court was, therefore, warranted in finding, in this second case, that there was a meritorious defense within the meaning of § 9 of act 119 of 1935 and in vacating the confirmation decree for that reason. Section 6 of act 119 makes a showing that the tax sale was invalid a valid defense against the confirmation of the sale; and § 9 of the act provides that in a proceeding brought pursuant to its provisions “The chancellor shall hear such defense according to the provisions of this act as though it had been presented at the term in which it was originally set for trial.” It appears, therefore, that the invalidity of the tax sale is a meritorious or valid defense against confirmation as well, within one year after, as before the rendition of the decree of confirmation.
We conclude, therefore, thal the decrees in both cases Nos. 5373 and 5401 are correct, and both are, therefore, affirmed.
Holt, J., disqualified and not participating. | [
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Humphreys, J.
This is an intervention filed on August 28, 1937, by William F. and Leora E. Meyer, minors, by their guardian in the matter of the American Exchange Trust Company, insolvent, pending in the chancery court of Pulaski county, wherein appellees made the Fidelity & Deposit Company of Maryland, a defendant, seeking to recover from Gr. S. Jernigan, as State Bank Commissioner in charge of the assets of the insolvent American Exchange Trust- Company and said Fidelity & Deposit Company of Maryland the sum of $1,434.73 with interest at the rate of 6 per cent, per an-num from the date of filing said intervention by falsifying and surcharging the final account and settlement of the American Exchange Trust Company as guardian and curator of the estate of said minors. It was alleged in the intervention that the American Exchange Trust Company, as such guardian, purchased from itself a note for the sum of $1,000, and a mortgage given to secure same executed by L. B. Siegel; that L. B. Siegel went into bankruptcy and was finally‘discharged, and that Ora Lee Meyer, as guardian of such minors, was given an undivided one-fifth interest in an undivided 20/39 interest in lots 1, 2 and 3, block 2, Rectortown Addition to the city of Little Rock; lot 4, block 4, Russell’s Addition to the city of Little Rock; that this was the sole benefit received from said Siegel note and mortgage, and that same was of little valúe; that the Siegel nóíe for $1,000 was one of a series aggregating $9,750', and that the investment by the guardian in said "note was without authority of law and without an order first obtained from the Pulaski probate court, authorizing such guardian to invest funds in such' note; that said guardian knew that such note was of little value, and that it was guilty of gross neglect and fraud upon the minors in making such investment without an order of the ■ probate court.
The Fidelity & Deposit Company filed an answer admitting that the American Exchange Trust Company was appointed guardian and curator of the estate of William F. and Leora E. Meyer, minors, on February 27, 1930, and that it received assets belonging to them of the value $3,645.73, and that the Fidelity & Deposit Company of Maryland executed a bond as surety for the American Exchange Trust Company in the penal sum of $2,500; that on March 22,. 1930, the American Exchange Trust Company, as such guardian, purchased from itself with funds of said minors a $1,000 first mortgage real estate note bearing 6 per cent, interest executed by Louis B. Siegel and wife,-said note being* due and payable on the 14th. day of April, 1931; that it made this purchase without first obtaining an order from the Pulaski probate court to do so; that in November the American Exchange Trust Company became insolvent, and was placed in the hands of the State Bank Commissioner for liquidation; that on February 26, 1931, at the instance of Mrs. Ora Lee Meyer who was the mother of the minors, the Pulaski probate court removed the American Exchange Trust Company as guardian and curator on account of its insolvency and was herself appointed guardian and curator for them, and that on March 14, 1931, the American Exchange Trust Company through the Bank Commissioner filed its final report as such guardian and curator and received and receipted for the assets including the Siegel note and mortgage. It denied, however, that the American Exchange Trust Company knew that the Siegel note was of little value or that it was guilty of gross neglect and fraud upon the minors in making such investment without an order of the probate court first obtained.
By way of further defenses it interposed the five-year statute of limitations as a bar to the intervention and estoppel on the part' of Mrs. Ora Lee Meyer, and the minors to prosecute the action.
The testimony introduced covered the administration of the estate of said minors by their original guardian, the American-Exchange Trust Company, and their guardian in succession, the bankruptcy proceedings in part of Louis B. Siegel in the Federal court, and part of the proceedings of the Bank Commissioner in liquidating the assets of the American Exchange Trust Company, with a large number of exhibits attached which we deem unnecessary to set out in detail or in substance to determine the questions involved on this appeal.
After hearing all the evidence the chancery court rendered the following decree: “It is, therefore, by the court, considered, ordered, adjudged and decreed, that Ora Lee Meyer, as guardian and curator of William F. and Leora E. Meyer, minors, do have judgment for and recover of and from G. S. Jernigan.as State Bank Commissioner in charge of the American Exchange Trust Company, insolvent, and, the Fidelity & Deposit Company of Maryland-, collectively and severally, the sum of $1,-304.45, together with interest thereon from this date until paid, at the rate of 6 per cent, per annum, for which execution or garnishment may issue as upon a.judgment at law against the Fidelity & Deposit Company of Maryland only, and with the understanding that this judgment is now an adjudicated- and liquidated claim for such amount, in favor of the intervener as a common creditor of the insolvent bank.
It is further considered, ordered, adjudged and decreed by the court that any and all right, title and interest and equity of William F. and Leora E. Meyer, minors, and as to Ora Lee Meyer, as an individual and as guardian and curator of William F. and Leora E. Meyer, minors, in and to an undivided one-fifth interest in and to an undivided 20/39 interest in and to the following property situated and located in Pulaski county, Arkansas, to-wit:
Lots 1, 2 and 3, block 2, Rectortown Addition to the city of Little Rock, Arkansas, and lot 4, block 4, Russell’s Addition to the city of Little Rock, Arkansas, be and the same are hereby divested out of William F. Meyer and Leora E. Meyer, minors, and out of Ora Lee Meyer, as an individual and as guardian and curator of William F. and Leora E. Meyer, minors, and be and the same are hereby invested in either G. S. Jernigan, as State Bank Commissioner in charge of the American Exchange Trust Company, insolvent, or in the Fidelity & Deposit Company of Maryland, whichever shall pay said judgment. ’ ’
From the findings and decree, G. S. Jernigan as State Bank Commissioner in charge of the American Exchange Trust Company, insolvent, 'and the Fidelity & Deposit Company of Maryland prayed an appeal to this court which was granted, and the interveners excepted to that part of the decree reducing the interest rate from 6 per cent, to 4 per cent., and prayed an appeal to this court which was granted.
The record reflects that on February 27, 1930, the American Exchange Trust Company was duly appointed curator of the estate of William F. and Leora E. Meyer, minors, and who are still minors, by the Pulaski county probate court, and that the Fidelity & Deposit Company of Maryland executed a bond as surety for the' faithful performance of the duties of said guardian in the penal sum of $2,500; that said trust company took possession of said assets appraised at $3,645.73; that at the time it owned a note for $9,750 executed by Louis B. Siegel and wife secured by a mortgage on the lots heretofore described ; that it invested $1,000 of the assets of the minors in one of the Siegel notes in the sum of $1,000 secured by the mortg’age that the Siegel note was due and payable on the 4th day of April, 1931, and that it made this investment without getting an order from the probate court\to do so; that in November, 1930, the American Exchange Trust Company became insolvent, and the Bank Commissioner took over its assets for liquidation; that on account of the insolvency of said.trust company, Mrs. Ora Lee Meyer, the mother of the minors, by petition to the probate court requested the removal of the American Exchange" Trust Company as curator which petition was granted and she, herself, was appointed curator for the estate of said minors on February 2.6, 1981; that said curator was ordered to make a final report, and to turn over the assets of the minors to her which it did through the Bank Commissioner; that included in these assets was the Siegel note and mortgage wdiich she received and receipted for as guardian of said minors; that on June 3, 1931, the report was approved and confirmed by the court, and the American Exchange Trust Company and the Fidelity & Deposit Company were discharged; that after receiving the Siegel note in 1931, Louis B. Siegel went into bankruptcy and later received his discharge; that he had not listed the Siegel note and mortgage in the bankruptcy proceedings, and that on March 1, 1933, Mrs. Ora Lee Meyer, as guardian in succession for the minors, filed a petition in the United States District Court to reopen the bankruptcy proceedings, alleging ownership of the $1,000 Siegel noté, and that same was a valuable asset; that pursuant to her request and that of other creditors interested in the $9,500 note the court opened up the proceedings to the end that she and the other owners of said notes might foreclose the mortgage securing same; that judgment was recovered on the notes, the mortgage foreclosed, and the property ordered sold tó pay the judgment; that same was sold by the commissioner of said court and the holders of the respective Dotes purchased the lots and received a commissioner’s deed for their respective interest therein; that Mrs.- Ora Lee Meyer recorded her commissioner’s deed on March 16, 1937, and that She conveyed the undivided interest in said lots to the minors by quitclaim deed and recorded the deed; that subsequently she filed a petition in the Pulaski county probate court stating that she had this valuable asset, and that it was needed for the support and maintenance of" the minors which order was granted, and that the property was sold pursuant to an order of the court after-proper advertisement and sold to George H. Burden for $1,800, which sum was the highest bid and was three-fourths of the appraised value of the property; that later the pro bate court confirmed the sale and authorized Mrs. Ora Lee Meyer, as guardian of the minors, to convey by proper instrument the lots to,.George H. Burden; that all the appraisements of these lots in the process of the administration of the guardianship show that said property was worth more than the note of $1,000 which the American Exchange Trust Company purchased for the minors out of the minors ’ assets after it was appointed curator for them.
After a careful reading of the testimony we find no evidence in the record showing that the American Exchange Trust Company.or any of its officers made any misrepresentations or practiced any deception upon the probate court or its successor to the guardianship of the estate, Mrs. Ora Lee Meyer, in the final report it filed or in securing- the discharge of itself and bondsmen from liability in the administration of the estate of said minors during the time it acted as guardian for them or that it or any of its officers knew that the property described in the mortgage securing the Siegel note was of little value. In fact the record does not reflect what the value of the security was when the American Exchange Trust Company turned the security over to Mrs. Ora Lee Meyer as guardian in succession for said minors nor its present value. The mortgage of the property, and the character of the property accepted by her as guardian was known to her, and the fact that the investment had been made without first obtaining an order of the probate court was necessarily known to her. She had every opportunity to except to this item in the account at the time she procured the removal of the American Exchange Trust Company as guardian. She could then have excepted to the item, and could have appealed from the approval and confirmation of the final report of the American Exchange Trust Company, but instead of doing this she later went into the Federal court as guardian for said minors and reported the property to be a valuable asset and foreclosed the mortgage, purchased the property at the sale, accepted the commissioner’s deed, and thereáfter conveyed the property to the minors. She later procured a sale of the property in tlie probate court for tbe support and maintenance of the minors and sold same for $1,800. It seems that on account of some provision in the will made by William F. Meyer, deceased, the sale was not perfected, and that the title to the lots is still in the minors and under the control and management of Mrs. Ora Lee Meyer, as guardian for them.
For nearly six years after she received this property as guardian in succession for the minors it was treated as a valuable asset, and to the extent that Mrs. Ora Lee Meyer as guardian for said minors foreclosed the mortgage in the Federal court in the bankruptcy proceedings of Louis B. Siegel pending therein, and that at the foreclosure sale purchased same for the minors and thereafter conveyed same to them; and that subsequently, acting for the minors, she applied to the probate court alleging that the property was valuable, for an order to sell same for the support and maintenance of the minors, and that she procured the order and actually sold it for $1,800.
We think the conduct of Mrs. Ora Lee Meyer acting in behalf of the minors relative to the Siegel note and mortgage clearly estops her and the minors she represented from prosecuting this suit to falsify ánd surcharge the final account of the American Exchange Trust Company as to this item, on the allegation and proof that the American Exchange Trust Company invested the minors’ money in the Siegel note without first procuring an order from the Pulaski probate court to make the investment. No actual loss is shown to the estate on account of the investment. If this illegal act of making the investment, without first procuring an order to do so is the character of fraud which will be relieved against in a court of equity, which we doubt, the guardian and minors are certainly estopped after nearly six years from prosecuting this suit. In Woodall v. Moore, 55 Ark. 22, 17 S. W. 268, this court has laid down the rule which we think peculiarly applicable to this case, which rule is as follows: “When infants-by their guardian or-next friend come into court to assert their rights, they proceed under the eye of the court, and are supposed tb' enjoy its care and protection, and conclusions therein reached are as binding upon them as upon persons sui juris.”
Every proceeding in the course of the administration relative to the property in question was done under the eye of the court and under its care and protection, and in view of this fact the action of the guardian in holding and treating this asset as valuable for all these years under such supervision is attributable to th,e minors, and that both the minors and the guardian are clearly estopped in good conscience from prosecuting this suit, especially is this true in view of the fact they have not produced any evidence of actual fraud which caused them to lose anything, and simply upon the ground that an order to make the investment was not first procured from the probate court.
On account of the error indicated the decree is reversed, and the cause is remanded with directions to dismiss the intervention. | [
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MoHaney, J.
At the time of-his death F. B. Sprague was the owner of 23 bonds, of the face value of $500 each, of Sub-District No. 3 of the Western Clay Drainage District. Prior to his death he brought this action against said district, its Board of Commissioners, the County Judge of Clay county, and certain taxpayers of the district to recover judgment on said bonds, all being in default, and to compel the levy of further assessments and the sale of delinquent property for the purpose of paying said indebtedness. Some of the landowners in the district intervened in said action which on his death was revived in the name of appellee. The district and its. directors, as also the interveners, defended on the ground that the Board was without power under the act of its creation to levy further assessments. The trial court found against appellants, entered judgment for appellee for $11,448 with interest from the date of the decree at 6 per cent, per annum, and for costs, and also ordered and directed the Board of Directors of the district, and their successors in office, forthwith to make a levy of 8 per cent, on the assessed benefits against the lands of -the district, same to be certified to the County Judge of Clay county, or his successor in office, and by him entered as an order of the county court, and that said levy be collected, annually beginning with the next collection period, until such judgment should be paid, or until the further order of court. It was further ordered that as to all lands annually returned delinquent, the directors cause suit to be instituted to enforce collection. This appeal followed.
Western Clay Drainage District, Sub-District No. 3, was created by authority of act 368 of 1907, and act 278 of 1909, amending same. Benefits were assessed against the lands in the district in the sum of $'53,017.50. Bonds were issued in the .total sum of $50,000. For the purpose of paying said bonds as they matured, the Commissioners levied an annual tax on the betterments for twenty-five years. • These annual levies and collections failed to be sufficient to pay the bonds owned by appellee’s decedent. The trial court found that there were still unexhausted assessed benefits amounting to 24% per cent, of the original amount, and this finding was based on evidence not abstracted by appellants, so we must presume that the evidence supports the finding.
The sole contention of appellants is that, since there have been twentyrfive annual levies, the board has exhausted its power in the premises, and that the court is without power or authority, under the acts above mentioned, to direct it to make additional levies, and this too in the face of the fact that all the assessed benefits have not been exhausted. Said act of 1907, sub-section (o) of § 8 provides: “Said special assessments may by said corporation be made payable in successive annual installments, for a period not to exceed twenty-five years, and they shall be of sufficient amount in the aggregate to pay the whole cost of the improvement for the making of which that sub-district was formed and for maintaining the same, and may be levied annually until all of the expense incurred in making of said improvement shall have been paid.” The same language is carried in the amendatory act of 1909, except the words “with interest” are added after the word “improvement.” We think this language, standing alone, imparts the intention of the Legislature that the indebtedness of the district shall be paid, even though more than twenty-five levies are required. But such intention is further emphasized and made certain, if there be any doubt, by other provisions of said acts. For instance, in § 12 of said act 368, the district is given power to issue bonds, and in paragraph 3 of said section it is provided that: “Such bonds shall be issued in separate and distinct series for each sub- district. The said property in each sub-district formed under the provisions of this act shall be liable for the payment of assessments sufficient to pay the bonds issued.for the construction of the improvement in that sub-district, but not for issues of bonds made for the construction of improvements in any other sub-district.” And again in the next paragraph of the same section it is said: “When any sub-district is formed . . . all of the unpaid installments thereof are hereby pledged to the payment of any bonds, issued for that sub-district as herein provided.”
These excerpts from the act demonstrate the incorrectness of appellants’ contention. They show conclusively that it was the intention of the lawmakers that all bonds should be paid, regardless of the twenty-five year limitation mentioned, so long as there remained unex-hausted assessed benefits against the lands. «Of course the assessed benefits could not be exceeded, but it is conceded that this has not been done.
The decree is correct, and is affirmed. | [
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Mehaefy, J.
On May 22, 1929, the appellee, Industrial Oil & G-as Company, entered into a contract with G. T. Cazort and his wife, C. M. Cazort, by which the Cazorts agreed to sell gas to the appellee company. The contract consists of 23 paragraphs, most of them long, and in the view we take of it it is unnecessary to set out the entire contract, although, in construing it, it is necessary to consider the whole contract. The parties had had other contracts prior to the time of making this one.
On April 5,1934, Gf. T. Cazort and C. M. Cazort filed suit in the Sebastian chancery court, Fort Smith district, against the Industrial Oil & Gas Company, setting out the contract above mentioned, and asked that the appellant company be required to account fully for the gas taken by it from the Crawford fields during the three years last past; that it account for the amount of gas it so contracted and agreed to take, of one million cubic feet per day, less the amounts actually paid for by it, and that plaintiffs have judgment against it for one-fifth of the amount of its said judgment against the Hardin Gras Company so settled by it without consent of the plaintiffs; that it he required to set up a true copy of the said agreement between plaintiffs and it, and produce the original for inspection and comparison. That it be required to render a complete account of its sales in the Fort Smith area for the past three years, and submit its books and meter readings in verification thereof.
Appellant company filed motion to require the plaintiffs to make their complaint more definite and certain.
Gr. T. Cazort died in August, 1935. The death was suggested and admitted and the court made an order that the cause be revived as to Gr. T. Cazort, the revivor being in the name of B.. E. Dent, administrator of the estate of Gr. T. Cazort, deceased.
The appellants filed an amended complaint on September 23,1936, and there was attached to such amended complaint the contract sued on. There was also a motion filed to require that the City National Bank, agent, and the City National Bank, be made parties. The Twin City Pipe Line Company filed demurrer which was sustained by the court, and ordered that the City National Bank as trustee or agent be made parity plaintiff.
The appellants then filed an amendment to the amended complaint. The City National Bank entered its appearance and the Industrial Oil & Gas Company filed answer denying each allegation of the amended complaint and amendment thereto.
Objections and exceptions were filed to deposition of Mrs. Cazort. It is not’necessary to discuss these, because in appeals from chancery courts this court considers only competent evidence.
Appellants say in their brief: “Only one issue is involved in this suit and that a simple one — a construction of this single paragraph of the contract of May 22, 1929, between the original plaintiffs, G. T. Cazort and C. M. Cazort, and the original defendant, Industrial Oil & Gas Company.” The paragraph referred to by appellants is as follows:
“Second .party agrees that it will during the term of this contract take from first parties, provided first parties can furnish same under the terms hereof, a mini mum of 1,000,000 cubic feet of gas per day under present conditions and during the period which, the smelter located east of Yan Burén is operating. Second party agrees that it will take a minimum of 2,000,000 cubic feet of gas per day. The recital of a minimum in this paragraph, however, shall not affect the obligation of second party to take from first parties one-fifth (1/5) of the gas taken from Crawford county, Arkansas, under the terms of this contract, or obligate second party to take at any time an amount in excess of one-fifth (1/5) of the gas taken from Crawford county, Arkansas, under the terms hereof.”
The interpretation of a contract is the determination of the meaning attached to the words written or spoken which make the contract. It is the duty fif courts to discover the meaning of a- specific contract, and to enforce it without leaning in either direction, when the parties stood on an equal footing and were free to do what they chose.
“All mercantile contracts ought to be interpreted according to their plain meaning, to men of sense and understanding, and not according to forced and refined interpretations which are intelligible only to lawyers, and scarcely to them. Contracts should neither, on the one hand, be so narrowly or technically interpreted as to frustrate their obvious design nor, on the other hand, be so loosely or inartificially interpreted as to relieve the obligor from a liability fairly within the scope or spirit of their terms.” 12 Amer. Jurisprudence, 745.
In construing contracts the court must, if possible, ascertain and give effect to the intention of the parties as far as this can be done consistently with legal principles, and this intention must be ascertained from the whole contract. Sternberg v. Snow King Bak. Pow. Co., Inc., 186 Ark. 1161, 57 S. W. 2d 1057; Coca-Cola Bottling Co. of Ark. v. Coca-Cola Bottling Co., 183 Ark. 288, 35 S. W. 2d 579; Sydeman Bros., Inc. v. Whitlow, 186 Ark. 937, 56 S. W. 2d 1020; Dewey-Portland Cement Co. v. Benton County Lbr. Co., 187 Ark. 917, 63 S. W. 2d 649.
The lower court found the issues in favor of appel-lees and against appellants. A majority of this court is of the opinion that the chancery court’s decision is correct and that a proper construction of § 23 .quoted above is not that appellees are required to take a minimum of 1,000,000 cubic feet of gas per day, but that they are required only to take one-fifth of the gas taken from Crawford county. A portion of the section reads as follows: “The recital of a minimum in this paragraph, however, shall not affect the obligation of second party to take from first parties óne-fifth of the gas taken from Crawford county, Arkansas, under the terms of this contract, or obligate second party to take' at any time an amount in excess of one-fifth of the gas taken from Crawford county, Arkansas, under the terms hereof.” This court holds, after a consideration of the entire contract, that the clause above referred to in § 23- of the contract manifests the intention of the parties to fix the minimum which appellees must take, not at 1,000,000 cubic feet, but at one-fifth of the gas taken from the Crawford county fields, and that appellees can not, under the contract, be required to take more than that. .(Mr. Justice Humpheeys and the writer are of opinion .that the minimum is 1,000,000 cubic feet.)
It is the opinion of the majority that the decree of the chancery court is correct, and the decree is, therefore, affirmed. | [
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Mehapey, J.
This suit was filed by appellant, plaintiff below, to set aside certain tax sales, the property having forfeited for assessment^ alleged to have been made in 1930. Tlie lands were bid in by the state and certified to the State Land Commissioner in 1936. Following snch certification the appellees herein procured donation certificates, and some of the donees made improvements. The nature and value of these improvements are set out in an agreed statement of facts. In the view we take of the case it is not necessary to consider the facts so agreed to.
The chancellor dismissed the complaint, and held that errors complained of were cured by act 142 of 1935. The effect of the decree is to say that the matters placed in issue were irregularities, and were not jurisdictional.
Numerous errors were assigned in the original complaint. However, in an amended complaint appellant seems to rely upon six assignments: (1) The county board of equalization failed to meet in 1930, and “failed to adopt a resolution as required by law.” (2) The county clerk failed to enter upon his records the adjusted ' or equalized assessed value of the lands described in the original complaint for the year 1930, “as adopted by the equalization board as required by law.” (3) The county clerk failed to send the names of the members of the equalization board to the State Equalization Board, as required by law. (4) The quorum court failed to appoint the members of the county equalization board in the year 1929 for the year 1930, as required by law. (5) The county clerk wholly failed to comply with §§ 10019 and 10092 of 'Crawford & Moses’ Digest. (6) The school tax assessed against lands of plaintiff for the year 1930 was void.
. The cause was argued orally, and appellant, while not abandoning any of its several assignments of errors, particularly emphasized the allegation that there was no assessment of taxes in Desha county for 1930. In the alternative it argued that, if it should be found that assessments had been made, such so-called assessments were invalid for the reason that the county board of equalization did not meet during 1930.
It is first contended by the appellant that there was no assessment of appellant’s property in Desha county in 1930.
N. D. Newton, county clerk of Deslía county, testified that the records in his office showed the assessment on real estate in Desha county for the year 1930; that the assessment hook was filed in the county clerk’s office by the assessor on August 18, 1930. The witness then read the record, or rather the certificate of the assessor, which was in usual form. We, therefore, think it conclusively appears that there was an assessment of real estate in Desha county in 1930. It is true that there was a date at the head of the list showing 1929, but the county clerk testified very positively that the assessment was made in 1930, and the certificate of the assessor, which was sworn to before the clerk on August 18, 1930, shows that it was the assessment for 1930 and not for 1929.
But it is contended by the appellant that there is no valid assessment because of the failure of the equalization board to meet and equalize the assessment, and that this makes the tax sale void. This court, on November 14, 1938, decided the questions against the appellant’s contention here, Stout Lumber Co. v. Parker, ante p. 65, 122 S. W. 2d 180. In that case we said: “Appellant assumes that, because the equalization board had finally adjourned when the assessments were made, its right of redress was gone. This is not correct. There was the right, by certiorari from the circuit court directed to the county clerk, to have the record brought up for review and correction. Section 2865, Pope’s Digest. ’ ’
Appellant next contends that the failure of the county clerk to comply with § 10019 of C. & M. Digest (§ 13766, Pope’s Digest) invalidates the sale. It is our opinion that there was a substantial compliance with this statute, although whether there was or not would not effect the result in this case. This is, also, true of appellant’s fourth contention, about complying with § 10092 of C. & M. Digest {% 13855, Pope’s Digest). This question was considered by this court in the case of Benham v. Davis, 196 Ark. 740, 119 S. W. 2d 743. The court there said:
• ‘ ‘The requirement of Kirby’s Digest, § 7092, that the county clerk shall keep a record of lands sold for taxes to individuals separate from the record, of lands sold to the state is directory merely, and a sale of lands to the state for nonpayment of taxes is not rendered invalid by noncompliance with such requirement.’ What the clerk did, according to his testimony, was that he took the record in which was recorded the delinquent list, and as the sales were made, he wrote in the margin of that record to whom it was sold, on a line provided for that purpose. If it was sold to an individual, his name was inserted. If it was sold to the state, the record' so showed. We think this is a substantial compliance with the statute as the record made in the manner stated by the clerk affords all of the information that would be obtainable from a separate list, and the taxpayer could not be misled by the absence of or the failure to keep such separate list. As said in Leigh v. Trippe, supra: ‘It is the declared policy of our revenue laws to disregard technical irregularities in tax sales which are not prejudicial to the rights of the owner, and to require all proceedings to set aside sales on account of such irregularities to be instituted during the period allowed for redemption’.”
It is urged that the county clerk failed in other duties, and that this makes the tax sale void, and also that the tax sale was void, because there was no valid levy of the school district tax. The exhibits introduced by Mr. N. D. Newton,' clerk, shows that the school tax in this particular district was levied according to law. All these irregularities were cured by act 142 of 1935, this suit, having been brought before act 142 was repealed. Under act 142, when the taxes on real estate have not been paid within the time provided by law, the property shall be sold. It is, also, provided in said act that the sale shall not be set aside 'by any proceedings at law or in equity because of any irregularity, informality, or omission by any officer in the assessment of said property, the levying of said taxes, the making of the assessor’s or tax book, the making or filing of the delinquent list, the recording thereof, and the recording of the lists and notice of sale, or the certificate as to publication of said notice of sale. Under said act it is required that there be a proper description of the property for which said property is sold for delinquent taxes. There is no dispute about there being a proper description in the instant case. The taxes had not been paid, and the sale cannot now be set aside for the irregularities complained of. Act 142 prevents this.
The acts complained of that are claimed to be jurisdictional are shown by the evidence in the record to have been performed as required by law.
We find no error, and the decree is affirmed. | [
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Baker, J.
Appellant begins its statement of this case with this paragraph:
“On February 18, 1938, the appellee, Amy Munford, filed this suit against appellant, Metropolitan Casualty Insurance Company of New York, in the sum of $300. The suit was based on an accident disability policy dated August 7, 1937, and the plaintiff, Amy Munford, alleges that she is suing in the capacity of beneficiary. On March 16, 1938, 'appellant filed its answer and in the answer admits that the policy was issued and admits that the plaintiff was beneficiary, but further answering, states “that on the signed application of Otis Munford, defendant did insure his life on the condition that the said insured was a farmer and that he was working for himself and that the rate as such farmer was in ‘E’ class and on such, classification he was entitled to the $300.00 worth of insurance at $1.25 monthly premiums.”
The insured at the time he was accidentally killed was hauling or loading logs for Mike Munford, employed by the Calion Lumber Company. It is alleged that as a logger he should have 'been classified under appellant’s classification H”, and not “E”, as it appears he was listed upon the application for insurance. It is alleged that under the classification of “II”, his premium would have been $1.95 per $100 of insurance, per month, instead of $1.25 for $300 of insurance, and it is further stated that under the classification of “H”, the amount of premium he paid in would have purchased $64.10. This amount was tendered, but refused. It is admitted that the insurance policy was in full force with all premiums paid at the time the insured was killed. The only real question that arises in the case is the contention made by the appellant that insured had changed his occupation after the issuance of the policy and that at the time of his death he was employed in a more hazardous work and that he should have been classified so as to pay the much higher rate of insurance, or to the same effect, that the amount of premiums paid would have bought a very much smaller sum, as the limit of recovery.
We copy from the policy of insurance a pertinent portion thereof.
“In consideration of the policy fee of five dollars and the Monthly premium of One 25/100 Dollars and of the statements in the Application for this policy, a copy of which is endorsed hereon and made a part of this contract does hereby insure Ottis Munford of Strong, Ark., hereinafter referred to as the Insured, a farmer by occupation, subject to all conditions and limitations hereinafter contained and endorsed hereon or attached hereto, from 12 o’clock noon, standard time at the place where the Insured resides on the day this contract is countersigned, until 12 o’clock noon, such standard time, of the first day of Sept., 1937, and for such time thereafter as the premiums paid by the insured, as herein agreed shall maintain this Policy in force. ’ ’
The principal sum of this insurance was $300. Upon the trial of the case the foregoing policy was introduced in evidence and there was attached to it, as a part of it, according to the copied portion of the policy, insurance application, the pertinent part of which may be found in the following questions and answers:
“4. What are your occupations? (Name them all) General Work. Classed by the Company as? E
“5. What are all your duties in above occupation?
“6. Employer?.Your wages or income? . per.
“7. What is your employer’s business?. Business address?..
“8. Who desired as beneficiary? (Full name)
Annie Munford. Relationship? Mother.”
Upon the trial of this ease the appellant offered as a witness one of its general agents, who identified and sought to introduce what he alleged was the original application. This so-called original application had inserted after the question “What are your duties and occupations?” the word “farming”, although the word or-answer did not appear in the application attached to the policy and made a part of it by the express terms of the policy. The trial court expressed a doubt as to the admissibility of this evidence and directed a verdict for the plaintiff for the sum of $300, the amount of insurance, upon which the judgment was entered.
This appeal challenges the correctness of that judgment and the propriety of the trial court’s act in refusing to consider this so-called original application for insurance and in refusing to submit to the jury, as contended for by appellant, the proposition to determine whether the so-called original application should be deemed the basis of the insurance contract, or the copy attached to the policy.
From the foregoing it will be seen that all the occupations mentioned, or stated by the insured are included in the one answer given bv him, “general work.” He did not say that he was a farmer nor that he was farming. He did not classify himself under the company’s schedule, but it appears from the application that the company made that classification. It does not appear from the application attached to the policy what kind of work he was doing, nor has any proof been abstracted in this record tending to show what his employment was at the time or on the date the policy was applied for, issued, or delivered.
The language of the policy is controlling in this case. It is the language employed by the insurance company, that is that “the application, copy of which is endorsed hereon and made a part of this contract.” There is no ambiguity in the quoted language. It does not warrant the introduction of the alleged original application to vary or contradict the contract.
The. insurance company had aii application from one who was apparently a good risk. The application was incomplete in some of its details, that is, the answers to all questions had not been set out, but the insurance company was satisfied with these answers and made its ovm classification of “E” and issued its policy thereon for $300. It was the insurance company that asserted the applicant was a farmer and wrote that into the insurance policy. It is true that the insured accepted this policy so designating him as a farmer, but it follows, by no means, that he knew that there was a different rate of premium to be paid if he were hauling logs or making crops. In fact copy of the application shows the classification was made not by the insured, but by the insurer. Since this copy of the application by the unambiguous, unequivocal language of the insurer, was made a part of the contract of insurance, both the parties were bound thereby. We can lend appellant no aid in changing or modifying this instrument.
This was a suit at law. -There was no allegation of fraud, or mistake, or contention that there was any misunderstanding, so it seems apparent that the insurance company should not now be permitted as a defense to amend or change the contract to defeat its liability.
The general rule seems to be that where a copy of the application is made a part of the contract, such copy governs and controls, rather than the alleged original, of which it is the supplied copy, if they differ one from the other. 33 C. J. % 837, p. 115; 1 Joyce on Insurance, § 190 pp. 498, 499, 500.
But it is also argued that since the company designated him as a “farmer”, when it issued the policy, the words “general work,” means and refers to such work as farmers generally do. That might be true under certain conditions and circumstances, hut the insured did not represent himself to be a farmer, according to this copy of the application. He gave the company the answer that he did “general work”, a descriptive term that might mean one thing in one particular locality and a different thing in another. In this case the insurance company, no doubt, had knowledge of the conditions in communities in which it operated. The company was under no obligation to accept the application, but having done so it is bound by what appears in it.
When it accepted this application without requiring amendment, by the applicant, its policy must necessarily have followed the copy of application made a part of contract, without an effort to change or modify same. 1 Couch on Insurance, § 89, p. 158. At any rate the insured did not represent or warrant that he was a farmer.
Even if the policy, including the application accepted as a part thereof was ambiguous then such policy must be construed most strongly against appellant and most favorably for appellee. Great American Casualty Co. v. Williams, 177 Ark. 87, 7 S. W. 2d 775; Life & Casualty Co. v. Ford, 172 Ark. 1098, 292 S. W. 389; Missouri State Life Ins. Co. v. Martin, 188 Ark. 907, 69 S. W. 2d 1081.
This rule is so generally established, so universally recognized, that its statement needs little supporting authority.
Appellant asserts that the insured had changed his occupation and offers as evidence of that allegation the proof of death, submitted by the beneficiary, to the effect that while the insured was engaged in loading or hauling logs, a log rolled upon him and killed him. It may be true that a log-hauler is engaged in a much more hazardous occupation than, a farmer, but there is no evidence in this case that the insured was not a log-hauler at the time the policy was issued, nor is there, any proof in this case that his answer, “general work”, was not fully understood by him and by the agent to whom he gave the application. So, if it he understood that the answers given by the insured were warranties, there is no evidence of a breach thereof.
A settlement of this one issue determines all the other propositions, as those presented in the brief are merely incidental.
The judgment is affirmed. | [
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Marian F. Penix, Judge.
Claimant was injured in 1968 at the age of 36. He alleged the injury was suffered in the course of his employment by U.S. Holdercraft and filed for Workers’ Compensation benefits. Benefits were denied on the basis of the testimony of his ex-wife who said he had actually hurt his back in 1968 while lifting a boat, an activity unconnected with U.S. Holdercraft. However incurred, the first back injury led to two surgeries and his total retirement from the work force. Under the Social Security Act claimant was determined to be totally and permanently disabled and began drawing benefits. In 1976, with the consent of the Social Security Administration, the claimant began working on a trial basis with Great Plains Bag Corporation. After two months on the job, claimant was injured. Dr. Lester testified claimant’s disability from the 1968 injury amounted to 20 to 25% to the body as a whole. Dr. Lester added an additional 5% arising from the 1976 injury. Dr. Adametz rated claimant’s disability as two and a half per cent affecting the body as a whole as an addition to his previous disability. The appellant controverted all'permanent partial disability benefits in excess of two and one half per cent to the body as a whole. The Administrative Law Judge requested the parties investigate the possibility of successful rehabilitation and subsequently held the claimant to be a suitable candidate for rehabilitation. The judge also awarded 35% anatomical permanent partial disability to the body as a whole. He gave no consideration to wage loss nor to loss of future earning capacity.
Claimant did not appeal the judge’s finding of 35% of anatomical permanent partial but rather argued his finding regarding rehabilitation should be set aside so a wage loss rating can be assigned to claimant in addition to the 35% physical impairment rating. The claimant asked the commission to award 95% permanent partial disability award under the rationale of Glass v. Edens, 233 Ark. 786, 346 S.W. 2d 685 (1961). The respondents argued that 30% is attributable to the claimant’s prior injury. The respondents argued for apportionment of the disabilities between the 1968 and 1976 injuries.
The 2-to-l opinion of the Workers’ Compensation Commission states it finds the 35% anatomical disability to the body as a whole to be “rather liberal”. However, the Commission adopted the finding and apparently translated Baty’s total disability to 95%'to the bo.dy as awhole, ofwhich 65% was found to have been caused by the Great Plains employment. The Commission acknowledged it was hard put to do this within the guidelines of Glass v. Edens, 233 Ark. 786, 346 S.W. 2d 685 (1961). This was particularly true since Baty had been unemployed and drawing total disability payments from Social Security since 1972. However, the Commission opinion apparently finds that Baty’s economic loss was the loss of his “trial” job of two months with Great Plains.
Assuming Great Plains knew of Baty’s prior back problems — and there is some dispute about this in the testimony — it was a commendable act by Great Plains to employ Charles Baty. Obviously this entailed substantial financial risk. Arkansas’ legislature wisely has tried to encourage employers, such as Great Plains Bag Corporation, to risk employing workers with previous disabilities. Of course, in such an employment, there is high risk of further injuries, and increased insurance premiums. Although this statute has been amended several times, the present law pertaining to Baty’s subsequent injury is set out in Ark. Stat. Ann. § 81-1313 (2) (Repl. 1976). This has been interpreted by our Supreme Court in Davis v. Stearns-Rogers Construction Co., 248 Ark. 344, 451 S.W. 2d 469 (1970). This fixes Baty’s compensation from Great Plains to be “. . . for the degree of disability that would have resulted from the subsequent in jury if the previous disability had not existed.”
According to the Arkansas Workers’ Compensation Act, “disability” is the incapacity because of injury, to earn, in the same or some other employment, the wages, which the employee was receiving at the time of injury. Ark. Stat. Ann. § 81-1302 (e).
In Glass v. Edens, 233 Ark. 786, 346 S.W. 2d 685 (1961), the Arkansas Supreme Court held that the Workers’ Compensation Commission may in its discretion consider certain non-medical factors in determining the degree of permanent disability sustained by an employee. As státed in Glass v. Edens, supra, disability means not merely functional disability but also loss of the use of the body to earn substantial wages. The court quoted extensively from Larson.
The key to the understanding of this problem is the recognition, at the outset, that the disability concept is a blend of two ingredients, whose recurrence in different proportions gives rise to most controversial disability questions: The first ingredient is disability in the medical or physical sense, as evidenced by obvious loss of members or by medical testimony that the claimant simply cannot make the necessary muscular movements and exertions; the second ingredient is defacto inability to earn wages, as evidenced by proof that claimant has not in fact earned anything. 2 Larson, Workmen’s Compensation Law, § 57.10, p. 10-4, as quoted in Glass v. Edens, supra, at p. 787.
We are limited by statute law and a long series of cases, none of which need to be cited, to the propositions: first, that awards of the Workers’ Compensation Commission will not be disturbed on appeal if there is any substantial evidence to support them; and second, that all inferences will be resolved in favor of the worker. This is true even though the two Workers’ Compensation Commissioners who rendered the opinion now on appeal obviously had only the cold typed record of the trial to read, as do we. The Administrative Law Judge’s findings from live testimony are swept aside by the de novo hearing before the three commissioners. We are precluded by the statutes from considering the findings of the Workers’ Compensation Commission Administrative Judge who alone heard and observed live witnesses in the trial of this claim. Parker Stave Co. et al v. Hines, 209 Ark. 438, 190 S.W. 2d 620 (1945); Lane Poultry Farms v. Wagoner, 248 Ark. 661, 453 S.W. 2d 43 (1970); Burks v. Blanchard, 259 Ark. 76, 531 S.W. 2d 465 (1976).
Even when viewing the evidence in the light most favorable to the claimant, however, we cannot find there to be substantial evidence to support the Commission’s award of permanent disability in excess of his anatomical rating. We are well aware the Commission’s finding carries the same weight as a jury finding and it is with great reluctance we overturn a decision made by the Commission. The undisputed fact is claimant had already been permanently and totally disabled. He had not worked in private employment for over eight years. His employment with Great Plains Bag Corporation was under a temporary permit from the Social Security Administration as a totally disabled person. His employment with this employer was strictly on a trial basis to determine if he was able to work. After a very short trial period, events proved he could not perform due to his back. There is simply no substantial evidence to support a finding of loss of future earning capacity.
This court is apprised of the fact that not everyone who is at one time determined completely disabled will remain so.
The capacities of a human being cannot, be arbitrarily and finally divided and written off by percentages. The fact that a man has once received compensation as for 50 percent of total disability does not mean that ever after he is in the eyes of compensation law but half a man, so that he can never again receive a compensation award going beyond the other 50 percent of total. After having received his prior payments, he may, in future years, be able to resume gainful employment. In the words of the Colorado court, he may have resumed employment as a “working unit.” 2 Larson, Workmen’s Compensation Law, § 59.42, at p. 10-352, 353.
The facts with regard to Charles Baty just do not show that he had returned to the work force as a “working unit”. He was not able to resume gainful employment.
The economic plight of Charles Baty concerns us. We have compassion for a man who has attempted to once again become a part of the work force. This attempt to re-enter, however, is simply not enough to support the award of 65% additional disability under Glass v. Edens, supra. As Professor Larson has written,
Workmen’s compensation is a mechanism for providing cash-wage benefits and medical care to victims of work-connected injuries, and for placing the cost of these injuries ultimately on the consumer, through the medium of insurance whose premiums are passed on in the cost of the product. Larson, Workmen’s Compensation Law, § LOO, p. 1.
Sustaining an award such as this, however, stretches this concept too far. Furthermore, this award would defeat the purpose and intent of the legislature as evidenced by the second injury statute and work to discourage rather than encourage employers to hire persons with any degree of disability.
The decision of the Workers’ Compensation Commission is revérsed with directions to limit the rating of Charles Baty to the 35% anatomical figure . Of this 35%, Great Plains Bag Corporation is responsible for 5% permanent partial disability to the body as a whole. The attorney for the claimant is awarded the maximum attorney’s fee on the amount controverted in excess of two and one-half percent.
Reversed and remanded.
The Social Security Administration has a program wheréby a person who is drawing disability benefits may begin working on a trial basis. This trial lasts for nine months. During this time he continues to draw disability benefits. If after nine months, it is determined the person is able to hold a job the disability benefits are discontinued. Charles Baty was at the time of his injury still drawing these disability benefits. | [
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McHaNey, J.
Appellant, Dr. A. S. Buchanan, is a physician and surgeon, engaged in the practice of his profession in the City of Prescott, and is the sole owner of the Cora Donnell Hospital in said city. Appellant, Miss R. C. Miller, is a registered nurse in said hospital.
On November 15, 1935, one J. N. Henley, who was, .and for sometime theretofore had been, in the employ of appellee, lumber company, as a truck driver, was very seriously and horribly injured by reason of a collision between the truck he was driving for appellee and a truck driven by appellee, Rhodes. He was taken to the above named hospital, and was there treated for a long period of time by appellants as physician and nurse, and the lumber company paid the hospital, medical and nurse bills from time to time. On December 10, 1936, Henley filed suit against appellees to recover damages in the sum of $85,000 for his injuries, alleging' as negligence on the part of the lumber company that it furnished him a car with defective brakes, and that Rhodes was negligent in turning his truck to the left as he, Henley, was attempting to pass, without giving any signal that he would do so. Shortly after this suit was filed the lumber company notified Dr. Buchanan that it would not be responsible for ■ any further bills for service rendered Henley. On June 16,1937, while said suit was still pending, Dr. Buchanan filed a claim of lien for himself and the hospital under the provisions of act 130 of 1933, in the sum of $923, and two days later, on June 18, Miss Miller filed a claim of lién under the same act in the sum of $346 for nurse hire. Thereafter, on January 3, 1938, while said suit was pending, and without notice to appellants, the lumber company settled the damage suit with Henley for $4,000 without paying appellants ’ claims and without securing any release thereof from them, and secured a dismissal of s.aid suit. Immediately on learning of the settlement and dismissal of said suit, appel lants filed tlieir interventions, praying that tlie order of dismissal be set aside as to tlieir claims of liens and praying judgment against appellees for said amounts. The court set aside its order of dismissal and set the case for trial. On a trial thereof and at the conclusion of all the evidence, the court instructed a verdict for appellees, on the ground that Henley assumed the risk of driving the truck with defective brakes and could not have recovered from the lumber company because of that fact, and, therefore, appellants could not recover against it despite the $4,000 settlement made by it with Henley. In other words the court required appellants to assume the burden of trying Henley’s case and to establish his right to recover, and having determined from the evidence that Henley could not have recovered had he tried his case, appellants could have no satisfaction, regardless of the settlement for $4,000. The case is here on appeal. .
No defense was made to the action on account of any failure of appellants to comply with all the provisions of said act 130 of 1933, in the matter of properly filing claims of lien in apt time or in giving notice thereof as provided therein. The defense was and is that in order to recover, appellants must show that the lumber company was a “tortfeasor,” as defined in said act. Sub-section (4) of § 1 defines that term as “a person through whose fault or neglect a person is injured.” Section 2 provides: “On compliance with the provisions of this act, a practitioner, a nurse, and a hospital and each of them shall .have a lien,” (a) for the value of services rendered by them to a patient, “for the relief and cure of an injury suffered through the fault or neglect of someone other than the patient,” (b) “on any claim, right of action, and money to which the patient is entitled because of that injury, and to costs and attorneys ’ fees incurred in enforcing that lien.”
. Section 5 of said act reads in part as follows: “A tortfeasor and an insurer, and each of them, who has been notified, as authorized by this act, of a claim of lien against such tortfeasor or insurer by reason of an in jury caused by the fault or neglect of a tortfeasor, shall not, within sixty (60) clays after the service of such notice, nor at any time after a copy of that notice has been recorded in the office of the clerk of the circuit court of the county in which the professional, nursing, or hospital service was rendered, pay to the patient, either directly or indirectly, any money or deliver to him, either directly or indirectly, anything of value, in settlement or part settlement of the patient’s claim or right of action, without having previously
“ (a) paid to the practitioner, nurse, or hospital that gave notice of such claim of lien, the amount claimed under it; or
“(b) received a written release of the claim of lien from the practitioner, nurse, or hospital that gave notice of it, except as otherwise authorized by this act.
“A tortfeasor and an insurer, and either of them, that has been notified by a practitioner, nurse, or hospital of a claim of lien under this act, and who, directly or indirectly, otherwise than as is authorized by this act, pays to the patient any money or delivers to him anything of value as a settlement or compromise of the patient’s claim arising out of the injury done to him, shall be liable to such practitioner, nurse, or hospital for the money value of the service rendered by such practitioner, nurse, or hospital, in an amount not in excess of the amount tó which the patient was entitled from the tort-feasor or insurer because of the injury.”
If the lumber company is a “tortfeasor” within the meaning of this act, then it clearly violated the provisions of this section, because it is undisputed that it paid Henley $4,000 in settlement of his claim against it, “without having previously” paid to appellants the amount of their claims; or without having received from them a written release of the claims of lien filed by them. By so doing, it became amenable to the penalty imposed by the last quoted paragraph of said section, and that is, it became liable to appellants “for the money value of the service rendered, in an amount not in excess of the' amount to which the patient was entitled from the tort-feasor because of the injury.”
We think the court misconstrued this act when it required appellants to assume the burden of proving a case of liability against appellees, after a settlement had been made, or at all. If no settlement had been made and if the case had been brought to trial, then the burden of making a case would have been on the plaintiff Henley, and if he had failed, then the lien of appellants would have failed also. But by compromising and paying $4,000 to Henley, it admitted in substance and effect that it was in the wrong, was a “tortfeasor,” and cannot now be heard to say to the contrary, even though it look a release absolving it from blame. That term, as used in the act, means the alleged wrongdoer. It is a descriptive term referring to the person or corporation charged with negligence, not that the lien claimant must prove that the alleged “tortfeasor” was one in fact, where a settlement has been effected. The act clearly gives a lien to appellants “on any claim, right of action, and money to which the patient is entitled because of that injury, and to costs and attorneys’ fees incurred hr enforcing that lien. ”
Now, it may be that Henley was not legally entitled to the $4,000 paid him, but the lumber company cannot be heard to say he was not, because it voluntarily paid it to him in compromise of a claim of $85,000, and appellants cannot be compelled to litigate that question. The remedial object of the statute was to prevent the very thing that has occurred in this case. It was enacted for the very humane purpose of encouraging physicians, hospitals and nurses to' extend -their services and facilities to indigent persons who suffer personal injuries through the negligence of another, by providing the best security available to assure, compensation for services and facilities. As we view it, there is no burden placed on industry, nor does it tend to discourage settlements. The alleged “tortfeasor” may defend the action in the courts. If there is no liability to the plaintiff, the lien claimant loses his claim for services. If the case is compromised, all tire “tortfeasor” lias.to do is either to pay the lien claimant, or get a written release of the lien claim from him.
The act under consideration, although • more elaborate, is somewhat analogous to the attorney’s lien act, same being act 293 of 1909 as amended by act 326 of 1937, digested as § 668 of Pope’s Digest. In St. L., I. M. & S. Ry. Co. v. Hays & Ward, 128 Ark. 471, 195 S. W. 28, it was held, among other things, that: “The section of our statute giving the lien to an attorney is remedial in character,' and must be liberally construed to effectuate the purpose soug’ht to be accomplished by its enactment.” The same thing is true here. The learned trial court gave the act a very strict and strained construction, and in doing so fell into error.
Numerous cases might be cited construing the attorney’s lien act before amendment, other than the Hays & Ward Case, supra, some of them are Sizer v. Midland Valley R. R. Co., 141 Ark. 369, 217 S. W. 6; Williams v. New England Security Co., 170 Ark. 139, 278 S. W. 961; Arkansas Foundry Co. v. Poe, 181 Ark. 497, 26 S. W. 2d 584; Warren & Saline River R. R. Co. v. Wilson, 185 Ark. 1063, 50 S. W. 2d 476. In St. L. I. M. & S. Ry. Co. v. Kirtley & Gulley, 120 Ark. 389, 179 S. W. 648, it was said: “This necessarily involves the reciprocal right of the attorney to follow the proceeds of the settlement, and, if they have been paid over to the client, to insist that his share be ascertained' and paid to him, for the defendant is estopped from saying that with notice of the lien he parted with the entire fund.” One of the differences between the two acts is, that act 130 of 1933 creates a right of lien in personal' injury cases only, whereas the attorney’s lien act is not so limited. See McDonald v. Norton, 123 Ark. 473, 185 S. W. 791, 1199. Both acts are quite similar in purpose. Each gives to the lien claimant or lienor an absolute lien upon the patient’s or client’s cause of action. As said in the Sizer Case, supra, with reference to the attorney’s lien act, “Under it the lien which the statute gives the attorney follows the cause of action throughout -without interruption and attaches to that in which the right of action is merged.” The lien so given under each act cannot be' evaded by a settlement. The lienee must take notice of the lien and if he settles the lawsuit without protecting the lienor, he does so at his peril. A conclusive presumption arises in case of settlement with notice of the lien that the lienee has retained in his hands a sufficient sum to satisfy the lien. Tt was so held in the Kirtley & Gulley Case, supra.
The judgment is, therefore, reversed and the cause remanded with directions to establish and enforce the lien of appellants for the amount of their respective claims, there being no dispute about their correctness and reasonableness, and to fix a reasonable fee for appellant’s attorneys, in accordance with the terms of said act. It is so ordered. | [
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John I. Purtle, Justice.
An information was filed in the Circuit Court of Crittenden County, Arkansas, on September 5, 1978, wherein the appellant was charged with the crime of murder in the first degree. It was alleged that appellant shot and killed William Murray with a pistol on August 3, 1978. Appellant was tried on the 25th and 26th days of September, 1978, and the jury found him guilty of murder in the second degree and assessed punishment at 15 years in the Arkansas Department of Correction. It is from this verdict and sentence the appellant appeals to this Court.
The episode involved herein commenced on August 3, 1978, when the appellant and several other persons were working on an automobile which had stalled in front of a store in close proximity to the home of William Murray, decedent-victim, and his sister, Susan Murray. The Murrays appeared and engaged appellant in an argument which resulted in Susan firing a gun at the appellant and William chasing him with a butcher knife. Shortly thereafter, appellant returned to the scene armed with a pistol and almost immediately the fracas was resumed. The testimony is greatly disputed as to whether Susan Murray opened fire the second time prior to the time appellant fired at her. Regardless of who started the firing, one of the shots from appellant’s pistol proved fatal to William Murray. During the latter part of the episode the Murrays were standing on the balcony or stairway at their place of residence and the appellant was on the ground in the vicinity of the street below, near the stalled vehicle.
Appellant raises 6 points for reversal and we will consider them in the order set out in appellant’s brief.
I.
THE TRIAL COURT ERRED IN UNREASONABLY RESTRICTING DEFENDANT’S IMPEACHMENT OF PROSECUTION WITNESS.
There seemed to be some confusion during the trial as to whether specific acts of conduct were admissible or whether the rule was limited to general character and reputation. This confusion apparently results from the application of Ark. Stat. Ann. § 28-1001, Rules 404 and 608 (Supp. 1977):
Rule 404. Character Evidence Not Admissible To Prove Conduct, Exceptions: Other Crimes.
(a) Character evidence generally. Evidence of a person’s character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except;
(2) Character of victim. Evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor;
Rule 608. Evidence of Character and Conduct of Witness.
(a) Opinion and reputation evidence of character. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.
(b) Specific instances of conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning his character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.
After the prosecuting witness had testified on cross-examination that the character of the victim was good, the appellant attempted to question her about specific incidents. The witness denied knowledge of the specific incidents requested and the court curtailed the questioning upon objection by the state. On other occasions the appellant attempted to question the witness about the victim’s general reputation and objections by the state were sustained.
It is apparent from the above-quoted rules that evidence of a person’s character or trait of his character may be offered by an accused in a homicide case for the purpose of rebutting evidence that the victim was not the aggressor. In this particular situation appellant asked about two specific violent incidents and the witness denied any knowledge of either. Although appellant may impeach his own witnesses, even character witnesses, he cannot make one his witness, after he has cross-examined him, and impeach the witness’s adverse testimony by asking about specific instances of conduct except he may inquire about the victim’s reputation or traits of character on matters relating solely to violence. Appellant could have presented these incidents by other witnesses.
II.
THE COURT ERRED IN UNREASONABLY RESTRICTING EXAMINATION OF WITNESS AS TO CHARACTER OF VICTIM.
As indicated under Point I, the appellant had the right to ask questions about specific incidents relating to violence. Again, we feel that some confusion existed between Rules 404 and 608. We consider the remarks under Point I to apply equally to this argument.
III.
THE TRIAL COURT’S UNJUSTIFIED COMMENTS AND ACTIONS THROUGHOUT THE COURSE OF THE TRIAL DENIED THE DEFENDANT’S RIGHT TO A FAIR AND IMPARTIAL TRIAL AND CONSTITUTED PREJUDICIAL ERROR.
The court did admonish the appellant’s counsel to speed up or shorten the voir dire examination of the jury and on other occasions made a rather curt ruling. Also, several objections by defense counsel were never ruled upon by the court. During this process, at one time, the court refused to allow the appellant to proffer evidence into the record but at a subsequent time stated that proffer could be made later. In any event, no proffer was ever made and it is not clear from the record whether it was understood by appellant’s counsel that he would be able to proffer into the record at a later time. We have held that the trial court making reference to counsel’s dilatory tactics amounted to prejudicial error. Chapman v. Slate, 257 Ark. 415, 516 S.W. 2d 598 (1974). We recognize that the presiding judge should manifest a very impartial and fair course of conduct in the case. This is so because he exercises great influence with the jury. He should refrain from impatient remarks or unnecessary comments which could lead to prejudice by the jury against the defendant. Western Coal & Mining Co. v. Krone, 193 Ark. 426, 100 S.W. 2d 676 (1937). It is the duty of this Court to consider the totality of the circumstances when such matters are presented. Although it may have been advisable for the court to have refrained from some statements made in this case, we cannot say from a totality of the circumstances that reversible error was committed. The court did not attempt to ridicule the appellant’s counsel nor did he attempt to degrade him in the eyes of the jury. Again, this matter is not apt to arise on retrial.
IV.
THE TRIAL COURT ERRED IN REFUSING DEFENDANT’S REQUESTED INSTRUCTION CONCERNING BURDEN OF PROOF.
This point involves the instructions given by the court to the jury. There is no question raised as to the instruction given regarding murder in the first degree. The court clearly stated that the state must prove every element of the offense of murder in the first degree beyond a reasonable doubt. However, the instructions “beyond a reasonable doubt” relating to each element of murder in the second degree and manslaughter were not given. We have dealt with this question in the case of Dillard v. State, 260 Ark. 743, 543 S.W. 2d 925 (1976). The same type of objection was raised in Dillard as is raised by appellant in this case and we quote from Dillard:
We find reversible error in the trial judge’s refusal to give appellant’s requested instructions Nos. 6, 7 and 8. Each of these instructions would have advised the jury of the elements of one of the three offenses with which appellant was charged and that it would have to find appellant guilty of each element of that offense, beyond a reasonable doubt, before it could find him guilty of that offense. Appellant objected to the court’s failure to give these instructions because the jury had not otherwise been instructed that each of the elements of the offense covered must be proved beyond a reasonable doubt before appellant could be found guilty of that offense.
The jury was only instructed that “(t)he defendant is presumed to be innocent until proven guilty, and if upon the whole case you have a reasonable doubt of the defendant’s guilt, you will acquit him” and “(t)he burden of proof, as you have been instructed, is on the State to make out or establish its case to your satisfaction, beyond a reasonable doubt. ” Those instructions are correct, as far as they go. Even though the court had defin ed the elements of each of the offenses, nothing in the instructions given could possibly be construed as requiring that each element of each such offense must be proven beyond a reasonable doubt. In this respect the proffered instructions were proper even though it is not necessary that the state prove each fact or circumstance beyond a reasonable doubt, but it is required that the state so prove each material element of each crime charged. State v. Green, 126 Vt. 311, 228 A. 2d 792 (1967); Spear v. U.S., 143 CCA 67, 228 F. 485 (8 Cir. ED. Ark., 1915) cert. den. 246 U.S. 667, 38 S. Ct. 335, 62 L. Ed. 929; State v. Otlley, 147 Iowa 329, 126 N.W. 334 (1910); State v. Kimes, 145 Iowa 346, 124 N.W. 164 (1910). See also, Heard v. U.S., 143 CCA 85, 228 F. 503 (8 Cir. ED. Ark., 1915); Niaic v. Long, 30 Del. 397, 108 A. 36 (1919). Cf. Ferrell v. State, 165 Ark. 541, 265 S.W. 62. The failure to give instructions similar to those requested by appellant is reversible error unless the matter is hilly covered by other instructions. McAfee v. U.S., 105 F. 2d 21 (D.C. Cir. 1939). . . .
In this case the appellant had requested the following instruction:
No person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt.
This was a proper instruction and should have been given. The model criminal instructions have now been published and should greatly assist in clarifying the confusion which has existed in the past concerning this type of instruction. We do not agree with the state that by giving all the required instructions on first degree murder it would cause the jury to automatically consider the same instruction as applied to each of the lesser included offenses. Therefore, we hold the failure to give an instruction stating the duty is upon the state to prove each element of the offense beyond a reasonable doubt was prejudicial and the case must be reversed.
V.
THE TRIAL COURT ERRED IN REJECTING DEFENDANT’S OFFERED INSTRUCTION AS TO JUSTIFICATION-CHOICE OF EVILS.
The appellant offered an instruction on justification-choice of evils. We think the matter of justification was treated as an affirmative defense at the trial. However, justification is not an affirmative defense. Ark. Stat. Ann. § 41-110 (Repl. 1977) sets out the burden of proof as it relates to defenses and affirmative defenses as well as presumption. Justification is not listed as an affirmative defense. It becomes a defense when any evidence is offered tending to support its existence and such evidence may be introduced by either side. Thomas v. State, 266 Ark. 162, 583 S.W. 2d 32 (1979). It appears that appellant would have been entitled to rely upon justification as defined in Ark. Stat. Ann. § 41-506 (Repl. 1977). However, justification as argued under Ark. Stat. Ann. § 41-504 (Repl. 1977), does not appear to be appropriate in a charge of homicide. We have found no case in any jurisdiction which holds that the “choice of evils” justification has been applied to a homicide case when self-defense is argued by the accused.
VI.
THE TRIAL COURT ERRED IN REJECTING THE ■DEFENDANT’S OFFERED INSTRUCTION CONCERNING AFFIRMATIVE DEFENSES- ■
This point is closely related to the preceding point. We do not view justification as an affirmative defense; Since the court treated justification as an affirmative defense, we believe this error will not occur on retrial. Justification not being an affirmative defense, the state had the burden of negating this defense once it was put in issue. If appellant created the situation necessitating his conduct then he is not entitled to rely upon the defense of justification. Unless appellant was justified in the action he took; which is a matter for the jury to decide, the issue is automatically overcome. The evidence in this case certainly was sufficient to justify the jury reaching the verdict rendered in this case. The instruction given by the court requiring the state to prove its case beyond a reasonable doubt was adequate to take care of the issue of justification. It is true that the appellant was not required to prove an affirmative defense beyond a reasonable doubt and that such defense is made by a preponderance of the evidence. Mere failure of the appellant to prove an affirmative defense does not relieve him of liability but may reduce the seriousness of the offense.
For the failure to give the instructions requiring the state to prove each element of each offense beyond a reasonable doubt, the case is reversed and remánded for a new trial. The other points argued have been discussed for the purpose of furnishing guidance at the new trial and are not likely to occur again.
Reversed and remanded.
We agree. Harris, C.J., Fogleman and Holt, JJ.
George Rose Smith and Byrd, JJ, concur in the result. | [
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David Newbern, Judge.
This suit was brought to cancel a tax deed and a subsequent lease from the tax deed grantee and to remove the deed and the lease as clouds from the title asserted by the appellants. The chancellor, in part, denied the relief sought, and an appeal was taken to the Arkansas Supreme Court which transferred the case to us pursuant to Rule 29(3). The issues are (1) whether a separate assessment of the mineral interests was proper and (2) whether a tax deed grantee’s interest is limited to the interest of the person in whose name the property was assessed.and subsequently forfeited to the state.
In July, 1953, J. E. Linn conveyed to T. J. Weigel “an undivided one half interest in and to all of.the oil royalty, gas royalty, and royalty in casinghead gas, gasoline, and royalty in other minerals” in certain land. The grant was to run “twenty five years from date hereof and as long thereafter as oil, gas or other minerals, or either of them, is produced or mined from the lands described.”
In 1955, Linn conveyed this same land to the appellants by warranty deed, subject to the royalty conveyance. In 1961, the mineral interests in the land were assessed separately from the surface interests, and the taxes on the mineral interests were not paid for that year. In 1962, the appellees Hall purchased at a tax sale the mineral interests which had been forfeited. In 1965, a clerk’s deed was issued conveying the mineral interests in the land to the Halls. In September, 1978, the appellants filed suit to cancel the deed and a lease which the Halls had subsequently executed to the appellee Union Oil Co.
The appellants argue that if the separate tax assessment oh the mineral interests was proper, it could not result in a forfeiture or sale of any interest greater than that which had been conveyed to Weigel by Linn and, as admittedly there had been no production on the land, that interest terminated by its own terms twenty five years after its creation.
The chancellor held that the tax deed to the separate mineral interests was not a derivative title conveying only Weigel’s interest but rather, was a new, complete and independent title which extinguished all prior interests in that which it purported to convey. Excepted from the effect of this holding were certain parts of the land in question as to which the chancellor found the tax deed void for lack of a proper description. The essence of the chancellor’s decision was thus that a valid tax deed to mineral rights cannot be successfully challenged on the basis that it resulted from a separate assessment caused by a conveyance of less than all of the mineral interests in the land. Neither the chancellor’s opinion nor the appellee’s brief cites any Arkansas statute saying or case holding this proposition to be the law.
The closest thing to Arkansas authority cited by the chancellor is dictum from Champion v. Williams, 165 Ark. 328, 264 S.W. 972 (1924). In that case, the Supreme Court dealt with the power of a remainderman to redeem after a life tenant had permitted land to be forfeited for taxes. In that. case, the court found the tax deed to have been void, but said:
The tax sale, if valid, would have barred the right of all interested parties, those holding remainder interests as well as the life tenant, for the sale operated in rem, and all parties were bound by it; . . . [165 Ark. at 335]
The question first to be considered is whether the assessment was valid, and thus whether it was a basis for a valid sale. In Brizzolara v. Powell, 214 Ark. 870, 218 S.W. 2d 728 (1949), our Supreme Court said Ark-. Stat. Ann. § 84-208 (Repl. 1960), permits separate assessment of mineral interests “only which had been separated from the surface ownership.” (214 Ark. at 872) The Supreme Court in effect held that regardless that a tax sale might have purported to convey the entire mineral interest, it did not have that effect unless the separate assessment was valid. The theory asserted by the court was that a tax deed was void if the taxes had in fact been paid. If there had been no valid severance of the surface and mineral interests, then the surface owner, by paying the taxes on “the land” had paid all the taxes due. That case was remanded for a determination whether there had in fact been a reservation, and thus a separation, of the mineral interests.
Thus, we must look to the question whether the conveyance of the “royalty” interest constituted a severance or separation of the mineral interests sufficient to permit a separate assessment. Our statute permitting separate assessment has been interpreted broadly, and there is no requirement that there be a conveyance of the minerals in place in order to effect a sufficient severance to invoke the separate assessment statute. State ex rel. Attorney General v. Arkansas Fuel Oil Co., 179 Ark. 848, 18 S.W. 2d 906 (1929). Although the appellants’ brief raises the question of the propriety of the assessment, at one point it concedes, “[t]he apparent intent of the statute was to require all mineral interests, whether royalty, in-place, or otherwise to be separately assessed.” We cannot quarrel with that statement.
Given the validity of the assessment, and absent any other attack on the validity of the tax deed, we come face to face with the chancellor’s conclusion that a valid tax deed conveys that which it purports to convey, regardless what may have been the extent of the interest of the person in whose name the property was assessed and forfeited for failure to pay taxes.
We believe the dictum quoted above from the Champion case correctly indicates that our tax scheme contemplates the kind of new, comprehensive title to be conveyed by a tax deed as was held by the chancellor in this case to have been conveyed. If, as indicated by that dictum, a valid tax deed conveys the entire fee and extinguishes a remainder following a life estate, then no different rule should prevail where the owner of a determinable mineral interest is put in the place of the life tenant who failed to pay taxes and the holder of the reversionary interest is substituted for the remainderman. Our faith in the notion that the drafters of our property tax statutes would approve is bolstered by Ark. Stat. Ann. § 84-108 (Repl. 1960), which says:
It shall not be necessary to the validity of an assessment or of a sale of land for taxes, that it be assessed to its true owner, but the taxes shall be a charge upon the real and personal property taxed, and when sold, shall vest the title in the purchaser without regard to who owned the land or Other property when assessed or when sold, and the personal property of any deceased person shall be liable in the hands of any executor or administrator for any tax due on the same by any testator or intestate.
In the case before us, the entire mineral interest was assessed and taxed separately from the surface. It does not matter that Weigel was not the owner of the entire mineral interest, as the tax was a charge on the land sold, and vested title in the purchaser regardless who may have owned other aspects of the mineral interests which were separately taxed.
Affirmed.
Supplemental opinion on denial of rehearing delivered February 13, 1980
David Newbern, Judge.
The first point in the appellants’ petition for rehearing is that our opinion should be clarified to show that we are saying that only a 1/2 interest in the mineral rights to the property in question was conveyed by the tax deed. We find that point well taken. In our opinion, we used the term “entire” mineral interest. We meant only to say it included the future interest as well as any present interest in what the tax deed purported to convey. That was, of course, responsive to the issue raised below and on this appeal. We did not mean to say that the tax deed conveyed more than it purported to convey, and as abstracted by the appellants, it is clear the deed purported to convey only a 1/2 interest in the mineral rights. Our point was, and is, that the tax deed left outstanding no future interest in the 1/2 interest it purported to convey.
Since our initial opinion in this case, two Arkansas Supreme Court decisions which we should have addressed have come to our attention. The parties did not cite them to us in their briefs or with respect to the petition for rehearing. However, this response to the petition for rehearing presents an opportunity for us to discuss them. They are, Laney v. Monsanto Chemical Co., 233 Ark. 645, 348 S.W. 2d 826 (1961), and Claybrooke v. Barnes, 180 Ark. 678, 22 S.W. 2d 390 (1929).
In Laney, the court held a party holding a severed mineral interest was not affected by the payment of taxes by another “for [his] mineral interest had already been severed and is therefore not deemed to have been included in the description under which the tax payments were made. [233 Ark. at 649].” For that proposition, the Claybrooke case is cited as authority. In Claybrooke, it was held that adverse possession, apparently consisting of surface possession only, does not run against severed mineral interests. At first blush, these cases seem theoretically inconsistent with our decision, despite the obvious factual distinctions.
We do not regard our decision here as.inconsistent with them, however, once the distinctions are properly analyzed. There is no statutory provision for separate assessment, of a future interest in the minerals, and thus a valid tax title to the mineral interests conveys all or whatever “horizontal” fraction it purports to convey. That is consistent with the dictum in the Champion case cited in our initial opinion which indicates a general tax title conveys the entire surface (and unsevered mineral) interest even though there may have been an outstanding future interest. Here again, we use the term “entire” to indicate inclusion of any future interest, and not to say the tax deed conveys more than purported.
Thé Laney and Claybrooke cases apply only in the situation where one takes title to land by tax deed thinking it applies to both the surface and the mineral interests. They hold that the tax deed will not convey the minerals if they have been separated earlier by deed. In view of our tax scheme’s provision for separate assessment and taxing of surface and minerals, a tax purchaser of a described surface should be on notice his deed may not be a conveyance of the mineral interests. Where the tax deed purports to convey the mineral interests only, however, nothing supports the notion that a purchaser should be held to take less than that which is described.
Rehearing denied. | [
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John I. Purtle, Justice.
The trial court affirmed the judgment of the municipal court when appellant failed to appear on the date his case was called in circuit court. The court also denied his motion to set aside its order affirming the municipal court judgment when appellant appeared at a later hour on the same date. This appeal is from rejection of his motion to set aside the affirmance of conviction in municipal court.
Appellant argues on appeal that the court erred by holding appellant had proper notice of the time and date for appearance in violation of Ark. Stat. Ann. § 22-311 (Repl. 1962) and the due process clause of the 14th Amendment to the Constitution of the United States; that it was error to affirm the municipal court judgment at a date prior to the cause being set for trial; that Ark. Stat. Ann. § 44-506 (Repl. 1977) is unconstitutional as applied; that it was error to fail to set aside the affirmance when appellant appeared before the court prior to adjournment on the date set for calling the docket; and that the court erred in refusing to allow appellant’s attorney to plead for him on the misdemeanor.
All grounds argued for reversal essentially boil down to whether or not appellant had proper notice of the time and place he should appear and whether or not the court abused its discretion in affirming the judgment of the municipal court. In reviewing the record and the law in this case we agree appellant did not have proper notice.
Appellant was convicted of a misdemeanor in the Paragould Municipal Court on April 23, 1979. Notice of appeal was given and lodged in the Circuit Court of Greene County on May 7, 1979. The conditions of the appeal bond were, among other things, that appellant appear in the Greene County Circuit Court at its next criminal term. The next day of the circuit court met on May 14, 1979. A bench warrant was issued for appellant on May 9,1979. Apparently the purpose of the warrant was to give appellant notice of his need to appear in court May 14. However, the warrant was never served on appellant. Appellant’s attorney appeared on May 14 and announced ready for trial when the case was called. This date was used to sound the docket of all misdemeanor appeals and set them for trial at a time certain. The trial court refused to allow appellant’s attorney to plead for him and immediately affirmed the judgment of the lower court when it was determined appellant was not present. Shortly thereafter, appellant, who lived in Jonesboro, was notified and appeared in court at 11:00 a.m., May 14, 1979. Relying upon failure to receive notice and various statutes, appellant moved to set aside the action affirming the municipal court judgment. The court overruled his motion and appellant appealed to this Court.
Ark. Stat. Ann. § 22-311 (Repl. 1962) states as follows:
When any circuit court is duly convened for a regular term, the same shall remain open for all criminal, civil, or special proceedings until its next regular term, and may be in session at any time the judge thereof may deem necessary; but no such session shall interfere with any other court to be held by the same judge. If the time has not been fixed by the court, or unless in such cases they are required by law to take notice, all interested parties, together with their attorneys, shall receive notice from the clerk of the court of any proceeding affecting their rights, and shall be given time to prepare to meet such proceedings, where the defendant or respondent has answered or otherwise plead.
It is not disputed appellant did not receive actual notice of the time and place he should appear. Therefore, unless he is required by law to take notice of the date and time the Greene County Circuit Court meets, he would have been under no obligation to report on May 14, 1979, unless ordered to do so by the court.
Ark. Stat. Ann. § 44-507 (Repl. 1977) provides if an appellant fails to appear in circuit court, on appeal from municipal court, when the case is set for trial judgment may be affirmed, unless good cause be shown to the contrary. The circuit court admittedly did not send out notices to misdemeanor appellants. The bench warrant which was issued never was served upon appellant and it was the instrument intended to give appellant notice to appear May 14. Neither does the record indicate notice was sent to appellant’s attorney. The testimony reflects appellant received notice at 10:00 a.m., May 14, to appear in Greene County Circuit Court on that same date. He immediately traveled from Jonesboro to Paragould and arrived in the courtroom about 11:00 a.m. Upon his arrival he was notified that his conviction in the lower court had been affirmed.
The state recites the affidavit for appeal, issued on April 23, 1979, as notice to appellant. The affidavit simply stated appellant would appear in circuit court on the first day of the next regular term of Greene County Circuit Court. Appellant appeared in Greene County Circuit Court on May 14, 1979.
No time for convening court was given in the affidavit. The state admits prejudicial error exists which requires reversal.
Ark. Stat. Ann. § 43-2102 (Repl. 1977) provides if an accused be charged with a misdemeanor the trial may be had, at the discretion of the court, in the absence of an accused. Certainly, if atrial may be had in the absence of an accused, a pléa may likewise be accepted in his absence. Although there is no instrument in the record indicating May 14 was to be used solely for the purpose of sounding the misdemeanor docket, such statement by appellant is undisputed. It is not a violation of the law to allow an attorney to appear and plead for his client.
Ark. Stat. Ann. § 22-311 (Repl. 1962) requires notice shall be given by the clerk of the court in each proceeding affecting a defendant’s right, in time to prepare to meet such proceedings. The clerk did not give that notice in this case. The United States Supreme Court stated in Goss v. Lopez, 419 U.S. 565 (1975):
. . . there can be no doubt that at a minimum they require that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case.
So far as appellant was concerned he had no knowledge the case had been set for trial. He appeared at 11:00 a. m. on May 14, 1979, after having been notified by telephone he should be present on that date. His affidavit and bond, filed in the municipal court, stated he would appear at the next term of the circuit court. The Greene County Circuit Court, Criminal Division, did meet at 9:30 a.m. on May 14, 1979. However, Act 505 of 1965 states that the Criminal Division of the Greene County Circuit Court shall convene on the third Monday in May. According to our calculations, this would be May 21, 1979. Therefore, it was error for the court to affirm the municipal court judgment prior to the time appellant was supposed to appear. To deny his right to request a jury trial prior to the first day of court would violate due process of law.
Reversed and remanded.
Harris, C.J., not participating.
Fogleman, J., concurs. | [
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Darrell Hickman, Justice.
The petitioners seek review of a Court of Appeals decision in a child custody case citing three reasons: a tie-vote of the Court of Appeals, a significant legal issue and an erroneous application of the standard of review for such a case.
After carefully reviewing the petition, the response and the opinion of the Court of Appeals judges, we find that essentially there is simply a question of fact involved and that is, which party should have custody of the child in question. We find nothing else that would warrant granting the review and, consequently, we deny the petition.
Rule 29.6 of the Supreme Court Rules specifically states that no appeal, as a matter of right, lies from the Court of Appeals to this court. While a tie-vote may be reason for us to review a decision of the Court of Appeals, we do not automatically grant such a review. This is one of those cases that we find does not merit review.
Harris, C.J., not participating. | [
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George Howard, Jr., Judge.
On September 13, 1976, appellant entered a plea of guilty to á charge of Criminal Use of a Prohibited Weapon. He was sentenced to a term of three years to the Department of Correction, which was suspended on condition of his good behavior, and fined $ 100.00.
On April 5, 1979, the Prosecuting Attorney of Garland County filed a petition for revocation of appellant’s suspended sentence. A hearing was conducted on September 16,1979, resulting in the revocation of appellant’s suspended sentence and a sentence to the Department of Correction for one year. The trial court found, as ajustification for revoking the sentence, that appellant had possessed a controlled substance, marijuana, and had committed a battery upon the person of Quana Mershell.
Appellant’s argument for reversal may be briefly summarized as: Appellant was never processed for probation and, consequently, the court could not revoke that which has never been granted or instituted; the trial court erred in finding that appellant had been provided with a written statement containing the conditions under which his suspended sentence was predicated as required by Ark. Stat. Ann. § 41-1203 (1977 Repl.); and the court erred in finding that appellant had inexcusably failed to comply with the conditions of his suspended sentence.
After reviewing the record, we are persuaded that appellant’s contentions are without merit and we affirm the trial court.
The record shows that when appellant received the suspended sentence, the trial judge carefully and clearly advised appellant what was expected in order for him to remain on probation. The court stated, among other things, that appellant must support his dependents and not violate the law in any form or fashion. After this admonition, the court asked appellant whether appellant understood the conditions of his probation. Appellant replied that he did. The court then requested the appellant if there were any questions that appellant wanted answered or matters clarified, and the appellant responded by saying “no.”
While the record does not reflect that appellant ever had a conference with the probation officials, or that appellant actually received documents articulating the conditions of his probation, we are persuaded that this omission does not vitiate appellant’s suspended sentence and probation which was granted in open court and in the presence of appellant. It must be remembered that only the trial judge has the discretion to suspend the imposition of a sentence and grant probation. Probation officers, on the other hand, supervise and aid probationers and make periodic reports to the court regarding the progress that a probationer is making. Moreover, it is readily understandable why there was, perhaps, no communication between appellant and the probation officials. Appellant, at the time of his trial, was on parole under a sentence in the State of Texas and the Texas authorities were interested in having appellant returned to Texas in connection with a possible parole violation. As a matter of fact, appellant was returned to Texas within a matter of days after his appearance before the trial judge. Under these circumstances, we are unable to see how appellant was prejudiced in any way assuming, without deciding, that appellant was not afforded a written document containing what was expected and required of him under his probation in Arkansas. Indeed, it is clear that there was substantial compliance with the requirement that appellant be advised explicitly with reference to the conditions under which he was being released.
Finally, we are convinced that the trial court’s finding that appellant had inexcusably failed to comply with the conditions of his probation is supported by a preponderance of the evidence.
Quana Mershell testified that while she was visiting in appellant’s apartment, appellant gave her marijuana to smoke; and that during the course of the night, the appellant struck her at least ten times with his fist and open hand. Appellant denied that he had marijuana in his possession and further denied that he struck Quana. The trial court, obviously, disbelieved the appellant’s version of the incident while accepting the testimony of Quana. The trial court was presented with a fact question and it was the court’s responsibility to resolve the conflict and determine the credibility of the witnesses.
Appellant argues that inasmuch as Quana admitted smoking marijuana, she was an accomplice and her testimony is insufficient to -support the action of the trial court. We reject this argument. It must be remembered, that a defendant, in a revocation proceeding is not being tried on a criminal charge — in the instant case, possessing marijuana and battery — where the defendant’s guilt has to be established beyond a reasonable doubt, but here, only a preponderance of the evidence is necessary to support a finding that a probationer has inexcusably breached a condition associated with his release resulting in a revocation order. Moreover, it must be remembered that when a person is on probation, his liberty is conditional as distinguished from being absolute.
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Carretón Harris, Chief Justice.
Appellee, BartonLexa Water Association, is a non-profit corporation, incorporated under the provisions of Ark. Stat. Ann. § 64-1901 — 1919 (Repl. 1966). Section 64-1904 sets out the purposes for which these corporations may be created. Section 64-1905 prescribes the procedure to be followed by any “association of persons” desiring to be incorporated under the act. Appellee association was formed for the purpose of constructing a water distribution system to serve a particular rural area in Phillips County. Under the articles of incorporation, appellee’s objective is to associate its members together for their mutual benefit, to construct, maintain, and operate a private water system for the supplying of water to members, and to engage in any activity related to this purpose. Under the by-laws, the corporation will admit as members water users who are in need of water supplied from the water system maintained and operated by Barton-Lexa; however, the association is not required to admit members if the capacity of the water system is already exhausted by the needs of the present membership. The proposed user is required to have reasonable access to the source of the water, and such water may be obtained for domestic, commercial, industrial, or agricultural purposes. Section 3 of the by-laws provides, Inter alia, that words importing persons shall include partnerships, associations, and corporations organized or authorized to do business in this state.
Appellee, C. C. Warfield is a resident of Phillips County who is engaged in the ginning business under the name of Lexa Gin Company. Appellee, A. T. & G. Company, Inc., is a Michigan corporation authorized to do business in this state. Both Whrfield and A. T. & G. are members of the association. H. W. Rohrscheib, appellant herein, is likewise a member of the association, and on December 31, 1968, he instituted suit in the Phillips County Chancery Court against appellees, asserting that the association proposed to construct a water distribution system for the purpose of providing water to members of the association, and had already received a commitment from the Farmers Home Administration, United States Department of Agriculture, to receive a loan sufficient to construct this system. Further, it was alleged that Barton-Lexa proposed to sell water to Warfield and A. T. & G. for their use in commercial and industrial enterprises, which appellant alleged was not authorized by law. It was asserted that only natural persons may be members of non-profit corporations of the type herein involved, and it was alleged that the Chancellor erred in holding that business corporations, and persons engaged in commercial ventures, might be members of a non-profit corporation. After the filing of an answer, the case was submitted to the court on the pleadings and an agreed stipulation of facts. From a decree dismissing appellant’s complaint comes this appeal.
We do not agree with appellant that only natural persons can become members of the non-profit corporations provided for in this statute. Ark. Stat. Ann. § 1-202 (Repl. 1956), which has been a part of our law since 1837, provides:
“'When any subject-matter, party or person is described or referred to by words importing the singular number or the masculine gender, several matters and persons and females as well as males, and bodies corporate as well as individuals, [our emphasis] shall be deemed to be included.”
In State ex rel Attorney General v. Gus Blass Company, 193 Ark. 1159, 105 S.W. 2d 853, we pointed out that in a statute using the word “person,” the statutory rule is that it includes corporations as well as individuals. As stated by appellee, if the General Assembly liad intended that only natural persons be permitted to become members of non-profit corporations, it could easily have inserted this language. That the Legislature was aware of this normal statutory meaning of the word “persons” is made clear in § 64-1907. There, in setting out the powers of non-profit corporations, Subsection (g) provides that each corporation shall have power to clo any and all things necessary or incidental to the attainment of its purposes as fully and to the same extent as natural persons lawfully might do consistent with the provisions of the act. We agree with the Chancellor’s finding that membership in the BartonLexa Water Association is not restricted to natural persons.
Appellant also contends that business corporations and persons engaged in commercial ventures cannot become members of a non-profit corporation. This argument is contrary to the language of the statute (64-1904) which provides that these non-profit corporations may 1)0 organized under the act for any lawful purpose or purposes. We would expect agricultural or horticultural associations (authorized by the statute) to be composed of individuals or business corporations engaged in a particular line of activity and having as a motive a business profit. The italicized language is controlling and there is certainly nothing' illegal about the formation of a private corporation to construct a water system. The system will provide benefits to its members only, these members being composed of farm families and business enterprises located in the area to be served. To say that benefits are unavailable to those members engaged in profit making ventures would defeat the purpose of the act itself. In fact, this is not the first instance where the General Assembly has used non-profit corporations as an instrument for assistance to industrial and commercial development. A very good example is Act 404 of 1955 (Ark. Stat. Ann. § 9-504—540 (Repl. 1956), which provides for the organization of local corporations, having for their purpose the rendering of assistance to businesses locating in the area.
IVe agree with the trial court that corporations or individuals engaging in commercial or industrial ventures for profit are not precluded from membership in these non-profit corporations.
Affirmed.
In Boone County v. Keck, 31 Ark. 387, it was held that, though the word “person” includes corporations as well as natural persons, this is only true of such provisions as will allow signification to be given without violating the evident sense and meaning. The court said that when such a construction would render the code, which must be taken as a whole, ineffective, a departure must be made from the letter to give effect to the manifest intention of the Legislature. | [
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] |
George Rose Smith, Justice.
This is a partition suit filed by the appellant, John A. Dodds, as one of four tenants in common. After an extended hearing the chancellor entered a decree which first adjusted the accounts among the four owners and then ordered a sale of the property, with the proceeds to he divided equally after the various debits and credits had first been taken care of. The appellant does not question the order of sale, hut he does insist that the court should have allowed him more money than it did for his improvements and maintenance expenses.
The principal tract, a 143-acre farm in White county, was formerly the homestead of J. B. Dodds, Sr., and Ms wife, Mattie Dodds. At Mr. Dodds’ death in 1939 title passed to his widow as the surviving tenant by the entirety. Mrs. Dodds occupied the land with her son, John, the plaintiff, until her death in 1962. The property was then inherited by her four sons, John, James, W. P., and J. B., Jr. In 1964 J. B. Dodds, Jr., died testate, leaving all his property to his widow, the appellee Loukate Dodds, who is now the fourth tenant in common. A second tract of 105.96 acres was purchased in 1943 and is also owned by the three surviving Dodds brothers and their sister-in-law.
At the outset the appellees insist that the decree should be affirmed for the reason that the appellant has accepted certain benefits under it and is therefore not in a position to question it. The motion appears to be well founded, but the decree may also be affirmed on the merits. We prefer the latter course.
Upon the issues still in dispute the testimony at the trial was in such conflict that the predominant question was that of credibility. Many of the contradictions were between W. P. Dodds on the one hand and either John or James on the other. Where the sole issue is that of credibility as between interested parties, our practice is to abide by the chancellor’s judgment in the matter. Souter v. Witt, 87 Ark. 593, 113 S.W. 800, 128 A.S.R. 40 (1908).
Moreover, the appellant, as the plaintiff in the trial court, had the burden of proof. In some respects his testimony is inherently lacking in persuasiveness' He described expenditures that were made within three or four years before the trial and that involved thousands and thousands of dollars. Tet, even with respect to such recent outlays of substantial sums he was unable in most instances to produce supporting proof, either in the form of corroborating testimony or in the form of checks, receipts, or other documentary evidence. Nor ■did he satisfactorily explain the source of the funds that he claimed to have spent, other than saying that he had been “gypsy trading,” which he described as the buying of farm equipment in Arkansas for the purpose of selling it in other states. Again, no records were submitted to substantiate his testimony.
In the light of what we have just said we do not find it necessary to discuss the appellant’s specific claims in great detail. Four of the items are asserted capital expenditures. John asked to be awarded $10,000 for having built an annex to the house on the main farm. The chancellor disallowed this claim but permitted John to remove the annex. Instead, John sold the annex to the purchaser at the partition sale. He is not in a position to ask to be reimbursed a second time for the annex.
Upon John’s claim for $8,000 for having had ditches dug on the place the chancellor allowed only $3,000. The testimony was in sharp conflict, with W. P. Dodds stating that the county dug the ditches without charge. The chancellor’s conclusion was in the nature of a compromise, which we do not consider to be against the weight of the evidence.
A third claim was for the construction of a $5,000 barn, but according to W. P. that building was erected with the proceeds of a fire insurance policy upon another structure that had burned down. The fourth capital claim, that of $1,200 for repairs upon a tenant house, was reduced by the chancellor to $500 in harmony with TY P.’s testimony that the house was not worth even that much. The test is the enhancement in value to the land, not the amount of the outlay. McDonald v. Rankin, 92 Ark. 173, 122 S.W. 88 (1909).
In addition to his capital claims the appellant seeks to recover certain maintenance expenses. The largest is a demand for $3,600 as compensation for having managed the farm property for the three years immediately preceding- the filing of the suit. John testified that after the death of Dodds, Sr., in 1939 it was agreed that John would receive $100 a month for managing the property. There is, however, no proof that John ever actually received any such payments at all during the period in excess of 25 years that intervened between the asserted agreement and the institution of the suit. Even if such an agreement was made it was quite evidently abandoned long ago. There is also a small claim for repayment of fire insurance premiums, but the proof shows that part of the coverage was upon the annex which was awarded to John himself and that the policies were payable only to John and James, who pretty well made common cause against their co-tenants at the trial. We cannot say that the chancellor’s allowance of $370 was an inadequate reimbursement for the premiums.
On the record as a whole we are not convinced that the chancellor’s total allowances of $6,336 to John Dodds are so clearly against the preponderance of the proof as to call for revision in this court. To the contrary, we are persuaded that substantial justice was accomplished by the decree.
Affirmed. | [
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John I. Purtle, Justice.
Appellant, Renee June Perry and appellee, Edward Leroy Cox, are the natural parents of Charles Rene Perry, who was 13 at the time of the hearing below. Appellant Renee Perry had been granted custody of Charles in a California divorce decree entered in 1968. Appellee was ordered to pay child support in 1970 and has been under court order to do so from that time. On February 2, 1978, appellants (as husband and wife) filed in the local probate court a petition for the adoption of Charles. Appellee responded by seeking a change of custody and, also filed a petition for a writ of habeas corpus. That petition was based upon an earlier California decree which had ordered that Charles be delivered to appellee within one week of the termination of the spring school semester of 1978. Appellants counterclaimed for alleged child support arrearages. After a combined hearing on the cases, the chancellor made an oral finding that the California decree, providing for delivery at the end of the school term, had been extorted and denied the writ of habeas corups; that appellee had justifiable cause for not supporting and sufficiently communicating with his son, Charles, from 1972 to 1978, denied appellants’ petition for adoption, refused to grant judgment for accrued support payments, ordered $1,100 allegedly saved by appellee as support money be placed into a trust bank account until Charles reaches the age of 18 or until further order of the court, and there would be no further obligation of support payments on appellee’s part. Appellants assert that the court’s finding that appellee had a justifiable reason for not supporting Charles from 1972 to 1978 is against the preponderance of the evidence; the court erred in refusing to award child support arrearages and requiring the $1,100 in the registery of the court be paid into a trust account for Charles’ benefit; and, further, the court erred in suspending all future child support.
We are unable to consider this appeal on its merits for the reason that Rule 9 (d) has not been sufficiently complied with. Ark. Stat. Ann. Vol. 3A, Supreme Court Rules (Supp. 1977). We have indicated numerous times that it is the duty of the appellant to furnish us with an abridgment of the record sufficient to enable us to understand the matters presented. Collins v. Duncan, 257 Ark. 722, 520 S.W. 2d 192 (1975); and Dyke Industries, Inc. v. Johnson Construction Co., 261 Ark. 790, 551 S.W. 2d 217 (1977). Here the various pleadings, the California decrees and orders, and the decree of the chancellor are not abstracted. Appellants have included only a statement of the case, the testimony of the witnesses, discussions of the court and argument in their abstract.
Affirmed.
George Rose Smith, J., concurs in result but finds no violation of Rule 9 (d).
Holt, J., concurs in result but would affirm if considered on merits.
Harris, C.J., dissents. | [
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Darrell Hickman, Justice.
The appellant, Gloria Williams , was convicted of committing first degree battery upon her ten-month old daughter and sentenced to 10 years imprisonment. It was essentially a case of child abuse.
On appeal she alleges six errors, most of which are without merit and which will be briefly discussed. One error requires reversal.
The first error alleged is a lack of evidence to support the jury’s finding of guilt. At the time of the alleged abuse, Gloria Williams was living with a man named Grady Madison. He was not her husband. She took the child to the doctor on September 12, 1978. The doctor believed that the child had been abused. He called the police. The evidence showed that the child was suffering from severe injuries which included burns, six fractured ribs, two arm fractures and various bruises and contusions about her body. The medical testimony was that the child had suffered from child abuse. Williams denied abusing the child in any way and suggested that perhaps the child had fallen, or as Madison told her, that she had been burned from boiling water. Most of the evidence was circumstantial but there was sufficient evidence to support the jury’s findings that Williams had abused the child. We no longer distinguish between an accessory and the principal, Ark. Stat. Ann. § 41-301, et seq: (Repl. 1977), and there is no doubt that she could not have been around the child without knowing of the injuries. Compare, Limber v. State, 264 Ark. 479, 572 S.W. 2d 402 (1978). Furthermore, there is some evidence that she may have injured the child herself. For example, Madison testified that she grabbed the child up by an arm and a leg on one occasion.
She and Madison were tried jointly. Madison testified that he did not know what caused all the injuries. He said that one time another child had pulled some boiling water off a stove onto the child. Testimony suggesting that the water could not have been pulled off the stove as he explained, was presented to impeach his version of the incident. Therefore, we find the argument that there was insufficient evidence to support the verdict or that a directed verdict should have been granted is without merit.
The appellant and Madison were charged separately but the court ordered the parties to be tried together. The appellant argues individuals who are separately charged by information cannot be jointly tried. We disagree. Rules of Crim. Proc., Rule 23.1 provides for such a trial. It reads:
(a) The court may order consolidation of two (2) or more charges for trial if the offenses, and the defendants if there are more than one (1), could have been joined in a single indictment or information without prejudice to any defendant’s rights to move for severance under preceding provisions.
(b) The court may order a severance of offenses or defendants before trial if a severance could be obtained on motion of a defendant or the prosecution.
That does not mean that parties can be joined in a trial if prejudicial error might result. For example, see Rules of Crim. Proc., Rule 22.3. In this case there was no allegation of prejudice and we find none as a result of the trial.
The appellant argues that she was denied her full quota of peremptory challenges. The court ruled that since the parties were being tried jointly they only had eight peremptory challenges as a pair, not eight each. The court correctly interpreted the law. Ark. Stat. Ann. § 43-1929 (Repl. 1977) reads:
When several defendants are tried together, the challenge of any one of the defendants shall be the challenge of all.
In the case of Hearne v. State, 121 Ark. 460, 181 S.W. 291 (1915), we reached the same result. The Hearne case was upheld in Lewis & Wren v. State, 220 Ark. 914, 251 S.W. 2d 490 (1952). In those cases, unlike this one, the defendants were jointly indicted, but we do not believe this is a significant distinction. Any prejudice would lie in requiring a joint trial that should not be ordered in the first place; if that decision is proper, then no prejudice can result in limiting the peremptory challenges.
. The appellant objected to the introduction of photographs of the infant, some of which were taken after the child was taken to the doctor. There is no doubt that they were graphic evidence of the child’s injuries and were probably not ignored by the jury. But photographs will not be excluded simply because they are gruesome. Tanner v. State, 259 Ark. 243, 532 S.W. 2d 168 (1976). The danger of unfair prejudice created by a photograph must substantially outweigh its probative value before we will exclude it. Gruzen v. State, 267 Ark. (Dec. 17, 1979). The court below correctly applied this rule. These photographs represented portions of the body of the child and the battery of that child was the question in issue. The fact that some of them were made after the child was first examined does not bear on their admissibility if the photographs were properly identified as representing the condition of the child after she had received treatment. Compare, Hughes v. State, 249 Ark. 805, 461 S.W. 2d 940 (1971).
The court committed error when it admitted into evidence a statement allegedly made by the appellant to the doctor.
The appellant’s lawyer filed a motion for discovery prior to trial and requested all statements that might at any time have been made by the appellant to police officers and others. The State responded to the motion without disclosing that the appellant made any statement to Dr. Pullig, in the presence of a policeman, when she took the child to the doctor. Apparently, the night before the trial the prosecutor learned that Dr. Pullig would testify that the appellant told him that if she knew he were going to call the police she would not have taken the child to him. The prosecutor did not promptly notify the appellant’s attorney of this information the next morning but waited until after the lunch break and after the voir dire of all the prospective jurors, and then informed the appellant’s attorney just before the trial started. The appellant’s attorney moved to exclude the evidence as violating Rules of Crim. Proc., Rule 19.2. That rule reads:
If before trial, but subsequent to compliance with these rules, or an order entered pursuant thereto, a party discovers additional material or information comprehended by a previous request to disclose, he shall promptly notify opposing counsel or the other party of the existence of such material or information. If additional material or information is discovered during trial, the party shall notify the court and opposing counsel of the existence of the material or information.
The record indicates that, according to Dr. Pullig, a police officer was present in his office when she made the statement. There is no doubt, then, that the police officer knew of the statement. That knowledge is imputed to the prosecuting attorney. See Arkansas Rules of Criminal Procedure, Rule 17.1. See also Commentary to Article V.
The court must act in such a situation. The evidence must be excluded or a continuance granted. In the case of Hughes v. State, 264 Ark. 723, 574 S.W. 2d 888 (1978), we held it was not error if the court granted a recess so that the defendant’s attorney could question the witness. In this case the court gave the appellant no relief.
We are not saying the statement is inadmissible testimony. That is a separate question. The court’s error was its failure to enforce the rule of discovery that imposes upon the State an obligation to timely inform the defendant of all information it has been properly requested to furnish. In this case we do not feel that the information was timely furnished. The judge abused his discretion in admitting the statement and, therefore, we reverse the judgment and order a new trial.
Reversed and remanded.
Stroud and Mays, JJ., not participating. | [
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Marian F. Penix, Judge.
This case was appealed to the Arkansas Supreme Court and by that court assigned to the Arkansas Court of Appeals pursuant to Arkansas Supreme Court Rule 29(3).
This appeal is from a verdict directed by the trial court for the appellee, Home Federal Savings & Loan Association. The appellant, Sandra J. Bass, Administratrix of the Estate of Johnny Bass brought suit against appellee for the amount of a Credit Life Insurance policy.
Sandra J. Bass and Johnny Bass secured a loan from appellee to finance the purchase of a home. The transaction was closed by appellee’s agent at appellee’s place of business on August 18, 1976. The appellee presented the Basses with an instrument entitled Federal Reserve Regulation Z. Appellee’s employee typed the words “Credit Life” in a blank on the instrument and also typed in the cost of insurance both on an annual and on a monthly basis. The employee asked the Basses if they wanted Credit Life Insurance. Johnny Bass acknowledged that they did want such insurance and signed his name in the appropriate blank. The employee testified that she kept the applications in her desk drawer. She also testified she could not remember this particular loan closing transaction, but that her normal practice would be to process an insurance application. There was no explanation as to why an insurance application was not processed in this instance. There was no evidence to rebut the appellant’s testimony that no application was offered to her, nor was anything further said about the necessary steps required for securing such Credit Life Insurance.
In February 1977 Johnny Bass learned he had cancer. The appellant Sandra Bass checked all of the places where she had loans and learned from appellee that there was no Credit Life Insurance with Home Federal Savings & Loan. Home Federal told appellant to come in and fill out an application. Of course Johnny Bass’s application was re jected. Johnny Bass died on May 18, 1977.
In reviewing the sequence of events beginning with the loan closing, it appears that the appellant has made a prima facie case of negligence. The Basses were not advised of further action necessary until months later when it was too late. Once the question concerning Credit Life arose, and the appellants indicated their desire for Credit Life, the jury may well have found that appellants were led to believe Credit Life was being provided. The jury may also have found that there was a duty on part of appellee to process an application in the normal way. Derby v. Blankenship, 217 Ark. 272, 230 S.W. 2d 481 (1950) and Spink v. Mourton, 235 Ark. 919, 362 S.W. 2d 665.
Appellee’s employee testified that Home Federal Savings & Loan was not an agent of the insurance company. However, she did testify that the chairman of the board is licensed for insurance. Whether Home Federal Savings & Loan was agent of the insurance company or agent of the Basses, its failure to procure or at least make an attempt and advise appellants within a reasonable length of time of the unavailability of the insurance is actionable. The appellant met the burden of proof necessary for the jury to decide whether or not appellee was negligent.
Reversed and remanded. | [
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Car letón Harris, Chief Justice.
Milford Fuller was convicted in Boone Circuit Court of the crime of receiving stolen property. A jury found appellant guilty, and the court entered judgment, assessing punishment of not less than 16, nor more than 48, months in the Arkansas Department of Corrections. Prom the judgment so entered, comes this appeal. Six points are raised in urging a reversal, and we proceed to discuss these contentions.
On September 7, 1967, Mickey Owen, Sheriff of Greene County, Missouri, together with several deputies, went to the office of,the Municipal Judge at Harrison, and Owen executed an affidavit for a search warrant, based solely on information obtained from an unnamed confidential informant. A warrant was issued to search a certain dwelling house and outbuildings located on a farm northwest of Harrison. These officers, accompanied by Arkansas officers, went to that location, made a search, and seized a quantity of clothing allegedly stolen from a men’s apparel store in Springfield, Missouri. The officers then returned to the Municipal Judge, reported the results of the first search, and, based up this and the same information used in obtaining the first warrant, executed another affidavit, and obtained another search warrant to search a warehouse owned by the Golden Rich Distributing Company, located in Harrison. There, too, a quantity of merchandise consisting of television sets, tires, and other merchandise was seized; the president of the company, Leo Walton, who resided in an apartment in the upper story of the building, mentioned that Fuller had some connection with the merchandise, and appellant was asked to come to the warehouse. Fuller and Walton later requested to go to the office of the Prosecuting Attorney for the purpose of making statements concerning the alleged stolen property. Walton gave a statement on September 7, and Fuller made a statement on the morning of September 8, 1967. Thereafter, a number of charges were filed against Walton and appellant, both for receiving, and for possessing, stolen property. In Walton and Fuller v. State, 245 Ark. 84, 431 S.W. 2d 462, this court reversed a conviction of both men on a charge of possessing a Zenith color television set and a Zenith stereo record player, alleged to have been stolen from Chuck Carter, proprietor of an appliance company of Seymour, Missouri. The present charge against Fuller relates to suits of clothing that were allegedly stolen from a clothing store in Springfield.
The first point for reversal is the same that was raised in Walton and Fuller v. State, Supra, i.e., that the affidavit for the search warrant was defective, and the warrant issued thereon was therefore invalid. This point controlled our decision in that case.
The alleged stolen goods which Fuller is accused of knowingly receiving, were found following the issuance of the first search warrant, while the principal warrant discussed in Walton and Fuller was the second warrant: however, we there held both search warrants invalid. We did hold that the television set and record player (the property involved in the earlier appeal) could be offered in evidence, and testimony taken relative thereto, because these items were voluntarily mentioned by Walton, and were not included in the property discovered under the authority of the search warrants.
The state argues that Fuller had no standing to object to the search of the farmhouse, because he had no proprietary interest, and since that property was owned by Golden Rich, Walton, and one Ed Willis, Fuller could make no complaint that the search was invalid. This is an (erroneous argument. The record reflects that Fuller had permission to be on the premises, had bird hunted there frequently, had brought bones and food to feed Willis’ dog on several occasions, and had been there frequently with permission, when Willis was not there. Willis arrived on an occasion when clothes were being stored, and the witness said that the clothes were brought there by two men that he did not know; that Fuller arrived as these men were leaving. He did not see Fuller converse with the two, and he said that the only reference Fuller made to the clothes was telling Willis that the men would get them out in a few days. The witness said that he was “raised” with the Fuller family, and had been told that he was Fuller’s godfather. Under Jones v. United States, 362 U.S. 257, Fuller had a sufficient interest in the property to move to suppress the evidence. In Jones, the United States Supreme Court held that the testimony reflected a sufficient interest in the premises to establish that appellant was a person aggrieved by the search. Quoting from the opinion:
“That testimony established that at the time of the search petitioner was present in the apartment with the permission of Evans, whose apartment it was. The Government asserts that such an interest is insufficient to give standing. The Government does not contend that only ownership of the premises may confer standing. It would draw distinctions among various classes of possessors, deeming some, such as ‘guests’ and ‘invitees’ with only the ‘use’ of the premises, to have too ‘tenuous’ an interest although concededly having ‘some measure of control’ through their ‘temporary presence,’ while conceding that others, who in a ‘realistic sense, have dominion of the apartment’ or who are ‘domiciled’ there, have standing. Petitioner, it is insisted, by his own testimony falls in the former class.”
The court then said:
“Distinctions such as those between ‘Lessee/ ‘Licensee/ ‘invitee’ and ‘guest/ often only of gossamer strength, ought not to be determinative in fashioning procedures ultimately referable to constitutional safeguards.
‘ ‘ * * * A fortiori we ought not to bow to them in the fair administration of the criminal law. To do so would not comport with our justly proud claim of the procedural protections accorded to those charged with crime. No just interest of the Gfovernment in the effective and rigorous enforcement of the criminal law will be hampered by recognizing that anyone legitimately on premises where a search occurs may challenge its legality by way of a motion to suppress, when its fruits are proposed to be used against him. This would of course not avail those who, by virtue of their wrongful presence, cannot invoke the privacy of the premises searched. As petitioner’s testimony established Evans’ consent to his presence in the apartment, he was entitled to have the merits of his motion to suppress adjudicated.”
See also Simmons v. United States, 390 U. S. 377.
The state attempts to make a distinction between the crimes of “possessing” stolen merchandise, and “receiving” stolen merchandise. We find no merit in this argument. One of the essential elements of the crime here charged is the “receiving,” i.e., a defendant must have possession or control over the alleged stolen goods, of which he has knowingly taken charge. As stated in 76 C.J.S. Receiving Stolen Goods, § 6(b), physical possession is not necessary, but constructive possession or control is sufficient. In charging Fuller with the offense, the state was certainly charging that he had control or dominion over the stolen goods. The position of tlie state, as pointed ont in appellant’s reply brief, is a little inconsistent. Appellant states:
“ * * * Thus it can be readily seen that the Appellee is both ‘trying to have its cake and eat it too’ in that it is attempting to establish a vital element of the crime of receiving stolen goods by showing the possession and control of the appellant of the goods at the farmhouse, the scene of the first search and seizure, and at the same time attempting to deny the Appellant having any possession or control of the same in an attempt to establish a lack of standing to object to the illegal search and seizure.”
AVe hold that appellant was entitled to move to suppress the evidence obtained by the first search warrant, and since we have already held in Walton and Fuller v. State, supra, that that search warrant was invalid, it follows that error was committed in permitting testimony to be offered concerning the merchandise found at the farm house. In Walton and Fuller this court commented :
“However, neither the items discovered as a result of the two searches (except for those items not the object of the search, about which Walton voluntai’ily informed the officers) nor testimony relating thereto was admissible in evidence. Thus, identification of property which was inadmissible should have been excluded by the trial court as ‘fruit of the poisonous tree,’ even though it was offered only for the purpose of showing intent and a course of conduct.”
It follows that the conviction must be reversed.
It is next asserted that the court erred in admitting Fuller’s statement of February 8, 1967. In Walton and Fuller we found that the evidence supported the trial judge’s finding that the warnings required by Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, had been given, and that statements by Fuller and Walton were voluntary and made under waiver of the rights enumerated in Miranda. However, that holding (statements were voluntary) does not permit the introduction of the statement in the case before us, for we said:
“* * * Furthermore, statements of both Walton and Fuller made in the prosecuting attorney’s office, except for those portions relating particularly to property not listed in the second search warrant about which Walton volunteered information, were inadmissible as ‘fruit of the poisonous tree.’ ”
The charge in the older case related to property located without the use of a search warrant — but here, the property which Fuller is accused of receiving, with knowledge that it had been stolen and with the intent to deprive the true owner thereof, is property which was recovered by the use of the invalid search warrant.
It follows, therefore, that the statement, as it relates to the suits of clothes, cannot be used in a trial of this appellant.
Appellant asserts that error was committed in denying his motion for production of the name of the informant, but since we are holding that any testimony relative to goods found under the search, or any statements made by appellant with regard to the property found during the search, cannot be used, there is no necessity to discuss this contention.
It is asserted that error was committed in permitting three men’s suits to be introduced into evidence, and since these suits were found during the illegal search, the point is well taken.
A color television set, alleged to have been stolen, and received by Fuller, was exhibited to the jury by the state, the purpose being to show that appellant was receiving' other stolen property from the same people, and it is asserted that this was error. Of course, appellant being charged in this case only with receiving stolen clothing, it was not proper to introduce other allegedly stolen items. However, the court subsequently held this inadmissible, and so advised the jury.
Complaint is made that the Prosecuting Attorney commented during his closing argument on the fact that appellant did not take the witness stand, and it is alleged that this comment constituted prejudicial error. It is no longer necessary to discuss this assertion at length, because of the other errors, but we hold that the contention is without merit. Hammond and Evans v. State, 244 Ark. 1113, 428 S.W. 2d 639.
Because of the .errors, heretofore set out, the judgment is reversed.
It is so ordered. | [
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Frank Holt, Justice.
Appellee’s house was totally destroyed by fire. When appellant, the insurer of the dwelling, refused payment, this action resulted. As an affirmative defense, appellant alleged appellee had fraudulently represented the value of his house and thereby induced appellant to issue its insurance coverage ($45,000) greatly in excess of the actual value. The trial court granted appellee’s motion for a directed verdict, following appellant’s case, for the coverage on the dwelling. The question of the value of the contents of the house was submitted to the jury, which found for the appellee on that issue.
Appellant’s sole ground for reversal is that the trial court erred in directing a verdict for the loss of the dwelling. It argues that there was substantial evidence presented from which the jury could have found that appellee fraudulently misrepresented the value of his house to induce the appellant to issue a policy providing coverage far in excess of the true value of the house. Therefore, the “Valued Policy Law” (Ark. Stat. Ann. § 66-3901 [Repl. 1966]), which provides that in the event of a total loss by fire, the fire insurance policy is considered to be a liquidated demand against the company for. the full amount stated in the policy, is inapplicable.
The propriety of a directed verdict is reviewed on appeal by taking that view of the evidence which is most favorable to the party against whom the verdict is directed. If there is any substantial evidence tending to establish an issue in his favor, it is error for the court to take the case from the jury. Page v. Boyd-Bilt, Inc., 246 Ark. 352, 438 S.W. 2d 307 (1969). In testing the substantiality of the evidence, the evidence and all reasonable inferences therefrom are viewed in the light most favorable to the party against whom the verdict is directed. Thompson v. Helms, 236 Ark. 914, 370 S.W. 2d 609 (1963). In other words, a directed verdict is proper where there is no substantial evidence from which a reasonable mind could find against the plaintiff on a fact issue, when all inferences are drawn and all evidence considered in the light most favorable to the defendant.
Appellee purchased a dwelling house and ten lots for $23,000. He financed the purchase with a loan in the amount of $25,000 from a Savings and Loan Association. At the request of the Association, a realtor appraised the property and assigned a total value of $33,500, $20,500 for the house and $13,000 for the land. The Association also required insurance coverage. Appellee’s fraudulent misrepresentation allegedly occurred in a telephone conversation between appellee and appellant’s local agent, which resulted in the issuance of a policy for $45,000 coverage. The agent asked the appellee how much insurance he wanted and the appraised value of the house. Appellee stated the $33,500 figure and discussed the proposed remodeling. The agent asked the approximate cost of replacing the house and “[a] 11 the remodeling you’re doing and everything.” The agent suggested a figure of $45,-000 to which the appellee agreed. It is undisputed that the appellee did not receive a copy of the appraisal and was informed only as to the total fair market value of $33,500. Although the appraiser testified that his appraisal included the increased value that would result from the completion of the remodeling, it is uncontradicted that appellee was not informed as to whether or not the value of the improvements planned and being made was included. Appellee testified that he assumed that the appraisal figure applied only to the dwelling and did not include the enhanced value.
It is also undisputed that the application form asked for coverage of only $40,000. Appellant’s agent, however, submitted an application requesting coverage for $45,000. It contained a statement that appellant’s agent had inspected the dwelling and recommended acceptance of the risk.
In the circumstances, we hold there is no substantial evidence that the appellee fraudulently misrepresented the value of his house and thereby induced the appellant to issue its policy of insurance greatly in excess of the value of the dwelling.
Affirmed.
We agree: Harris, C.J., and Byrd and Purtle, JJ. | [
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Conley Byru, Justice.
Tlie issues here with reference to ownership of the joint and survivorship bank accounts arose under our law as it existed prior to the effective date of Act No. 78 of Acts of 1965. See Park v. McClemens, 231 Ark. 983, 334 S.W. 2d 709 (1960). In holding that the joint and survivorship accounts belong to the estate of H. S. Lawrence, deceased, the trial court found that there was no intention on the part of IT. S. Lawrence to create a survivorship account or a gift to appellants C. E. Lawrence and L. M. Lawrence.
The record shows that H. S. Lawrence, a long time resident of Searcy County, died at the age of 89 leaving surviving him 13 children. Two of the children, appellants C. E. Lawrence and L. M. Lawrence, lived near their father and for the last 5 or 6 years alternated in caring for him — i.e., they would see that his meals were cooked, his fires were built and necessary wood was available to keep the fires burning. Following the death of his wife, IT. S. Lawrence on Nov. 8,1962, caused his checking account in the Leslie State Bank, Leslie, Arkansas, to be placed in a joint and survivorship account with his son, L. M. Lawrence. On the same date he also caused a savings account of $8,600, to be established under the same arrangement. On April 18, 1963, IT. S. Lawrence opened a joint and survivorship checking account in the Citizens Bank of Marshall, Arkansas, with his son L. M. Lawrence. Thereafter on Sept. 21, 1964, II. S. Lawrence obtained a $10,000 certificate of deposit payable to H. S. Lawrence or C. E. Lawrence, either or the survivor. H. S. Lawrence kept the certificate of deposit and saving account book in his possession until his death.
C. E. Lawrence was asked on what basis he claimed ownership of $10,000 certificate of deposit. His answer was, “My dad put it in there in mine and his name and said, ‘I would like for you to see that I am took care of’ ”. When asked what he meant by saying that he would be taken care of with this $10,000, C. E. Lawrence again said, “Well, he figured on getting sick, figured on big doctor bills, I guess, of course, ’ ’ and at another time upon being asked, “Well you said your dad, when he put in the money in there, said he was putting it in there so that you coaid take care of him?” Whereupon C. E. Lawrence again answered, “Well, yes.” L. M. Lawrence was asked, whether he had advised the heirs that he would divide the money with them, his answer was, “Well in a round about way I imagine I might have after everything was said and done.” At another time he testified as follows:
‘1Q. Did your Father have any instructions concerning this $8,600.00 in the Bank of Leslie, when he set it up in a joint account?
A. What do your mean?
Q. Well, your brother has told us that the father told him that he was putting it in so that you could use it to take care of him.
A. Yeah, he said he didn’t know how long he was going to live and we didn’t either, so he wanted us to be paid for our services when he passed away.
Q. He put this money in so that you could take care of him during his lifetime and help with his funeral expense?
A. I guess you might say that, yes.”
On another occasion Mr. O. E. Lawrence was asked, “I take it, from your earlier testimony, Mr. Lawrence, that you are not now willing to divide the money that was in the Marshall bank with the other children?” His answer was, “This thing will have to clear up pretty well, then I will make my decision on that.” When asked if this was not inconsistent with his father’s statement to him, he answered, “I don’t think so. Anyway, how did I know but what I was going to have to spend everything else I had to see that he was taken care of, that -was my promise and that is what I would have done, that is what I had to do.” Letters written by C. E. Lawrence and L. M. Lawrence to members of the family subsequent to the father’s death acknowledge that they w’ere holding or had control of the monies involved, but there was no outright assertion that the funds belong to them.
As pointed out in Park v. McClemens, 231 Ark. 983, 334 S.W. 2d 709 (1960), the ownership of the accounts h.ere must turn on whether PI. S. Lawrence intended to create or vest title in the survivor. There is testimony in the record from which the trial judge could have found the issues either way. The chancellor observed the witnesses as they testified. We are not in a position to say that his finding on this issue is contrary to the preponderance of the evidence.
Affirmed. | [
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Ernie E. Wright, Chief Judge.
This appeal to the Arkansas Supreme Court was assigned to the Court of Appeals pursuant to Rule 29(3).
On April 22, 1977 appellant purchased a tractor from Walt Bennett Ford Company in Little Rock for $12,750.00, paying $2,750.00 down and executing a retail installment contract for the balance of the purchase price in the amount of $ 10,000.00, plus $ 1.00 for the cost of filing the lien with the Motor Vehicle Division, and including a finance charge of $1,074.76. The aggregate amount of $11,075.76 was scheduled to be paid in twenty-four consecutive monthly installments of $461.49 each on the 5th day of each month beginning June 5, 1977.
The contract required the buyer to maintain insurance against loss or damage to the property to protect the interest of the holder of the contract.
The contract was immediately assigned to the Appellee, Ford Motor Credit Company. Appellant made his monthly payments through March, 1978. At that time he had permitted the insurance on the vehicle to expire and was notified by letter dated March 13, 1978 he must furnish evidence of insurance or pay off the obligation. He failed to provide the insurance and appellee filed a replevin action on April 7, 1978. Appellant filed an answer and later an amended answer contending the contract should be declared void as usurious. The contention was based on the inclusion of the $1.00 lien registration fee in the principal amount of the contract and the allegation that a $50.00 charge was provided to be deducted from interest rebate in the event the buyer should pay the debt before maturity.
At trial it was not disputed that the seller incurred and paid $1.00 to register the lien with the Motor Vehicle Division. Appellant contends the court erred in failing to hold the $1.00 lien registration fee constituted interest in determining the issue of usury.
We hold the seller was permitted to include the $1.00 hen registration fee incurred in the face amount of the contract. In Lockhart v. GMAC, 252 Ark. 878, 481 S.W. 2d 350 (1972), involving an issue of usury the court said:
Not every charge made to the borrower which benefits the lender will render a transaction usurious simply because the interest rate is a full 10% particularly if the charge is reasonable, is made in good faith and is reimbursement for a payment to a third person for something appropriate to establishing or protecting of the lender’s security. For instance, we have recognized the propriety of such charges as property inspection fees, expense of an abstract of title, title examination fees, insurance premiums paid a third party, recording fees, expense of obtaining a release of a prior lien, and title insurance premiums. (Citing numerous cases.)
In Brown v. Fretz, 189 Ark. 411, 72 S.W. 2d 765 (1934), the court held a mortgage bearing the highest legal rate of interest was not usurious because the borrower was required to pay for recording the mortgage and other incidental loan closing expenses.
Appellant contends the court erred in failing to hold the $50.00 acquistion fee mentioned in paragraph (14) of the contract was interest making the contract usurious.
The contract does not impose any unconditional requirements on the buyer to pay all or any part of the $50.00 acquistion fee. Under the terms of the contract the buyer is obligated to pay the debt in twenty-four equal consecutive monthly installments on the 5th day of each month beginning June 5, 1977. The payments are not scheduled to be paid on or before the 5th of each month. Under the contract the buyer is not required to pay any part of the $50.00 acquisition fee unless the buyer elects to pay the contract off before due. Then the $50.00 item or a part thereof determined by a formula based on total number of payments in relation to unpaid installments would be deducted from the unearned interest rebate, and the rebate would be computed under a formula called the “sum of digits method.”
At the time of trial the contract had not been paid off so no part of the $50.00 item had been paid by appellant. In the suit appellant indicated his prior desire to pay the contract off, but contended he would have been required to pay all or part of the $50.00 item and that this made the contract usurious.
The appellee’s evidence was that if appellant paid the balance of the contract as of the date of trial, January 15, 1978, the portion of the $50.00 acquisition fee that would have been deducted from the interest rebate would have been $1.67 under the rule of 78s, which is the sum of digits method, used to determine the rebate decimal. Appellee’s testimony was that the $50.00 acquisition fee is not in the finance charges in the contract and does not affect the transaction in any way, unless the buyer elects to prepay the contract under item (14) of the contract. In this event in computing the interest rebate the buyer is chargeable with a portion of the $50.00 item determined by a decimal expressing the ratio of the number of payments remaining divided by the number of original payments. The appellee’s evidence was that this same practice and rebate calculation is used in all retail installment contracts handled by it in Arkansas.
We hold the provision in the installment contract for the deduction of a $50.00 penalty, or a fractional part thereof determined by multiplying the $50.00 by a decimal determined by dividing the number of unpaid payments by the total number of payments is not usurious. Under this circumstance the penalty charge is not interest, but is a reasonable and permissible charge for permitting the buyer to pay off the contract in advance of the due date. Obviously a lender in setting up its records for a finance or installment contract incurs some expense, and while it may well contemplate absorbing that expense when the contract runs for the full period, it is understandable it would expect the obligor under the contract to pay some penalty for prepayment. Otherwise, the finance company might often be in a position of incurring expense incident to the contract only to have it paid off in full in a matter of days.
In Eldred v. Hart, 87 Ark. 534, 113 S.W. 213 (1908), the court held that where the instrument evidencing an installment debt is free of usury if paid according to its terms, the transaction is not rendered usurious by the debtor voluntarily paying the debt in full before some of the installments matured, even though as a result the creditor receives a total sum amounting to more than the principal and maximum legal rate of interest.
In the present case the appellant elected not to carry the insurance the contract required him to carry for the protection of the security interest of the holder of the contract. The insurance, in the event of loss, would also inure to the benefit of appellant. Thus, it was the voluntary action of the appellant that brought the penalty clause concerning prepayment into prospective operation when appellee elected to replevy the vehicle upon breach of the insurance clause of the contract. When appellee sought to replevy, appellant raised the issue of usury.
The case does not fall within the ambit of Arkansas Savings & Loan Association v. Mack Trucks of Arkansas, Inc., 263 Ark. 264, 566 S.W. 2d 128 (1978), which held the charging of a fee, service charge, points, a discount or taking interest in advance would be added to the stipulated interest in determining whether usury was involved. The $3,400.00 loan commitment fee in that instance was taken by the lender out of the loan proceeds. No condition such as an election to pay the loan before maturity was involved.
Likewise, the cases of Sosebee v. Boswell, 242 Ark. 396, 414 S.W. 2d 380 (1967) and Foster v. Universal C.I.T. Credit Corp., 231 Ark. 230, 330 S.W. 2d 288 (1959) involved monies exacted by the lender that did not involve a contingency within the control of the debtor.
Affirmed.
Penix and Newbern, JJ., dissent. | [
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James H. Pilkinton, Judge.
Appellant was charged with burglary and rape in violation of Ark. Stat. Ann. § 41-2002 and 41-1803 respectively. He was found guilty by a jury on both charges. Punishment was fixed at three years imprisonment for burglary and twenty years for rape. The sentences were directed to be consecutive. Appellant brings this appeal from the judgment and sentence imposed by the Pulaski County Circuit Court.
I.
Appellant made a statement to police after his arrest. A pretrial hearing was held and the trial court granted appellant’s motion to suppress the statement on the grounds that (1) the state failed to have present at the hearing all of the witnesses who were present at the time the statement was made, and (2) that the appellant had requested his attorney be present at the time of the statement, and his attorney was not there. In accordance with the trial court’s ruling, the prosecution was not permitted to introduce the statement as a part of its evidence in chief. Later during the trial when the defendant took the stand to testify in his own defense, and denied making the statement to police, another in-chambers hearing was conducted. The trial court then held that the state would be allowed to introduce evidence of the statement in question for the limited purpose of impeaching the credibility of the appellant. This was done, and appellant made no objection. However, appellant now urges that the trial court erred in failing to give a specific jury instruction as to the limited purpose for which the statement could be considered.
The record reflects that discussions concerning the nature and content of the jury instructions, occurred at several intervals during the trial. The first such discussion took place after the state had rested, and before the defense had begun to put on its case. At that time, all of the instructions which had been submitted by both sides were reviewed, and the trial court told the attorneys which ones would be given. The only instruction with regard to credibility of witnesses which had been submitted at that time was adopted by the judge as Court’s Instruction No. 5, which was the usual one on credibility of the witnesses, and of the weight that should be given to their testimony. Both sides approved this instruction. Later at the in-chambers hearing held during the presentation of the defense’s case when the judge decided to allow the state to use the appellant’s prior statement for the purpose of attacking his credibility, the following discussion occurred:
MR. ACHOR: That’s right. He says he didn’t tell the policeman that. He says he told the policeman the same thing he told here. Now, you have already ruled that it’s inadmissible as an involuntary statement.
THE COURT: As to the merits of the statement but not as to his credibility.
MR. ACHOR: I think with this we will need another instruction. We might as well get it straight right now.— that this was not for the purpose of proving the truth of this statement.
That is all that was said by counsel for appellant concerning the limited instruction. Nor was there ever any further attempt by appellant, either at the time the state offered the evidence in question, or at the time when the instructions were ready to the jury, to have a limiting instruction given. At the close of the case for the defense, and after both sides had rested, the record reveals the following:
THE COURT: (in chambers) Are you ready to charge this jury and read instructions to them?
MR. HALL: Yes, your Honor.
THE COURT: Anything else, gentlemen?
MR. ACHOR: No, sir.
Immediately later in the courtroom, the following occurred:
THE COURT: Both sides rest?
MR. HALL: (for state) Yes, sir.
MR. PATTERSON: (for defense) Yes, your Honor.
THE COURT: Are you ready for me to instruct the jury?
MR. PATTERSON: Yes, your Honor:
MR. HALL: Yes, sir.
Appellant contends that the statement of defense counsel, quoted above, to the effect that I think we will need another instruction, etc., constituted an adequate offer of a limiting instruction. We do not agree. Rule XIII of the Uniform Rules for Circuit and Chancery Courts (251 Ark. 1117) provides:
No party may assign as error the giving or the failure to give an instruction to a jury unless he objects thereto before or at the time the instruction is given, stating distinctly the matter to which he objects and the grounds of his objection.
Suffice to say that appellant made no objection to the instructions as given by the court, nor did he offer a proper limiting instruction. The purpose of requiring objections is to give the trial court an opportunity to correct any error or omission on its part. Griffin v. State, 248 Ark. 1223 at 1232, 455 S.W. 2d 882 (1970). Clearly no limiting instruction was ever submitted to the trial court by appellant; thus, under the circumstances here, there was no. error in the trial court’s failure to give such an instruction. Perry v. State, 255 Ark. 378, at 384, 500 S.W. 2d 387.
II.
It is next contended the trial court should have granted appellant’s motion for a mistrial when the prosecuting attorney allegedly allowed the ‘ ‘rap sheet’ ’ on the defendant to be seen by the jury. The record reveals that the prosecutor asked the defendant whether the one robbery conviction he had testified to was his only felony conviction and whether he had been to prison only one time. At that point, according to the record, the state’s attorney approached the defense table, apparently to hand appellant’s counsel a sheet of paper that was only later identified (after the jury had been removed), as a “rap sheet.”
If any particular attention was called to this piece of paper, it was the result of the action of defense counsel. As the prosecutor approached‘the defense table to hand the public defender a copy of the sheet, the following occurred:
MR. ACHOR: (Counsel for appellant) I don’t want to see that. I see that certified copy you got there. I see you got something there with a seal on it.
THE COURT: Gentlemen, if you are going to discuss something —
MR. ACHOR: Judge, may we approach the bench?
At this point counsel for both sides approached the bench, and conferred with the court out of the hearing of the jury, as follows:
MR. ACHOR: I would like to move for a mistrial, him flashing that before the jury.
The court had the jury taken out of the courtroom, and the matter was further discussed. The court then made the following statement:
All right, gentlemen, the record is complete at this time. The court finds that the defense raised the question of his prior conviction. The court further finds that Mr. Bentley asked him and he admitted the robbery, as he did on direct. He asked him if that was all, if there were any others, and he said, “No.” So far as the jury knows, that is all. There was some discussion, probably inaudible, from the defense counsel and from the prosecutor which was initiated by both counsel, and defense was as culpable in it as the prosecutor.
I do not think that this jury has heard or seen anything that can be detrimental to this man’s right to have a fair trial. I will overrule the motion for a mistrial.
There was a question of fact presented as to whether or not the sheet was seen by the jury, or the comments of counsel overheard. The trial judge resolved the issue against appellant. Parrott v. Arkansas, 497 F. 2d 1123 (8th Cir. 1974). The facts here are entirely different from those in Shaddox v. State, 243 Ark. 55, 418 S.W. 2d 780 (1967), and the other cases which appellant cites as authority for his contention that a mistrial shpuld have been granted. We find np merit in appellant’s point II.
III.
Appellant also claims that the trial court commented on the evidence, and his motion for a mistrial should have been granted. During the redirect examination of the prosecutrix, the following exchange occurred:
BY MR. HALL, DEPUTY PROSECUTING ATTORNEY: How certain are you that the man sitting at the counsel table is the man who was with you that night?
MR. ACHOR: Your Honor, this is not proper in the context of the trial. This would have been proper on direct but not now.
MR. HALL: This is redirect.
THE COURT: Sustained.
MR. HALL: Your Honor, I would like to point out that they brought up the question of identification.
THE COURT: Mr. Hall, I’m not sustaining it for the reason Mr. Achor says. I’m sustaining it because the lady has identified the man sitting at the counsel table as the assailant.
Out of the hearing of the jury the public defender moved for a mistrial which was denied.
THE COURT: I just said what the witness has testified to, Mr. Achor. Overruled.
The remark of the trial court here was merely a restatement of the witness’s testimony. Consequently, it did not constitute a comment on the evidence in violation of Article 7, Section 23 of the Arkansas Constitution, as appellant claims. See Lisko v. Uhren, 130 Ark. 111, 196 S.W. 816.
IV.
The issue raised by appellant in his final point for reversal concerns an incident which occurred at the beginning of the voir dire of the jury. After the jury panel was sworn, the court introduced the attorneys and the defendant to the prospective jurors. Then the judge had the witnesses to be identified by name, and asked the panel if any juror knew any of these witnesses. Two other rape victims were included by the state as possible witnesses. As it later developed, the court did not permit the state to use these two witnesses, and that matter is the subject of the cross appeal in this case. Appellant contends the introduction to the jury panel of the other two alleged rape victims, as possible witnesses, was error and that the court should have granted his motion to strike the whole jury panel.
The record does not indicate that the prospective jurors were ever informed as to what relationship the two had to the case. They were introduced by name only, and then put under the rule. No prejudice to the defendant could have resulted from this incident, particularly when no final ruling had been made by the court on the eventual admissibility of their testimony. If appellant was prejudiced by what happened here, then conceivably every prosecutor would risk reversal when he attempts during voir dire to determine whether any member of the panel is acquainted with any of the potential witnesses before knowing whether their testimony will be necessary or admissible.
Appellant cites Sharron v. State, 262 Ark. 320, 556 S.W. 2d 438 (1977) as support for his argument that reversal on this point is required. The facts in Sharron were entirely different, and that case is clearly distinguishable from the one before us. Appellant’s argument on this point lacks validity.
THE CROSS APPEAL
At the conclusion of the trial, the state sought to put the other alleged victims on in rebuttal to the defendant’s claim of consent by the victim in the case being tried. The state made a proffer and the court excluded it as too prejudicial. This cross appeal is from the trial court’s rejection of the proof of other crimes under U.R. Evid. 404(b). Since this case is being affirmed on direct appeal, little need be said about the cross appeal. The Arkansas Supreme Court has already ruled that evidence of other crimes is admissible for limited purposes. A decision on the cross appeal in this case is not necessary to the uniform administration of criminal law. It is clear that the admissibility of relevant evidence under Rule 404(b) of the Uniform Rules of Evidence may be decided on a case by case basis. Rogers v. State, 257 Ark. 144, 515 S.W. 2d 79 (1974) and Rios v. State, 262 Ark. 407, 557 S.W. 2d 198 (1977).
Finding no error, this case is affirmed on direct and cross appeal.
Penix, J., concurs. | [
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Frank Holt, Justice.
This is an appeal from a reduction of maintenance and child support payments. In 1964 the appellant was awarded $600 per month as alimony and child support in a separate maintenance action. In June 1967, the appellee was granted a divorce based upon three-years separation. The payment of $600 alimony and child support was continued. In February 1968, the appellee petitioned for a modification of this monthly payment upon the assertion of a material change in circumstances during the preceding eight. months. In July 1968, after a hearing upon appellee’s petition to modify and appellant’s petition for a citation for contempt, the chancellor ordered a reduction of the alimony and child support from $600 to $450 per month; that the stipulated arrearage of $2100 which had aecumulated the past few months be paid by alternate monthly payments of $150 and that appellee would be in contempt of court until this arrearage was fully paid; and further ordered that the appellee pay the costs and an attorney’s fee.
For reversal the appellant first contends there was insufficient evidence for the lower court to modify the decree of June 1967. Upon a trial de novo, we cannot agree.
A decree for maintenance and support is always subject to modification by application of .either party upon a showing of change of circumstances. Perry v. Perry, 229 Ark. 202, 313 S.W. 2d 851 (1958); Ark. Stat. Ann. § 34-1213 (Repl. 1962).
IVe review the evidence of a change of circumstances since the June 1967 decree. A month later, appellee remarried and now has two stepchildren. The arrearage of $2,100 in appellee’s monthly payments appears to have accumulated since that decree. The $600 monthly payment was based upon a gross annual income of approximately $11,200. There was evidence that appellee’s gross income for the year 1967 was approximately $11,720 and a net taxable income (before exemptions) of $5,305.06. Appellee’s indebtedness to his partners in the practice of medicine increased from $1,886.97 to $3,-564.34 and his partners are now requiring him to pay $175 per month on current joint expenses and not less than $125 per month to reduce the accumulated deficit. This represents an increase in expenses of $125 per month. Before 1967, appellee had entered into an agreement with an estate to purchase the interest of a deceased partner at $200 per month. He is in arrears and offered evidence that this payment must now be increased to $400 per month to avoid eviction. According to him, since the 1967 decree it has become necessary to purchase new equipment at an expense of $2,300. He offered evidence that his net worth had been reduced to a deficit and that he had been unable to pay his 1967 federal income lax of $877.64 and state income tax of $161.90. .Further, that he owes, a note for $1,100 which he borrowed to pay on his alimony and child support.
The appellant offered evidence to the effect that she has suffered hardship because of appellee’s arrearage in payments and that she is delinquent with her obligations. In the 1967 divorce decree she received, in addition to the $600 support payment, a property settlement which included $2,200 in cash, the house in which she presently lives, a lot in El Dorado, and a rental house in Little Bock, all of which were encumbered. The $2,200 was applied on property indebtedness. The residence and lot are still mortgaged and she is delinquent in her payments. The rental property is now free of indebtedness. She testified that she is physically unable to work at the present time. She is 52 years of age and has not worked since she and appellee moved to El Dorado in 1962. She has experience as a medical stenographer and as a psychiatric technician. Their adopted child is now 15 years of age.
In ordering a reduction in payment, the chancellor said: “I’ve got to exercise some common sense. You kill the goose that laid the golden egg and everyone will suffer.” He observed that it might become necessary for appellant to again become employed.
There was only so much income for a division between the support of these two families. We have held that it is only realistic that remarriages happen and such an occurrence is a circumstance to be considered in determining a change in circumstances. McCutcheon v. McCutcheon, 226 Ark. 276, 289 S.W. 2d 521 (1956).
Nor can we agree with the appellant’s contention that appellee’s arrearage precluded any consideration of his petition for a modification. We think the court’s order that the $2,100 in arrearage be paid at the rate of $150 on alternate months before the appellee is purged of contempt is reasonable in the circumstances. Further, we are of the view that the appellant has demonstrated no prejudice because of appellee’s failure to answer certain interrogatories which were filed a few days before the trial. These interrogatories were subjects which were sifted on cross-examination of appellee when he was a witness.
According to this record, we are of the view, upon a trial de novo, that the chancellor was correct in making a reduction of appellee’s payments based upon a showing of a change in circumstances.
The appellee is ordered to pay appellant the costs on this appeal and her attorneys a fee of $300 for their services.
Affirmed. | [
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George Rose Smith, Justice.
The appellant, tried before a jury, appeals from a judgment sentencing him to three years imprisonment for having taken $209.57 that had come into his possession as an employee of L. F. Snodgrass, the operator of a service station in Texarkana. Ark. Stat. Ann. § 41-3927 (Repl. 1964). Pharr contends only that the evidence is not sufficient to support the conviction.
On the night of the crime, August 8, 1968, Pharr was in his second week as the night attendant at the station, working alone oil a 12-hour shift that began at 6:00 p.m. Snodgrass had assigned a separate drawer in the cash register to each of his employees, providing each man with a key to his. assigned drawer. Every day when Snodgrass checked out the receipts he put $50 in each man’s drawer to enable him to begin business on his shift.
At about 4:00 on the night in question Snodgrass was called by telephone to the station. The police had also been summoned, because a passing prospective customer had found the station open and unattended. A day attendant had apparently forgotten to take his drawer key with him; it was still in the lock. Both that drawer and Pharr’s drawer were empty, except for a few cents. Snodgrass determined from the cash register tapes and the credit card slips that about $209 was missing.
During the same night police officers in the city of Hope, about 32 miles from Texarkana, saw a man that proved to be Pharr arrive in an out-of-town taxicab and alight at a motel. Finding the motel full, Pharr asked the officers to assist him in obtaining a room for the night. As Pharr appeared to be drunk, the officers took him to the police station, where a test confirmed his intoxication. Pharr was booked and was found to have $183.13 in his possession, of which at least $100 was in silver. The next day Pharr, who still showed signs of intoxication, was turned over to the Texarkana police. Snodgrass and officers from both cities testified at the trial, narrating the facts essentially as we have summarized them.
TTo find the proof abundantly sufficient to support the conviction. The jury was warranted in believing from the proof that Pharr had taken the money from both cash drawers, had left the station unattended without notifying his employe]-, and had embarked upon an apparently pointless trip to Hope to spend the night. "When Pharr was arrested he was still in possession of almost all the missing money. At least $100 of it was in silver, which in itself is enough to arouse suspicion. Absent an eyewitness, the State’s proof is fully as strong as could be expected in such a case.
The appellant hinges his argument principally upon the matter of reasonable doubt. That issue does not arise on appeal, for as we said in Graves v. State, 236 Ark. 936, 370 S.W. 2d 806 (1963): “The jury must be convinced beyond a reasonable doubt, but there is no requirement that the members of this court be similarly persuaded by the proof. Here the test is that of substantial evidence. If the verdict is supported by such proof we are not at liberty to disturb the conviction, even though we might think it to be against the weight of the evidence.” In the case at hand we hardly see how the verdict could have been other than that of guilty.
Affirmed. | [
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John I. Purtle, Justice.
Appellant’s motion pursuant to A.R.Cr.P. Rule 37 was denied by the Circuit Court of Howard County without a hearing. On appeal it is contended that the trial court erred in failing to vacate or modify the sentence. We agree with the lower court’s decision.
On September 18, 1981, the appellant entered a plea of guilty to burglary and theft of property and second degree escape. He received a sentence of seven years on burglary and theft of property plus a two year sentence for second degree escape; the sentences to run consecutively. His timely motion pursuant to Rule 37 was denied at the trial level without a hearing.
After commencing his sentence the appellant learned that he was subject to the provisions of Act 93 of 1977, codified in Ark. Stat. Ann. §§ 43-2828 et seq. (Repl. 1977), which required him to serve two-thirds of his ¡sentence because he had had two prior convictions.
Appellant’s Rule 37 petition was a claim of ineffective assistance of counsel due to the fact that he was not informed, prior to his plea, that he would be subject to the provisions of Act 93 in serving his sentence. A careful review of the record indicates that the acceptance of appellant’s guilty plea by the trial court was genuinely fair and complete in all details. There was no showing by the court or anyone else that appellant would be subject to the provisions of Act 93 while serving his sentence in the Arkansas Department of Correction. Judge Castleman thoroughly explained the minimum and maximum sentence, the right to a trial by a jury, and every other matter necessary prior to accepting a guilty plea. We held in Westbrook v. State, 265 Ark. 736, 580 S.W.2d 702 (1979), that it was prejudicial error for the trial judge to comment to the jury concerning the power of the governor to pardon. We faced almost exactly this same question in the case of Houff v. State, 268 Ark. 19, 593 S.W.2d 39 (1980). In fact, the trial court in Houff was aware that Act 93 of 1977 had become effective but was not sure how it would affect the time to be served on the sentence. We affirmed the trial court’s denial of Houff’s Rule 37 petition. The problem of how much time an inmate must serve before becoming eligible for parole was considered in the case of Bosnick v. State, 275 Ark. 52, 627 S.W.2d 23 (1982). We held that the manner in which a sentence is being executed is not a proper matter to be considered in a petition for postconviction relief and that the department of correction was the proper authority for determining parole eligibility. We have also held that the trial court has no authority to determine the manner in which the board of pardons and paroles exercises its prerogative for parole eligibility. Jones v. State, 270 Ark. 328, 605 S.W.2d 7 (1980). In Stevens v. State, 262 Ark. 216, 555 S.W.2d 229 (1977), we considered a Rule 37 petition for relief when the trial court had denied the petition without a hearing. At the sentencing phase the appellant was told he was sentenced to eleven years and that the court did not know what effect parole policy might have upon the length of time to be served. We affirmed the action by the trial court.
The appellant received the sentence he bargained for. There was no duty upon the court or anyone else to inform the appellant that his sentence might be affected by the provisions of Act 93 of 1977. Any attempt by the court or the defense counsel or the state’s attorney to inform the defendant of his exact parole eligibility date could have resulted in error of a prejudicial nature. Certainly the defense counsel should inform his client about the possibility of parole if he has knowledge of such. However, to require the court or its officers to explain parole eligibility to a defendant would be to encourage the judiciary to encroach upon the executive department of government. Therefore, we find that the court did not err in denying appellant’s motion pursuant to Rule 37 without a hearing.
Affirmed. | [
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John I. Purtle, Justice.
This appeal from the Garland County Circuit Court arises from appellant’s conviction of first degree murder wherein he received a life sentence and a fine of $15,000. Six points for reversal are argued and will be. set out separately in the opinion below. We do not find that any prejudicial error occurred in the appellant’s trial.
Appellant was charged with capital murder in furtherance of the crimes of robbery and kidnapping, in violation of Ark. Stat. Ann. § 41-1501 (Repl. 1977). Vladimir Vejrosta was murdered on January 20,1981. His body was discovered in the trunk of his car at the Dallas-Fort Worth airport on April 10,1981. An autopsy revealed he died as a result of two gunshot wounds to the top of his head. The victim also had evidence of blunt trauma to his rib muscles which injury occurred prior to his death.
Appellant’s involvement commenced in late 1980 when he and his wife, Judy Mackey, entered into negotiations with the deceased to sell him some gold coins. Various witnesses established that the coin deal was to be consummated on January 20, 1981, at which time Vejrosta was to give appellant’s wife a check for $15,000 in return for the coins. The appellant and/or his wife cashed the check at a used car lot where appellant used $6,500 to purchase a Corvette. The dealer testified appellant had been trying to deal for the vehicle over a period of several weeks and had said he was waiting for a check to clear. Officers of a local bank testified they had required the deceased to deposit his check from a Nebraska bank in a Hot:Springs bank until it cleared. On January 20, 1981 the bank allowed Vejrosta to draw on the Nebraska check and established a, checking account for Vejrosta who in turn wrote a $15,000 check payable to appellant’s wife. This was the last day Vejrosta was seen alive.
The investigation was long and complicated. Appellant became a suspect and was picked up for questioning on May 18, 1981, in Crescent City, California and three days later was arrested for interstate flight to avoid prosecution. On May 22,1981, he informed the California authorities that he would waive extradition hearings and return to Arkansas. An Arkansas parole officer picked appellant up on June 29, 1981 and returned him to the Garland County jail on July 2, 1981. The information was filed on July 14, 1981 and a hearing was held the next day. On that day appellant was held to be a parole violator and it was found that he should be returned to the Arkansas Department of Corrections. However, it appears that he remained in the Garland County jail up until his trial was completed on May 21, 1982.
On August 6, 1981, the information was amended to also charge appellant’s wife, Judy Mackey, with capital murder. She was arrested, made bond, fled the state and has not been heard from since.
Testimony at the trial was to the effect that the deceased either bought or attempted to buy gold coins from appellant and his wife. There was uncontradicted evidence that the victim gave them a check for $15,000 on the day he was murdered. Other testimony was to the effect that appellant’s brother, Carl Mackey (who pled guilty to the crime of hindering apprehension), helped appellant and his wife dispose of decedent’s body. Carl was the state’s chief witness; he testified that he went to appellant’s home on the evening of January 20, 1981, helped wrap the body of the victim and transport it to the Dallas-Fort Worth airport. Carl was paid $500 for driving the victim’s vehicle, with the body in the trunk, to the airport. He testified that appellant and Judy Mackey both told him they had killed a man whom they had set up on a deal to purchase nonexistent gold coins.
It was appellant’s contention that his wife killed Vejrosta while appellant was visiting his parents in the early afternoon. He further contended that she later told him about the killing and he helped dispose of the corpse in order to keep from having his parole revoked for being present with his wife after she killed Vejrosta. These matters were told to the jury in the opening statement by appellant’s attorney. The jury was instructed that Carl was an accomplice and that his testimony alone was not sufficient to convict the appellant. The jury convicted appellant of murder in the first degree, sentenced him to life and fined him $15,000.
I
The appellant argues he was denied a speedy trial as required by A.R.Cr.P., Rule 28 and the federal and state constitutions. Our Rule 28 was adopted for the purpose of enforcing the constitutional provisions requiring a speedy trial. Rule 28.1 (a) requires a person held in jail on an offense to be tried within nine months or released on his own recognizance. Rule 28.1 (b) requires a person being held in prison in this state to be tried within twelve months, excluding periods of necessary delay, or if this provision is not complied with to be granted an absolute discharge as to the offense charged.
Appellant was first arrested on May 21, 1981. His trial commenced on May 18,1982 and concluded on May 21,1982. The record reveals he was arrested for parole violation and as a fugitive avoiding prosecution. He was questioned about the murder while he was under arrest in California but he was not charged. The information was not filed until July 14,1981. Since his parole was revoked and he still had time to serve, it can be concluded that he was being held in prison within this state for conviction of another crime. No doubt he was held in the Garland County jail for the convenience of his attorney and the state. He was not being held in jail solely on the pending charge for the nine months, but even if he were, he would have only been entitled to release on his own recognizance. A.R.Cr.P., Rule 28.1 (a). He was subject to release from the former sentence on March 28,1982. Under the circumstances he was held on the present charge for less than two months. Therefore, if all time claimed to be excluded by the state is eliminated he is still not entitled to relief pursuant to Rule 28.
II
Appellant also makes the argument that there was not sufficient independent evidence to corroborate the accomplice’s testimony. We agree with appellant’s statement of the law that such other evidence is insufficient if it merely shows that the offense was committed and the circumstances thereof. Ark. Stat. Ann. § 43-2116 (Repl. 1977). The corroborating evidence must be of a substantial nature which tends to some degree to connect the defendant with the commission of the crime. King v. State, 254 Ark. 509, 494 S.W.2d 476 (1973). Some of the independent evidence tending to connect the appellant with the crime was: he was in possession of and assisted in cashing the decedent’s check on the day it was issued; he was dealing with the victim for the sale of gold coins with a value of f15,000 which coins were not seen by others with the exception of a few coins which were tested; he purchased a car with part of the proceeds of the victim’s check; he admitted helping dispose of the body to avoid anyone being apprehended; and he traveled to California shortly after the murder. The evidence, other than the accomplice’s testimony, is substantial and tends to connect the appellant with the crime. It was, therefore, proper to allow the jury to consider the totality of the evidence, including the accomplice’s testimony.
Ill
It is also argued that the trial court erred in refusing to allow a witness to testify that he had sold a .22 revolver to Judy Mackey and another one to the deceased. We think this evidence should have been admitted pursuant to Arkansas Uniform Rules of Evidence, Rule 401. However, the error cannot be considered prejudicial because the same evidence was introduced by other witnesses and was properly before the jury for its consideration. Geryaldine Ivan and Jack Mackey both testified that the victim had a handgun in his possession at the time the transaction between the Mackeys and the victim took place. Dorothy Mackey testified that she had seen Judy Mackey with a .22 handgun on many occasions. Therefore, the proffered testimony would have been cumulative in nature.
IV
It is argued that the trial court erred in refusing to order subpoenas for out of state government employed witnesses. These witnesses had performed certain tests which had been negative or at least inconclusive in connecting appellant to the crime. We think the trial court erred in refusing to issue the subpoenas. However, the error is rendered harmless by events which occurred at the trial. During appellant’s opening and closing statements the jury was told that all of these tests were run and produced no evidence incriminating the appellant. Additionally, detective Don Adams stated none of the test reports were returned to him. The detective’s testimony, coupled with appellant’s opening statement and closing argument makes it obvious that the jury knew the test results were negative. This is the same testimony the witnesses sought by appellant would have presented. The state attempted to prevent the negative test results from being presented to the jury. Had any of these tests been positive the state would have offered the results into evidence. The very purpose of the tests was to obtain relevant evidence connecting appellant to the murder of Vejrosta. To hold the negative test results inadmissible would be tantamount to holding that such evidence is admissible only if it points to a defendant’s guilt. The results of such tests are admissible pursuant to Rule 402.
It is true that Ark. Stat. Ann. § 43-2001 (Repl. 1977) provides for unlimited out of state witnesses in capital felony cases. However, this statute must be read in conjunction with Ark. Stat. Ann. § 43-2006 (Repl. 1977) which provides that such witnesses must be material. We have interpreted these statutes by declaring such right not to be absolute but, rather, resting within the sound discretion of the trial judge. Wright v. State, 267 Ark. 264, 590 S.W.2d 15 (1979). We have also held that the right to have out of state witnesses in capital felony cases means material witnesses. Henry v. State, 278 Ark. 478, 647 S.W.2d 419 (1983). Under the circumstances contained in this case we do not find the error to be prejudicial.
V
Did the trial court err in permitting a witness to offer hearsay testimony? We think it did not. The hearsay testimony was that the deceased told a friend, “Well, if grandma is a man, I’ll leave.” The statement involved a proposed meeting between the deceased and the appellant’s wife in the matter of negotiating for the sale and purchase of the coins. Uniform Rules of Evidence, Rule 803 reads in part:
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(3)... A statement of the declarant’s then existing state of mind, emotion, . . . plan, motive, design, mental feeling. . .
The state was allowed to introduce the statement for the purpose of showing the victim’s state of mind. However, during closing arguments the state said “grandma” was the defendant, thereby showing that the appellant planned to meet with the deceased on the date of his death. Although the state misused the statement in closing argument it was nevertheless proper for the purpose for which the court allowed its introduction. We have held that evidence of the state of mind of the victim, prior to a murder, was admissible. State v. Abernathy, 265 Ark. 218, 577 S.W.2d 591 (1979). See also United States v. Calvert, 523 F.2d 895 (8th Cir. 1975).
VI
Appellant’s final argument is that the trial court erred in limiting the testimony of a witness for the defense. The testimony was offered for the purpose of attacking the credibility of Judy Mackey, the appellant’s wife and apparent accomplice, who was not present at appellant’s trial. The proffered testimony portrayed Judy Mackey as an unfaithful and lying wife and said she was involved in prostitution. It also contended she had acted in the same manner with several of her former husbands. Uniform Rules of Evidence, Rule 608 states:
. . . The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.
(b). . .specific instances of the conduct of a witness ... may ... if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning his character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness . . .
In interpreting Rule 608 we have adopted a three-fold test of admissibility: 1) the question must be asked in good faith, 2) the probative value must outweigh its prejudicial effect, and 3) the prior conduct must relate to the witness’ truthfulness. Cameron v. State, 272 Ark. 282, 613 S.W.2d 593 (1981). We specifically held that it was error to ask about instances of conduct which were not probative of veracity. Divanovich v. State, 271 Ark. 104, 607 S.W.2d 383 (1980).
The elicited testimony was proffered during direct testimony of a witness for the defense. Rule 608 (a) allows credibility evidence only after the witness’ character for truthfulness has been attacked. Section (b) allows such testimony only on cross-examination. In any event the trial court did not err in this matter because Rule 608 applies to examination of witnesses and Judy Mackey was not a witness in this case.
We have reviewed the record for all objections made by the appellant and find no adverse rulings to him which were prejudicial.
Affirmed. | [
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Per Curiam.
Appellant Howard Sharp was convicted of second degree murder on June 26, 1981 and sentenced to 20 years imprisonment. Judgment was entered on July 9, 1981, and a timely notice of appeal was filed.
Appellant was released on bond pending appeal but eventually committed to prison some eight months later when nothing more was done about the appeal. He has now filed a pro se motion for belated appeal, alleging that his retained counsel Jeptha Evans was ineffective in not pursuing the appeal.
Arkansas Rules of Criminal Procedure 36.9 provides that no motion for belated appeal shall be entertained unless application for belated appeal has been made within 18 months of the date of commitment. Although appellant was convicted in July, 1981, the commitment in his case was not entered until March 19, 1982, thus appellant’s motion for belated appeal is timely. It does not, however, show good cause for appellant’s failure to communicate with counsel and must, for that reason, be denied.
After the notice of appeal was filed, appellant moved to Louisiana and then Texas. According to Mr. Evans’ affidavit, he wrote to appellant on December 7, 1981, asking appellant to forward the money to have the transcript prepared. He informed appellant that he had obtained an order extending the time for lodging the record on appeal to February 5, 1982. He also enclosed an affidavit of indigency for appellant to complete if he could not afford the cost of the transcript. Appellant did not return the affidavit or otherwise respond. Mr. Evans also wrote several other letters to appellant and left messages by telephone with appellant’s sister-in-law and mother in attempts to contact him. Evans contends that on October 30, 1982, nearly nine months after the time for filing the record on appeal had elapsed, he received a letter from appellant. Appellant said that he had not received the affidavit because he “withdrew from everything” and left for Texas. He said he did not return until February, 1982. Evans states that he did not seek to be relieved as counsel because he intended to proceed with the appeal until it became evident that appellant could not be located by letter or telephone.
Appellant offers no explanation in his motion for his failure to contact his attorney while he was in Louisiana and Texas. He specifically states that he was aware of his right to appeal, but attributes his failure to communicate with Mr. Evans to Evans’ inability to reach him by telephone or mail. It is apparent that appellant felt no obligation to contact Evans until he was committed to prison in March, 1982.
We have consistently held that the failure of counsel to perfect an appeal in a criminal case where the defendant desires an appeal amounts to a denial of the defendant’s right to effective assistance of counsel. Gray v. State, 2, 77 Ark. 442, 642 S.W.2d 306 (1982). We recognize, however, that a convicted defendant may waive his right to appeal, Gray, supra, and in appellant’s case we find that he did so. See Munn v. State, 278 Ark. 283, 644 S.W.2d 945 (1982).
Counsel made several attempts to contact appellant to inform him of his right to have the record prepared at public expense. Appellant, however,. left the State and did not respond to Evans’ telephone calls or letters. There is no doubt that appellant expressed a desire to pursue an appeal once he was imprisoned, but this does not excuse his total failure to act before the.time for lodging the record on appeal had expired. See Munn, supra; Houston v. State, 263 Ark. 607, 566 S.W.2d 403 (1978).
Motion denied. | [
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George Rose Smith, Justice.
The appellant, Ernest Maxwell, Jr., was charged with first-degree murder in the death of Carol Conn, was found guilty in a two-stage trial, and was sentenced as an habitual offender to life imprisonment. We find it necessary to order a new trial, because the prosecuting attorney brought inadmissible and prejudicial matter to the jury’s attention and because the expert witness Monroe was permitted to state an inadmissible opinion.
On the morning of June 25, 1981, the badly battered body of Carol Conn, 20, clothed in a T-shirt, blue jeans, and tennis shoes, was found near the Plumerville exit from Interstate 40, in Conway County. The clothed body was taken to the state medical examiner for an autopsy. That afternoon the police questioned Maxwell, 43, with whom Carol had been living for about four weeks in his home near Atkins, in Pope County. Maxwell said then, and testified at the trial, that he last saw Carol at his home at about five o’clock the preceding evening. He went to sleep then. When he awoke at about eight, Carol was gone. He went into Atkins at about eleven to ask his brother if he had seen Carol; the next morning he asked about her elsewhere. He told the officers that during the four weeks he and Carol had been living together he had hit her only once, about two weeks earlier and with his open hand.
The state medical examiner, Dr. Malak, performed the autopsy, which at his request was witnessed by Berwin Monroe, a state police officer having extensive training and experience in criminal investigation. Dr. Malak testified, with the support of photographs he had taken, that Carol’s body was bruised from head to foot, front and back. Some of the bruises had been inflicted about ten days before her death, others about three days before death, and others still later. Her skull had been fractured, but the actual cause of death was a heavy blow to the area of the umbilicus (navel), which burst her intestines and caused her death from internal bleeding within not more than ten minutes. Dr. Malak was of the opinion that Carol had been nude when she was killed; some recent wounds had bled, but there was no blood on her clothing, which must have been put on her body after death. The sufficiency of the evidence is not questioned.
Near the end of the trial, Maxwell took the witness stand and admitted on direct examination that he had been convicted of rape and that he had also been convicted of having escaped from jail and having stolen a car during the escape. The prosecuting attorney began his cross-examination with this question:
Mr. Streett: Q. Mr. Maxwell, I believe you acknowledged to Mr. Mobley [defense counsel] that in 1968 you pled guilty and were convicted of the raping of an eleven-year-old girl, and received a thirty-year — [Mr. Mobley interrupts with his objection.]
After a brief colloquy not heard by the j ury the court denied a defense motion for a mistrial but admonished the jury not to consider Mr. Streett’s reference to the girl’s age.
We cannot say that in the circumstances the admonition cured the possibility of prejudice. The prosecutor’s action must have been deliberate, for he could not reasonably have believed that Maxwell had admitted the inadmissible and prejudicial fact that he had raped an eleven-year-old child. In fact, the prosecutor did not argue during the colloquy that the question was proper, nor does the State make such a contention in its brief. We liken the situation to that in Clark v. State, 244 Ark. 772, 427 S.W.2d 172 (1968), where the prosecutor in the jury’s presence went through the pretense of attempting to call the defendant’s wife as a witness, knowing that she could not testify against him. We reversed the conviction because, while the crime was described as heinous and revolting, the offer to call the wife “exceeded the bounds of fairness, so essential to an unprejudiced trial.” We cannot establish a precedent that a deliberately unfair tactic such as the one before us can be made harmless by anything less than a reprimand in the presence of the jury or by the granting of a mistrial.
There is another error that must be avoided upon a retrial. Berwin Monroe qualified as an expert witness in crime scene investigation and in the scientific examination of minute physical evidence. The State’s theory was that Maxwell killed Carol in his home, that she was nude at the time of her death, and that Maxwell later put the clothing on her body, disposed of the body at the Plumerville exit, and cleaned up the room with a wet string-type mop.
Monroe gave convincing testimony about the many particles of steel wool, blue paint, orange-red paint, fish-like scales, flakes of glitter, sand, insect-egg material, and other microscopic matter that he found on the surface of Carol’s body, on the inside of the clothing on the body, on the soles of the tennis shoes on the body, on her feet, and on exhibits recovered from the house: the mop, two pillow cases, and a pair of cut-off jeans that had belonged to Carol. Monroe was properly permitted to explain to the jury why the presence of the particles on the bottom of Carol’s feet and on the soles of the tennis showes showed that she could not have walked out of the house, either barefooted or wearing the tennis shoes, and have walked for even a slight distance on grass, concrete, or asphalt without disturbing the particles on her feet and on the shoes. No complaint is made about that testimony.
The court, however, also permitted Monroe to testify that in his opinion Carol had met her death in the Maxwell house. Neither he nor Dr. Malak was able to say just what instrument if any was used in the murder. We can find in Monroe’s testimony no scientific basis beyond the comprehension of the jury for his opinion that her death occurred in the house. His conclusion seems to have been based solely on the proof that she did not walk out on her own feet and that she died within ten minutes. Under Uniform Evidence Rule 702, Ark. Stat. Ann. § 28-1001 (Repl. 1979), the drawing of such a simple inference should not have been presented to the jury gift-wrapped with the fabric of expert scientific opinion. As the Advisory Committee’s Note to Rule 702 puts the matter:
Whether the situation is a proper one for the use of expert testimony is to be determined on the basis of assisting the trier. “There is no more certain test for determining when experts may be used than the common sense inquiry whether the untrained layman would be qualified to determine intelligently and to the best possible degree the particular issue without enlightenment from those having a specialized understanding of the subject involved in the dispute.” Ladd, Expert Testimony, 5 Vand. L. Rev. 414, 418 (1952).
There is no merit in the appellant’s third argument, that the prosecutor should not have been permitted to refer to Maxwell, in the closing argument, as a rapist, thief, and escapee. The exact words used were not reported, but the prosecutor did state, in answering defense counsel’s request for a mistrial, that he had used the terms only in arguing Maxwell’s credibility as compared to that of the police witnesses. In that context the argument was not improper.
Reversed and remanded for a new trial.
Adkisson, C.J., concurs. | [
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John I. Purtle, Justice.
Appellant executed a promissory note to appellee which was secured by some items of restaurant equipment and a prefabricated aluminum building. The appellant had operated a fast food restaurant from this building and used the equipment in the business. Appellant defaulted in his payment schedule and appellee repossessed the building and equipment. Some months later, appellee sold the collateral. Appellant was never sent written notice of the sale. Appellee brought suit for failure to make payments under the terms of the note. The trial court granted judgment against appellant in the sum of $21,516.32. Appellant argues on appeal that the trial court erred in failing to find: (1) the sale was not commercially reasonable, (2) the appellee unjustifiably impaired the collateral, and, (3) that appellant should be allowed an offset of an amount equal to the proceeds of the sale. We hold that the appellee failed to give notice as required by the Uniform Commercial Code, and do not reach the other arguments presented on appeal. The case is reversed and dismissed.
In 1975, appellant and his brother purchased a portable building and the necessary equipment to operate a fast food establishment. The building and air conditioning unit were purchased for $26,700. The other equipment, almost all stainless steel, increased the total capital investment to $41,864.74. The appellant’s brother died in 1976 and on January 18, 1978, appellant renegotiated a loan with appellee in the sum of $20,592.02. In September, 1978, the appellee called the balance due on the note because appellant defaulted on the monthly note payment.
Appellee repossessed the building and equipment in November, 1978, and tried to sell the property without success. On December 6,1978, the property was listed for sale with a real estate firm. The list price was $10,000 but no buyer was found. A “for sale” sign was placed upon the property, which was only a few hundred feet from appellant’s other business where he worked daily. The equipment was stored on the back of a trailer in an open lot. The equipment was subsequently exposed to the elements and depreciated in value. In July of 1979 appellee sold the collateral for $1,400. Specific notice of the sale, or a date after which the sale would be made, was not given to appellant.
Appellee brought suit for $21,516.32 plus costs, interest and attorney’s fees. Appellant defended on the grounds that the sale was not “commercially reasonable” and that the appellee unjustifiably impaired the collateral. The trial court granted judgment in the amount of $21,516.32 without making specific findings of fact and conclusions of law.
The pertinent part of Ark. Stat. Ann. § 85-9-504 (3) (Supp. 1981) reads:
Sale or other disposition may be as a unit or in parcels and at any time and place and on any terms, but every aspect of the disposition including the method, manner, time, place, and terms must be commercially reasonable. Unless collateral is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, reasonable notification of the time and place of any public sale or reasonable notification of the time after which any private sale or other intended disposition is to be made shall be sent by the secured party to the debtor, if he has not signed after default a statement renouncing or modifying his right to notification of sale. (Emphasis supplied).
In the case of Barker v. Horn, 245 Ark. 315, 432 S.W.2d 21 (1968), we held that the debtor was entitled to notice of the time and place of a public sale or reasonable notice of the time after which a private sale would be made. In Barker, the creditor told the debtor on the day after repossession, that he would sell the car to the highest bidder. He did not, however, mention the time or place of the sale. Evidence was introduced to the effect that notice had been mailed. The debtor denied receipt of the letter. We construed this same statute to require notice and since it was not proven we reversed and dismissed the deficiency judgment obtained by the creditor. In Wheeless v. Eudora Bank, 256 Ark. 644, 509 S.W.2d 532 (1974), the creditor repossessed an automobile and sold it at public sale a few weeks later without giving notice to the debtor as to the time of the sale. At trial on the deficiency claim it was argued that notice was given and received by the debtor when he surrendered the keys at the time of repossession and when he promised to pay the deficiency judgment after being notified of such. The trial court directed a judgment in favor of the creditor. We reversed and remanded, holding that there was a valid jury question and that the trial court should not have directed a verdict. As to the law in question, we held that the provisions of Ark. Stat. Ann. § 85-9-504 (Supp. 1973) required more than knowledge of repossession or that the collateral would eventually be sold. We also held that after default and prior to a sale of collateral in its possession, a creditor must give notice to the debtor of the time and place of a public sale or the time after which a private sale would be conducted.
When a creditor repossesses chattels and resells them in a manner not consistent with the code it is his responsibility to prove the sale was commercially reasonable before he is entitled to a deficiency judgment Harper v. Wheatley, 278 Ark. 27, 643 S.W.2d 537 (1982). See also Universal C.I.T. v. Rone, 248 Ark. 665, 453 S.W.2d 37 (1970). We remanded Harper to the trial court for a determination of commercial reasonableness because such proof was disallowed at trial. The matter of lack of notice was not decided in Harper.
When a creditor repossesses chattels and sells them without sending the debtor notice as to the time and date of sale, or as to a date after which the collateral will be sold, he is not entitled to a deficiency j udgment, unless the debtor has specifically waived his rights to such notice. In the case before us no notice was sent as defined by Ark. Stat. Ann. § 85-1-201 (38) (Supp. 1981), and no waiver by the debtor was proven. Under the circumstances the creditor is not entitled to a deficiency judgment. The decision of the trial court is reversed and the case is dismissed. | [
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Robert H. Dudley, Justice.
The Committee on Professional Conduct issued letters of caution as a sanction against John Arens and Richard Alexander, law partners, for charging a fee that was not “reasonably commensurate with the circumstances” and, after termination of their employment, failing to “take steps to the extent reasonably practicable to protect the client’s interests.” They jointly appeal the entry of their separate sanctions on the committee’s records. We affirm the committee’s actions.
Leon and Marcie Stoppel were the operators of a farming business, involving about 7,000 acres, near Oakley, Kansas. They owed $1,000,000 to the Production Credit Association and almost another $1,000,000 to the Federal Land Bank, and were having trouble paying their loans. They had been through Chapters 11 and 12 federal bankruptcy actions, and the Production Credit Association and the Federal Land Bank had filed foreclosure actions against them.
In January of 1988, Leon Stoppel read an article about John Arens’ abilities as a lawyer in the field of agricultural loans and lenders’ liability. Later, while Arens was in Wichita, Kansas, to speak at a seminar on legal matters relating to agriculture, Stoppel phoned him. Although the Stoppels had a lawyer in Kansas, Leon Stoppel thought that they needed the services of a specialist in the field of lenders’ liability for agricultural loans. In April of 1988, he went to Fayetteville to visit Arens and inquire further about his services.
On July 5,1988, with the foreclosure sale of their farm only weeks away, Stoppel and his wife employed the law firm of Arens and Alexander. According to Stoppel, the law firm was to try to get their loans restructured and then to immediately file and fully pursue their lenders’ liability claims against the Production Credit Association and the Federal Land Bank. That understanding is verified by the contract of employment which provides: “My wife.and I wish to retain you and your firm to represent us in a lawsuit (if necessary) with the Farm Credit System to enforce our rights under the Agricultural Credit Act of 1987 and to obtain damages caused by the Farm Credit System.”
At the time of employment, the Stoppels paid a retainer of $60,000 to the law firm. Under the terms of the written contract the retainer was non-refundable. In addition to the retainer paid that day, the Stoppels agreed to pay an additional amount upon the following contingency:
It is our understanding that if any recovery is made over and above debt restructure or reduction, that our expenses, including the above retainer, and your firm’s out-of-pocket expenses, will be paid. Only thereafter will any net recovery be shared on a sixty percent (60 %) to us and forty percent (40%) to your firm basis.
Rule 1.5 states that a lawyer’s fee shall be reasonable. It additionally provides the criteria to be used in determining reasonableness in a case: the time and labor anticipated, the novelty apd difficulty of the questions involved, the skill required to perform the anticipated services, the extent to which this case would exclude, other employment, the customary fee for specialists, the amount of money involved, the time limitations imposed by the clients, the length of the relationship with the client, and the experience and reputations of the lawyers.
The fact that a fee may be high does not alone make the fee unreasonable. Here, the Stoppels were faced with the imminent sale of their farm and equipment. Time was of the essence. The amounts involved in the foreclosure sale and the anticipated lenders’ liability suits were large. The primary law involved, the Farm Credit Act of 1987, was new. The issues were complex. These (2) two attorneys devoted almost all of their time to this particular type of practice. The Stoppels were debtors facing forced collection of the money they owed, and the lawyers cannot be faulted for collecting their fee in full while it was still possible to do so. In addition, we cannot ignore the thought by many attorneys that a part of the supposed strategy of a large lender is to wear down and financially exhaust a debtor and his lawyer. Under this type of fee agreement, a case could be completed.
In sum, while the fee was high, it was not, by itself, unreasonable when consideration is given to all of the services which were to be performed by the attorneys. However, the amount of a retainer is not the sole consideration in determining whether a fee is reasonable. If a lawyer charges a reasonable retainer and is retained for the purpose of providing specified services, but never performs those services, the fee charged would become unreasonable. Just as a lawyer cannot bill a client for work he has never performed in the past, a lawyer cannot bill a client for work he will never perform in the future. In this case, the Committee sanctioned the attorneys, not because of the amount of the retainer, but because the Committee found that the attorneys did not provide the services for which they were paid. We do not reverse decisions made by the Committee unless we find, from our de novo review, that its findings were clearly erroneous. Muhammed v. Committee on Professional Conduct, 291 Ark. 29, 722 S.W.2d 280 (1987). We cannot say the findings of the Committee were clearly erroneous.
Immediately after their employment in July of 1988, the law firm obtained a temporary restraining order staying the foreclosure sale, but the petition to make the order permanent was dismissed. It is undisputed that these actions took only a small amount of the attorneys’ time. The foreclosure sale was held, and the Stoppels lost their land. Leon Stoppel testified that he began to have difficulty in getting Arens to respond to his phone calls. The Stoppels’ case was assigned to another lawyer in the firm. On April 20, 1989, some eight (8) months after the firm’s employment, a lenders’ liability suit was filed in a federal district court in Kansas against three (3) defendants, the Farm Credit Bank of Wichita, the Federal Land Bank Association of Colby, and the Northwest Kansas Production Credit Association. The complaint contained several state common law claims submitted under the pendant jurisdiction of the federal court. On September 26,1989, the district court dismissed the complaint for failure to state a claim upon which relief can be granted. The reasoning of the district judge was that there was no private right of action under the Agricultural Credit Act of 1987, there was no federal question pending in the state claims, and there was no diversity jurisdiction.
On October 9,1989, the Stoppels went to Fayetteville to see their lawyers. They met with Arens, Alexander, and another attorney in the firm and decided not to appeal the district court’s ruling. Instead, they decided to wait a short while and see whether Congress included a private right of action in the Farm Credit Act of 1990. The Stoppels were told that the law firm had friends in Congress who were going to attempt to amend the Act to include a private right of action. Nothing came of this, and it was decided that the state claims should be filed in state court. Leon Stoppel stated that he and his wife were adamant about filing the lenders’ liability suit based upon common law in state court, and that they were told the principals of the law firm would become personally involved, and that it would be filed around January 1, 1990. Alexander admitted it would have taken very little more work to file a complaint in state court since the state claims had already been stated in the federal complaint.
Leon Stoppel attempted to phone Alexander several times but was unable to reach him. Stoppel never received a return call. On November 10, 1989, Leon Stoppel sent a letter to Alexander expressing reservations about continuing the action, and concluding: “I have tried reaching you by telephone and have not received your return. I believe this is a matter we should discuss. We will be anxiously waiting to hear from you in this most important matter.” He received no response and was not able to find out whether the state complaint was ready for filing.
On January 29, 1990, the Stoppels went to Fayetteville to confront Arens about the lack of action in their case. Leon Stoppel testified that they went into Arens’ office and the following occurred:
John [Arens] went back and said, “I’ll have to find out where the file is,” and the file should have been with Richard Alexander because he was the one that was going to take personal charge of the case, and he found it on the desk of a fellow by the name of Linzay. . . . The only thing that I know is that when we went to John’s office and he went to find the file, it was in Mr. Linzay’s office, and John made the statement, he said, “I found this in Mr. Linzay’s office. He hasn’t done a thing on it, and I’m going to fire that man.”
Leon Stoppel testified that he told both Arens and Alexander that he had lost all confidence in them and “John [Arens] said to me, he says, ‘You don’t have any money coming, and if you think you do have any money coming, you’re going to have to hassle me for it.’ ” The Stoppels left Fayetteville and returned to their home in Kansas. Soon thereafter, a secretary in the law firm called the Stoppels and asked what they intended to do. Leon testified that he replied, “We want an accounting of our money and we want our files.”
On February 12, 1990, the Stoppels sent a letter to Arens making their position very clear. It stated that they thought they had been “shuffled and re-shuffled” among various members of the firm, and that the firm had not lived up to its part of the contract. He asked for their files and an accounting.
In summation, after being employed in July 1988 to immediately and fully pursue the claims of lenders’ liability, the law firm, by late January 1990, had obtained a temporary restraining order in the pending foreclosure suit, applied for an injunction in the same proceeding, and filed a complaint under the Agricultural Credit Act of 1987. The temporary restraining order was dissolved, the application for an injunction was dismissed, and the complaint in federal district court filed pursuant to the agricultural act was dismissed for failure to state a claim upon which relief could be granted. Nothing more had been done. No depositions had been taken. No trials had been held. No appeals were taken and, most importantly, the state cause of action had not been filed.
On February 27, 1990, after being discharged, the law firm responded by letter to the Stoppels and stated that it would give an accounting and enclosed a complaint to be filed in state court. The state court complaint was almost a replication of the federal complaint. The caption was different but references were made to federal rules. In describing the complaint enclosed in the letter Leon Stoppel testified as follows:
Then later on I got a letter from Richard [Alexander], and then he sends me a case which is the same case that was filed in the federal court. All he did was change the top page.
I showed it to my [Kansas] attorney, and my attorney said, “No way could I ever take anything like that into court.” He said, “That judge would just shave my head.” He said, “This case has to be redrafted and pull from that case what applies to the Federal part of it and then make your State case out of whatever you can use out from that Federal case.”
On March 8,1990, Leon Stoppel again wrote the firm asking for their files and for an accounting, as they had received neither. On April 28,1990, they filed this complaint with the Committee. On June 1, 1990, the lawyers gave an “accounting” for 1,133.25 hours work on the case by 12 different attorneys. The lawyers admit that regular work records were not kept; that the attorneys in the firm were asked only to keep sufficient records for the firm to see how it was allocating its resources. This “accounting” reflected that one lawyer spent 200 hours preparing the complaint for federal court and that, subsequently, 300 to 400 hours were spent on research relating to the complaint.
As previously set out, the Committee found that the attorneys’ fees were not “reasonably commensurate with the circumstances.” There was substantial evidence from which the Committee could find that the $60,000 retainer was paid to fully litigate the Stoppels’ claim of lenders’ liability in federal and state courts, but the lawyers failed to so do. In addition, there was substantial evidence from which the Committee could find that the cases were to be pursued immediately upon payment of the retainer and that the state claim was to be filed around January 1, 1990, but the lawyers failed to perform that agreement. There was substantial evidence from which the Committee could find that Arens and Alexander were to be personally involved in the state action, but failed to be so involved. Finally, the Committee, composed primarily of lawyers, was free to believe or disbelieve that 600 to 700 hours, or perhaps more than three (3) months work, were spent on researching and preparing one complaint. We cannot say that the Committee’s finding that the fee was not “reasonably commensurate with the circumstances” is clearly erroneous.
In addition, the Committee sanctioned the appellant attorneys for failing to take steps to the extent reasonably practicable to protect their client’s interests upon termination of representation. We cannot say that finding is in error. Rule 1.16(d) of the Model Rules of Professional Conduct provides that, upon termination of representation, a lawyer must take steps to the extent reasonably practicable to protect his client’s interests, and surrender to the client his papers and property. Leon Stoppel testified that the appellant would not return the Stoppels’ files to them. The appellants did not rebut that testimony in any manner.
The appellants next argue that the participation of Committee member Jim McKenzie violated their rights of due process and fundamental fairness. This argument comes about in the following manner: In 1937, a George Christopher founded the Christopher Oil Co., Inc., which has its principal place of business in Prescott. The oil company apparently was a very successful business. In 1973, George Christopher and his wife, Evangelina, the principal stockholders in the oil company, placed all of the common stock of the oil company in a trust. This multi-million dollar trust fund was to distribute sufficient funds to the Christophers to maintain them during their lives and then to pay 70 % of the remainder to Ouachita Baptist University, 15% to the Church of Christ of Prescott, and 15% to the Presbyterian Church of Prescott. Horace McKenzie, the father and law partner of Committee member Jim McKenzie, was a trustee of the Christopher trust and the secretary of the Christopher Oil Co., Inc. and received $300 per month as secretary of the oil company. In 1987, the law firm of Arens and Alexander filed a suit on behalf of George and Evangelina Christopher to dissolve the trust. Horace McKenzie was named as a defendant. The allegations against him were common to all of the defendants. He was never deposed, and the suit was settled amicably. The trust was dissolved, and the corpus was distributed back to the Christophers.
Jim McKenzie’s name appears on the Committee’s letter head, and the appellant received letters from the Commit tee prior to the hearing. They clearly had notice he was a Committee member. Yet, the appellants never suggested before the sanctions were announced that he should disqualify because of the trust case. However, after the Committee issued the sanction, the appellants argued that McKenzie’s participation was a violation of their rights of due process and fundamental fairness. The argument is without merit for two (2) reasons. First, the appellants waived the issue by waiting until the outcome of the case and then, after not liking the result, moving to disqualify the trier of fact. Secondly, we are satisfied from the record that McKenzie did not regard the trust suit as a personal matter and that he harbored no ill feelings whatsoever against the appellants for representing a client in seeking to dissolve a trust.
Accordingly, we affirm the Committee’s entry into its records of letters of caution against the appellants.
Newbern, J., not participating. | [
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Jack Holt, Jr., Chief Justice.
In the second trial of this case, the appellant, Thomas Jeffrey Tackett, was convicted of manslaughter and sentenced to six years imprisonment. On appeal, his sole point for reversal is that the trial court erred in denying his motion to suppress evidence taken from the exterior of a vehicle in his possession, as such evidence was obtained by unlawful search and seizure. We disagree, and affirm the conviction and sentence.
On March 24, 1983, Tackett was involved in an automobile accident which resulted in the death of Nancy House, who was riding in the other car. Another passenger, Denise Barrentine, lapsed into a coma as the result of her injuries. The driver of the other car survived. Tackett was charged and convicted of manslaughter, for the death of Ms. House, and leaving the scene of the accident. The conviction was affirmed by the Arkansas Court of Appeals. Tackett v. State, 12 Ark. App. 57, 670 S.W.2d 824 (1984).
Subsequently, in 1987, Ms. Barrentine died, and Tackett was charged with manslaughter in her death. He was convicted for this offense as well but, on appeal, this court reversed and remanded for a new trial because evidence of Tackett’s prior conviction, arising out of the same incident, was used at his trial. Tackett v. State, 298 Ark. 20, 766 S.W.2d 410 (1989). From the second trial, Tackett brings this appeal.
As mentioned, the automobile accident occurred on March 24,1983. Later that day, Tackett was taken to the police station and administered his Miranda rights, following which he gave a statement concerning the accident. Although the record is vague, he was then apparently placed under arrest.
Six days later, on March 30, Lieutenant James Hale and Trooper Roger McLemore, without a warrant or express consent from Tackett, removed evidence from the exterior of Tackett’s van, which was located in what apparently was a public parking lot, across the street from the county courthouse. Officer McLemore testified the van was driven there by Tackett’s wife on March 24 when Tackett was requested to come to the police station.
While on the parking lot, the officers first photographed the van and then removed the front bumper, the grill, a piece of molding from the front fender, and the front headlight frame. Paint scrapings were also taken from the front of the van. The evidence was later used at trial to establish that Tackett had intentionally bumped the rear end of the other vehicle.
Tackett acknowledges the longstanding principle that one has a lesser expectation of privacy in a motor vehicle than in one’s person or residence. See Cardwell v. Lewis, 417 U.S. 583 (1974) (plurality opinion); California v. Carney, 471 U.S. 386 (1985). He further recognizes that previous cases allowing the removal, without a warrant, of paint scrapings and other minor pieces of evidence from vehicles have been upheld, where the police had probable cause. See Cardwell v. Lewis, supra (examination of and removal of paint scrapings from exterior of vehicle); Watkins v. State, 296 Ark. 345, 756 S.W.2d 907 (1988) (inspection of inner license plate); Booth v. State, 26 Ark. App. 115, 761 S.W.2d 607 (1989) (removal of paint scrapings and broken glass particles from trailer). Tackett argues, however, that the removal of auto parts from his van was more intrusive, and essentially amounted to an unlawful seizure of the entire car. He further challenges whether the police had probable cause or sufficient exigent circumstances to justify the search and seizure.
The police had ample probable cause to believe the van was involved in a hit-and-run accident. One witness observed a blue and white van, matching the description of Tackett’s vehicle, driving several feet behind the other car, moments before the accident occurred. A liquor store owner identified Tackett as having entered her store to purchase beer, briefly before the time of the accident. The driver of the other vehicle told the first observer on the scene that she had been run off the road by a blue and white van. Officer McLemore went to Tackett’s residence following the accident and saw a blue and white van parked in the yard. Tackett admitted to Officer McLemore that he had “seen” an accident on the highway, and accompanied the officer to police headquarters. The van was driven by Tackett’s wife to a parking lot across the street from the courthouse. The record is somewhat vague as to the exact character of the lot. Obviously, it was a public area.
As to the existence of exigent circumstances, Tackett points to the case of Freeman v. State, 258 Ark. 617, 527 S.W.2d 909 (1975). There, we invalidated the warrantless seizure of an entire vehicle, parked in the rear of a private residence, because there was no indication the vehicle would have been removed or that the suspect would have had access to it before a warrant could be obtained.
Professor LaFave comments, citing California v. Carney, supra, that the current view is that no warrant is needed, even absent true exigent circumstances. “This is because. . .proceeding without a warrant is justified not merely by the vehicle’s ‘capability to be quickly moved,’ but also by the fact that ‘the expectation of privacy with respect to one’s automobile is significantly less than that relating to one’s home or office.’ ” W. R. LaFave, Search and Seizure, Vol. 11 § 7.3(a) (2d Ed. 1987).
In this light, we note that, unlike the vehicle in Freeman, the van driven by Tackett was parked in a public area.
When a vehicle is being used on the highways, or if it is readily capable of such use and is found stationary in a place not regularly used for residential purposes — temporary or otherwise — the two justifications for the vehicle exception come into play. First, the vehicle is obviously readily movable by the turn of an ignition key . . . Second, there is a reduced expectation of privacy stemming from its use as a licensed motor vehicle subject to a range of police regulation inapplicable to a fixed dwelling.
California v. Carney, 471 U.S. at 393 (Emphasis added.) Although it does not specifically address the issue of exigent circumstances where a vehicle is found in a public place, our Rule of Criminal Procedure 14.1, relating to vehicular searches and seizures, is not inconsistent with Carney and with the view expressed by Professor LaFave, and mentions a showing of exigent circumstances only in connection with vehicles located in a private area. The rule provides in relevant part:
(a) An officer who has reasonable cause to believe that a moving or readily movable vehicle is or contains things subject to seizure may, without a search warrant, stop, detain, and search the vehicle and may seize things subject to seizure discovered in the course of the search where the vehicle is:
(i) on a public way or waters or other area open to the public,
(ii) in a private area unlawfully entered by the vehicle; or
(iii) in a private area lawfully entered by the vehicle, provided that exigent circumstances require immediate detention, search, and seizure to prevent destruction or removal of the things subject to seizure.
Ark. R. Crim. P. 14.1(a) (emphasis added).
In sum, Tackett had no right to privacy in the exterior of his van, which was parked in a public area; and, where probable cause existed, the search and seizure of the paint scrapings and auto parts was not unreasonable under the Fourth Amendment.
Affirmed.
The van was actually owned by Tacketts’ brother; however, it is undisputed Tackett had permission to drive it and was in control and possession of the van for purposes of standing. | [
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Tom Glaze, Justice.
Appellant appeals from her conviction of six counts of sale or delivery of cocaine. She was sentenced to thirty years in the Arkansas Department of Correction for each count, with the ninety years for the first three counts to be served concurrently with the ninety years for the other three counts. Appellant was also fined $150,000.00. In her appeal, the appellant argues two points of error. We find no reversible error; therefore, we affirm.
Appellant Ollie Sweat was one of the 101 people arrested as part of an undercover drug operation in Craighead County. At trial, Roger Ahlf, a narcotics investigator with the Arkansas State Police, testified that there were 224 cases or counts made against the 101 defendants. In the present case, he testified in detail about the drug transactions involving the appellant. Ahlf stated that a confidential informant introduced him to the appellant, and Ahlf bought controlled substances from appellant at her residence on seven different occasions.
We first address the appellant’s argument that the trial court erred by allowing Officer Ahlf to refer to his investigator notes and reports before answering questions on direct examination. Officer Ahlf testified that he made field notes during the investigation which included the time, the amount and the suspect involved in each transaction. He stated that usually the day after each purchase, he dictated a more detailed report and sent the tapes, to Little Rock, where a secretary transcribed them and afterwards returned the transcribed reports to Ahlf.
During direct examination, the state asked Officer Ahlf if the report which contained the details of a particular transaction would be helpful in refreshing his memory. The appellant objected, claiming that Ahlf was looking at the report as he answered the questions. Appellant’s specific objection was that Ahlfs testimony was not admissible as a past recollection recorded under A.R.E. Rule 803(5). The trial judge overruled this objection as well as three other similar objections on the basis that the reports helped to refresh Officer Ahlf s memory. Copies of Officer Ahlf s notes and reports were made available to the appellant.
Arkansas Rules of Evidence Rule 612 provides as follows:
(a) While Testifying. If, while testifying, a witnesses uses a writing or object to refresh his memory, an adverse party is entitled to have the writing or object produced at the trial, hearing, or deposition in which the witness is testifying.
(b) Before Testifying. If, before testifying, a witness uses a writing or object to refresh his memory for the purpose of testifying and the court in its discretion determines that the interests of justice so require, an adverse party is entitled to have the writing or object produced, if practicable, at the trial, hearing, or deposition in which this witness is testifying.
Under this rule of evidence, writings and objects are used for the limited purpose of refreshing the witness’s recollection and not as an independent source of evidence. Even though the witness may occasionally consult the writing, it is his testimony, not the writing, that is the actual evidence in the case. See Edward W. Cleary, McCormick on Evidence, § 9, at 18 (3d ed. 1984).
This court has repeatedly held that a witness is allowed to refer to writings before or while testifying. In Goodwin v. State, 263 Ark. 856, 568 S.W.2d 3 (1978), an arresting officer used notes prepared from his original notes to refresh his memory before testifying. See also Smith v. State, 286 Ark. 247, 691 S.W.2d 154 (1985) (where three law enforcement officials useda copy of .the defendant’s purported confession to refresh their recollection at trial); and Wilson v. State, 277 Ark. 43, 639 S.W.2d 45 (1982) (where a sheriff used a statement given by the defendant to refresh his memory while testifying).
McCormick has addressed this issue as follows:
. . . (T)he statement that a witness once refreshed must speak independently of the writing seems inflexible, and it is believed that the matter is discretionary and that the trial judge may properly permit the witness to consult the memorandum as he speaks, especially where it is so lengthy and detailed that even a fresh memory would be unable to recite all the items unaided.
Cleary, McCormick on Evidence, § 9 at 21. Consistent with McCormick’s view, our court has held that it will not reverse a trial court’s evidentiary ruling unless a clear abuse of discretion is shown. White v. State, 303 Ark. 30, 792 S.W.2d 867 (1990).
Here, we hold that the trial judge did not abuse his discretion in permitting Ahlf to refer to his reports or notes. As previously mentioned, the record before us reflects that Ahlf participated in a drug operation that involved 101 drug dealers and 224 drug purchases. Understandably, Officer Ahlf was unable to remember the details of each purchase without the aid of his notes. Because Ahlf s testimony was proper under Rule 612, we need not address its admissibility as recorded recollection under A.R.E. Rule 803(5).
Next, appellant argues that the trial court erred by refusing to strike testimony concerning the sale of cocaine on December 6, 1988, at 9:35 p.m., when the appellant was actually charged with having sold and delivered methamphetamine on that date. This argument has no merit.
At trial, appellant raised this issue by moving to direct a verdict on this methamphetamine count, and the trial court granted appellant’s motion, dismissing the charge. Thus, the appellant was given all the relief she requested, and has no basis upon which to raise this issue on appeal. Mitchell v. State, 281 Ark. 112, 661 S.W.2d 390 (1983). In sum, one cannot complain about a favorable ruling granting all relief requested. Parker v. State, 302 Ark. 509, 790 S.W.2d 894 (1990). Furthermore, appellant has failed to demonstrate any prejudice as a result of the trial court’s ruling.
For the reasons stated above, we affirm.
Appellant was originally charged with eight counts of sale or delivery of a controlled substance. In a separate trial on one count, she was convicted and sentenced to twenty-five years in prison and fined $5,000.00. That conviction was affirmed by the Arkansas Court of Appeals in an unreported opinion in CACR-90-105 on March 27, 1991. A second count was dismissed by the trial court in this case which we mention in addressing appellant’s second issue in this appeal.
Appellant suggested at trial (as she does on appeal) that Officer Ahlf read his report after each question he was asked. Our reading of the reports, field notes and testimony supports the trial court’s ruling that Ahlf only referred to his report to refresh his memory. | [
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Donald L. Corbin, Justice.
Appellant, Robert V. Leheny, argues for reversal of his conviction of endangering the welfare of a minor in the second degree. His primary allegation of error is that the charge was improper because the offense of endangering the welfare of a minor was not intended to encompass allegations of sexual misconduct. We agree. Accordingly, we reverse on statutory construction grounds, and we will not address appellant’s other arguments for reversal.
The state originally charged appellant, former elementary school principal at St. Paul Catholic Church School in Pocahontas, with both sexual abuse and endangering the welfare of a minor in the second degree. Ark. Code Ann. §§ 5-14-108 and 5-27-204 (1987). To support these charges, the state presented the testimony of the alleged victim, an eight-year-old female student at the school, and the testimonies of the child’s former school teacher and a government investigator. The teacher and the investigator related statements that the child had made to them about appellant’s conduct.
The most incriminating evidence gleaned from these testimonies was that appellant had taken the child to his school office, where he placed the child in his “hard lap.” (The government investigator, Wilma Rogers, testified that the child told her that appellant’s lap felt like a “hard stick.”) The child further testified that appellant rubbed her on the leg and under her arms. All of this supposed contact between the child and appellant occurred during school hours while both were fully clothed.
At the close of the state’s case, appellant moved for a directed verdict on both the sexual abuse charge and the endangerment charge. Although the court commented that the sufficiency of the evidence was “really thin,” the court denied appellant’s motions. Appellant renewed his motions following the presentation of his defense. Again, the court denied appellant’s motions, and instructed the jury on the elements of both offenses.
Section 5-14-108 provides that an adult who engages in sexual contact with a person that is less than fourteen and not his spouse is guilty of sexual abuse in the first degree. In the instant case, the only disputed element of this offense was the sexual contact element. The trial court properly instructed the jury that “sexual contact” means any act of sexual gratification involving the touching, directly or through the clothing, of the sex organs, buttocks, or anus of a person or the breast of a female. Ark. Code Ann. § 5-14-101(8) (1987). To support the sexual abuse charge, the state relied on the testimony about appellant holding the child on his “hard lap,” and improperly rubbing and touching the child.
The jury ultimately acquitted appellant of sexual abuse. However, we have reviewed the state’s proof on the sexual abuse charge in order to explain our reversal of appellant’s conviction on the endangerment charge. Section 5-27-204 sets out the elements of endangering the welfare of a minor child:
(a) A person commits the offense of endangering the welfare of a minor in the second degree if he knowingly engages in conduct creating a substantial risk of serious harm to the physical or mental welfare of one known by the actor to be a minor.
In the instant case, the state relied on the same evidence to support the endangerment charge that it relied on to support the sexual abuse charge. However, the Commentary to the endangerment statute specifically provides, “This section is designed to safeguard minors and incompetents from deletrious non-sexual activities.” (Emphasis supplied.) We adhere to the Commentary to the criminal code unless we are clearly convinced that it is erroneous or contrary to the settled policy of the state. Standridge v. State, 290 Ark. 150, 717 S. W.2d 795 (1986). In the instant case, we find that the Commentary means exactly what it says. We certainly cannot say that it is contrary to settled policy for the legislature to provide for sexual offenses under another section of the criminal code. Furthermore, we are mindful of the basic criminal law maxim that criminal statutes are to be strictly construed and any doubts are to be resolved in favor of the defendant. Knapp v. State, 283 Ark. 346, 676 S.W.2d 729 (1984).
In order to evade the legislature’s obvious intent to exclude sexual offenses from prosecution under the endangerment statute, the state argues that the endangerment charge was supported by the child’s testimony regarding appellant’s “non-sexual” conduct. To support this argument, the state cites specifically to the child’s testimony that appellant got mad and swung her backpack at her.
We do not believe the state’s “non-sexual” argument. Clearly, the state relied throughout the trial on the sexual connotations of appellant’s alleged conduct to support the endangerment charge. Following appellant’s motion for a directed verdict on the endangerment charge, the state explicitly argued that the endangerment offense encompassed appellant’s alleged sexual misconduct. The state also focused solely on the sexual allegations in both its opening statement and closing argument. In sum, the testimony regarding the backpack incident fills merely a few lines of a 407 page trial transcript. We therefore cannot believe that the state charged appellant with endangerment based on his “non-sexual” conduct of swinging the child’s backpack on one occasion.
The state obviously charged appellant under the endangerment statute because it hoped to convict appellant of “something” in the event of acquittal on the sexual abuse charge. However, the Commentary explicitly provides that the endangerment offense should not be used as an alternative to sexual offense charges. Since we agree with appellant that the state’s case centered on allegations of sexual abuse, we believe that the endangerment charge was improper.
Even if we accept the state’s argument that the testimony concerning the backpack provided the basis for the endangerment charge, we find that such evidence is insufficient to support appellant’s conviction. Viewing the “backpack” testimony in the light most favorable to the state, we find no evidence in the record that this single incident posed a substantial risk to the physical or mental welfare of the child. The child testified that she was crying when she went back to her classroom after the incident. While the child may well have been upset, we cannot equate an upsetting incident with an incident posing a substantial risk to the physical or mental welfare of a child. As appellant points out, all children are upset by their principal to some degree. However, we cannot base a criminal conviction on evidence that an elementary school principal upset one of his students. Since the state did not present evidence concerning the extent to which the “backpack” incident affected the child’s mental welfare, we find that there was insufficient evidence to support the endangerment charge. Accordingly, we reverse and dismiss.
Holt, C.J., and Hays, J., dissent. | [
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Robert H. Dudley, Justice.
The main issue in this case is whether a first mortgage lost its priority over a junior lien when the holder of the first mortgage chose not to foreclose, but instead chose to take a “warranty deed in lieu of foreclosure,” and then resell a substantial part of the same real estate to a stranger to the title without taking any action against the holder of the junior lien. Later, after reselling part of the land to the stranger, the first mortgagee filed suit to cancel the intervening lien. The chancellor granted the relief prayed. We reverse and hold that under the facts of this case a merger occurred, the first mortgage debt was extinguished, and the intervening lien remains outstanding.
On September 1,1985, Jerry and Gloria Roberts, the sellers, and Dwain and Virginia Glass, the buyers, entered into a written contract by which the sellers agreed to sell five (5) acres in Miller County to the buyers for $96,750, with $5,000 paid that date and the rest to be paid in monthly installments. The contract provided that upon payment in full the sellers would execute a warranty deed. The contract was recorded in the miscellaneous records of Miller County. The buyers failed to pay in full and a warranty deed was never given them.
On October 20, 1987, the sellers sold four (4) additional tracts to the buyers. These tracts, consisting of sixteen (16) acres, were also in Miller County. This acreage was conveyed by an instrument styled “Warranty Deed With Lien.” The deed con tained language which reserved a vendor’s lien in the sellers. On the same day, the buyers additionally executed a deed of trust to the sellers which provided that it constituted the security for the $37,000 promissory note given to purchase the sixteen (16) acres. The note was payable in monthly installments.
On October 24,1989, Construction Machinery of Arkansas, the intervening lien holder, obtained a judgment against buyer Dwain Glass, but not against buyer Virginia Glass, in the amount of $9,766.77. This judgment was recorded in Miller County on the same day and became a judgment lien. See Ark. Code Ann. § 16-65-117 (1987).
By late October 1989, the buyers were in default to the sellers, and the sellers sought a remedy. They did not conduct a title search nor did they foreclose their security interests. Instead, they reached an agreement with the buyers by which the buyers executed a warranty deed conveying all twenty-one (21) acres back to the sellers. This warranty deed, dated November 27, 198 9, provided that it is “in cancellation of Contract of Sale dated August 16, 1985,” and “also in lieu of foreclosure of Deed of Trust dated October 20,1987,” and “also in lieu of foreclosure of the vendor’s lien retained in Warranty Deed dated October 20, 1987.” The next day, November 28, the sellers quitclaimed 1.2 acres back to the buyers.
On April 24,1990, the sellers sold a 5.622 acre tract, which was a part of the twenty-one (21) acres, to strangers to the title, Kevin and Laura Bassett. This 5.622 acre tract, which included a residence, was sold to the Bassetts for $70,000. The escrow agent, Miller County Abstract Company, required the sellers to leave $12,500 of the purchase price in escrow because of the cloud on the title created by the judgment lien.
The sellers were obviously displeased about the $12,500 being retained, and so they filed this suit in chancery court against the judgment lien holder and the original buyers. In it, they asked that the judgment lien be cancelled, or, in the alternative, that they be granted foreclosure against the buyers and the judgment lien holder, and that their mortgage be declared prior to that of the judgment lien holder. The chancellor cancelled the judgment lien. That ruling was in error.
The vendor’s lien and the deed of trust, for convenience hereafter labeled “first mortgage,” originally held priority over the judgment lien since the first mortgage was recorded before the judgment was entered of record in the county where the land is located. See Alston v. Bitely, 252 Ark. 79, 477 S.W.2d 446 (1972). In addition, the judgment lien was a lien against only buyer Dwain Glass’s interest in the land, but when buyer Dwain Glass deeded the twenty-one (21) acres back to the sellers, they took it back subject to the judgment lien against his interest. Automotive Supply, Inc. v. Powell, 269 Ark. 255, 599 S.W.2d 735 (1980).
The sellers held different interests in the sixteen (16) acres at different times. Prior to the sale they held fee simple absolute. Immediately after the sale, they held a first lien security interest, while the buyers held at least equitable title and also the equity of redemption. See Bank of Oak Grove v. Wilmot State Bank, 219 Ark. 107, 648 S.W.2d 802 (1983) for discussion of titles held by a mortgagor and mortgagee. Immediately after the buyers conveyed their title and equity of redemption back to the sellers, the sellers once again owned all of the interests. The issue became whether these interests remained separate or merged.
Whether a merger occurs when a mortgagee acquires the mortgagor’s interest is largely a question of intent. “The intention and interest of the party who unites the two estates in himself will determine whether or not a merger takes place.” 2 Jones on Mortgages, § 1080, at 509 (1928). The doctrine of merger is not favored and will not be applied in the absence of an intent on the part of the mortgagee, or unless the application of the doctrine is required by the equities of the particular case. Commonwealth Building & Loan Ass’n. v. Martin, 185 Ark. 858, 49 S.W.2d 1046 (1932). The evidence must be strong before we will apply the doctrine of merger. Id.
In Cowling v. Britt, 114 Ark. 175, 180, 169 S.W. 783, 784 (1914), as a part of the holding of the case, we cited Pomeroy’s Equity Jurisprudence as authority for the following statement:
‘Where a mortgagee takes a conveyance of the land from the mortgagor or from a grantee of the mortgagor, if the transaction is fair, the presumption of an intention to keep the security alive is very strong. It is generally for the interests of the party in this position that the mortgage should not merge, but should be preserved to retain a priority over other encumbrances.’
In addition we wrote:
‘Where a mortgagee receives a conveyance of the equity of redemption, his estate under the mortgage will not merge, but will be kept alive to enable him to defend under it against all liens of third persons, whether by mortgage, judgment, or otherwise, attaching between the execution of the mortgage and the giving of the deed, if his intention to that effect is shown, or if there is nothing to rebut the presumption that his intention correspond with his interest.’
Id. at 180-81, 169 S.W. at 784-85 (citing 27 Cyc., page 1381).
Holdings such as the one in Cowling v. Britt, supra, are eminently fair. The parties holding all of the interests in the land were before the court. The only issue was one of priorities. Once the priorities were determined and the land sold, the parties were paid, to the limit of the sale price, according to the priorities. The junior lien holders had the same chance to be paid that they had originally.
Yet, while the evidence must be strong before we will apply the doctrine of merger, we have applied it. Baily v. Eakes, 168 Ark. 872, 271 S.W. 978 (1925). A fuller explanation is given in the more recent case of Johnson v. Gammill, 231 Ark. 1, 328 S.W.2d 127 (1959). In that case the mortgagee, after receiving the property back, conveyed it to a third party. As a part of the holding of the case, we quoted from Corpus Juris Secundum, as follows:
‘The intention of the parties on the question of merger may be expressly declared, or it may appear from the conduct of the parties, the circumstances of the transaction, and the particular equities of the case. In any event, however, the intention to merge must be clear. An intent to effect a merger is indicated where, after acquiring the equity, the mortgagee conveys the property or leases it to a stranger, . . . .’
Id. at 6, 328 S.W.2d at 130.
Here, we have the same situation. The mortgagees, after receiving back the property by “Warranty Deed in lieu of foreclosure,” conveyed a part of the property to strangers to the title. This act constituted convincing evidence that the mortgagees intended to effect a merger so that the complete fee then could be transferred to the stranger. No other result would be fair. After the sale of all or a good part of the property involved, $70,000 worth in this case, there could no longer be a foreclosure sale involving only the property remaining in the first mortgagee which would give the junior lienholder any realistic chance of recovery of the amount owed him. Cancelling the junior lien without any sale, as the chancellor did, also unfairly deprived the junior lienholder of any chance of recovery.
If our law were that a first mortgagee could take back the property by deed in lieu of foreclosure and then resell it free and clear of an intervening encumbrance, we would wreak havoc in the marketplace of second mortgages. Under such circumstances, a second mortgage, or other junior encumbrance, would not constitute a meaningful security. The holders of intervening encumbrances are entitled to more; they are entitled to a fair chance to enforce their liens before those liens are extinguished.
The lienholder in this case, who is the appellant, does not separately argue that the doctrine of merger applies to the buyers’ equitable interest in the five (5) acre tract which was created by the contract of sale, and we do not address the issue.
There is a cross-appeal involving an entirely different matter. As set out, the escrow agent, Miller County Abstract Company, held in escrow $ 12,500 of the amount paid by the third party purchasers, the Bassetts. When the suit now before us was pending in the trial court, the abstract company interpleaded the $12,500 in this case. The trial court awarded an attorney’s fee to the interpleader’s attorneys. The sellers, who are the cross-appellants, contend that the trial court erred in awarding an attorney’s fee in an interpleader action. The argument is meritorious. See Saunder v. Kleier, 296 Ark. 25, 751 S.W.2d 343 (1988). Cross-appellees ask us to approve the fee under the relatively new statute providing for attorneys’ fees in an action based on a contract. See Ark. Code Ann. § 16-22-308 (Supp. 1991). The interpleader action does not come within the statute. Accordingly, we also reverse on cross-appeal.
Reversed on direct appeal and on cross-appeal. | [
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Steele Hays, Justice.
Appellant Don Earl Lewis was charged with four counts of delivery of crack cocaine. The counts were severed and appellant was tried and convicted on one count. That case is not before us. Appellant was then tried and convicted on the second count, the one which we now address. Three points for reversal are argued: The trial court should have granted a motion to dismiss for lack of a speedy trial; the trial court should not have permitted the introduction of evidence over an objection to the chain of custody; and the evidence was insufficient to support the verdict. We find no merit in these contentions.
Speedy Trial
Appellant was charged on September 12, 1989, with four counts of delivery of cocaine and arrested the following day. Under Ark. R. Crim. P. 28.1(c) and 28.2(a) the state had twelve months from September 12,1989, to bring him to trial. Trial was set for June 18, 1990, on all four counts. One week before trial appellant asked for separate trials by filing a motion to sever the four counts. The motion was considered and granted at a pre-trial conference the following day, June 12, and on June 18 appellant was tried on a single count. On July 12 the trial court entered an order stating, “On motion of the defendant this matter is continued from April 15, 1990, through August 20, 1990.”
Appellant’s second trial, the subject of this appeal, was held on November 2, 1990, fifty-one days beyond the time for speedy trial. Consequently, the burden is on the state to show the delay was justified. Novak v. State, 294 Ark. 120, 741 S.W.2d 243 (1987). Appellant’s primary argument in this appeal is that the trial court should have dismissed the remaining three counts for lack of a speedy trial. Since'appellant filed a pro se motion on that ground on October 25, the point has been properly preserved for review. At a hearing on the motion the trial court and opposing counsel discussed the proceedings at the June 12 hearing on the motion to sever and counsel for appellant stated he had no independent recollection of asking for a continuance. The deputy prosecutor responded:
BY THE DEPUTY PROSECUTOR, MR. HALTOM:
Your Honor, it’s the State’s recollection in this particular matter that due to the basis that the Defendant asked for a severance of these matters is why the continuance was granted. Now, I agree with Mr. Folsom [defense counsel] there wasn’t a direct request for continuance, but by the speedy trial rules themselves, when the Defendant asked for a severance of offenses, that tolls the statute.
At that point the trial court denied the motion and appellant was tried and convicted on the second count. We now address the points he raises in this appeal.
It is true, as appellant contends, that insofar as the order of July 12 purports to grant a continuance beginning two months earlier, April 15, it conflicts with the holding of Hicks v. State, 305 Ark. 393, 808 S.W.2d 348 (1991). But the order is not otherwise flawed and when the sixty-nine days from June 12 to August 20 is excluded, appellant’s trial was within the time allowed under the speedy trial rules. See Ark. R. Crim. P. 28.3(c).
Appellant argues because no continuance was specifically requested, there is no excludable time. But that would require that an express recitation in an order be overridden by indistinct recollections of counsel. For that matter, the literal wording of the order does not state that a motion for a continuance was made, only that “On motion of the defendant this matter is continued from April 15, 1990, through August 20, 1990.” The motion referred to may be the motion to sever. Be that as it may, it is obvious the remaining counts could not be tried on June 18 as scheduled, and a delay in the trial attributable to the defendant constitutes “good cause” as provided in Ark. R. Crim. P. 28.3(h). The state was prepared to try the appellant on June 18, well within the time for speedy trial and it was the appellant’s motion to sever, filed on the eve of trial, that occasioned the delay. We have held a number of times that when the defendant is scheduled for trial within the time for speedy trial and the trial is postponed because of the defendant, that is “good cause” to exclude the time attributable to the delay. In Williams v. State, 275 Ark. 8, 627 S.W.2d 4 (1982), the defendant was tried seventy-nine days beyond the speedy trial and we found good cause where his trial had been set for November 28, 1980, and defense counsel moved to withdraw on October 17 because of defendant’s lack of cooperation. That motion was granted on December 1 and the defendant was given until January 5 and then until February 2 to obtain counsel, resulting in a trial postponement to May 20.
In Foxworth v. State, 263 Ark. 549, 566 S.W.2d 151 (1978), we rejected a speedy trial argument in these words:
There was no denial of a speedy trial. The case was set for trial well within the time allowed by Rule 28 of the Rules of Criminal Procedure. A few days before the scheduled trial Foxworth assaulted his counsel, which led them to ask for permission to withdraw. The court’s action in ordering a continuance to allow Foxworth to obtain other counsel was certainly a delay “for good cause” within Rule 28.3(h).
In Walker v. State, 288 Ark. 52, 701 S.W.2d 372 (1986), the defendant claimed ineffective assistance of counsel for failure to argue speedy trial. The trial court denied the claim because the defendant had moved for an omnibus hearing and then waived it fifty-five days later, reasoning that a speedy trial motion would have had no merit. While we reversed that ruling, we made it clear we would have agreed with the trial court if the motion for an omnibus hearing had delayed the trial.
In Divanovich v. State, 273 Ark. 117, 617 S.W.2d 345 (1981), the defendant was tried thirty-one days beyond the time for speedy trial and his motion to dismiss was rejected. On February 28, 1980, the trial court set his trial for April 8 and on February 29 his attorney filed a motion to be relieved because he was to become a deputy prosecuting attorney on March 3. That motion was granted and substitute counsel was appointed on May 14. Still later, on August 18, a special prosecutor was appointed on the defendant’s motion alleging a conflict of interest. We held the postponement was for “good cause.”
Returning to the case at bar, it is clear the motion to sever filed one week before trial required that trial on three of the four counts be rescheduled. If the appellant took exception to either the wording of the order granting his motion, or the time excluded under its express terms, it was incumbent on him to bring that to the attention of the trial court within a reasonable time, rather than waiting until nearly four months had elapsed. A litigant may not complain belatedly when a timely objection could avert error. Butler Mfg. Co. v. Hughes, 292 Ark. 198, 729 S.W.2d 142 (1987); Tosh v. State, 278 Ark. 377, 646 S.W.2d 6 (1983).
Chain of Custody
Lewis also contends that the chain of custody of the crack cocaine he was charged with delivering was not adequately established at trial. We disagree.
Barbara Crowe, an undercover officer, testified that she bought seven rocks of crack cocaine from Lewis on August 8, 1989. After labeling and packaging the drugs in an envelope she turned them over about an hour later to Sergeant Don Nix with the Miller County Sheriffs Office. Sergeant Nix testified he accepted the envelope from Crowe and filled out a chain of custody form which he attached to the envelope. After he placed the envelope in an evidence locker Nix notified Lieutenant Bob Page who is in charge of submitting evidence to the State Crime Lab. Lieutenant Page stated that after Nix notified him he retrieved the evidence from a locked locker that only he, the Sheriff and Sergeant Nix had keys to. Page testified that he filled out his part of the chain of evidence form, placed the envelope into a larger one and mailed it to the crime lab for analysis, taking the envelope to the post office himself. Keith Kerr of the State Crime Lab testified that he received the envelope from the receiving station of the lab. He stated that the substance he analyzed was cocaine based. Kerr, resealed the envelope after the analysis and returned it to the receiving section of the lab to be mailed back to the Miller County Sheriffs Office. Lieutenant Bob Page testified that since receiving it from the crime lab the evidence had been in his possession in the locked locker until the date of the trial.
We have said that the purpose of establishing the chain of custody is to prevent the introduction of evidence which is not authentic. Gomez v. State, 305 Ark. 496, 809 S.W.2d 809 (1991). To prove authenticity the state must show a reasonable probability that the evidence has not been altered in any significant way. Id. It is not necessary for the state to call every person who could have conceivably come into contact with the evidence; the trial judge in his or her discretion need only be satisfied that the evidence presented is genuine and, in reasonable probability, has not been tampered with. Phills v. State, 301 Ark. 265, 783 S. W.2d 348 (1990). Our review of the record shows that the chain of custody which was established at trial was sufficient to satisfy the judge that the evidence was genuine and he properly exercised his discretion in admitting it.
Sufficiency of the Evidence
For his final point on appeal, Lewis maintains that the evidence was. insufficient to support his conviction due to the defective chain of custody of the drugs. As has been demonstrated, the trial judge did not abuse his discretion in allowing the drugs admitted into evidence, therefore we need not address appellant’s final point.
Affirmed.
Dudley, Newbern, and Brown, JJ., dissent. | [
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Donald L. Corbin, Justice.
Subject to his right to appeal the partial denial of a motion to suppress evidence pursuant to A.R.Cr. P. Rule 24.3(b), appellant, Harold Glen Abbott, pled guilty to the charges of possession of methamphetamine with intent to deliver and possession of drug paraphernalia. On appeal, he makes three arguments why the prohibition of unreasonable searches and seizures in the United States Constitution and the Arkansas Constitution were violated so as to require suppression of all evidence seized after his arrest. We find merit in appellant’s second argument and reverse.
The hearing on appellant’s motion to suppress evidence revealed that, on November 28, 1989, pursuant to information obtained from a confidential informant, Officer Robert Tuberville of the Fayetteville Police Department bought a substance from appellant which appellant represented to be hashish. On December 13, 1989, the Arkansas State Crime Laboratory reported to the Fayetteville police that the substance obtained from appellant on November 28,1989, was not hashish. On December 21, 1989, Officer Turberville and Officer Gary Greenshaw of the Springdale Police Department met with the same confidential informant and arranged a purchase of methamphetamine from appellant on the following day. At approximately 10:00 a.m. on December 22, 1989, Officer Turberville talked with the informant on the telephone and confirmed that the pending methamphetamine sale would occur at approximately noon that day. Sometime between the 10:00 a.m. phone call and appellant’s arrest at approximately 12:00 p.m., the two police officers obtained a warrant to arrest appellant for the charge of delivery of a counterfeit substance purported to be hashish, an alleged violation of Ark. Code Ann. § 5-64-401 (1987), occurring on November 28, 1989.
At approximately 12:00 p.m. on December 22, 1989, Of ficers Turberville and Greenshaw went to appellant’s motel room armed with the arrest warrant. The officers arrested appellant immediately when he answered the door. Because appellant had just stepped out of the shower and was clothed only in a towel, the officers handed appellant a pair of jeans lying on the floor of the motel room. Before handing appellant his jeans however, the officers searched the pants for weapons and found an opaque film canister containing approximately two grams of methamphetamine. While still inside appellant’s motel room, the officers noticed various drug paraphernalia on the top of the dresser. The officers then conducted a thorough search of the motel room, including the dresser drawers and the closet. This search produced some additional evidence including approximately 1.5 grams of methamphetamine.
As a result of the foregoing search and the evidence produced therefrom, appellant was charged by felony information with possession of methamphetamine with intent to deliver and possession of drug paraphernalia. Appellant filed a pretrial motion to suppress all evidence arguing that the warrant was invalid because it was based on an invalid charge and that the officers improperly executed the arrest warrant with the intent to search his residence without a search warrant rather than to seize his person.
The trial court stated there was no evidence that the arresting officers had knowledge that the arrest warrant was based on an invalid charge, therefore the arrest was proper. The trial court also stated that after the arrest was executed, the officers were entitled to pat appellant down or make a search incident to arrest including the clothing handed to appellant. The trial court also stated that any of the evidence seized on top of the dresser was lawfully seized according to the plain view doctrine. However, the trial court felt the additional search of the remaining parts of the motel room was contrary to the Fourth Amendment. Thus, in a ruling from the bench, the trial court denied the motion to suppress with respect to the film canister and its contents found in appellant’s jeans and the drug paraphernalia found on the top of the dresser; the trial judge granted the motion with respect to the methamphetamine and other evidence found in the dresser and closet.
The standard of review on appeal of a motion to suppress is well established. On review, we make an independent determination, based on the totality of the circumstances, as to whether evidence obtained by a warrantless search should be suppressed; we do not reverse the trial court’s finding unless it is clearly against the preponderance of the evidence or clearly erroneous. State v. Tucker, 268 Ark. 427, 597 S.W.2d 584 (1980).
On appeal, appellant asserts the charge for which the arrest warrant was issued is not a crime and therefore all evidence derived from his arrest should have been suppressed. The affidavit of probable cause for the arrest warrant was filed in the Washington County Clerk’s office at 11:37 a.m. on December 22, 1989. The affidavit was signed by a a deputy prosecuting attorney and municipal judge and stated there was reason to believe that on November 28, 1989, appellant “committed the offense of Illegal Delivery of a Counterfeit Substance (C Felony) . . . that was purported to be hashish in violation of A.C.A. § 5-64-401 [.]”
Section 5-64-401 (b) is the subsection of the Controlled Substances Act dealing with counterfeit substances. Section 5-64-401 (b) states in its entirety:
(b) Except as authorized by subchapters 1-6 of this chapter, it is unlawful for any person to create, deliver, or possess with intent to deliver, a counterfeit substance. For purposes of this subsection, possession of one hundred (100) dosage units of any one (1) counterfeit substance or possession of two hundred (200) dosage units of counterfeit substances regardless of the type shall create a rebuttable presumption that such person possesses such counterfeit substance with intent to deliver in violation of subsections (a) and (b) of this section of Article IV of Act 590 of 1971 as amended.
(1) Any person who violates this subsection with respect to:
(i) A counterfeit substance purporting to be a controlled substance classified in Schedule I or II, which is a narcotic drug, is guilty of a Class B felony;
(ii) Any other counterfeit substance purporting to be a controlled substance classified in Schedules I, II, or III, is guilty of a Class C felony;
(iii) A counterfeit substance purporting to be a controlled substance classified in Schedule IV, is guilty of a Class C felony;
(iv) A counterfeit substance purporting to be a controlled substance classified in Schedule V, is guilty of a Class C felony;
(v) A counterfeit substance purporting to be a controlled substance which is not classified as a scheduled controlled substance, is guilty of a Class D felony.
Hashish is a derivative of tetrahydracannibanol or marijuana and is accordingly classified as a Scheduled VI controlled substance. Appellant correctly points out that section 5-64-401 does not state that delivery of a counterfeit substance purported to be hashish, or for that matter any Schedule VI substance, is a Class C felony. Appellant’s argument continues with the proposition that because hashish is a controlled substance but not a controlled substance classified in Schedules I, II, III, IV, or V, delivery of a counterfeit substance purporting to be hashish is not in violation of Arkansas law. We agree.
When enacting section 5-64-401 (b), the legislature was very careful to enumerate the various crimes associated with counterfeit substances and their respective punishments. The classification scheme used by the legislature in section 5-64-401 (b) is clearly based on the list of scheduled controlled substances. See section 5-64-401(b)(l)(i) through (v). Thus, the absence of a crime and a respective punishment classification involving counterfeit Schedule VI controlled substances is particularly obvious.
Whether the absence of Schedule VI controlled substances in section 5-64-401 (b) is indicative of a legislative omission or oversight is irrelevant given White v. State, 260 Ark. 361, 538 S.W.2d 550 (1976). In the White case, a jury found appellant White not guilty of the charge of possession of marijuana with intent to deliver, but did find him guilty of the mere possession of marijuana. White appealed contending that possession of marijuana was not an offense under the Controlled Substances Act, as amended by 1973 Ark. Act. 186. Act 186 of 1973 removed marijuana from the list of Schedule I controlled substances and reclassified it in a newly created Schedule VI. The remainder of the Controlled Substances Act was not amended to reflect the corresponding change in the scheduling of marijuana. The result of the failure to amend the remainder of the Act was that, due to the rescheduling of marijuana into Schedule VI, the possession, delivery, manufacture, or possession with intent to deliver or manufacture marijuana was no longer a crime. Reasoning that “the rule of law with respect to statutory construction of penal provisions is that nothing will be taken as intended which is not clearly expressed and all doubts must be resolved in favor of the accused,” Id. at 366, 538 S.W.2d at 553, we agreed with appellant White and concluded that because of the new classification of marijuana into Schedule VI, there was no such crime as possession of marijuana. White’s conviction was therefore reversed. Since the White decision, subsections (a) and (c) of 5-64-401 have been amended to cure the problems caused by the reclassification of marijuana. However, the problem caused by the creation of a new Schedule VI in 197 3 Ark. Act 186 presently remains in section 5-64-401 (b). Thus, the delivery of a counterfeit substance purported to be hashish (a marijuana derivative) is not a crime.
We conclude that the rule of strict construction of penal statutes and our holding in White compels us to hold appellant’s arrest invalid because the affidavit supporting the arrest warrant was based on an invalid charge. We so hold. Because the arrest was invalid, it cannot support a search incident to arrest nor evidence seized in plain view while making the arrest. Our holding mandates the reversal of the trial court’s denial of appellant’s motion to suppress.
The state argues that even though we find the arrest warrant to be invalid, suppression of all the evidence seized as a result of the arrest is not required because the officers acted on the arrest warrant with a good faith belief that it was valid. The state relies on United States v. Leon, 468 U.S. 897 (1984), in making this “good faith” argument. We have already extended the Leon good faith exception to cases involving arrest warrants. Starr v. State, 297 Ark. 26, 759 S.W.2d 535 (1988), cert. denied, 489 U.S. 1100 (1989), cert. denied, 494 U.S. 1020, 110 S. Ct. 1327 (1990); Stewart v. State, 289 Ark. 272, 711 S.W.2d 787 (1986). See also Davis v. State, 293 Ark. 472, 739 S.W.2d 150 (1987). However, in Leon, the United States Supreme Court stated that the good faith exception to the exclusionary rule should not be applied in four situations, one of those being when the warrant is so facially deficient that the executing officers cannot reasonably presume it to be valid. Leon, 468 U.S. at 923.
Although the illustration of a facially deficient warrant given by the United States Supreme Court in Leon, supra, is a search warrant that fails to particularize the place to be searched or the things to be seized, we feel an arrest warrant, such as the one in this case, which fails to particularize or enumerate the crime for which the suspect was arrested is equally and similarly facially deficient. At the time appellant was arrested, Officers Turberville and Greenshaw were both assigned to the Drug Enforcement Agency Task Force. They were trained police officers who were experienced in drug related crimes and should have been familiar with the Controlled Substance Act, especially section 5-64-401. Based on these officers’ experience with the Drug Task Force, we cannot say they could have reasonably presumed this arrest warrant to be valid on its face as it stated appellant had committed an offense that did not exist under section 5-64-401. Thus, we hold the state is not entitled to the protection of the Leon good faith exception to the exclusionary rule and “[suppression therefore remains an appropriate remedy. . . .” Leon, 468 U.S. at 923. It was therefore error for the trial judge to deny appellant’s motion to suppress the evidence resulting from his arrest pursuant to this invalid arrest warrant.
Accordingly, we reverse and remand with directions that all the evidence seized from appellant’s arrest be suppressed and that appellant be allowed to withdraw his guilty plea pursuant to A.R.Cr.P. Rule 24.3(b).
Reversed and remanded. | [
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Robert L. Brown, Justice.
On December 24, 1989, the appellant, Marvin Gene Pearson, entered the trailer of this ex-wife, Janet Pearson, wearing a ski mask and carrying a sawed-off shotgun. His ex-wife, two daughters, a granddaughter, and his son-in-law were present. The appellant threatened death or injury to all present. He was recognized by his son-in-law and eventually took off his mask. He then shoved Janet Pearson against the refrigerator and hit her with the butt of the shotgun. Following that, he forced everyone to the back of the trailer except his ex-wife, whom he took into the bedroom.
One of the daughters called the police. When the officers arrived, the appellant coerced Janet Pearson at gunpoint to leave with him in her truck. She drove while the appellant held the shotgun to her head, and the police gave chase. At some point the appellant decided to change seats with his ex-wife, and this caused the truck to run off the road and into a fence. Janet Pearson left the truck and ran to a nearby police car. The appellant escaped from the wreck and was apprehended several weeks later in Phoenix, Arizona.
The state charged the appellant with multiple crimes, including kidnapping, burglary, terroristic threatening, aggravated assault, felon in possession of a firearm, and fleeing, all of which resulted from the episode just described. He was found not guilty of possession of a firearm, and the fleeing charge was nolle prossed. The appellant was convicted of the remaining charges and sentenced to twenty years for kidnapping, ten years for burglary, six years for terroristic threatening, and one year for assault.
Two issues are raised on appeal, but, finding no merit in either, we affirm.
The appellant first argues that the trial court erred in not giving AMI Crim. 1702-P, relating to whether the appellant released Janet Pearson voluntarily at the scene of the accident. In this regard, the appellant testified that he let her go unharmed after the wreck. He failed, however, to proffer an instruction. He further failed to abstract the desired instruction as part of his appeal. These lapses are fatal to his argument on appeal.
We have held that the failure to proffer an instruction results in the issue’s not being preserved for appeal. See, e.g., Hart v. State, 301 Ark. 200, 783 S.W.2d 40 (1990). Moreover, failure to abstract the requested instruction leaves us somewhat in the dark about the exact contents of what was precisely wanted in the way of an instruction. This pertains even to a model instruction which typically is a printed form that must be completed and tailored to the facts of the particular case. Because the desired instruction is not abstracted for our benefit, the abstract is deficient under our Supreme Court Rule 9(d), and we will not consider the merits of the point raised. See Samples v. Samples, 306 Ark. 184, 810 S.W.2d 951 (1991 ), see also Johnson v. State, 17 Ark. App. 125, 704 S.W.2d 647(1986).
The appellant, secondly, argues that convictions for kidnapping and terroristic threatening overlap and, accordingly, he was unduly penalized. We also do not reach the merits of this issue because the appellant failed to raise it before the circuit court. We have held that we will not consider the issue of overlapping convictions when raised for the first time on appeal except in death cases. See Berry v. State, 278 Ark. 578, 647 S.W.2d 453 (1983). There is no reason for us to abandon our position in the case before us.
Affirmed. | [
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Robert H. Dudley, Justice.
This is another in the series of cases reviewing whether a circuit court should have retained jurisdiction over a juvenile or should have transferred the case to juvenile court. In this case, the prosecuting attorney filed two (2) felony charges against the appellant in circuit court. The appellant filed a motion seeking to have the charges transferred to juvenile court. The circuit court refused to transfer the cases. The appellant appeals. We affirm the circuit court’s ruling.
The applicable statute, Ark. Code Ann. § 9-27-318(e) (Repl. 1991), provides that, in deciding whether to transfer a case, the court in which the charges are pending shall consider the following factors:
(1) The seriousness of the offense, and whether violence was employed by the juvenile in the commission of the offense;
(2) Whether the offense is part of a repetitive pattern of adjudicated offenses which would lead to the determination that the juvenile is beyond rehabilitation under existing rehabilitation programs, as evidenced by past efforts to treat and rehabilitate the juvenile and the response to such efforts;
(3) The prior history, character traits, mental maturity, and any other factor which reflects upon the juvenile’s prospects for rehabilitation.
We have said that a trial court is not required to give equal weight to each factor, nor is the prosecutor required to introduce proof against the juvenile with regard to each factor. Pennington v. State, 305 Ark. 312, 807 S.W.2d 660 (1991).
The crimes charged in this case, burglary and felony theft of property, are not in the most serious category of crimes and did not involve violence against a person, although they did involve violence against property. However, the testimony at the hearing on the motion to transfer showed that the appellant previously had been in trouble, previously had been charged in juvenile court, and previously had been placed on probation by the juvenile court. Obviously, the past actions by the juvenile court have not prevented a repetitive pattern of offenses. The next step for a juvenile court would be to commit a person such as appellant to an indeterminate period in a youth services center. However, the appellant was seventeen years and seven months old at the time of the crimes, and has now reached his eighteenth birthday. A person who has reached his eighteenth birthday cannot be committed to a youth services center. Ark. Code Ann. §§ 9-27-331 (a)(1) and 9-28-209(a)(l) (Supp. 1991). The crimes alleged to have been committed by the appellant, if proven, will show a repetitive pattern of crime by a person over sixteen years of age who is beyond rehabilitation under the programs available to a juvenile court. Such a case fits exactly within Subsection 2 of Ark. Code Ann. § 9-27-318(e) quoted above. Accordingly, we affirm the decision of the circuit court. | [
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Robert H. Dudley, Justice.
The petitioner seeks a Writ of Prohibition for violation of the speedy trial rules. The rules have been violated and, accordingly, we grant the writ.
Petitioner was charged with the crime of rape on June 12, 1990. He was free on bond with the condition that he report weekly to a probation officer. Two and one-half months later, on August 31, 1990, counsel was appointed, and, on October 4, his trial was set for January 29, 1991. His attorney learned that his secretary was related to the victim and so he filed a motion to withdraw because of a conflict of interest. The court, without notice to the petitioner, granted the motion on December 21, 1990. In late January 1991, petitioner learned that his attorney had been allowed to withdraw. His probation officer suggested that he prepare a second affidavit to proceed in forma pauperis. The purpose of the second petition was to have another attorney appointed. Petitioner filed it on February 12. On February 22, two months after the first attorney had been allowed to withdraw, the trial court appointed a second attorney and reset the trial for July 31, 1991.
On July 1, 1991, petitioner filed a motion to dismiss since he had not been brought to trial within one (1) year. A.R.Cr.P. Rule 28.1(c). Once it has been shown that trial was scheduled to be held after the speedy trial period had expired, the State has the burden of showing that any delay was the result of the petitioner’s conduct or was otherwise legally justified. Gooden v. State, 295 Ark. 385, 389, 749 S.W.2d 657, 659 (1988).
The State argues that the period from December 21, 1990 through February 22, 1991, the period when the appellant was without counsel, is excludable as a “period of delay for good cause.” A.R.Cr.P. Rule 28.3(h). Other excludable periods are not sufficient to meet the one-year limitation, thus, the only issue is whether the time when the accused was without counsel was properly excludable.
The primary burden is on the court and the prosecutor to assure that a case is brought to trial in a timely fashion. A defendant has no duty to bring himself to trial. Novak v. State, 294 Ark. 120, 123, 741 S.W.2d 243, 245 (1987) (citing Barker v. Wingo, 407 U.S. 514 (1972)). Here, petitioner was not aware that his trial had been set for January 29, 1991; neither was he aware that he was without counsel until approximately a month after the trial court had allowed his counsel to withdraw. On the other hand, the court knew that petitioner was without counsel and delayed appointing substitute counsel for two (2) more months. By that time petitioner had made a second request for appointed counsel.
The State contends, and the trial court found, that the two-month period is an excludable period because petitioner did not move to proceed pro se. Consequently, it is argued, he could not have gone to trial on the date it was set originally. From that basis, the State contends there was a delay for good cause. The effect of adopting such a position would be to force defendants to choose between their constitutional right to be represented by counsel and their constitutional right to have a speedy trial. In the present case petitioner would have to forfeit his right to a speedy trial because, through no fault of his own, he was not represented by counsel and was not willing to go to trial without counsel. We refuse to adopt such a position.
Speedy trial rules were not promulgated to protect only the rights of the accused. The victim and the public are also entitled to have criminal trials held promptly. Chandler v. State, 284 Ark. 560, 561, 683 S.W.2d 928, 929 (1985). To ensure compliance, the speedy trial rules provide that an accused, if not promptly tried, will be absolutely discharged. A.R.Cr.P. Rule 28.1(a), (b) and (c).
We are aware that in two prior cases we have held that the period of delay due to the appointment of new defense counsel was excludable as a delay for good cause under A.R.Cr.P Rule 28.3(h). Williams v. State, 275 Ark. 8, 627 S.W.2d 4 (1982) and Divanovich v. State, 273 Ark. 117, 617 S.W.2d 345 (1981). However, both of these cases are clearly distinguishable from the case at bar. The delays in those cases were occasioned by actions taken by the defendants. In the first instance, the delay was caused by Williams’ refusal to cooperate with his appointed counsel. Because of this conduct by the defendant, counsel requested to withdraw and new counsel had to be appointed. In the second case, at least a portion of the delay was the result of a motion by Divanovich to disqualify the prosecuting attorney necessitating the appointment of a special prosecutor. Unlike the defendants in those cases, the petitioner in this case did nothing to cause his trial to be delayed beyond the time for a speedy trial.
The Writ of Prohibition is granted. | [
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Donald L. Corbin, Justice.
The question presented by this appeal is whether an Arkansas court has authority under the Arkansas long-arm statute, Ark. Code Ann. § 16-4-101 (1987), and the due process clause, U.S. Const, amend. 14, to exercise jurisdiction over a foreign insurance company in a suit by the insured to recover under the insurance policy’s uninsured motorist clause for damages arising out of an accident in Arkansas with an uninsured Arkansas motorist.
On May 9,1989, appellant George Szalay, then a resident of New Jersey, renewed his automobile insurance policy with appellee, Keystone Insurance Company (Keystone), a Pennsylvania corporation doing business in New Jersey. The policy contained an uninsured motorist clause which provided in relevant part:
PART C — UNINSURED MOTORIST COVERAGE — Insuring Agreement
We will pay damages which a covered person is legally entitled to recover from the owner or operator of an uninsured motor vehicle because of bodily injury:
1. Sustained by a covered person; and
2. Caused by an accident.
PART F — GENERAL PROVISIONS — Policy Period and Territory
This policy applies only to accidents and losses which occur:
1. During the policy period as shown in the Declarations; and
2. Within the policy territory.
The policy territory is:
1. The United States of America, its territories or possessions[.] [Emphasis supplied.]
Appellant moved to Fort Smith, Arkansas, in May of 1989 to pursue an employment opportunity in Shady Point, Oklahoma. He signed a six month lease to rent an unfurnished apartment in Fort Smith. Appellant’s wife stayed in the New Jersey apartment, and appellant rented furniture to use while in Arkansas. On June 16, 1989, defendant Oscar L. Handcock, struck appellant while appellant was riding his bicycle in Fort Smith. Appellant sued defendant Handcock in a Fort Smith Circuit Court to recover for his alleged injuries. Appellant subsequently amended his complaint to allege that defendant Handcock was an uninsured motorist and to join Keystone Insurance Company as a party defendant. Appellee Keystone filed an answer asserting that Arkansas lacked personal jurisdiction over Keystone. Keystone is not authorized to do business in our state, and the company has no office, employee, or agent in Arkansas. The company also does not advertise or otherwise solicit business in Arkansas.
The trial court granted Keystone’s motion to dismiss for lack of jurisdiction, and entered a final judgment as to appellee Keystone pursuant to Rule 54 of the Ark. R. Civ. P. We take jurisdiction under Rule 29(1 )(c) of the Rules of the Supreme Court which provides that this court has jurisdiction in cases implicating the interpretation or constitutionality of our state statutes. In this case, we are concerned with whether the trial court was correct in interpreting the Arkansas long-arm statute to forbid the exercise of jurisdiction over appellee Keystone. We reverse and remand.
To determine whether a court has in personam jurisdiction over a non-resident defendant, we must undertake a two-part analysis. First, we must determine whether the non-resident defendant’s actions satisfy the requirements of section 16-4-101 (C) of the long-arm statute. Second, we consider whether the exercise of in personam jurisdiction is consistent with due process. Capps v. Roll Serv. Inc., 31 Ark. App. 48, 787 S.W.2d 694 (1990).
Ark. Code Ann. § 16-4-101 (C)(1) (1987) provides in part:
1. A court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a (cause of action) (claim for relief) arising from the person’s:
(a) Transacting any business in this state;
(b) Contracting to supply services or things in this state;
2. When jurisdiction over a person is based solely upon this section, only a (cause of action) (claim for relief) arising from acts enumerated in this section may be asserted against him.
Ark. Code Ann. § 23-60-102(13) (1987) provides, “ ‘Transact’ with respect to insurance includes any of the following: (D) Transaction of matters subsequent to effectuation of a contract of insurance and arising out of it[.]” In the instant case, appellant Szalay is suing Keystone to enforce his contractual right to uninsured motorist coverage. Appellant’s enforcement action arises out of Keystone’s explicit contractual promise to provide uninsured motorist coverage. While the parties entered this contract in New Jersey, the accident implicating Keystone’s contractual obligation occurred in Arkansas. Given the insurance code’s broad definition of “transact,” we believe the legislature intended the “transacting business” provision of the long-arm statute to encompass an insured’s attempts to enforce contractual rights.
We have stated that the purpose of the “transacting business” provision is to permit Arkansas courts to exercise the maximum in personam jurisdiction allowable by due process. CDI Contractors, Inc. v. Goff Steel Erectors, Inc., 301 Ark. 311, 783 S.W.2d 846 (1990). We therefore consider whether the exercise of jurisdiction over appellee Keystone is consistent with due process.
The United States Supreme Court has held that due process prohibits a state’s court from exercising personal jurisdiction over a non-resident defendant unless the defendant has sufficient “minimum contacts” with the forum state. International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). This rule does not afford us the luxury of applying a mechanical test. Leflar, American Conflicts of Law § 21. However, several settled principles guide us in answering our “minimum contacts” inquiry. ¡
First, the defendant must “purposefully avail itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.” Hanson v. Denckla, 357 U.S. 235, 253 (1958). The Supreme Court has held that the “minimum contacts” standard is not met when a defendant’s product merely winds up in a forum state solely as the result of the unilateral activity of one seeking to claim some relationship with the defendant. Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985); Hanson, supra. While a defendant might have foreseen that his product would end up in the forum state, foreseeability alone will not satisfy the “minimum contacts” test:
[T]he foreseeability that is critical to due process analysis is not the mere likelihood that a product will find its way into the forum State. Rather, it is that the defendant’s conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.
World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980).
Appellee Keystone relies on World-Wide Volkswagen in arguing that Keystone did not purposefully avail itself of the privilege of doing business in Arkansas. Keystone contends that because it neither solicited business nor maintained an agent in Arkansas, it could hot reasonably anticipate being haled into court here. We disagree.
Appellant’s insurance policy contained a provision stating that the policy applied only to accidents and losses occurring within the policy territory. The policy explicitly defined the policy territory as “the United States of America, its territories or possessions.” Both the Fourth and Ninth Circuits have upheld jurisdiction over insurance companies in analagous situations. See Farmers Ins. Ex. v. Portage La Prairie Mut. Ins. Co., 907 F.2d 911 (9th Cir. 1990); Rossman v. State Farm Mut. Auto Ins. Co., 832 F.2d 282 (4th Cir. 1987); August v. HBA Life Ins. Co., 734 F.2d 168 (4th Cir. 1984). We find the reasoning in these cases to be persuasive. The defendant insurance companies in the aforementioned cases also relied on World-Wide Volkswagen in arguing that they could not reasonably anticipate being haled into court in the forum state. However, the courts distinguished the business of manufacturing products to be placed in the stream of commerce from the business of selling insurance policies with nationwide territorial clauses. “Insurance by its nature involves the assertion of claims, and resort to litigation is often necessary.” August, supra, at 172. Furthermore, an automobile liability policy is typically sued on where the accident takes place. Rossman, supra. The courts concluded that insurance companies that contract to provide nationwide automobile liability coverage should reasonably anticipate being haled into the courts of a state where an accident occurs.
The Fourth Circuit reasoned that the insurance companies purposefully availed themselves of the privilege of doing business in the forum states by contracting to provide coverage for claims arising within policy territories that encompassed the entire United States:
In World-Wide Volkswagen, nothing about the defendant’s conduct indicated its willingness to be called into court in the foreign forum. Its only connection with Oklahoma was the result of the plaintiffs’ unilateral act of driving the car there. By contrast, [the insurance com pany’s] expectation of being haled into court in a foreign state is an express feature of its policy.
Rossman, supra, at 286.
In the instant case, Keystone’s territorial policy limit included Arkansas within its scope. Unlike automobile sellers and product manufacturers, insurance companies such as Keystone can control their amenability to suit by excluding certain states from the “policy territory” defined in the policy. See Rossman, supra. By not excluding any states in its definition of “policy territory,” Keystone purposefully contracted to fulfill its obligation of providing uninsured motorist coverage in foreign states such as Arkansas. Accordingly, we find that the contractual definition of the policy territory satisfies the purposeful availment prong of the “minimum contacts” inquiry.
Due process also requires that a defendant’s “minimum contacts” with the forum state be such that “maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” International Shoe, 326 U.S. at 316, (quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940)). This inquiry examines the reasonableness of suit in the forum state. Asahi Metal Indus. Co., Ltd. v. Superior Court, 480 U.S. 102 (1987).
The Supreme Court has held that in cases where a defendant has purposefully availed himself of conducting business in the forum state “it is presumptively not unreasonable to require him to submit to the burdens of litigation in that forum as well.” Burger King, 471 U.S. at 476. In this case, we find that appellee Keystone purposefully availed itself of the privilege of conducting business in Arkansas by contracting to extend appellant’s coverage throughout the United States. Given this finding, Arkansas’ exercise of jurisdiction over a suit arising out of this purposeful availment is presumptively reasonable.
We do not believe appellee Keystone can overcome this presumption of reasonableness. Arkansas has a manifest interest in providing its residents with a forum when insurers refuse to pay claims. “These residents would be at a severe disadvantage if they were forced to follow the insurance company to a distant State in order to hold it legally accountable.” McGee v. International Life Ins. Co., 355 U.S. 220, 223 (1957). In this case, appellant Szalay has moved back to New Jersey since instituting his Arkansas suit. However, only contacts occurring prior to the event causing the litigation may be considered. Steel v. United States, 813 F.2d 1545 (9th Cir. 1987).
In this case, appellant was residing in Arkansas when he asserted his contractual rights under the uninsured motorist clause of his policy. It is reasonable to require insurance companies such as appellee Keystone to submit to the burdens of litigating this claim in Arkansas since it expressly contracted to extend appellant’s policy coverage to a territory including Arkansas.
Accordingly, we reverse the trial court’s dismissal and remand based on our holding that sufficient “minimum contacts” exist under both the long-arm statute and the due process clause to assert personal jurisdiction over appellee Keystone.
Holt, C.J., Dudley and Newbern, JJ., dissent.
Our reasoning today would also support in personam jurisdiction under the “contract” provision of the Arkansas long-arm statute. Ark. Code Ann. § 16-4-401(c)(1)(b) (1987) provides that an Arkansas court may exercise jurisdiction over a cause of action arising from the defendant’s contracting to supply services or things in this state. In the instant case, appellant challenges the trial court’s ruling under the “transacting business” provision of the long-arm statute. His challenge is proper since the Commentary to the long-arm statute recognizes that situations will arise where a jurisdictional basis may be found under more than one subdivision of the statute. | [
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Donald L. Corbin, Justice.
Appellant, Robert Reece Thompson, asks this court to reverse the Crawford County Circuit Court’s denial of appellant’s motion to withdraw his previously entered guilty plea. On October 5, 1990, appellant pleaded guilty to the offenses of burglary, theft of property, and being a felon in possession of a firearm. On the same date, the trial court sentenced appellant to serve 25 years in the Arkansas Department of Correction with twelve years suspended subject to certain conditions. On October 19,1990, the trial court received a pro se motion from appellant petitioning the court to allow appellant to withdraw his guilty plea on grounds that appellant had received ineffective assistance of counsel. The trial court treated appellant’s motion as a motion for new trial under A.R.Cr.P. Rule 37, and conducted a hearing on October 25, 1990. The trial court denied appellant’s motion after finding that appellant had received effective assistance of counsel, and that appellant voluntarily entered his guilty plea with knowledge and understanding of the consequences. We affirm.
At the time appellant entered his plea, A.R.Cr.P. Rule 37 had been abolished and A.R.Cr.P. Rule 36.4, as amended, was in effect. While Rule 37 has since been reinstated, and Rule 36.4 has been amended once again, Rule 36.4 provided the appropriate post-conviction remedy at the time appellant entered his guilty plea. The trial court was correct in treating appellant’s motion as a motion for post-conviction relief because motions for a plea withdrawal under A.R.Cr.P. Rule 26.1 are considered untimely if filed after sentencing. Malone v. State, 294 Ark. 376, 742 S.W.2d 945 (1988). In Shipman v. State, 261 Ark. 559, 550 S.W.2d 424 (1977), this court held'that a motion under Rule 37 is necessary after a sentence has been carried into execution. As we have determined that Rule 36.4, rather than Rule 37, provided the appropriate post-conviction remedy at the time of appellant’s plea, we consider this case an appeal authorized by Rule 36.4 as it read at the time appellant entered his guilty plea.
This court will not reverse a trial court’s denial of post-conviction relief unless the findings are clearly erroneous. Owens v. State, 296 Ark. 322, 756 S.W.2d 899 (1988). In a petition based on an ineffective assistance of counsel claim, a petitioner must show, first, that counsel’s representation fell below an objective standard of reasonableness, and second, that a reasonable probability exists that but for counsel’s unprofessional errors, the outcome of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668 (1984); Furr v. State, 297 Ark. 233, 761 S.W.2d 160 (1988); Jones v. State, 288 Ark. 375, 705 S.W.2d 874 (1986). In order to satisfy the “outcome” prong of the Strickland standard, an appellant challenging a guilty plea must show that he would not have pled guilty and would have insisted on a trial. Hill v. Lockhart, 474 U.S. 52 (1985). We have recognized that a defendant whose conviction is based on a plea of guilty will have difficulty in proving prejudice under the Strickland standard since his plea rests on his admission in court that he did the act with which he is charged. Huff v. State, 289 Ark. 404, 711 S.W.2d 801 (1986), Crockett v. State, 282 Ark. 582, 669 S.W.2d 896 (1984).
Appellant claims that his attorney coerced him into entering a guilty plea by informing him on the day of trial that he would not receive a fair trial because the jury was all white. (Appellant is black.) Appellant further alleges that counsel informed him on the day of trial that he would receive a life sentence plus one hundred twenty-five years if appellant chose to go to trial. Finally, appellant argues that since his attorney failed to advise him that October 5, 1990 was his trial date, appellant was inappropriately dressed in his prison jumpsuit. Appellant argues that his prison attire factored into his decision to plead guilty because of appellant’s belief that the prison clothes would prejudice the jury against him. In addition to these specific allegations of his attorney’s ineffectiveness, appellant argues that counsel did not return his phone calls, did not meet with appellant on enough occasions to discuss appellant’s case, and did not discuss with appellant the merits of the state’s case against appellant. However, this court has held that general assertions that counsel did not meet with the defendant enough, or did not aggressively prepare for trial are not sufficient to establish an ineffective assistance of counsel claim. Furr, supra.
Both appellant and his attorney testified at the hearing on appellant’s motion to withdraw his plea. While appellant testified to the allegations of error raised on appeal, his attorney denied appellant’s allegations. Appellant’s attorney testified that he never told appellant that appellant would not receive a fair trial because of prejudice, and never told appellant he would be sentenced to life plus a hundred and twenty-five years. The attorney further testified that he had gone over the plea proceedings with appellant on the day before appellant entered his plea, and that appellant knew what to expect on the morning of the plea. Appellant’s attorney testified that he had never seen anyone so happy to take a plea, and that appellant actually gave a “high five” when the attorney informed appellant of the plea agreement. At the conclusion of the hearing, the trial court found that appellant knowingly and voluntarily entered his guilty plea and that appellant had received effective assistance of counsel. The trial court further stated its belief that appellant never wanted to go to trial, but wanted only “the best sentence he could get.”
This court has stated that conflicts in testimony are for the trial judge to resolve, and he is not required to believe any witness’ testimony, especially the testimony of the accused since he has the most interest in the outcome of the proceedings. Huff v. State, supra; Smith v. State, 286 Ark. 247, 691 S.W.2d 154 (1985). Certainly, in the instant case, we cannot say that the trial court’s decision was clearly erroneous.
Affirmed. | [
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.
David Newbern, Justice.
The question we must decide is whether a trial court may award an attorney’s fee for services performed by an attorney on appeal after the case in which the fee is sought has been returned to the trial court by a mandate which does not order the fee. We hold a trial court has no such authority.
The petitioner, National Cashflow Systems, Inc. (National), prevailed in an action to collect a debt owed by the respondent, Thomas Race. Included in the judgment was an award for an attorney’s fee in the sum of $667.50. Race appealed the judgment to the Court of Appeals which affirmed. The mandate of the Court of Appeals awarded an additional $75.00 to National as costs incurred in the appeal. That mandate was filed in the Trial Court which ordered the clerk to pay over to National all monies held as a supersedeas bond in satisfaction of the judgment and costs awarded by the.Court of Appeals.
National then filed a petition in the Trial Court seeking an attorney’s fee for services rendered by its attorney on appeal and in collecting the bond. The Trial Court ordered payment of the additional fee. Race appealed from that decision and successfully argued to the Court of Appeals that the Trial Court was without authority to reopen the case for a new judgment granting the additional fees. National argued that Ark. Code Ann. § 16-22-308 (Supp. 1991) provided authority for the new judgment.
The Court of Appeals concluded that where the additional award of costs on appeal is not at the direction of an appellate court, nor a mere ministerial act of a trial court following an appellate mandate, a trial court is without authority to award additional attorney’s fees following an appeal. Race v. Nat'l Cashflow Sys., Inc., 34 Ark. App. 261, 810 S.W.2d 46 (1991).
National sought review, arguing that the Court of Appeals decision did not correctly interpret the statute and was incorrect in relying on decisions rendered prior to the enactment of the statute. We granted review permitting the parties to file supplemental briefs. The Court of Appeals decision is affirmed.
National argues the matter is solely one of statutory interpretation and asserts that the Court of Appeals failed to “ascer tain and give effect to the intention of the legislature.” Vandiver v. Washington County, 274 Ark. 561, 628 S.W.2d 1 (1982). The statute in question presides:
Attorney’s fee in certain civil actions.
In any civil action to recover on an open account, statement of account, account stated, promissory note, bill, negotiable instrument, or contract relating to the purchase or sale of goods, wares, or merchandise, or for labor or services, or breach of contract, unless otherwise provided by law or the contract which is the subject matter of the action, the prevailing party may be allowed a reasonable attorney fee to be assessed by the court and collected as costs.
National asserts the General Assembly intended that a trial court make all attorney’s fee awards because the term “court,” as used in the statute, refers to the court in which the “civil action” is pending and that means the court which conducts hearings, makes rulings on testimony and ordinarily exercises discretion. The Court of Appeals declined that interpretation, and so do we.
The conclusion that the Trial Court was without authority to reopen the case following issuance of the appellate mandate was correct. Once the mandate of the appellate court issues:
The inferior court cannot [vary] it, or judicially examine it for any other purpose than execution. It can give no other or further relief as to any matter decided by the Supreme Court even where there is error apparent; or in any manner intermeddle with it further than to execute the mandate, and settle such matters as have been remanded, not adjudicated by the Supreme Court.
Fortenberry v. Frazier, 5 Ark. 200, 202 (1843). While the Fortenberry case was decided long before the establishment of the Court of Appeals, it applies with the same force to any appellate court decision, and this Court has followed it many times.
Nothing in the statute provides a basis for this Court to overturn the Fortenberry rule.- The first Court of Appeals mandate awarding costs incurred on appeal left nothing open for the Trial Court except execution on the supersedeas bond. The award of additional fees went beyond execution and was in error.
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David Newbern, Justice.
The appellant, Denver Lemons, was picked up in Garland County on December 14, 1990, on charges unrelated to those involved in this appeal. A Garland County officer informed a Hot Spring County officer that Lemons might have information for him. Lemons was taken to Hot Spring County. That same date, Lemons, while in custody in Hot Spring County, confessed to burglaries by which he came into possession of jewelry and guns.
Lemons was arrested following the confession and incarcerated in Hot Spring County from that point through January 14, 1991, when he made his first appearance before a judicial officer.
Lemons moved to suppress his confession because his being held for 31 days before his first appearance violated Ark. R. Crim. P. 8.1. The motion was denied. Lemons was convicted of burglary, theft of property, and being a felon in possession of a firearm.
The sole point on appeal is whether the Trial Court erred in denying relief for the violation of Rule 8.1. We affirm the conviction as there was no connection between the delay and the evidence sought to be suppressed.
Rule 8.1. provides:
Prompt First Appearance.
An arrested person who is not released by citation or by other lawful manner shall be taken before a judicial officer without unnecessary delay.
In Cook v. State, 274 Ark. 244, 623 S.W.2d 820 (1981), we found a 30-day delay sufficient to establish a violation. We also held the Rule mandatory rather than discretionary; however, we noted that the remedy for violation of the rule is to suppress any custodial statement. We later made it clear that to require suppression it must be shown that “the evidence [obtained in violation of the Rule] must be reasonably related to the delay.” Duncan v. State, 291 Ark. 521, 726 S.W.2d 653 (1987). In this case, there is no connection between the statement obtained on the night of the arrest and the subsequent delay.
Affirmed. | [
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.
David Newbern, Justice.
The principal issue in this case is whether a purchaser of land with respect to which there is no use restriction in the chain of title may be required to comply with a “general development scheme” of which he may have notice by observation of conditions surrounding his land. We hold he may not.
The appellant, P.H. “Rocky” Knowles, purchased a 2 acre lot in the rural Lakeview Subdivision of Hot Springs on February 29, 1984. His intent was to develop the lot into a mobile home park. He checked his title abstract and found no restrictions applicable to his land. In the next two years Knowles prepared the lot for mobile homes by installing sewer, power, and water lines. He then purchased and moved two mobile homes onto the lot. The evening after Knowles placed the mobile homes on the lot he received a call from one of the appellees demanding that the mobile homes be removed as they were in violation of the residential scheme and certain restrictive covenants which had created this scheme. Upon his refusal to remove the structures a suit seeking permanent injunction against mobile homes on the property was instituted on May 16,1986, and tried May 16,1990.
The parties stipulated to the introduction of various instruments of record in Garland County. These included all instruments in Knowles’ chain of title from the creation of the subdivision in 1942, all instruments of record which appellee’s felt established restrictions prohibiting mobile homes, the original Bill of Assurance for the Lakeview Subdivision, and two deeds from the original developer, a computer printout summarizing the recorded restrictions in particular deeds, and a hand colored map which summarized the various restrictions by color coding. The parties stipulated that Knowles’ property fell into an area where a home had been built on site. It was characterized by the appellees as being “effectively restricted”. Knowles acknowledged that when he purchased the property there were two structures on it. One was a 50-year-old frame home which still stands, and the other was a one-bedroom cottage which was torn down. Across the street from him was property with a garage apartment in poor condition and a partially completed A-frame house. On one side of his property was completely undeveloped land and to the other side was another house similar to the one on his property. Knowles testified he had little knowledge of the kind of structures located in other parts of other surrounding subdivisions and that he felt he had no reason to look further than his own property when he checked with the abstract company to find that there were no restrictions.
Some residents of the subdivision testified on behalf of the appellees. They all had lots they felt were restricted and that there was a general development scheme for single family residential development only. They testified that they had been assured by the grantors that this scheme would continue, and they had purchased their properties in reliance on that fact.
The exhibits presented show that the original developers created at least four adjoining subdivisions: Lakewood, Lake-view, Lindale, and Bonair. Lakeview Subdivision was established June 28, 1942, with the filing of a bill of assurance. There are no restrictions in this bill of assurance which would prohibit mobile homes. Knowles’ property falls within the area covered by this bill of assurance, and none of the deeds within his chain of title, beginning with the first conveyance in 1947, contains any restriction. Lindale Subdivision was established December 14, 1959, with a bill of assurance containing restrictions prohibiting mobile homes. Bonair Subdivision, created May 31, 1961, and Lakewood Acres Subdivision, created June 12, 1961, were similarly restricted.
Knowles argued that Ark. Code Ann. § 18-12-103 (1987) prohibited enforcement of any restrictive covenant against him and denied that there was any general scheme of development. The Chancellor found that there was a general building scheme which prohibited mobile homes and that Knowles was familiar with the subdivision prior to purchasing the land. This familiarity with the area constituted implied or actual knowledge of the general plan. The Chancellor concluded that an equitable servitude had arisen which prohibited mobile homes and granted the permanent injunction.
Knowles raises two points of appeal. He challenges the finding of a restrictive covenant or equitable servitude based on a “general development plan” affecting his land, and he disputes the Chancellor’s conclusion that he had notice of any such plan. We agree with Knowles’ conclusion that there was no covenant or other servitude restricting his land against the' placement of mobile homes, and thus we reverse the decision and dismiss the case.
1. Validity of the restrictions
Arkansas Code Ann. § 18-12-103 (1987) provides:
No restrictive or protective covenants affecting the use of real property nor any instrument purporting to restrict the use of real property shall be valid or effective against a subsequent purchaser or owner of real property unless the restrictive or protective covenants or instrument purporting to restrict the use of real property is executed by the owners of the real property and recorded in the office of the recorder of the county in which the property is located.
There are restrictions in the deeds of other residents of Lakeview Subdivision but nothing to which Knowles would have been obligated or likely to turn in researching title to the land when he was considering buying it. The Chancellor acknowledged the Statute but chose not to apply it to this case because he concluded our case law construes the requirements for establishing a restrictive covenant on the facts of each case rather on the basis of the Statute.
The decision to disregard the Statute was based on Cook v. Jones, 271 Ark. 870, 611 S.W.2d 506 (1981) and Warren v. Detlefsen, 281 Ark. 196, 663 S.W.2d 710 (1984), which the appellees cited for the proposition that this Court has recognized the imposition of restrictive covenants based on a “general plan of development” theory. While the Cook case involved a covenant which prohibited mobile homes, and there was only a passing reference to the predecessor Statute, it is abundantly clear that this Court’s holding is consistent with the Statute.
Mr. Cook’s deed contained the restriction against mobile homes. His argument to the Chancellor was that because one tract of land in the subdivision had been sold without such a restriction the restriction could not be enforced against him. The Chancellor so held, and we reversed and enforced the covenant. We discussed the concept of a general plan of development and expressed our misgivings about such a method of imposing restrictions, but ultimately we concluded that restrictive covenants of this sort have been found legal where a general plan of development exists, citing Moore v. Adams, 200 Ark. 810, 141 S.W.2d 46 (1940). Our basis for the Cook decision was that Cook knowingly violated the restrictions found in his deed. It is entirely consistent with the Statute and our discussion of the general plan of development in obiter dictum does not indicate that we had chosen to disregard it.
In the Warren case, we were dealing with an entirely different type of land use control. The Warrens had sold some lots in their development with single family dwelling restrictions. They later attempted to construct duplexes on some of their remaining properties in the development. We affirmed a chancellor’s conclusion that a developer who sells lots with restrictive covenants for single family use in the deeds of the buyers cannot thereafter himself violate those restrictions. We held that the equitable servitude of a reciprocal negative easement had arisen against the Warrens. Again we mentioned the general plan of development theory but did so in support of the Chancellor’s admission of parole evidence to show that oral representations of a single family residential scheme had been made. The fact that representations of a general restrictive development scheme were made coupled with the restrictions shown in each of the deeds to the grantees led the Chancellor to conclude that the developer’s retained land should also be restricted. As we were not concerned with a subsequent purchaser seeking to avoid a restrictive covenant of which he had no actual knowledge, there was no need to refer to the Statute. Indeed, the Statute is wholly inapplicable to a reciprocal negative easement situation, as it arises not by operation of law but as a purely equitable remedy based on the contractual relationship between the common grantor and his grantees.
The Chancellor’s decision to disregard the Statute and look to cases from other jurisdictions to support his findings that the restrictive covenants in this case were valid based on a general scheme of development is not supported by the Cook or Warren decisions. The decision also ignores the rules for the establishment of restrictive covenants enunciated in Moore v. Adams, supra. There the common grantor, Mrs. Ingalls, sold a total of 71 lots in a four block area outside the City of Fayetteville. No plat or bill of assurance stating any restrictions was filed. There was testimony that the property was well adapted to residential purposes, and the deeds to eight of the lots sold restricted the property to residential use. Four deeds conveying 47 lots had no restrictions, and eight others conveying 16 lots provided a minimum cost for the building, house, or dwelling erected on the lot. The grantees whose lots were restricted sued Moore, another grantee whose deed contained no restrictions concerning what was to be placed on the lot, to restrain him from building a tourist camp. The deed to Moore’s grantor had a restriction requiring that a house costing not less than a minimum amount be placed on the lot. The Chancellor granted the injunction based on testimony from the plaintiffs that a camp would greatly depreciate the value of their property and that they had understood that the entire subdivision was to be a restricted area. We reversed, finding no general scheme of development, and even if there had been such a scheme, it had been abandoned. In discussing whether there were valid covenants we touched on the methods of establishing restrictions:
The ordinary method of establishing restricted districts when new subdivisions are surveyed and platted is to file with the dedicatory plat of the survey a bill of assurance, whereby the owner of the land platted obligates himself not to convey except in conformity with the restrictions imposed in the bill of assurance. The courts uniformly hold that such assurance induces purchases of the restricted property, and that the purchasers are entitled to have this reciprocal obligation enforced. . . .
The theory upon which these restrictions are imposed is that one taking title to land with notice that it is subject to an agreement restricting its use will not, in equity and good conscience, be permitted to violate its terms.
It is not essential, however, that there be a bill of assurance filed with the plat of the subdivision. The restricted use may be annexed to the conveyance of the land, and some of the cases on the subject have arisen out of an agreement between adjoining owners as regards the use of their land. Chapter on Equitable Restrictions, 3 Tiffany Law of Real Property, (3rd Ed.) § 58. . . . [I]n the section just cited the law is said to be that “The courts do not favor restrictions upon the utilization of land, and that a particular mode of utilization is excluded by agreement must clearly appear”.
The Chancellor’s conclusion that a restrictive covenant may be enforced based solely on a general plan of development in the absence of restrictions in the grantee’s chain of title is unsupported by the case law and contrary to the Statute. Even at the time the Lakewood Subdivision was established in 1942 it is clear that creation of a valid restrictive covenant in Arkansas required there to be some form of instrument containing the restrictions available to the grantee, either in his deed or in a bill of assurance in his chain of title. The Statute codified the requirement and did not change this rule of property.
Nothing in subsequent Arkansas cases considering enforce ment of restrictive covenants leads us to conclude that this Court has contemplated any such change. See generally, McGuire v. Bell, 297 Ark. 282, 761 S.W.2d 904 (1988) (subsequent purchaser of land is charged with constructive notice of restrictions contained in every recorded deed in his chain of title; covenant enforced even though not in purchaser’s deed); Constant v. Hodges, 292 Ark. 439, 730 S.W.2d 892 (1987) (upholding covenant in bill of assurance filed in 1949 supported by overwhelming evidence of a general plan of development). In fact the McGuire and Constant cases support the conclusion that there must be restrictions in the grantee’s chain of title and a general plan of development before a restrictive covenant is enforceable. We so held when we refused to enforce a covenant which did appear in the grantee’s deed, but the evidence presented showed no clear general plan in Harbour v. Northwest Land Co., 284 Ark. 286, 681 S.W.2d 384 (1984). As the Harbour opinion makes clear, it is proper to consider whether a general plan of development exists when determining whether a written covenant or restriction contained in the chain of title of the party seeking to avoid the restriction remains valid. We have no case in which a restriction has been created as the result of a general development scheme.
On appeal we try chancery cases de novo but do not reverse a finding of fact unless it is clearly erroneous. McGuire v. Bell, supra. Here the Chancellor erred on the law. As there were no restrictions in any instrument in Knowles’ chain of title, there was no valid covenant effective against him. There was no basis for entry of the injunction. The decree is reversed and the case dismissed.
Reversed and dismissed. | [
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Darrell Hickman, Justice.
This is a will construction case involving pretermitted, or omitted, grandchildren of deceased children. Alice E. Cisco died testate, leaving her estate to seven of her children and one grandchild. The will was executed on November 2,1978. Mrs. Cisco did not mention two children who were deceased at that time: Tommy Donald Cisco and Ethmer Edwin Cisco. On July 7, 1981, a codicil was executed to update her will. In it Mrs. Cisco acknowledged that since she executed her will two of her children had passed away, Bob Cisco and Dale Cisco. Still no mention was made of Tommy Donald Cisco or Ethmer Edwin Cisco. The estate was to be divided between her remaining five children and one grandchild. The children of Tommy and Ethmer Cisco petitioned to take against the will, claiming to be pretermitted heirs. The trial court found in their favor and the estate appeals. We affirm the trial court’s decision.
The will in relevant portions reads:
The rest and residue of my estate, whether real or personal and wherever situate, I hereby devise and bequeath in the following manner:
One Eighth (1/8) of my estate, I hereby devise and bequeath unto my son, Hugh Cisco.
One Eighth (1/8) of my estate, I hereby devise and bequeath unto my son, R. C. Cisco.
One Eighth (1/8) of my estate, I hereby devise and bequeath unto my daughter, June Miller.
One Eighth (1/8) of my estate, I hereby devise and bequeath unto my son, Bob Cisco.
One Eighth (1/8) of my estate, I hereby devise and bequeath unto my son, Jack Cisco.
One Eighth (1/8) of my estate, I hereby devise and bequeath unto my daughter, Audrey Cash.
One Eighth (1/8) of my estate, I hereby devise and bequeath unto my son, Dale Cisco.
One Sixteenth (1 /16) of my estate, I hereby devise and bequeath unto my son, Ernest Cisco.
One Sixteenth (1 /16) of my estate, I hereby devise and bequeath unto my grandson, Ricky Cisco.
The codicil in pertinent part reads:
Since the execution of the above referred to Will, two (2) of my sons have died, namely: Bob Cisco and Dale Cisco.
After payment of Paragraph #1 of said Will, I hereby devise and bequeath the rest and residue of my estate in the following manner:
One-sixth (1/6) of my estate, I hereby devise and bequeath unto my son, Hugh Cisco.
One-sixth (1/6) of my estate, I hereby devise and bequeath unto my son, R. C. Cisco.
One-sixth (1/6) of my estate, I hereby devise and bequeath unto my daughter, June Miller.
One-sixth (1/6) of my estate, I hereby devise and bequeath unto my daughter, Audrey Cash.
One-twelfth (1/12) of my estate, I hereby devise and bequeath unto my son, Ernest Cisco.
One-twelfth (1/12) of my estate, I hereby devise and bequeath unto my grandson, Ricky Cisco.
If any of my children should die before I do, I direct that their share revert back into my estate, and be divided to the remaining legatees equivalent to the distribution above set forth.
Ark. Stat. Ann. § 60-507(b) (Repl. 1971) defines a pretermitted heir:
If at the time of the execution of a will there be a living child of the testator, or living child or issue of a deceased child of the testator, whom the testator shall omit to mention or provide for, either specifically or as a member of a class, the testator shall be deemed to have died intestate with respect to such child or issue, and such child or issue shall be entitled to recover from the devisees in proportion to the amounts of their respective shares, that portion of the estate which he or they would have inherited had there been no will.
The estate claims the appellees’ fathers are part of the class of “my children” in the last sentence of the codicil and, therefore, were not omitted from the will. As a general rule, the testator’s use of a word which describes a class of persons is considered to be sufficient identification of the claimant to preclude the application of the pretermitted heir statute. Annot., 152 A.L.R. 723 (1944); Yeates v. Yeates, 179 Ark. 543, 16 S.W.2d 996 (1929).
In construing this will, we must determine the intention of the testatrix and give that intention effect. Deal v. Huddleston, 288 Ark. 96, 702 S.W.2d 404 (1986); Yeates v. Yeates, supra. In Armstrong v. Butler, 262 Ark. 31, 553 S.W.2d 453 (1977), we said:
The intention of a testator is to be gathered from the four corners of the instrument itself, considering the language used and giving meaning to all its provisions, if possible to do so. The intention of the testator as expressed in the language of his will prevails if consistent with the rules of law.
The will listed only the children living at the time the will was executed and one grandchild. No class was mentioned, only names. Tommy Donald Cisco and Ethmer Edwin Cisco had already died. The first paragraph of the codicil states that since the execution of her will, two children had died, Bob Cisco and Dale Cisco. The second paragraph bequeathed her estate to her living children and the one grandchild. The last paragraph then stated that if any of her children predeceased her, their shares would revert to the estate to be distributed to the other legatees.
The trial court found:
The wording of the sentence in the codicil and stated above does not name the petitioners or Tommy Donald Cisco or Ethmer Edwin Cisco as a class in the term ‘my children’. This term referred only to the specifically named children remaining from the text of the will which were not specifically named as excluded in the codicil, i.e. Bob Cisco and Dale Cisco. Although ‘any children’ would be syno-nomous with ‘all children’, the key words of limitation are ‘if, ‘should’, and ‘revert’. The testatrix’s intention being children, as named specifically in the codicil, whose death may occur subsequent to the date of the codicil and prior to the date of the testatrix’s death. The children of testatrix who died prior to the date of the making of the testatrix’s Last Will and Testament, i.e. Tommy Donald Cisco and Ethmer Edwin Cisco, were not mentioned specifically or as a member of a class; therefore, the petitioners under the provisions of Ark. Stat. Ann. 60-507(b) are entitled to recover a representative share of the deceased issue of the testatrix as a pretermitted child.
We agree with the trial court that the phrase “my children” was referring to only the children living at the time the codicil was executed. Tommy and Ethmer Cisco were not part of that class because they passed away prior to the execution of the will. Since neither they nor the appellees were specifically mentioned in the will or codicil, the appellees are pretermitted heirs and entitled to share in the estate.
Affirmed.
Purtle, J., not participating. | [
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Steele Hays, Justice.
The only question on appeal is whether the chancellor erred in “directing a verdict” against the Commissioner of Revenue in this suit to abate a motor fuel tax assessment by the Commissioner against Gulf Oil Corporation and Paul Collum Distributor, Inc.
During the 1970’s shortages of diesel fuel prompted Department of Energy regulations affecting the distribution of diesel fuel. To comply with those regulations Gulf Oil Corporation required its distributors to sell diesel fuel only to consumers holding a Department of Energy allocation. The Commissioner of Revenue conducted a motor fuel tax audit of Gulf for periods beginning on December 1,1976 and ending December 31,1980. The audits established that Gulfs distributor, Paul Collum Distributor, Inc. had submitted invoices to Gulf reflecting sales of 734,428 gallons of diesel fuel by Collum to Coonrod Construction Company, Inc., which had a Department of Energy allocation. The Commissioner determined that Coonrod had purchased no fuel from Collum, that Collum had sold the fuel to other consumers and in its reports to Gulf had falsely invoiced the fuel to Coonrod. The Commissioner credited Collum with 363,116 gallons which were not subject to Arkansas motor fuel tax and assessed a tax liability on the remaining 370,312 gallons against Gulf and Collum in the amount of $38,882.97, plus interest of $8,980.06.
Collum and Gulf protested and when the Board of Tax Hearings and Appeals sustained the assessment, they filed suit in chancery court to abate the tax. At the end of the proof the chancellor held that the Commissioner had failed to produce sufficient evidence to substantiate the number of gallons of diesel fuel subject to the assessment and ordered the abatement of all tax and interest. The Commissioner has appealed. We reverse the chancellor.
Ark. Stat. Ann. § 84-4721 (b) (Repl. 1980) provides that when an appeal is taken from the Board of Tax Hearings and Appeals the case will be tried de novo in chancery court. The proof before the chancellor showed that Collum not only reported falsely to Gulf of sales to Coonrod which never occurred, Collum then destroyed its own records of actual sales to other consumers because those records did not conform to the fictitious sales to Coonrod.
When the Commissioner rested, Gulf and Collum moved for a “directed verdict,” arguing that there was no proof of the gallonage involved. That motion should not have been granted, as it is entirely clear that the amount of fuel was not disputed. Mr. Doug Reese, an auditor for the Commissioner, called by Gulf and Collum, testified that the adjusted gallonage amounted to 370,000 and neither Gulf nor Collum disputed the number of gallons involved. Indeed, Mr. Paul Collum acknowledged the correctness of the gallonage at several points in his testimony:
Q: The amount of fuel in controversy is approximately three hundred and seventy thousand gallons. What did you do with all this fuel, Paul?
A: We sold it.
Q: What type of people were you selling this three hundred and some odd thousand gallons to? Is this list part of them?
A: Yes, they were largely small consumers.
Moreover, it is clear from the pleadings and opening statements that the issue was not the amount of fuel, but whether the fuel was for road use or off-road use, which would materially affect the amount of tax due. Gulf and Collum’s complaint alleges:
. . . The assessment of the tax deficiency and interest in the amount set forth hereinabove was wrongfully assessed, in that no fuel was sold which was used upon the streets and highways of Arkansas, and, alternatively, the amount of fuel which was used upon the streets and highways of the State of Arkansas would require taxation in a much lesser amount than has been assessed.
In opening statement Collum’s counsel told the chancellor the only issue (aside from a constitutional argument which was not pursued) was whether the diesel fuel was for road use or off-road use. Thus, on the basis of the pleadings and the conduct of the hearing, the review by the chancellor was limited to the type and amount of tax assessed. Gulf and Collum did not contest any other aspect of the assessment. The first time the number of gallons was put in issue was at the close of the proof.
The general rule is that the necessity of introducing evidence to prove a fact may be waived by the adverse party where a case proceeds on the theory that certain facts are not in issue or a fact is admitted or conceded by the adverse party. Where a party admits in open court the existence of a fact material to the cause of his adversary, no proof is thereafter required for a finding on the matter and a party who causes a judge to understand that certain facts are admitted cannot object to the judge’s conducting of the trial on the basis of that understanding. 88 C.J.S. Trials, §§ 58, 59. “Where a party causes a court to understand that certain facts are admitted, he cannot object to a hearing being conducted on the basis of that understanding.” Bond v. Dudley & Moore, 244 Ark. 568, 426 S.W.2d 780 (1968); see also Schuman v. Hughes, 203 Ark. 395, 156 S.W.2d 804 (1941).
Under the circumstances of this case the amount of fuel was proven by the testimony of the state auditor but even if it were not, Gulf and Collum have effectively waived the issue by their conduct throughout the proceeding and by their own admissions.
On the issue of usage, the Commissioner relies on the prima facie presumption contained in Ark. Stat. Ann. § 75-1250 (Repl. 1979):
75-1250. Prima facie presumptions. — Any supplier, dealer or user who shall fail to keep records, issue the invoices or file the reports required by this Act, shall be prima facie presumed to have sold, delivered or used for taxable purposes all distillate special fuels shown by a duly verified audit by the Commissioner, or any authorized representative, to have been delivered to such supplier, dealer or user and unaccounted for at each place of business . . . from which . . . sold.
The statute creates a prima facie presumption that the fuel was used for taxable purposes because Collum admittedly destroyed the records. Collum contends the presumption does not apply because it was never audited, and the statute requires an audit before the presumption can arise.
The only purpose of the audit requirement in the statute is to provide an approved method to determine the quantity of fuel delivered to a dealer before it can be charged with that amount under the statute. There was an audit of Gulf that established the delivery of 370,312 gallons for which Collum could not account. As we have seen, the amount of fuel delivered to Collum was never in dispute in this case and the point was effectively waived by Collum throughout the proceedings. The point is equally waived for purposes of this statute and, hence, the contention is without merit.
705 S.W.2d 15
The order appealed from is reversed and the suit is remanded for the entry of a decree consistent with this opinion.
Purtle, J., not participating.
Record, p. 35.
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Darrell Hickman, Justice.
This appeal asks us to reaffirm our rule that when a contract of employment does not bind the employee to serve for a specified time, the contract may be terminated at will by either party. See Gaulden v. Emerson Electric Co., 284 Ark. 149, 680 S.W.2d 92 (1984). We are unable to reach the merits of the appeal because the appellant has failed to abstract all pertinent parts of the record; therefore, we affirm. Ark. R. Sup. Ct. Rule 9 (d).
Barbara Kaye Farmer, the appellee, was terminated by the appellant, Peterson Industries. The reason given by the company was that Farmer had been absent for over two days without notification in violation of the policy set forth in the company handbook. At the time of her absence, she was hospitalized because of recurring pain from a previously sustained back injury for which she had received workers’ compensation benefits. Farmer sued the appellant alleging wrongful discharge. At trial the following instruction was given:
If you find that Barbara Kaye Farmer was fired by Peterson’s, Inc., in direct violation of the company’s own policies or for the reason that she had filed or was pursuing a Workers’ Compensation claim, then you should find for the plaintiff, Barbara Kaye Farmer.
The trial court gave the instruction because of our previous indications that we would consider modifying our position on the employment-at-will doctrine. See Gaulden v. Emerson Electric Co., supra; Jackson v. Kinark Corp., 282 Ark. 548, 669 S.W.2d 898 (1984). The jury returned a verdict for Farmer for $10,000. The appellant argues (1) that the instruction was error; (2) that there was insufficient evidence to find that Farmer was fired in retaliation for pursuing a workers’ compensation claim; and (3) that the damages were computed erroneously.
It is the duty of the appellant to furnish us with an abridgement of the record sufficient to understand the matters presented. Dyke Industries, Inc. v. Johnson Const. Co., 261 Ark. 790, 551 S.W.2d 217 (1977); Collins v. Duncan, 257 Ark. 722, 520 S.W.2d 192 (1975). Our rule 9 (d) requires affirmance because the appellant failed to abstract the employee handbook or its objection to the instruction complained of, and also failed to abstract much of the testimony required to review the second and third points of its argument.
Affirmed.
Purtle, J., not participating. | [
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Per Curiam.
The petitioner, Cliff Jackson, the sponsor of a proposed initiated act, submitted the proposed initiated act to respondent, the Attorney General, for certification of the ballot name and popular title, pursuant to Ark. Stat. Ann. § 2-208 (Supp. 1985). The respondent found the proposed popular name and ballot title to be insufficient and certified, instead, a revised popular name and ballot title. Petitioner now prays that this Court issue a writ of mandamus directing the respondent to certify the name and title as originally submitted or directing the respondent to reexamine the matter. We deny the writ.
The standards used to determine the sufficiency of popular names and ballot titles are well established. In Bradley v. Hall, 220 Ark. 925, 251 S.W.2d 470 (1952), we stated:
Our decisions upon the sufficiency of ballot titles have been so numerous that the governing principles are perfectly familiar. On the one hand, it is not required that the ballot title contain a synopsis of the amendment or statute. Sturdy v. Hall, 204 Ark. 785, 164 S.W.2d 884 (1942). It is sufficient for the title to be complete enough to convey an intelligible idea of the scope and import of the proposed law. Westbrook v. McDonald, 184 Ark. 740, 43 S.W.2d 356, 44 S.W.2d 331 (1931). We have recognized the impossibility of preparing a ballot title that would suit everyone. Hogan v. Hall, 198 Ark. 681, 130 S.W.2d 716 (1939). Yet, on the other hand, the ballot title must be free from ‘any misleading tendency, whether of amplification, of omission, or fallacy,’ and it must not be tinged with partisan coloring.
In the case of Arkansas Women’s Political Caucus v. Riviere, 283 Ark. 463, 677 S.W.2d 846 (1984), we held that the ballot title and popular title must be (1) intelligible; (2) honest; and (3) impartial.
The popular name submitted by petitioner was:
An act to revoke Arkansas Power and Light’s franchise and exclusive territory; to establish procedures, requirements and guidelines for award of revoked public utility franchises to new franchisees; to provide for a rate-making process free and independent of closed-door deal-making and influence-peddling; to prohibit future franchisees from charging ratepayers for legal, lobbying and advertising (except public notices) expenses; and to provide for exclusive jurisdiction in chancery court of taxpayers’ illegal exaction lawsuits challenging rate increases.
The popular name certified by respondent is:
An act to revoke Arkansas Power and Light’s franchise and exclusive territory; to establish procedures, requirements and guidelines for award of revoked public utility franchises to new franchisees; to prohibit closed-door settlement conferences involving more than two parties to a ratemaking proceeding and attempts to influence the ratemaking process outside normal legal channels; to prohibit future franchisees from charging rate-payers for legal, lobbying and advertising (except public notices) expenses; and to provide for exclusive jurisdiction in Chancery Court of taxpayers’ illegal exaction lawsuits challenging rate increases.
In applying the standards for a popular name, the respondent obviously determined that the phrases “closed-door deal-making” and “influence-peddling” amounted to partisan coloring and substituted the phrase “to prohibit closed-door settlement conferences involving more than two parties to a ratemaking proceeding and attempts to influence the ratemaking process outside normal legal channels.” The respondent was unquestionably correct. The phrases, as originally submitted, were clearly calculated to influence voters to support the proposed initiated act. The respondent’s certified ballot name does not contain the partisan coloring.
The same changes were made by the respondent in the ballot title. The proposed ballot title was as follows:
An Act to Affirm the People’s Right to Revoke and Modify the Franchises and Exclusive Territories of Public Utilities and Cooperatives for Just Cause Upon Approval by a Majority of Votes in a Regular Election and to Award the Same to New Franchisee(s); to Make a Finding That Arkansas Power and Light Company Has Violated its Franchise by Misuse and to Revoke and Rescind the Franchise and Exclusive Territory of Arkansas Power and Light Company; to Provide for Interim Service by Arkansas Power and Light Company Until Such Time as a New Franchise is Awarded; to Provide for a Residual Franchise to Allow Arkansas Power and Light Company to Make Full Use of Its Property Which is Not Acquired or Condemned; to Authorize and Direct the Arkansas Public Service Commission to Award Any Revoked Franchises and Exclusive Territories of Public Utilities to New Franchisee(s) After Obtaining Competitive Bids and Conducting Public Hearings; to Establish Guidelines and Procedures for Submission of Bids by Prospective Franchisee^) and for the Award of New Public Utility Franchises by the Arkansas Public Service Commission; to Prohibit All New Public Utility Franchisee(s) Hereafter Awarded Revoked Franchises from Affiliating with a Multi-State Conglomerate or Engaging in Out-of-State Construction of Power Plants Without a Prior Three-Fourths Vote of the General Assembly; to Prohibit Utilities Awarded Future Franchises From Charging Ratepayers for Legal, Lobbying and Advertising (Except Public Notices) Expenses; to Establish Additional Specific Considerations for Commission Evaluation in Awarding New Franchises; to Confer Upon the New Franchisee(s) the Power of Eminent Domain to Condemn Property of the Revoked Franchisee and Others and to Prescribe the Use of Such Power; to Prohibit Closed-Door Deal-Making and Influence-Peddling in Utility Rate Cases and to Provide for a Civil Fine of Not Less Than $5,000.00 or More Than $ 10,000.00 and, If a Public Official, Removal From Office, As a Penalty For the Same; to Provide for Exclusive Jurisdiction in Chancery Court For Taxpayers’ Illegal Exaction Lawsuits Challenging Rate Increases; and for Other Purposes.
(Emphasis added.)
The ballot title as certified is:
An act to affirm the people’s right to revoke and modify the franchises and exclusive territories of public utilities and cooperatives for just cause upon approval by a majority of votes in a regular election and to award the same to new franchisee(s); to make a finding that Arkansas Power and Light Company has violated its franchise by misuse and to revoke and rescind the franchise and exclusive territory of Arkansas Power and Light Company; to provide for interim service by Arkansas Power and Light Company until such time as a new franchise is awarded; to provide for a residual franchise to allow Arkansas Power and Light Company to make full use of its property which is not acquired or condemned; to authorize and direct the Arkansas Public Service Commission to award any revoked franchises and exclusive territories of public utilities to new franchisee(s) after obtaining competitive bids and conducting public hearings; to establish guidelines and procedures for submission of bids by prospective franchisee^) and for the award of new public utility franchises by the Arkansas Public Service Commission; to prohibit all new public utility franchisee(s) hereafter awarded revoked franchises from affiliating with a multi-state conglomerate or engaging in out-of-state construction of power plants without a prior three-fourths vote of the General Assembly; to prohibit utilities awarded future franchises from charging ratepayers for legal, lobbying and advertising (except public notices) expenses; to establish additional specific considerations for Commission evaluation in awarding new franchises; to confer upon the new franchisee^) the power of eminent domain to condemn property of the revoked franchisee and others and to prescribe the use of such power; to prohibit closed-door settlement conferences involving more than two parties to a ratemak-ing proceeding and attempts to influence the ratemaking process outside normal legal channelsfor personal, political, financial or economic gain and to provide for a civil fine of not less than $5,000.00 or more than $10,000.00 and, if a public official, removal from office, as a penalty for the same; to provide for exclusive jurisdiction in chancery court for taxpayers’ illegal exaction lawsuits challenging rate increases; and for other purposes.
(Emphasis added.)
The action of the respondent in changing the ballot was appropriate.
The petitioner next contends that the popular name and ballot title are too lengthy as certified by respondent. In Dust v. Riviere, 277 Ark. 1, 638 S.W.2d 663 (1982), we stated that the length of a ballot title “could be a serious objection because the law recognizes that an elector’s time is limited in occupying a voting booth.” The approved title in Dust exceeded 700 words, while this certified ballot title is comprised of only 353 words and the title as proposed by petitioner contained 339 words. We have previously approved a ballot title containing 735 words. Newton v. Hall, 196 Ark. 929, 120 S.W.2d 364 (1938). The certified ballot is not unduly cumbersome.
This action was filed in this Court as an original action. The sole issue is whether the Attorney General’s refusal to certify the popular name and ballot title, as submitted by petitioner, was erroneous. .See Ark. Stat. Ann. § 2-208 (Supp. 1985). The action, solely between petitioner and respondent, has been heard on an expediated basis. Other parties who may be interested have not been given an opportunity to contest the validity of the popular name or ballot title and, consequently, this matter of public interest has not been decided on a fully adjudicated basis. Therefore, this opinion shall not prevent other interested parties from contesting the validity of the certified popular name or ballot title.
Writ denied.
Purtle, J., not participating. | [
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M. Steele Hays, Judge.
This case involves conflicting claims to mineral interests underlying a 32-acre tract in Columbia County. Appellees, Carl Teague, Jr. and Mary Sue Franklin Teague, his wife, and Ann Lewis Rives, the original plaintiffs, brought suit to quiet title to a portion of the mineral interests under the tract against Alice Bradley, Mary Jane Short, Gordon S. Foster, and Lucy Foster, his wife, the original defendants. Other parties came into the litigation as intervenors and additional defendants. The claim of appellees rests upon the ownership of Indiana Hanson Russ and the claim of appellants rests upon the ownership of other members of the family of Thomas Hanson, Sr.
The pertinent history of the lands is as follows: in 1919, Thomas Hanson, Sr. and his wife conveyed an undivided 1/16th non-participating royalty interest in the minerals under 192 acres of a larger tract (710 acres) which included the 32-acre tract involved in this litigation. In 1936, Hanson died intestate, survived by his widow and six children, one of whom was Indiana Hanson Russ.
In 1940, the widow and all of the Hanson children met at the home of Thomas Hanson, Sr., and entered into an oral division of the lands owned by Thomas Hanson, Sr., by which Indiana received a 112-acre tract, including the 32-acre tract in question. Jessie Hanson received a 120-acre tract; four children received tracts of 100 acres each; and the widow a life estate with power to execute oil and gas leases under the lands set apart to her and to receive bonuses and delay rentals thereunder. Each child entered into possession of the tract acquired under the oral division and made improvements thereon.
In September of 1949, a deed partitioning the lands according to the agreement was drafted which the family members signed with the exception of Indiana Hanson Russ who refused to do so. The widow and other five children filed a complaint and Lis Pendens in Chancery Court, naming Indiana Hanson Russ as defendant. A decree was entered which divested Indiana Hanson Russ of her undivided interest in the lands of Thomas Hanson, Sr., except for the parcel set aside to her under the family settlement and investing title in her to that portion which was hers. The decree confirmed the division by the family settlement and quieted the title of the respective parties as against all claims of the other parties.
On May 9, 1964, Indiana Hanson Russ conveyed unto Carl Teague, Jr., and Mary Sue Franklin Teague, his wife, the surface of the 32 acres and by a mineral deed of even date an undivided Vsths interest in all of the oil and gas thereunder. Subsequently, Ann Lewis Rives acquired the surface ownership and an undivided one-half of the %ths of the mineral ownership.
In 1944, R. S. Foster acquired a tax deed to the 32 acres and several conveyances followed; in 1949 the heirs of Thomas Hanson, Sr., other than Indiana Hanson Russ, conveyed to Mr. Foster a one-half mineral interest under the 32-acre tract as well as other Hanson lands and the original defendants (appellants) are the sole heirs of R.S. Foster. Amoco’s claim is based on leases from both branches of the Hanson family and other parties to the suit claim fractional interests in the minerals from various sources.
In the suit below, plaintiffs claimed that their title was good as deraigned from Indiana Hanson Russ, her title having been acquired by reason of the family settlement. The defendants, on the other hand, claim that the heirs of Thomas Hanson, Sr., continued to own undivided interests in common in the minerals under all of the Hanson lands, the family settlement having had the effect of dividing only the surface lands and not title to the minerals. In short, appellants contend that the doctrine of Johnson v. Ford, 233 Ark. 504, 345 S.W. 2d 604 (1961) applies.
The issue, therefore, presented by this multisided suit is whether the family settlement in 1940 and the chancery decree, vested title in fee simple in the heirs of Thomas Hanson, Sr., to the tracts each separately received, or, only title to the surface. If in fee simple, then the plaintiffs are entitled to have their title quieted.
The case was submitted to the Chancellor largely on the stipulation and documentary evidence, following which the Chancellor granted the plaintiffs’ suit to quiet title to the mineral interests claimed, holding that Johnson v. Ford, supra, did not apply and relying on those decisions favoring family settlements. The defendants appealed, assigning as error that the Chancellor should have applied the ruling in Johnson v. Ford, supra.
We think the Chancellor was correct and we concur in his construction of the Johnson v. Ford holding. A number of reasons for distinguishing Johnson v. Ford from the present case are apparent. For one thing, in Johnson, a voluntary partition occurred, whereas here, the division of the lands was by reason of a family settlement. Family settlements are looked on with favor by the Arkansas Supreme Court. Tate v. Johnson, 15 Ark. 275 (1854); Pfaff, Administratrix v. Clements, 213 Ark. 852, 213 S.W. 2d 356 (1948). In Pfaff, supra, Justice McFadden, speaking for the Court, stated:
... it is not essential that the strict mutuality of obligation or the strict legal sufficiency of consideration — as required in ordinary contracts — be present in family settlements. It is sufficient that the members of the family want to settle the estate; one person may surrender property and receive no quid pro quo.
Moreover, it is reasonable to conclude that the parties to the family settlement in the case at bar had the intention of fully settling the estate. Unless another rule of property applies which would lead to a contrary result, we believe that this rule is the controlling factor.
Appellants insist that the rule in Johnson v. Ford, supra and Hutchinson v. Sheppard, 225 Ark. 14, 279 S.W. 2d 33 (1955) applies. In Johnson, one of the heirs of A.H. Hadley conveyed his undivided one-third interest to a 38-acre tract of land to Willie Johnson in fee simple. The other two Hadley heirs conveyed their undivided two-thirds interest to Ernest Ford, but retained 5/12ths interest in the minerals. The two purchasers voluntarily partitioned the 38-acre tract by an exchange of warranty deeds. Later, C.G. Johnson purchased the interest of Willie Johnson and brought suit for a reformation of the partition deed, asserting that the parties had intended only to divide the surface interests and by mistake had divided the mineral interest. The chancellor dismissed the complaint, but on appeal, the Arkansas Supreme Court reversed the ruling of the chancellor. The court reiterated its ruling in Hutchinson v. Sheppard, supra — that “where the parties to a partition deed own two estates in the land, one in common and in the same ratio as the division and the other not in common and therefore not in that ratio, the deed should be construed as a conveyance only of the estate held in common.” Hence, since there was a 5/12ths mineral interest oustanding in the name of the Hadley heirs, then the court held that this rule was applicable.
Consequently, we would be compelled to apply the rule in Johnson except that distinguishing factors are present in the instant case. As the chancellor stated in his opinion, had this agreement been the result of merely a partitioning deed, we would be compelled to accept the rule of Johnson. However, this division of property came about as the result of a family settlement. As was stated earlier, family settlements have been strongly favored and liberally construed by the Arkansas Supreme Court. There is no limitation in the family settlement which would lead us to the conclusion that only the surface rights were divided.
Additionally, the plaintiffs in this case and Amoco Production Company were bona-fide purchasers without notice of the claims of the appellants. This factor was not present in the Johnson case as the court properly recognized:
In this case we are not called upon to decide to what extent a bona fide purchaser might be bound by the rule in question . . . Here no one claiming to hold under Ernest Ford has met the burden of proving himself to be an innocent purchaser; so that issue does not raise.
Moreover, as the chancellor observed, Johnson departs from a long standing and recognized rule of property that a deed accurately describing the lands and without reservation, includes the minerals as well as the surface. Long Prairie Levee District v. Wall, 227 Ark. 305, 298 S.W. 2d 52 (1957); Osborn v. Arkansas Territory Oil and Gas Company, 103 Ark. 175 (1912). While the rationale of Johnson is sound, we do not believe it should be broadened beyond the immediate circumstances to which it was held applicable, that is, before innocent parties have entered the picture.
In concluding that the Hanson heirs contemplated that the mineral interests were divided by the oral division of the surface lands, the court below noted that the 1950 decree recited that the effect of the division was to quiet title of each heir as against all claims of the other heirs, language which would obviously be inappropriate if the heirs continued to own individual mineral interests under lands belonging to another. Also, the suit to interpret the effect of the 1919 contract to Owen and Ware (See footnote 1) was undertaken by Jessie H. Hanson alone, whereas the other heirs presumably would have joined in that litigation if it was understood that the minerals were still held in common. Too, Indiana Hanson Russ would have owned only an undivided one-sixth in the minerals if the minerals continued to be held in common, whereas, she undertook to convey larger interests after the family settlement to include the minerals, nor did the other Hanson heirs attempt to exercise dominion or control over the mineral interests in the tract of Indiana Hanson Russ at any time after the decree in 1950. Finally, the provision in the family settlement giving Lucy Hanson a life estate with the right to exercise oil and gas leases and receive the royalty benefits without the other heirs joining in such instruments is seen as a further expression of the intention that all rights and interests in the Hanson estate were divided by the settlement. Perhaps most significant to all is that in Johnson v. Ford the effort to reform the partition deed was undertaken within a relatively short time, and before innocent purchasers became involved, whereas here, many years elapsed and numerous conveyances occurred, before any effort was made to apply the premise of Johnson v. Ford. To apply the Johnson rule to the case before us would be a clear injustice.
The decree of the chancellor is, accordingly, affirmed.
On November 28, 1919, Thomas Hanson, Sr. and his wife, entered into a contract with S.A. Ware and W.T. Owens which was subsequently interpreted by the Supreme Court of Arkansas, Hanson v. Ware, 224 Ark. 430, 274 S.W. 2d 359 (1955) as conveying an undivided l/16th nonparticipating royalty interest in oil and gas from a tract comprising 192 acres of the Hanson lands, including the 32-acre tract in question.
Case No. 1460, Chancery Court of Columbia County, Arkansas, Second Division.
The Clerk’s Deed of Tax Sale described the lands as:
32 A N.E. 14 N.E. 14
Section 33, Township
19 South, Range 19 West
which the chancellor held to be void for want of a good description. | [
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James H. Pilkinton, Judge.
This is a workers’ compensation case. By an opinion of the Administrative Law Judge, claimant, Lucille Parsons, was awarded temporary total disability benefits continuing through an undetermined date, it being found that her healing period had not yet ended. From that decision, appellants perfected their appeal to the full Commission, which affirmed. Appeal was then taken to the Sebastian Circuit Court, which affirmed the decision of the Workers’ Compensation Commission. From that decision, the appellants have perfected an appeal to the Supreme Court of Arkansas, and the case has been assigned to the Arkansas Court of Appeals under Rule 29(3).
On this appeal appellants post two arguments. One objection is that claimant failed to give timely notice of injury within the provisions of Ark. Stat. Ann. § 81-1317(a). Their other argument is that claimant has failed to establish by any substantial evidence that she suffered an aggravation of a pre-existing infirmity in her back.
Respondents maintain that claimant at no time gave notice of a back injury during either of her two periods of employment with respondent-employer. The claim itself is for the previously mentioned aggravation occurring in early March, 1978. Testimony given by the claimant indicates that she experienced back pain during her first period of employment (November, 1976, until May, 1977) and that it forced her to leave work. She was re-employed in July, 1977, and the following September again began to experience back pain. She consulted Dr. Ralph Ingram in October, 1977, and was told that she had arthritis. Claimant returned to work and worked until March, 1978, when she quit because of persistent back pain.
Respondents insist that there was never any mention made in March, 1978, of a back injury necessitating her leaving work at that time. And that the period from which claimant had to give notice began running in September, 1977. Claimant filed a claim with the Commission on May 27, 1978.
Among the exceptions to the requirement in Section 81-1317(a) that notice of injury or death be given within sixty days after the date of such injury or death is subsection (c)(2) which provides that such failure of notice may be excused.
”... if the- Commission determines tnat the employer has not been prejudiced by failure to give such notice, ...”
In its opinion the Commission made the following findings:
It is our view that claimant comes within this exception. It is clear in the claimant’s testimony that she never really associated her back pain with any injury in the sense that the word would likely be comprehended by the lay mind. Claimant felt that she suffered from arthritis and was in fact told this by Dr. Ingram in October, 1977. After a brief absence from work following this episode and after working for a few more months she again saw Dr. Ingram who referred her to Dr. Peter Irwin, an orthopedic specialist, in March, 1978. His diagnosis was of “degenerative disc disease, L5-S1.” Claimant has not worked since March, but upon her quitting work she sought benefits under a union insurance program. Although she received one check, she was notified by her union that her benefits should be discontinued because of a letter they received from Dr. Irwin indicating claimant’s disability to be work-related. They suggested that claimant apply for any benefits to which she felt entitled under the compensation policy carried by respondent-carrier. It was at this point that the claimant filed for compensation benefits.
Claimant was not in a position to give notice of injury because she wasn’t aware, until notified by her union, that she had a claim cognizable under workers’ compensation. Respondents were not prejudiced by this failure of notice — it hasn’t deprived them of an opportunity to prepare a defense and to deny the claimant a hearing under these circumstances would be unfair. Claimant neglected to report her disability as work-related only because she never felt it to have been an “injury’ ’ as that word is commonly understood.
As there is substantial evidence to support this determination of the Commission, we find no merit in the argument made by appellants that appellee’s notice of injury to the employer was not timely filed.
Appellants also argue that the other findings of the Workers’ Compensation Commission are not supported by substantial evidence, and must therefore be reversed. We cannot agree. See Bettendorf & Co. v. Kelly, 229 Ark. 672, 317 S.W. 2d 708, for definition of accidental injury within the meaning of the act. Also W. Shanhouse & Sons v. Sims, 224 Ark. 86, 272 S.W. 2d 68, as to proof required to establish date of injury.
The Commission was obligated in this case to resolve in claimant’s favor any reasonable doubt as to whether the aggravation of a pre-existing condition grew out of and occurred within the course of her employment. Brooks v. Wage, 242 Ark. 486, 414 S.W. 2d 100. And on appeal from a decision of the Workers’ Compensation Commission, this court must view the testimony in the light most favorable to Commission’s findings, and will draw all reasonable inferences in that light. Purdy v. Livingston, 262 Ark. 575, 559 S.W. 2d 24. If there is any substantial evidence to support the Commission’s findings, its decision must be affirmed. Barksdale Lumber Company v. McAnally, 262 Ark. 379, 557 S.W. 2d 868 (1977), Meadors Lumber Co. v. Wysong, 262 Ark. 425, 557 S.W. 2d 395 (1977).
Dr. Irwin was questioned concerning a causal relationship between appellee’s employment and her condition, as follows:
Q. Dr. Irwin, as I understand her (claimant’s) condition is a congenital type condition?
A. Part of it is sir, yes sir.
Q. What part of it is and what part of it isn’t?
A. Well I have to clarify that a little bit. It’s not basically a congenital problem so we will call it a developmental problem. . . . She has a developmental problem which is a curvature in her back and they call this an idiopathic scoliosis.. . . Because of the scoliosis, which is a side-ways curvature in her back, there’s an awful lot of stress placed át the lower part of the back and because of this, there’s a disc place there between the fifth lumbar and first sacral vertebrae begins to wear out, this is where the diagnosis of degenerativé disc disease comes from.
Q. You’ve never made any contention have you Doctor that this was caused by her employment?
A. Not to my knowledge sir.
Q. The only thing you are saying is, that you feel like the things that she did in her employment aggravated these pre-existing condition of scoliosis and degenerative disc disease?
A. Yes sir.
After a careful review of the evidence and resolving all reasonable doubts in favor of the Commission’s findings, we have concluded that there is substantial evidence to support the opinion and award made by the Workers’ Compensation Commission.
Affirmed.
Penix, J., dissents. | [
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John F. Stroud, Justice.
A jury convicted Charles Finnie of second degree murder in the Circuit Court of Miller County and sentenced him to twenty years imprisonment. Appellant contends the refusal of certain character testimony was reversible error and that he was denied effective assistance of counsel because of the association of his attorney and the special prosecutor.
Appellant Charles Finnie was charged with first degree murder in the shooting death of Earl Tatum on May 7,1977. Claiming self-defense, appellant entered a plea of not guilty, was tried before a jury and found guilty of the lesser included offense of second degree murder on September 13, 1977. Appellant failed to file a timely appeal, but later sought Rule 37 post-conviction relief and moved for a new trial, both of which were denied. On June 11, 1979, this Court granted appellant’s motion for belated appeal.
Appellant alleges for reversal that the trial court’s ruling prohibiting the witness Kress W. Nowlin from testifying as to the peaceful and law-abiding nature of appellant denied him his rights under the Sixth and Fourteenth Amendments to the United States Constitution. The Uniform Rules of Evidence adopted in Arkansas provide for the use of character evidence in certain cases. Rule 404 provides in part:
(a) Character Evidence Generally. Evidence of a person’s character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except:
(1) Character of accused. Evidence of a pertinent trait of his character offered by an accused, or by the prosecution to rebut the same . . .
(Uniform Rules of Evidence, Rule 404, Ark. Stat. Ann. § 28-1001 [Repl. 1979])
As noted earlier, appellant was charged with first degree murder, to which he pled not guilty and claimed self-defense. Thus, the traits of being peaceful and law-abiding were pertinent to both the crime with which he was charged and the defense upon which he relied. Therefore, this character evidence was admissible in the trial below. Rule 405(a) of the Uniform Rules of Evidence sets out two of the methods by which character may be proven:
(a) Reputation or Opinion. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct.
In the instant case, appellant properly sought to introduce evidence of his reputation for being a peaceful and law-abiding citizen. He called the witness Kress W. Nowlin to testify as to that reputation. After Mr. Nowlin had told the Court that he knew the reputation of the appellant in the community for being peaceful and law-abiding, the following exchange took place:
By Mr. Gunter [the prosecutor]:
Your Honor, I would like at this time to take the witness on voir dire.
By the Court:
All right.
VOIR DIRE EXAMINATION
By Mr. Gunter:
Q. Mr. Nowlin, you are about to give some testimony, or you came here for the purpose of giving some testimony in response to the question just asked?
A. That’s right.
Q. I just want to ask you if you came here prepared to testify about what you know, or are you coming over here to testify about what other people have said?
A. What I know.
By Mr. Gunter:
The witness is not qualified for reputation and character testimony, and I move it not be allowed.
After defense counsel once again on redirect examination attempted to show the witness to be qualified to give character testimony as to reputation, the prosecutor’s objection and motion that the witness be prevented from giving such testimony was sustained by the trial court.
It is apparent from the record that both Mr. Nowlin and the trial court were confused by the question put to the witness by the prosecutor. Defense counsel had correctly established Mr. Nowlin’s qualifications for giving the testimony sought, but the “When did you stop beating your wife?” type question asked by the prosecutor created a ball of confusion that was never unraveled.
The United States Supreme Court has recognized the value of character testimony to a defendant in those cases in which a particular trait of character is involved in the crime with which he is charged — as in the present case where the defendant, charged with murder, sought to put on evidence as to his peaceful and law-abiding nature. The Court has noted:
He [defendant] may introduce affirmative testimony that the general estimate of his character is so favorable that the jury may infer that he would not be likely to commit the offense charged. This privilege is sometimes valuable to a defendant for this Court has held that such testimony alone, in some circumstances, may be enough to raise a reasonable doubt of guilt. . . (Michelson v. United States, 335 U.S. 469, 476, 69 S.Ct. 213, 93 L.Ed. 168 [1948]; Edgington v. United States, 164 U.S. 361, 17 S. Ct. 72, 41 L. Ed. 467 [1896]).
We cannot say that the exclusion of the character evidence offered by appellant was harmless error; error is presumed prejudicial unless we can say with confidence it is not. Buckeye Cellulose Corp. v. Vandament, 256 Ark. 434, 508 S.W. 2d 49 (1974); Allen v. Ark. State Hwy. Comm’n. 247 Ark. 857, 448 S.W. 2d 27 (1969).
Since this appeal has been decided on the grounds that appellant was wrongfully prohibited from putting on testimony as to his reputation for being peaceful and law-abiding, it is unnecessary to rule on appellant’s other contention — that the officing arrangements between defense counsel and the special prosecutor were so interconnected as to deprive appellant of effective assistance of counsel and a fair trial. As the appellant is presently represented by the Public Defender, this possible conflict should not occur on retrial. We do, however, take this opportunity to note that we do not condone representation of adverse interests, especially in criminal cases, by attorneys whose law practices are substantially connected. The interests of justice, and public confidence therein, require attorneys to take every reasonable step to protect the rights of their clients, and to avoid even the appearance of a conflict of interests in their representation.
Reversed and remanded. | [
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David Newbern, Judge.
The appellant filed his complaint for divorce, alleging general indignities, on October 28, 1977. The appellee responded with her answer and counterclaim for separate maintenance (divorce from bed and board) on November 3, 1977. There was some discovery activity, and one hearing was postponed at the request of the appellant. On February 10, 1978, the appellee filed an amendment to her counterclaim, alleging the appellant committed adultery while the parties were living together as husband and wife, but still praying only for separate maintenance.
A motion to strike the amendment alleged it was im proper because the appellant believed it had reference to adulterous acts by him which occurred after the parties had separated and the complaint and original counterclaim had been filed. The motion to strike urged that the appellee should not be allowed so to amend after the statutory time for filing her counterclaim had expired. The record does not disclose the disposition of that motion. The appellee’s counterclaim for separate maintenance was granted, but whether on the basis of her original allegation of indignities or on the added allegation of adultery we do not know. For our purposes, it does not matter.
For reversal, the appellant first contends his plea for a divorce on the indignities ground should have been granted. His allegations and proof were that there had been some nagging and some indiscreet remarks and actions, including attendance at Al-Anon meetings, by his wife amounting to accusations made to social acquaintances and professional colleagues and superiors that the appellant was an alcoholic. On oral argument, counsel for the appellant conceded the testimony on this was “vague.” We find no error in the chancellor’s finding that the appellant had not satisfactorily shown that indignities had been committed by the appellee. While we abhor the double standard applied in this state in contested and uncontested divorce cases, we find the law to be that, in contested cases, indignities do not exist absent “habitual, continuous, permanent and plain manifestation of settled hate, alienation and estrangement on the part of one spouse, sufficient to render the condition of the other intolerable.” Welch v. Welch, 254 Ark. 84, 491 S.W. 2d 598 (1973), and Ark. Stat. Ann. § 34-1202 (Repl. 1962). Certainly such a standard of proof was not met in this case.
The appellant more seriously contends that he should have been granted a divorce because the appellee’s counterclaim alleged adultery which she then failed to prove. The appellant admitted at trial that he had had sexual relations with a person other than the one to whom he was married, but his point here is that his act should not be considered proven by the appellee because it occurred after the original pleadings were filed and the time for filing an answer or counterclaim had elapsed. His complicated contention is that he should be granted a divorce because the appellee has made an allegation, albeit accurate, of adultery against him but she should have been precluded from proof of it because the act occurred after the parties separated and after the time for the first responsive pleading by the appellee had passed. We attach no significance to the failure of the appellee to prove the adultery occurred while the parties were “living together,” as she alleged, as our definition of “adultery” includes sexual intercourse by a married person with a person who is not his or her spouse, regardless whether the person accused is living with his spouse.
The case coming closest to supporting the appellant’s theory is Spurlock v. Spurlock, 80 Ark. 37, 96 S.W. 753 (1906), where the Arkansas Supreme Court said, to be a ground for divorce, adultery must have occurred before the commencement of the action. This was an interpretation of Kirby’s Digest, § 2678, which is now Ark. Stat. Ann. § 34-1208 (Repl. 1962), and which says the ground must have existed within five years “next before the commencement of this suit.” We need not go into whether that statute, which is obviously just a statute of limitation, was really intended to bar an amendment to a counterclaim so that it alleges adultery which occurs after the commencement of a suit for divorce. We must keep in mind we are not evaluating the appellee’s entitlement to relief. Rather, we are trying to determine whether the appellant should have been granted a divorce because of the adultery allegation of the appellee. Even the Spurlock case said evidence of the alleged adultery was admissible, although not as a ground for divorce but to show a propensity to commit adulterous acts alleged to have occurred earlier. Thomas v. Thomas, 208 Ark. 20, 184 S.W. 2d 812 (1945), is distinguishable in the same way as Spurlock.
We hold the act of sexual intercourse admitted by the appellant to have occurred in 1978 was adultery because he was then married to the appellee. Whether or not the alleged adultery was a ground for relief to the appellee, it was surely “proven” and was clearly not without some basis in fact. To constitute a ground for divorce for the appellant, the allega tion must have been unproven and made by the appellee “without basis.” Relaford v. Relaford, 235 Ark. 325, 359 S.W. 2d 801 (1962).
In addition to the Spurlock and Thomas cases, the appellant cited us to several other Arkansas Supreme Court decisions in support of his second point. Northcutt v. Northcutt, 249 Ark. 228, 458 S.W. 2d 746 (1970), held that instances of adultery alleged in a counterclaim are not prematurely alleged as long as they occurred before the counterclaim was filed. In Ward v. Ward, 249 Ark. 1001, 463 S.W. 2d 90 (1971), the Northcutt decision is cited simply for the proposition that adultery which occurs after a suit is commenced but before it is alleged in a counterclaim may properly be charged and may constitute a defense (presumably recrimination) to the original suit.
No case cited by the appellant or of which we are otherwise aware holds or even suggests that a counterclaim or a complaint, for that matter, in a divorce action cannot be amended to allege a ground for divorce which has arisen since the action was commenced. We believe the Northcutt and Ward cases should be limited to holding that parties should not be allowed to make allegations “prematurely,” as Justice George Rose Smith said in Northcutt. This only means one should not be allowed to make allegations in the hope or with the suspicion that they will come true.
Regardless of the nature of the action, a party should be allowed to amend a pleading at any time as long as it does not prejudice his adversary. See, A.R.Civ. P. 15 and supplanted Ark. Stat. Ann. § 27-1160 (Supp. 1977), the statute which was applicable at the time this case was tried. Although there was a motion to strike here, no prejudice was alleged or shown to have resulted from the amendment and no continuance was sought by the appellant.
For his third point, the appellant contents Ark. Stat. Ann. § 34-1211 (Repl. 1962), is unconstitutional because it is a gender based statute and falls within the prohibition of the equal protection clauses of the U.S. and Arkansas Constitutions, citing Orr v. Orr, 440 U.S. 268, 99 S. Ct. 1102, 59 L. Ed. 2d 306 (1979), the case which held a similar Alabama statute unconstitutional. We find we need not reach this point, and thus that we should not consider this constitutional question, absent the necessity of doing so. McNew v. McNew, 262 Ark. 567, 559 S.W. 2d 155 (1977).
There is no contention that Ark. Stat. Ann. § 34-1202 (Supp. 1977), the basic separate maintenance (divorce from bed and board) statute, is gender based. Thus, the only question becomes whether it was necessary for the court to apply § 34-1211 to make the award to the appellee of $400 per month, having granted her separate maintenance request.
The record shows the parties have two minor children and that the appellant’s salary was $38,198.00 per year at the time of the trial. The order of the court does not specify the amount of the award which is for support of the wife, or that any of it was for her direct support, as opposed to that of the children. We find, on this de novo review, that the amount awarded was not in excess of a proper amount for child support. There is no contention here that the part of § 34-1211 which provides for support of children is unconstitutional. The statute, in its direction that the court may make an order touching upon the care of children, is not at all gender based, as it refers to “the person” required to support them rather than referring to the husband or the wife.
The appellant also challenges Ark. Stat. Ann. §§ 34-1210, 1213 and 1214 (Repl. 1962). Section 34-1210 deals with temporary alimony and attorney fees for the wife. A temporary award was made in this case on November 16, 1977. It was an appealable order. Shirey v. Shirey, 79 Ark. 472, 96 S.W. 164 (1906). See also Gladfelter v. Gladfelter, 205 Ark. 1019, 172 S.W. 2d 246 (1943). There is no evidence here that the appellant filed a notice of appeal of the court’s order within 30 days of its issuance, thus he forfeited his right to have the order reviewed. Ark. Stat. Ann. § 27-2106.1 (Repl. 1962). General Box Co. v. Scurlock, Comm. of Rev., 223 Ark. 967, 271 S.W. 2d 40 (1954). See also, White v. Avery, 226 Ark. 951, 295 S.W. 2d 365 (1956), and Brown v. Maryland Cas. Co., 245 Ark. 70, 431 S.W. 2d 258 (1968).
We are fully aware of Hatcher v. Hatcher, 265 Ark. 681, 580 S.W. 2d 475 (1979), which held § 34-1210 unconstitutional, but we hold that to obtain a review of the court’s order the appellant should have perfected a timely appeal of the temporary support order, as did the appellant in Hatcher.
We do not find that §§ 34-1213 or 34-1214 were applied in this case, and thus we need not address them.
Affirmed as modified to reflect the $400.00 monthly support payments are awarded for child support.
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George Howard, Jr., Judge.
This is an appeal from a decree quieting title to a 40 acre tract of land in James and Virginia Eubanks, on the theory that Bill Bates and Ocie Bates, former title holders, made an oral property settlement prior to their divorce in 1951, whereby Bill would receive the lands in question free of any claim of Ocie.'
On February 19, 1945, Bill Bates, an appellee, and Ocie Bates (now Ocie Justice, appellant), received, as husband and wife, a warranty deed to a 40 acre tract of land from the widow and heirs of R. L. Bates, deceased father óf Bill Bates. Bill and Ocie were divorced on March 8, 1951. The divorce decree made no reference to the lands held by the parties as an estate by the entirety. However, Bill testified that he received the property under an oral property settlement before the divorce. Ocie denies that there was ever any discussion about the property and says that it was her understanding that she and Bill still owned the lands.
On March 22, 1952, Bill Bates conveyed the lands to Charley and Mary Shuffield, husband and wife, by warranty deed. It is undisputed that appellant never executed a conveyance disposing of her interest.
On May 26, 1956, the Shuffields conveyed the lands to James H. Eubanks .by warranty deed.
Between March 22, 1952, and May 26, 1956, the Shuffields paid the Ad Valorem Taxes on the property, fenced the property and cultivated one acre in cucumbers while the remainder of the open land was used as a pasture for cattle.
From 1956 to November 20, 1978, the date appellant instituted her action for partition, James Eubanks mortgaged the property three times to the Bank of Dover to secure personal loans, cut the.hardwood, placed the lands in the Soil Conservation Program and paid the taxes.
Appellant admitted that she has never paid any taxes on the property and was personally aware that both the Shuffields and James Eubanks were in possession of the property making extensive improvements, i.e., Shuffield built a home on the property.
Possession under color of title for seven consecutive years confers title in lands by limitation. Parsons v. Sharpe, 102 Ark. 611, 145 S.W. 537 (1912); Vick v. Berg, 251 Ark. 573, 473 S.W. 2d 585 (1971). See Also. Reynolds v. Snyder, 121 Ark. 33, 180 S.W. 752, 183 S.W. 979 (1915).
We are persuaded that a preponderance of the evidence in this case, upon a trial de novo, establishes title to the property in James E. Eubanks and Virginia Eubanks in meeting the requirements of adverse possession under color of title for more than the statutory period of seven years. Harrison v. Collins, et al, 247 Ark. 210, 444 S.W. 2d 861 (1969).
Affirmed. | [
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Frank FIolt, Justice.
Following a jury trial, appellant was found guilty of possession of heroin with intent to deliver in violation of Ark. Stat. Ann. §§ 82-2604,82-2605, and 82-2617 (a) (1) (i) (Repl. 1977) and was sentenced to thirty years imprisonment. We agree with his contention that the conviction must be reversed inasmuch as the testimony of his admitted accomplice, the only witness who testified as to his commission of the crime, was insufficiently corroborated.
Ark. Stat. Ann. § 43-2116 (Repl. 1977) provides that a felony conviction cannot be had “upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows that the offense was committed, and the circumstances thereof.” The corroborating evidence need not be sufficient in and of itself to sustain a conviction and, if substantial, may be slight and not altogether satisfactory and convincing; however, it must do more than raise a suspicion of guilt. Olles v. State, 260 Ark. 571, 542 S.W. 2d 755 (1976). Circumstantial evidence may be sufficient if the evidence is unequivocal and certain in character, of a material nature, and tends to connect the defendant with the crime. Roath v. State, 185 Ark. 1039, 50 S.W. 2d 985 (1932). Evidence relied on to corroborate an accomplice must, independently and without the aid of the accomplice’s testimony, establish the commission of the offense and the connection of the accused therewith. Olles v. State, supra; Ford v. State, 205 Ark. 706, 170 S.W. 2d 671 (1943); and Froman and Sanders v. State, 232 Ark. 697, 339 S.W. 2d 601 (1960). As indicated, it is not sufficient if it merely shows that the offense was committed and the circumstances of the offense. § 43-2116, supra.
The facts surrounding the search which resulted in the filing of charges against the appellant are not in dispute. The local sheriff received a tip from officers observing a house owned by appellant’s accomplice that a quantity of heroin had been brought to the house from Dallas. There was evidence, aside from the testimony of the accomplice, that appellant would be bringing drugs into the Texarkana area the morning of the raid. A search warrant was procured, and, following a search of the accomplice’s residence, three sepa rate quantities were seized. Criminal charges were filed against four of six individuals, including the appellant. No heroin was found on the appellant’s person, in the room where he was found, nor in his automobile. It appears appellant and three or four others arrived in two separate cars about two or three hours before the raid. There was evidence that appellant associated with known drug dealers and users in the area; and on one occasion (in the local area) a month before the raid, and on another occasion (in Dallas) two months before the raid, he was observed participating in a drug transaction.
Appellant’s admitted accomplice, an inmate at Cummins Prison who had been convicted of possession of heroin with intent to deliver arising out of a sale at his home, testified that he had sold heroin on a percentage basis for appellant; appellant, accompanied by a woman companion, had brought the heroin from Dallas that morning; appellant and his companion had rested for two or three hours in a room of the house (where the largest quantity of heroin was found); he had observed the woman companion remove heroin from her bra and give it to appellant who then gave some to him; he had observed appellant sell heroin to two individuals the.morning of the raid; and, further, there was no heroin anywhere in his house prior to appellant’s arrival. Upon reviewing all the evidence in the light most favorable to the appellee, we hold that the evidence is insufficient when the recited testimony of the accomplice is eliminated to establish the commission of the offense and the connection of the accused therewith.
As we stated in Ravellette v. State, 264 Ark. 344, 571 S.W. 2d 433 (1978):
No one should be deprived of his liberty or property on mere suspicion or conjecture. Where inferences are relied on, they should point to guilt so clearly that any other conclusion would be inconsistent. This is so regardless of how suspicious the circumstances are.
We need not consider the other grounds urged for rever sal inasmuch as the evidence is insufficient to sustain a conviction.
Reversed and dismissed. | [
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Ernie E. Wright, Chief Judge.
This case was appealed to the Arkansas Supreme Court and was transferred to the Court of Appeals pursuant to Rule 29(3).
The appeal is from a decree of the Crittenden County Chancery Court quieting title to 146.84 acres of land in Crittenden County in Albert Brent, appellee, against appellants who are the children or successive descendants of W. E. White, who died in 1962 and was survived by Arrenner White and seven children by a former marriage.
Mr. White left a will, which was duly probated, leaving all real estate, not specifically devised, to his widow and children as life cotenants with the remainder to his grandchildren and successive descendants living at the date of death of the various life tenants.
Arrenner White married appellee, Mr. Brent, in 1963 and died intestate in 1973 leaving him as her sole heir at law.
Appellee alleged in his complaint to quiet title that he acquired title from his wife, Arrenner White Brent, under the law of intestate succession. The deeds by which title to the land in dispute was acquired in 1939 conveyed title to the disputed land to W. E. White and Arrenner White, his wife, and title was so held ^at the time of the death of Mr. White.
Appellants urge three points for reversal of the decree quieting title in Mr. Brent and these will be separately discussed.
I.
Appellants contend that the court erred in holding Mrs. Brent did not waive and abandon title.
Appellants cite Sirmon v. Roberts, 209 Ark. 586, 191 S.W. 2d 824 (1946). The case as to waiver involves only a waiver of a right to receive written notice of intention to terminate a teacher’s contract. We do not accept the case as authority for waiving or abandoning an interest in real estate.
Appellants also cite Helms v. Vaughn, 250 Ark. 828, 467 S.W. 2d 399 (1971). The case holds that one cannot divest himself of title to land by abandonment alone and that for abandonment to be effective there must not only be an intent on the owners part to relinquish his claim, but the intent must be accompanied by circumstances of estoppel and limitation, if the abandonment is not by a legal instrument of conveyance.
There was evidence offered that Mrs. White had made statements before and after the death of Mr. White that she did not want the land in question and the record shows the executor failed to take the marital deduction credit for the value of the land in the estate tax return by showing that this land passed to the widow. The land was included in Mr. White’s estate tax return at a valuation of $30,000.00 but the return failed to claim the land as being a part of the marital deduction. This resulted in additional estate taxes in the aggregate amount of $8,669.93. The tax was paid out of the assets of the estate before distribution to appellants and they contend the appellee, who now stands in the shoes of his predecessor, Arrenner White Brent, is estopped to claim the land because of disadvantages they say they suffered by reason of the larger estate taxes. We find and hold the evidence does not establish this extra tax burden was caused by Mrs. White. The estate tax return was the responsibility of Mr. Bird, the executor nominated in the will of Mr. White. Also, it is noted that Mrs. White did include the substantial rentals she received from this land during her eleven years of life after the death of Mr. White in the net distribution of rents she shared with appellants. They received seven-eighths of the net rentals from the land in dispute, along with other rents from estate lands, whereas Mrs. White as sole owner was entitled to receive all of the rent from the land in dispute. We are unable to say that appellants have in any way been disadvantaged by any actions of Mrs. White, even though they might be disappointed in that she never did execute any conveyance of the land to appellants.
II.
Appellants contend the court erred in holding appellee was not estopped to assert ownership by the actions of Arrenner White Brent.
The doctrine of estoppel arises to prevent an injustice to one who has in good faith relied upon the action, representations or conduct of another to his detriment. Baker-Matthews Lumber Co. v. Bank of Lepanto, 170 Ark. 1146, 282 S.W. 995 (1926).
As we have already stated, the facts in the present action fail to disclose detrimental effects from any actions, representations or conduct of appellee or his predecessor in title, Mrs. Brent.
III.
Appellants contend the court erred in holding Mr. Brent was not barred from asserting title by laches of Mrs. Brent.
It is contended the statements and actions of Mrs. Brent indicating she claimed no interest in the land in dispute over a period of several years, coupled with the use of some of the rental proceeds from estate lands in paying taxes and maintenance on the land in issue and the collection of a five per cent commission on rents on estate lands, now bars appellee from asserting ownership under the doctrine of laches; and that Mr. Brent in waiting over four years to file his action to quiet title caused appellants to pay taxes on the property in dispute for three years after Mrs. Brent’s death. Appellants were volunteers in paying taxes they had no duty to pay and such payments had no effect upon the title.
The evidence discloses no inexcusable delay in assertion of title. The tenant of the land in dispute instituted an in-terpleader action in Federal Court in 1974 making appellants and appellee parties and has paid rents into the register of the court in that action. As to Mrs. Brent, she exercised control over the leasing of the land during her life time, even though she shared the rent with the heirs of W. E. White. We find no basis for saying Mrs. Brent was guilty of laches that bars appellee from asserting title.
In Avera v. Banks, 169 Ark. 718, 271 S.W. 970 the court said:
There is no hard and fast rule as to what constitutes laches. It is well settled that a court of equity may, in the exercise of its own inherent powers, refuse relief where it is sought after undue and unexplained delay, and where injustice would be done in the particular case by granting the relief asked. It is usually said that the two most important circumstances in such cases are the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other in so far as it relates to the remedy. (Citing cases).
We find no injustice caused by any delay on the part of Mr. or Mrs. Brent in asserting title.
Unquestionably the record shows that Mrs. Brent was the sole owner of the land in question upon the death of W. E. White, and the record does not warrant a conclusion upon any theory that the title passed in some fashion to the heirs of W. E. White.
The decree of the Chancellor was not against the preponderance of the evidence or contrary to law.
Affirmed. | [
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Frank Holt,
Appellee built appellants a “custom” house. Appellants moved into the house on November 16, 1973. Thereafter they commenced this action for breach of contract, alleging that the appellee had refused to correct numerous defects and construction errors. They sought $6,- 970 damages to “correct the construction errors and defects.” Subsequently, they amended their complaint seeking damages in the amount of $9,000 due to “diminution in the value of plaintiff’s property.” By counterclaim, appellee sought $379 from appellants. The court, sitting as a jury, found that where there are “defects in a building which can be remedied by repair or completing the omissions, the measure of damages is the cost of such repair rather than the difference between the value of the building as constructed and that contracted for.” Damages of $166.98 were awarded to appellants for the omissions of certain items in the construction. This award was deemed sufficient to offset the balance found to be due on appellee’s counterclaim. For reversal appellants contend that the court erred in its findings of fact and application of the law to the facts presented. The thrust of their argument is that their evidence is “overwhelming” that they are entitled to damages based upon the difference between the value of the building as constructed and the cost contracted for.
We deem it appropriate at this time to call attention to the fact that Arkansas Rules of Civil Procedure, Rule 52, effective July 1, 1979, has altered the standard of review on appeal as to cases tried by a circuit judge, sitting as a jury. That rule provides: “Findings of fact shall not be set aside unless clearly erroneous (dearly against the preponderance of the evidence), and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.” In other words, on appellate review the substantial evidence test will not be applicable to cases tried on or after July 1, 1979.
The case at bar was tried before the effective date of Rule 52. Therefore, the rule applies here that on disputed issues of fact, we are concerned only with whether there is any substantial evidence to support the finding of the court, sitting as a jury. McMillan v. Mueser Material & Equipment Co., Inc., 260 Ark. 422, 541 S.W.2d 911 (1976); and Fanning v. Hembree Oil Co., 245 Ark. 825, 434 S.W.2d 822 (1968). in determining the sufficiency of the evidence, we review all of the evidence in the light most favorable to the appellee and affirm if there is any substantial evidence to support the court’s finding. Thrifty Rent-A-Car v. Jeffrey, 257 Ark. 904, 520 S.W.2d 304 (1975). There we also observed that “we consider only the evidence of the appellee or that portion of all the evidence which is most favorable to him.” In Carter v. Quick, 263 Ark. 202, 563 S.W.2d 461 (1978), relied upon by the appellants, it was argued, as here, that the proper measure of damages was the difference in value of the home as erected and its value if it had been constructed according to the contract rather than the cost of replacement and repair. In rejecting this argument, we reiterated:
A substantial compliance by the contracter is all that is required under the law, he being charged (where there is a substantial compliance) with the difference in value between the work as done and as contracted to be done, or the replacement of defective work where this can be done without great expense or material injury to the structure as a whole.
Here the evidence was in conflict, as to compliance by the contractor or the magnitude of the asserted defects. According to the appellants and their witnesses, the construction of the house was “inferior workmanship,” “substandard construction,” and “sloppy.” The house was constructed below grade, resulting in the sunken living room sustaining water seepage. A 16’ garage door was installed instead of an 18’ door. A 36” fireplace was installed instead of a 42” fireplace. Numerous other defects and omissions were detailed although, as found by the court, they were unsupported by “evidence of a breakdown nature.” Appellants’ witness estimated a total of $4,750 damages as the difference in value of their house as constructed and that contracted for or $9,500 based on cost of repairs.
Appellee, however, presented evidence to the contrary. His expert witness testified that he examined the exterior and interior of the house. He noticed no constructural defects. He would have had no objection to the quality of workmanship had he examined the house for a lending institution. The house appeared to be of average quality and construction, structurally sound, and very typical for the neighborhood. Also he found “no significant slope in the property so as to affect the drainage," and "no indication of any water damage or drainage problems." It is undisputed that the appellants provided appellee with the plans and specifications for the construction of a house on a lot selected by them. Appellee testified that appellants' main complaint was about the fii~eplace and the garage door. The substitution of the 16' garage door for the 18' garage door was made with appellants' knowledge and adequately served the purpose. The substitution of a smaller fireplace was necessary and done with appellants' knowledge. Gutters, for which the court awarded $60, and an iron gate, for which the court awarded $75, were not installed because construction was not yet completed, and he had not been fully paid.
h~ resolving the conflicting evidence, the court found that defects attributable to the workmanship of the appellee could be adequately and reasonably repaired, and therefore the proper measure of damages was the cost of such repair. When we review the evidence most favorable to the appellee, as we must do on appeal, we cannot say that there is no substantial evidence to support the court's finding of facts and application of the measure of damages.
Affirmed.
We agree: HARRIS, C.J., and BYRD, and, PURTLE, JJ. | [
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David Newbern, Judge.
The appellant was convicted of possession of heroin and sentenced to ten years confinement and a fine of $10,000. He has raised five points for reversal which we will consider seriatim. We will set out the basic facts at first and then add facts as may be necessary with respect to the discussion of each of the appellant’s points. Our ultimate conclusion is the conviction must be affirmed, but the sentence reduced to the minimum which could have been given because of errors which might have affected the jury’s decision on the sentence but which did not go to the question of guilt or innocence.
The appellant and a companion were driving into Garland County when their vehicle was stopped by officers who had a warrant, issued by the North Little Rock Municipal Court, for the appellant’s arrest. After the appellant got out of the car, he was asked to acknowledge he understood the rights which had been read to him. When he did not speak, it became apparent he had something in his mouth which he was chewing. He and the police officers scuffled briefly, and ultimately he was talked into spitting out several plastic bags which were then field tested and found to contain heroin.
On the .side of the car where the appellant’s companion was riding, a loaded .45 caliber pistol was found.
After the appellant had been arrested, he was taken to a hospital where a physician gave him a lavage whieh caused the appellant to disgorge the contents of his stomach which were placed in a container and later determined to contain heroin. There is no evidence that appellant consented to this procedure, but the record makes it clear no corporal force was used, and the doctor testified he considered the procedure necessary to protect the appellant from injury or possible death due to heroin overdose, given the circumstances.
1. The Arrest Warrant
The prosecutor asked his first witness, Detective Mack, how he “became involved” in the matter. Detective Mack said the day before the arrest he obtained a copy of an arrest warrant for the appellant from the police department at North Little Rock. At that point, Mr, Coffelt, the appellant’s trial defense counsel, madé this statement:
Now, I object to that, if the court please, and ask for a mistrial. They charged him with another case not involved here and I object to it, and it’s clearly grounds for a mistrial.
The appellant argues the mention of the warrant was inadmissible because of the general provisions of Ark. Stat. Ann. § 28-1001, Rule 404(b) (Repl. 1979), which says evidence of other crimes is not admissible except under certain circumstances. That argument assumes the jury would somehow have known the warrant was for a different offense because it was picked up in North Little Rock (Pulaski County) and the accused was being tried in Garland County. At that point, no mention had been made of the court or authority issuing the warrant.
Yet, the appellant has not shown how the fact that a warrant was obtained in one county means necessarily it was not issued in the county where the accused is being tried. In short, although we agree with the appellant’s counsel’s statement on oral argument before us that jurors are usually astute in these matters, we are not convinced even the most knowing juror would or could have concluded the warrant was for a different offense until the appellant’s trial counsel told them.
We hold that, to whatever extent the knowledge that the appellant had been accused of a different offense from the one for which he was being tried may have prejudiced the appellant, it was invited or created by him and should not be a basis for relief on appeal. Stovall v. State, 233 Ark. 597, 346 S.W. 2d 212 (1961).
2. Refusal of Proffer
After denying the mistrial motion the trial judge admonished the jury not to consider the warrant as evidence of guilt or innocence. Later, in his cross examination of Detective Mack, trial defense counsel returned to the subject of the warrant and asked if it was one the Gircuit Court of Pulaski County had held void. The prosecutor objected, and colloquy among the prosecutor, the defense counsel and the court ensued, terminating as follows:
THE COURT: What are you going to ask?
MR. COFFELT: I’m going to ask if he has personal knowledge of the fact that the warrant he’s talking about on direct examination was held to be void by the Pulaski Circuit Court. You see, here’s what happened, Judge—
THE COURT: Overruled.
MR. COFFELT: If he has personal knowledge, it wouldn’t be —
THE COURT: You’re overruled and that’s the end of it.
The appellant argues the defense counsel was attempting to proffer evidence that the appellant was acquitted of the charge which was the basis of the arrest warrant. We cannot know what the defense counsel wanted to tell the court, but that is not the point.
If the state had introduced the evidence of a different offense having been charged against the accused, the accused would have been entitled to show he was acquitted of that charge. There is authority to the contrary in older cases. Annot., 86 A.L.R. 2d 1133, § 4pp. 1144-1146(1962). However, most recent cases would clearly require he be permitted to produce the evidence of acquittal. State v. Smith, 271 Or. 294, 532 P. 2d 9 (1975); Womble v. State, 8 Md. App. 119, 258 A. 2d 786 (1969); People v. Griffin, 66 Cal. 2d 459, 58 Cal Rptr. 107, 426 P. 2d 507 (1967); State v. Calloway, 268 N.C. 359, 150 S.E. 2d 517 (1966).
The court should have permitted the proffer so that we could have had a complete record on appeal. We cannot say the appellant’s defense counsel did not honestly believe the state had demonstrated to the jury a charge on a different offense. We had to study the record well before coming to the conclusion that the error, if any, was invited or produced by the defense counsel. It certainly was questionable at the time of the trial, and the judge should have permitted the proffer. We would so hold even had it been clear at the trial that the defendant had been the first to signal the jury with respect to the different offense to which the warrant related. It was the prosecution’s witness who first mentioned the warrant and stimulated the discussion, thus it seems certain the appellant was not trying independently to get his previous acquittal before the jury.
3. The Pistol
The appellant contends the testimony about the weapon was inadmissible because it was not relevant to the offense of possession of heroin and was prejudicial. The appellee argues that the court should not consider this matter as it is being raised for the first time on appeal, citing Pace v. State, 265 Ark. 712, 580 S.W. 2d 689 (1979).
Trial defense counsel objected at the trial to the testimony of the officer who found the weapon in the car. The objection was first phrased in terms of lack of foundation to permit a search for a weapon. Later objection was phrased in general terms. Pace v. State, supra, holds that where the specific objection to the.evidence is raised for the first time on appeal, it will not be considered, citing Ark. Stat. Ann. § 28-1001, Rule 103 (a) (1) (Repl. 1979). That rule says specific, timely objection must be made “if the specific ground was not apparent from the context; . . .” .
It should have been apparent to the court that the pistol was not relevant and should not have been discussed before the jury. Although the objection was at first made on a different ground, we regard the later general objection as sufficient, “in the context” of this trial.
The appellee cites several cases holding a weapon may be introduced where “narcotics transactions’’are involved, because it may be relevant to show intent. E. G., Freeman et al v. State, 258 Ark. 496, 527 S.W. 2d 623 (1975). All of the cases cited, however, dealt with offenses where intent was a factor, unlike this case where possession is the only charge. •
The objection should have been sustained..
4. The Stomach Contents
The appellant argues the prosecution should not have been allowed to introduce the container with the fluid obtained from his stomach. An objection was made at the trial on the ground it was obtained by an illegal search. The trial judge held the objection was not timely as no motion to suppress had been made in accordance with Ark. R. Crim. P. 16.2,
The appellant appears to recognize the correctness of this ruling, but asks to consider the matter “in spite of Rule 16.2’ ’ because he feels he was denied the effective assistance of counsel at the trial.
Ark. R. Crim. P. 37 provides a means of raising the question of competency of counsel in the trial court. We will not entertain an initial consideration of it on appeal. Houston v. State, 266 Ark. 257, 582 S.W. 2d 958 (1979); Halfacre v. State, 265 Ark. 378, 578 S.W. 2d 237 (1979); Hilliard v. State, 259 Ark. 81, 531 S.W. 2d 463 (1976).
5. Discovery
The appellant argues the trial judge refused his proffer of evidence that the prosecution had not compiled with Ark. R. Crim. P. 17 in permitting him access to the prosecution file. The objection at the trial came in the form of a statement by the defense counsel that he did not recall the statement of a particular witness as having been in the file.
The objection was overruled, apparently with some brusqueness by thejudge. The defense counsel then said, “I understand but I still have to make my record, Judge,” to which thejudge replied, “and, your motion [to suppress] is overruled. Can’t you understand that?”
Although the appellant couches the point in terms of refusal of a proffer, a reading of the record leaves no doubt that no proffer was intended and in referring to “making a record,” the defense counsel was merely explaining his objection or giving a reason for having made it. We find no error.
Conclusion
We thus find two errors: first the refusal to allow the proffer of evidence of acquittal on the charge to which the warrant pertained; and second, admission of testimony with .respect to discovery of the weapon. Given the overwhelm ing evidence, which was undisputed, that the appellant was in possession of heroin when he was arrested, we find these errors harmless to the extent that they could not have influenced the jury on the question whether the appellant was in fact in possession of heroin. If error is harmless and the evidence of guilt is overwhelming, reversal is not warranted. Pace v. State, 265 Ark. 712, 580 S.W. 2d 689 (1979); Harrington v. California, 395 U.S. 250, 89 S. Ct. 1726 (1969).
However, these errors (particularly the testimony on the pistol) could have improperly influenced the jury in its setting of the sentence. Because.of this possible prejudice in the imposition of sentence, we affirm the conviction but reduce the sentence to the minimum the jury could have given for the offense of which the appellant was convicted. Rogers v. State, 260 Ark. 232, 538 S.W. 2d 300 (1976); Osborne v. State, 237 Ark. 170, 371 S.W. 2d 518 (1963); Simmons v. State, 227 Ark. 1109, 305 S.W. 2d 119 (1957). The sentence is thus reduced to two years confinement. See, Ark. Stat. Ann. § 82-2617 (Supp. 1979), and Ark. Stat. Ann. §§ 41-901 and 1101 (Repl. 1977).
Affirmed as modified.
Penix, J., dissents. | [
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George Rose Smith, Justice.
Early in the morning of February 4, 1978, a homicide occurred at the home of the respondents, Glenn and Hamilton, in Little Rock. The fatal shooting arose from an argument between the respondents on the one side and two visitors, Eichehbaum and Parker, on the other, about the sale of marihuana. The police investigated the homicide, and later in the month Parker was charged with the murder of Eichenbaum. Both the respondents testified as witnesses for the State at a preliminary hearing in the murder case, held in the municipal court on February 22.
On May 30 the two respondents were jointly charged in the present case with possession of marihuana on the night of the homicide, with intent to deliver. Both defendants filed motions to suppress evidence of certain marihuana seized during the police investigation. The case was tried without a jury on March 19,1979. The court first heard the evidence on the motions to suppress and tentatively granted the motions. The hearing then went on to the merits of the case. After both sides had rested the judge indicated that he would also exclude the State’s remaining evidence upon the marihuana charge; that is, two statements taken from Hamilton by the police and the testimony of both defendants at the preliminary hearing on the homicide charge against Parker. A month later, after the parties had submitted briefs on the admissibility of the evidence, the judge adhered to his position and announced that the charges would be dismissed for insufficiency of proof. The judge, however, offered to permit the prosecution to take an interlocutory appeal on the evidentiary questions, adding that if the case were reversed it would have to be tried all over again, as the judge might have forgotten the testimony by then. The deputy prosecutor replied that he would take the interlocutory appeal. The court took the case under advisement pending the outcome of the appeal.
An interlocutory appeal, presenting three questions about the admissibility of evidence, was taken to the Court of Appeals. That tribunal, in an unpublished opinion delivered on September 19, reversed the trial court on two of the three points and remanded the cause for further proceedings. We granted certiorari in the belief that the case presented a question of statutory interpretation with respect to Uniform Evidence Rule 804, Ark. Stat. Ann. § 28-1001 (Repl. 1979).
We do not reach the merits of the State’s contentions, for it is too late for appellate jurisdiction to be invoked by means of an interlocutory appeal. Of course, the want of an appealable order is a jurisdictional matter that this court will raise itself.
The Rules of Criminal Procedure (1976) permit an interlocutory appeal by the State only with respect to a pretrial order suppressing evidence. Rules 16.2 and 36.10. At that point jeopardy has not attached. The rules are intended to permit the State to obtain a review of a ruling upon the admissibility of evidence essential to the prosecution’s case. (As originally drafted, Rule 36.1 similarly allowed a defendant to enter a conditional plea of guilty and take an interlocutory appeal after the denial of a motion to suppress evidence. That provision, however, was deleted before Rule 36.1 was approved. See the third paragraph [which should also have been deleted] of the Commentary following Rule 36.1.)
Jeopardy attaches when the jury is finally sworn to try the case or, in a trial to the court, when the taking of evidence begins. Jones v. State, 230 Ark. 18, 320 S.W. 2d 645 (1959) (jury trial); Annotation, 49 A.L.R. 3d 1039 (1973) (nonjury trial). Thus the State might have taken an interlocutory appeal after a pretrial hearing upon the motions to suppress the seized drugs, but that procedure was no longer available when the trial proceeded to the merits. A criminal trial cannot be suspended for weeks or months to allow an appeal from an interlocutory ruling upon the admissibility of evidence. Nor can this case be tried all over again, as the trial judge suggested, owing to the prohibition against double jeopardy.
It follows that the trial court’s rulings that the State’s evidence was inadmissible must stand, whether correct or not. There being no other substantial evidence to sustain the charges, the cause must be remanded for the entry of a final judgment for both defendants.
Reversed. | [
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Darrell Hickman, Justice.
Alfred D. Harkness has Filed with us a petition for a writ of prohibition directed to the Honorable A. S. (Todd) Harrison, Judge of the Circuit Court of Crittenden County. A writ of prohibition will be granted.
Harkness was arrested on June 5, 1977, and charged with three separate felonies. He was tried on one of these charges in February, 1978, found guilty and sentenced to the penitentiary where he has remained since.
The other two charges were set for trial March 20, 1979. Before trial, Harkness filed a motion to dismiss the charges because of a lack of a speedy trial. The trial judge overruled the motion and Harkness seeks from us a writ to prohibit his trial.
The question presented is, has Harkness been brought to trial in compliance with Rule 28 of the Arkansas Rules of Criminal Procedure? Rule 28.1 (a) provides:
Any defendant charged with an offense in circuit court and committed to a jail or prison in this state shall be brought to trial before the end of the second full term of the court, but not to exceed nine (9) months, from the time provided in Rule 28.2, excluding only such periods of necessary delay as are authorized in Rule 28.3.
In order to determine if Rule 28 has been followed we must first examine the circuit court terms of Crittenden County and how they relate to this case.
Crittenden County Circuit Court is comprised of three divisions, designated First, Second and Third. The First Division judge presides over cases assigned to the criminal docket, the other two divisions are assigned to the civil docket. Ark. Stat. Ann. § 22-3229, et seq. (Repl. 1962). Regardless of the statutory designation of divisions, there is but one circuit court of Crittenden County. We have held, in connection with the Crittenden County Circuit Court, that in construing Ark. Stat. Ann. § 43-1708, which was replaced by Rule 28 of the Arkansas Rules of Criminal Procedure, we will treat the divisions of circuit court the same. State v. Knight, 259 Ark. 107, 533 S.W. 2d 488 (1976). In other words, the terms of court of each division will be counted when Rule 28 is in issue. (Act 432 of 1977, effective January 1, 1979, abolished the laws distinguishing civil and criminal divisions. However, it did not affect the terms of circuit courts.)
The parties stipulated to the terms of the three divisions as follows:
DIVISION I.
Arrested during February, 1977 term
September, 1977 term commenced September 20, 1977
February, 1978 term commenced February 20, 1978
September, 1978 term commenced September 18, 1978
February, 1979 term commenced February 19, 1979
DIVISION ¡I.
Arrested during January, 1977 term
November, 1977 term commenced November 21, 1977
January, 1978 term commenced January 30, 1978
November, 1978 term commenced November 20, 1978
January, 1979 term commenced January 22, 1979
DIVISION III.
Arrested during May, 1977 term
June, 1977 term commenced June 20, 1977
May, 1978 term commenced May 8, 1978
June, 1978 term commenced June 19, 1978
It can readily be seen that unless excludable periods preclude the application of Rule 28, then Harkness has not been timely brought to trial.
The State argues Rule 28 does not apply because: (1) During August, 1977, Harkness was in the State Hospital for examination; (2) During February, 1978, Harkness was not tried because he obtained a severance of the three charges on his motion; and, (3) the congested docket of Crittenden County precluded a speedy trial.
Even if the first two periods of time were excluded, and the petitioner agrees that his tfoae in the State Hospital should be excluded, we wo have to apply Rule 28. Without even considering tíaní Ifeskness could have been tried during other terms of cerat, the September, 1978 Term of Division I had passed; the January, 1978 and November, 1978 Terms of Division II had passed. All of these are full terms of circuit court that had lapsed without any action on the charge. We do not consider any term of court during which the charges were made.
Therefore, we have left the third reason argued by the State which would prevent the application of Rule 28, and that is a congested docket.
The Circuit Court, Division I, entered an order, in response to the motion to dismiss, in which it was found that due to a congested docket, Harkness had not been earlier brought to trial. Rule 28.3(b) of the Arkansas Rules of Criminal Procedure provides for excluding periods of delay because of docket congestion. It reads:
Rule 28.3. The following periods shall be excluded in computing time for trial.
. . . (b) The period of delay resulting from congestion of the trial docket when the delay is attributable to exceptional circumstances. When such a delay results, the court shall state the exceptional circumstances in its order continuing the case.
In this case there was never a motion for a continuance by the State or the petitioner. There was no docket entry noting a reason for the delay. Rule 28.3(b) obviously contemplates that a trial judge will regularly call the docket, and if a case is to be continued beyond the time permitted by law, then the reasons will be stated. That was not done in this case. There was no finding the other divisions could not try this case; the law requires that precedence be given to criminal cases. Rule 27.1, Rules of Criminal Procedure; Gardner v. State, 252 Ark. 828, 481 S.W. 2d 342 (1972). There was no finding that giving precedence to criminal cases was a practice followed by the civil divisions of Crittenden County Circuit Court — a legal responsibility of these divisions, as well as the criminal division. There was no finding the congestion was greater than before, or that relief was sought by asking for additional judges.
We hold that the trial court’s findings, entered only after a motion to dismiss was filed, do not constitute sufficient grounds to exclude any term of court. Therefore, the writ is granted.
Writ granted.
We agree. Harris, C.J., and George Rose Smith and Bvrd, JJ. | [
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Darrell Hickman, Justice.
This appeal from the Sebastian County Chancery Court involves the registration of a Texas divorce decree and the enforcement of it.
The appellant, Nancy Nehring, formerly Nancy Taylor, was granted a divorce from the appellee, Aubrey Taylor, in 1974 by a Texas court having jurisdiction over the parties and cause. The decree granted the appellant a 43% interest in the appellee’s U.S. Air Force retirement benefits (his pension). Texas recognizes such benefits to be community property subject to a division in a divorce case. Cearley v. Cearley, 544 S.W. 2d 661 (Tex. 1976); United States of America v. Stelter, 567 S.W. 2d 797 (Tex. 1978).
The appellant later petitioned the Texas court to find the appellee in contempt of court for failure to pay over the retirement benefits as ordered. The Texas court found the appellee in contempt of court for failure to pay the benefits and ordered the appellee confined 90 days in jail. The court ruled that the appellee could purge himself of contempt by signing an irrevocable letter of allotment, filing it with the appropriate federal agency, and paying the arrearages and costs.
The appellee apparently moved to Arkansas before the Texas order could be executed.
The appellant filed the Texas decree and contempt order with the Sebastian County Chancery Court seeking registration of the decree and order as foreign judgments. This is as provided for in Ark. Stat. Ann. § 29-801, et seq. (Repl. 1962).
The appellee was personally served with notice as required by law and, after issue was joined, the chancellor entered an order registering the decree and order, but withholding execution until a hearing could be held. The appellant then filed a petition with the Sebastian County Chancery Court asking that the appellee be held in contempt for refusal and failure to comply with the Texas decree and order.
After a hearing, the chancellor found the appellee to be in arrears and obligated to pay the sum of $1,792.01, for which judgment was granted. Also, the appellee was found in contempt for failure to comply with the orders of the court and sentenced to 30 days in jail — he could purge himself of contempt by paying the amount adjudged owned. All further requests of the appellant for relief were denied and the cause was dismissed, the matter being referred back to the Texas court.
The appellant argues the chancellor should have adopted the Texas contempt order as its own; that is, the 90 day jail sentence and order for the appellee tos sign an allotment should have been recognized as a foreign decree entitled to registration and enforcement.
The order of the chancellor is somewhat ambivalent. First, it accepts the Texas decree and contempt order as being entitled to registration; it finds an arrearage due; and it finds the appellee in contempt for violation of the Sebastian County Chancery order, and sentences the appellee to 30 days in jail. Finally, it dismisses the matter.
We can only fairly conclude that the chancellor accepted the Texas decree as one subject to registration, and reduced the arrearage due to judgment. The court then ordered the appellee to pay the arrearage and when he failed to do so, held the appellee in contempt. Apparently the court declined to adopt the Texas order of contempt requiring the allotment to be signed.
The trial court correctly refused to accept the Texas contempt order as a foreign decree entitled to full faith and credit. We said in Stilley v. Stilley, 219 Ark. 813, 244 S.W. 2d 958 (1952):
It is a well established rule that the power to judge a contempt rests exclusively with the court contemned, and that no court is authorized to punish a contempt against another.
The chancellor was also correct in ordering the registration of the Texas decree as being one entitled to full faith and credit. Leflar, The New Uniform Foreign Judgment Act, 3 Ark. L. Rv. 402 (1949). Once it was registered, the trial court had the authority to treat the Texas decree as its own and enforce it by contempt proceedings. Holley v. Holley, 264 Ark. 35, 568 S.W. 2d 487 (1978). (For the extent of a chancellor’s authority in a contempt proceeding, see Harrison v. Harrison, 239 Ark. 756, 394 S.W. 2d 128 (1965)).
In other words, the chancellor was not bound to accept the contempt order from Texas and required to execute it as it provided; however, the chancellor could have, in her discretion, for good cause, entered a like contempt order for disobedience of an order she entered.
The trial court was wrong in dismissing the case. While some jurisdictions do not favor registration of a foreign decree requiring future payments, such as alimony or child support, we favor that view. Holley v. Holley, supra. See also, ALR 2d, Later Case Service (1959), 18 ALR 2d 862-877, § 5. Otherwise, parties could never, as a practical matter, enforce judgments and decrees if one party left the state of original jurisdiction. It should not be necessary to go back to the original state, petition for judgment, then take the judgment to another state for registration and enforcement, as arrear-ages accrue. Once a decree or judgment is accepted as proper for registration, then it becomes in effect an Arkansas judgment, and will remain on the judgment books to be enforced by Arkansas in the future.
Therefore, the matter is remanded, with instructions for the chancellor to reinstate the Texas divorce decree, to be treated as an Arkansas decree. Otherwise, the judgment is affirmed. | [
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John A. Fooleman, Justice.
Appellee was convicted in Municipal (hurt of Texarkana, Arkansas, of the offense of selling beer to a minor and upon a plea of nolo contendere lie was fined one hundred fifty dollars and costs. Tie appealed this conviction to tlie Circuit Court of Miller County. An additional count of selling beer to a minor was filed against him by information, in the Circuit Court of Miller County. These cases were consolidated fur trial and appellee entered pleas of not guilty. (Subsequently he withdrew the not guilty pleas and entered pleas of nolo contendere. The court found appellee guilty of both charges of selling beer to a minor but refused to assess any fine or imprisonment against him. The court also refused to suspend a beer license held by appellee but which was not involved in the circumstances which resulted in Iris convictions. The court’s order in each case was:
“If is therefore by the Court considered, ordered and adjudged that said defendant is guilty as charged and in view of the financial loss of Defendant’s sale of liquor stores involved in this cause no fine, penalty or punishment is assessed by the Court in this cause.”
This appeal by the state was prosecuted by authority of Ark. Stat. Ann. § 43-2733 (Repl. 1964) which provides the procedure for appeal by the state from a judgment involving a misdemeanor.
The appellant argues that the trial court erred in refusing- to fine and sentence appellee and in refusing to revoke his permit to sell beer and intoxicating liquors after a finding of guilty on two charges of selling beer to a minor. The pertinent portions of the statutes in-’ volved are as follows:
Ark. Stat. Ann. § 48-525 (Repl. 1964) — “It shall be unlawful for a licensee, or for any agent, servant or employee of a licensee... (c) to sell, barter, furnish or giv.e away to any minor under the age of twenty-one (21) years any wine or beer ... Any violation of the provisions of this section shall constitute a misdemeanor and shall be punished by a fine of not more than five hundred ($500.00) dollars and not moro than one (1) year in jail...”
Ark. Stat. Ann. § 48-525 (Repl. 1964) — “Any person convicted of the violation of any provision of this Act [§§ 48-501 — 48-527] which violation is by this Act, defined as a misdemeanor and for which no specific punishment is in this Act provided, shall upon conviction thereof be punished as otherwise provided by law. And if any person so convicted shall be the holder of any permit issued by the Commissioner of Revenues [Department of Alcoholic Beverage Control] under authority of this Act, such permit shall from and after date of such conviction be void and the holder thereof shall not thereafter for a period of one (1) year after the date of such conviction be entitled to any permit for any purpose authorized in this Act.”
Appellant argues that upon a conviction for violation of § 48-524 the trial court is required, by virtue of § 48-525, to revoke any permit issued by the Department of Alcoholic Beverage Control to a person so convicted. Appellee argues that $ 48-525 only applies to those violations of Act No. 7 of 1933 [Ark. Stat. Ann.§§ 48-501—48-527 (Repl. 1964)] for which no specific punishment is provided and this would not include § 48-524. We do not reach the merits of appellee’s argument on this point, however, because we are of the view that the circuit court is without authority to revoke a beer permit issued by the Department of Alcoholic Beverage Control.
Act 159 of 1951 [Ark. Stat. Ann. 48-1301—48-1321 (Repl. 1964)] created the Department of Alcoholic Beverage Control and enumerated its various powers and duties. Section 13 of that Act [Ark. Stat. Ann. § 48-1312 (Repl. 1964)] is as follows:
“All proceedings for tlie suspension and revocation of licenses shall be before the Director, and the proceedings shall be in accordance with rules and regulations which shall be established by the Director and not inconsistent with law. No such license shall be revoked except after a hearing by the Director with reasonable notice to the licensee and an opportunity to appear and defend...”
The language of § 48-1312 is unmistakably clear, “All proceedings for the suspension and revocation of licenses shall be before the Director.. .No such license shall be revoked except after a hearing by the Director...” (emphasis supplied). It is apparent that § 48-1312, which gives the Director of the Department of Alcoholic Beverage Control the exclusive power to revoke or suspend beer licenses, is repugnant to § 48-525 which gives lile circuit court the same power. We said in Hickey v. State, 114 Ark. 526, 170 S.W. 562, “It is a cardinal rule of statutory construction that where two legislative acts, relating to the same subject are necessarily repugnant to and in conflict with each other, the later act controls, and, to the extent of such repugnance or conflict, repeals the earlier act whether expressly so declared or not.” We therefore hold that Ark. Stat. Ann. § 48-1312 (Repl. 1964) repeals, by implication, that portion of Ark. Stat. Ann. & 48-525 (Repl. 1964) which gives the convicting court the power to revoke a permit issued by the Department of Alcoholic Beverage Control to sell beer upon a conviction of the crime of selling beer to a minor. The circuit court, therefore, did not commit error when it refused to revoke the appellee’s beer permit, and in this respect the cases will be affirmed.
We feel, however, that the circuit court was in error when it refused to assess any punishment against appellee upon a judgment of guilty. Ark. Stat. Ann. § 43-2324 (Repl. 1964) allows a judge, upon a verdict of guilty, to postpone the pronouncement of sentence if he deems it best for the defendant and not harmful to soc iety. Ark. Stat. Ami. § 43-2326 (Repl. 1964) gives tlie court the authority to suspend the execution of jail sentences or the imposition of fines or both in all criminal cases. However, it is beyond the authority of a trial judge, upon a judgment of guilty, to simply refuse to assess any punishment. Graham v. State, 1 Ark. 171; Lindquist v. State, 213 Ark. 903, 213 S.W. 2d 895. Since this is the effect of tlie court’s judgments and there was no attempt to either suspend or postpone the sentence, they are reversed.
Since the errors asserted on this appeal are apparent on the face of the record, no objection, exceptions or motion for new trial was required before they could be reviewed here. Williams v. State, 47 Ark. 230, 1 S.W. 149; Hayes v. Hargus, 127 Ark. 22, 191 S.W. 408; Percifull and Wife v. Platt, 36 Ark. 456; Wells v. State, 193 Ark. 1092, 104 S.W. 2d 451. See also Williams v. City of Malvern, 222 Ark. 432, 261 S.W. 2d 6; Thomas v. State, 243 Ark. 147, 418 S.W. 2d 792.
The judgments are reversed as to refusal of tlie court to assess any punishment.
Brown, J., not participating.
Byrd and Holt, JJ., dissent.
Conley Byrd, Justice.
I disagree with that portion of the majority opinion which holds that the circuit court erred in refusing to assess any punishment against the appellee upon a judgment of guilty. All of our cases hold that before this court will review an error of the trial court there must be an objection, a ruling of the court, and an exception saved, Downs v. State, 231 Ark. 466, 330 S.W. 2d 281 (1960). In the record here I fail to find any objection to the trial court’s action in failing to assess a fine against appellee. The complete record before the trial court is as follows:
“by the court:
“First, with respect to Mr. Lawrence, I find that he has been penalized enough by the economics of the situation. He has lost money by having to sell at a loss price than he could have on the open market with a reasonable time for negotiation, at a considerable loss. And I take notice that he has had expense before the Alcohol Control Board, and the Chancellor, and in the Municipal Court, and in this court. I think he has been punished far beyond the severity of the crime, and he is responsible only as an owner, and that’s by a statutory sort of respondeat superior. Would that I could remit some of that, but I cannot.
“Mr. Lurry and Mr. Campbell, I think probably they were negligent, if not .intentionally. • I see no reason to fine them, because I believe and I take judicial notice that Mr. Lawrence would have to pay out any fine that was assessed, which is a business-type thing. And certainly, I see no useful purpose in putting a 70-year-old sick man in the penitentiary or jail, or putting Lantz Lurry in jail. I don’t see that any useful purpose would be served in either instance.
“But whether their actions be intentional or negligent, I am going to keep them both out of the liquor selling business for a year. I am putting you each on probation for a year, the condition of your probation is good conduct, and no sales in any liquor stores. Mr. Campbell can continue to work for Mr. Lacy Lawrence in the present position he occupies. Are there any questions?
“by ]\jr. goodson;
“No sir. There will he a cost factor, I assume.
BY THE COURT;
“I think I wall have to impose costs against the defendants. Although I know Mr. Lawrence has suffered terrific financial loss, there has to bo something. I can’t make the county stand that. Mr. Clerk, will you submit a cost bill?
“BY MR. DENMAN ¡
“Your Honor, do I understand that the court is holding Mr. Lawrence guilty in this case?
“by the court:
“Yes, sir, I have no alternative. There is a plea of nolo contendere; that is in one sense a confession of guilt, and I am adjudicating guilt across the board.
"BY MR. DENMAN:
“I didn’t understand your statement then, sir.
“by the court:
“Yes, sir.
“by mr. denman:
“Then I would call the court’s attention to 45-525, sir, and rule on the permits of Mr. Lawrence.
“by the court:
“The permits will not be affected.
‘ ‘ BY MR. DENMAN :
“Will not be affected?
"BY THE COURT:
“No, sir.
“by mr. denman:
"Save our exceptions, your Honor.
“by the court:
‘ ‘ Very well. If there is nothing further, court will be in recess subject to call.”
The only objection I can find in the- foregoing record lias to do with Ark. Stat. Ann. § 48-525 (Repl. 1964), and the objection there was limited to the trial court’s failure to revoke the permits held by appellee.
This case is a prime example of the necessity for objections to the ruling of the trial court. Had the objection been made, the trial court could have simply assessed a one dollar fine as was done in Lindquist v. State, 213 Ark. 903, 213 S.W. 2d 895 (1948), and could have, under the majority opinion, immediately suspended assessment of the one dollar fine.
Further, I do not agree with the majority opinion that the trial court was in error in refusing to assess any punishment.- The statute here involved (§ 48-524) provides, “Any violation of the provisions of this section shall constitute a misdemeanor and shall be punished by a fine of not more than $500 and not more than one year in jail. .. .” Thus as I read the criminal statute involved the only limitation placed on the court is that the sentence not exceed $500 or more than one year in jail. The case of Graham v. State, 1 Ark. 171 (1837), relied upon by the majority, involved a statute wherein the law declared that on conviction the person convicted should pay a fine not less than $100 and- not more than $200. In holding that a fine of $30 was illegal, we said :
“To what good purpose has the Legislature defined punishment, and prescribed the quantum thereof, if the courts and juries are at liberty to disregard the former or, in their discretion, pass the limits prescribed for the latter? • Certainly not any. In this view of the subject, (and we think it is the only correct, view of it which can be taken,) it is -unimportant whether they undertake to mitigate or increase the punishment or fine: the one is as much a departure from the legal standard as the other. The former tends to favor, the latter to oppress, the person upon whom it is to operate. In either case, the law is violated, and public justice impaired or refused.”
The matter of an inadequate sentence is treated in 21 Am. Jur. 2d Criminal Law % 538, p. 518, as follows:
“A sentence of less than the minimum punishment prescribed by statute is no less improper than a sentence in excess of the permissible maximum. It has been held, however, that such a sentence is not void. It is erroneous and subject to correction, but it is not a ground for reversing the judgment on appeal. Nor is it a ground for discharging the prisoner on habeas corpus, except that when an inadequate sentence has been fully served without having been corrected the prisoner is entitled to a discharge, subject to the right of the state to move for entry of a proper sentence pursuant to the verdict of conviction.”
Therefore, even if we overlook the failure of the state to object to the nonassessment of any fine, I can find nothing illegal in the court’s conduct because the statute involved did not fix a minimum fine as was the case in Graham. As I read the record the trial court found Mr. Lawrence guilty of the offense charged and assessed court costs against him. With men of pride, a mere finding of guilt is often the severest of punishment.
The majority opinion suggests that the failure of the trial court to assess “a fine of not more than $500” is error apparent on the face of the record which does not require an objection. My search of the authorities shows that the method for correcting an inadequate sentence is by a timely motion in the trial court or by appeal from an adverse ruling on such motion, Spanton v. Clapp, 78 Idaho 234, 299 P. 2d 1103 (1956). This would appear to be the proper method or otherwise the keeper of the prisons could ignore the sentence set forth in the judgment of conviction and keep the prisoner for the minimum time set forth in the statute under which the prisoner stands convicted.
Furthermore, Ark. Stat. Ann. § 43-2736 (Repl. 1964), provides that a misdemeanor judgment “.. . shall only be reversed for errors of law apparent on the record to t lie prejudice of the appellant. ’ ’ Even if I should assume that the majority is correct in interpreting the statutory phrase of “not more than $500” as also including a minimum fine, it becomes obvious that such minimum could be as small as one cent — he. less than the cost of the postage stamp necessary to get the Attorney General’s approval, Ark. Stat. Ann. § 43-2733, (Repl. 1964). The record here shows that the trial court would be reluctant to enter more upon a remand and might even suspend the payment of that. Under the circumstances there can be no prejudice to the State which would call for a reversal.
Holt, J., joins in this dissent. | [
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J. Fred Jones, Justice.
This is an appeal by Na iional Distributors, Inc. from an adverse summary judgment in favor of Houston II. Simard rendered by the Sebastian County Circuit Court. National was the plaintiff in the trial court and the suit was on a guaranty agreement.
On December 9, 1963, Jackson’s Furniture, Inc. of Fort Smith contracted to refinisli and sell antique furniture and serve as an outlet for antique furniture supplied by National Distributors, Inc. a Tennessee corporation. Jackson’s was to sell the furniture and remit to National 134% of the original cost price within eight hours after Jackson’s had collected for the furniture sold. Jackson’s became indebted to National and on April 5, 1965, it executed and delivered to National a promissory note payable on demand for $22,004.66. Jackson’s failed in business and was placed in receivership by chancery court decree. National filed claim for $24,453.64 in the receivership proceedings and was paid $1,934.29 as its pro rata portion of the assets. By chancery decree dated December 26, 1967, National was given judgment for $22,004.66 balance due on the note.
On February 9, 1968, National filed the present suit in the Sebastian County Circuit Court against Houston TT. Simard, president and general manager of Jackson’s, to recover on an undated guaranty agreement whereby Simard guaranteed the payment of any and all indebtedness owed by Jackson’s to National. By way of answer and counter-claim, Simard claimed that he was entitled to a declaratory judgment on the basis that the guaranty agreement was void and unenforcable since National was not qualified to do business in Arkansas. National filed a denial to the counter-claim and Simard responded with a motion for summary judgment. The court granted the motion for summary judgment and on appeal to this court National designated -the following points for reversal:
“The trial court erred in finding that appellant was ‘doing business’ in Arkansas; or, at tlie very least, an issue of fact exists on that point.
Tlie trial court erred in sustaining' tlie summary judgment because appellee failed to sustain the burden of demonstrating tliat there are no genuine issues of material fact.”
In granting the motion for summary judgment, the trial court found that the record presented no genuine issue of material fact, and the motion for summary judgment was granted under Ark. Stat. Ann. § 64-1202 (Repl. 1966) which states:
“Any foreign corporation which shall fail to comply with the provisions of this act and shall clo any business in this State, shall be subject to a fine . .. and as an additional penalty, any foreign corporation which shall fail or refuse to file its articles or incorporation or certificates as aforesaid, cannot malee any contract in the State which can be enforced by it cither in law or in equity ...” (Emphasis supplied.)
The guaranty agreement sued on by the appellant is as follows:
“The undersigned, for value received, hereby guarantee the payment of any and all indebtedness now or hereafter incurred by Jackson’s Furniture, Inc. to National Distributors, Inc., including specifically all presently due amounts in the approximate amount of $17,500.00 and future indebtedness which may be incurred from time to time, it being the intent of this agreement by the undersigned to perT sonally guarantee payment. of all indebtedness incurred by Jackson’s Furniture, Inc. to National Distributors, Inc. at any time during the life of this guaranty agreement. It is the intention of this guaranty to create the same liability on our part to and in favor of tire said National Distributors, Inc. or its order as though, we had actually executed sepuarate. guaranty agreements for each separate indebtedness incurred and to be incurred in the future by Jackson’s Furniture, Inc, to National Distributors, Inc.
lYe hereby severally waive presentment for payment, notice of non-payment, protest and notice of protest, and due diligence in enforcing payment of any or all of said indebtedness; and consent that an extension of time for payment may be granted or renewal taken on all or on any of said indebtedness without notice to us.
s/ Houston H. Simard
s/ .Dorothy J. Simard”
Appellant argues that there, is no . allegation that plaintiff came to Fort Smith for the execution of the guaranty agreement, and that it was actually mailed to the appellant in Tennessee. That appellant had no physical assets in Arkansas, no agent here, no office here, and that no services were performed here. Appellant argues that the record does not even suggest that any representative of plaintiff ever set f.oo.t in Arkansas, let alone conduct business here, and that the undisputed facts established that the .transaction entered into by the parties in 1963 was a Tennessee contract which involved the interstate shipment of goods to Fort Smith. The appellant also argues: "it is elementary that Houston II. Simard’s contract of guaranty was an enforceable promise on his part which was collateral to the primary obligation on the part of Jackson’s Furniture, Inc. * * * Simard thus promised to answer for the debt of Jackson’s Furniture, Inc., which was incurred in interstate commerce, and his guaranty cannot b.e severed or separated from his corporation’s primary obligation.”
While not so important to our decision in the case now before us, appellant was apparently doing business in Arkansas through Jackson’s Furniture, Inc. under the agreements entered into in 1963. A note was executed by Jackson’s for the indebtedness due under these agreements, appellant’s rights thereunder were litigated in chancery court and it obtained judgment against Jackson’s. ' The pertinent portions of the 1963 agreements, relied on by appellant, are as follows:
“It is agreed that NDI shall furnish adequate and continuing supply of antique furniture to Jackson’s Furniture, Inc. on the following basis:
National Distributors, Inc. shall pay all purchase and transportation expenses to Fort Smith and shall furnish Jackson’s with the original suppliers invoice on all purchases.
# * *
National Distributors, Inc. and Beno Friedman further agree for a period of five years after this association might be dissolved for any reason; not to contact personally and to prevent their servant? or acquaintances from contacting any customer or other business associate to whom they are introduced by Mr. Simard in the performance of this agreement.
A. The only exception to this shall be on antiques belonging to Jackson’s Furniture, Inc. and now in stock.
B. National Distributors, Inc. shall be paid on terms set forth above 134% of the cost price of every piece of antique furniture sold by Jackson’s Furniture, Inc. or by Houston H. Simard from this date forward.
O. This agreement shall continue for a period of 99 years unless 30 days cancellation notice is giv on one of the parties by the other via registered mail.
It is further agreed that Jackson’s Furniture, Inc*, shall furnish adequate and continuing sales outlet on the following basis for antique furniture provided by National Distributors, Inc.
Jackson’s shall pay for all costs involved in selling, refinishing and delivering merchandi.se going to customers, and shall furnish National Distributors, Inc. with a carbon copy of every Jackson’s invoice for antiques of any kind which Jackson’s sells.
A. 34% shall be added to the National Distributors, Inc. cost price and the. total shall be paid to National Distributors, Inc. within eight (8) working hours of the time Jackson’s receives payment from its customer. On invoices, factoring and credit, the same terms and conditions apply here as in our agreement dated November 22, 1963, covering the Henean’s Wholesale antiques stock now in your possession.
# * ¡K
Further, Jackson’s Furniture, Inc.'and Houston H. Rimard agree for a period of five years after this association might be dissolved for any reason ; not to contact personally and to prevent their servants or acquaintances from contacting any supplier or other business associate to whom' they are introduced by Benno Friedman in the performance of this agreement.
A. By December 15, 1963, Jackson’s Furniture, Inc. agrees to furnish National Distributors, Inc. a complete list of all antiques now in stock not belonging to National Distributors, Inc. and as these pieces are sold they will be checked off the list. National Distributors, Inc. will receive no payment for antiques on this list.
B. As of start of business the first day of each month a complete inventory of pieces (numbers only) in stock and not sold will be furnished to National Distributors, Inc. by Jackson’s Furniture, Inc. This list will be placed in the mail at the latest by close of business the 5th of each month.”
An additional agreement dated December 9, 1963, is set out, in part, as follows:
“The following material belonging to NDI [National Distributors] is now in the possession of Houston Simard, President of Jackson’s Furniture, Inc., Fort Smith, Arkansas.
It is agreed that all material in this stock not paid for by Mr. Simard as of March 31, 1964, will be returned in good shape and at no expense to NDI. .. Excepted from this statement will be the pieces which have been refinished by Simard, and these pieces shall remain on consignment in Ft. Smith until sold by Simard.
As each piece is sold, a copy of the invoice will be furnished to NDI.
Most sales are to be factored, and within 8 working hours after money is received b3r Mr. Simard from the factor, the amount of the 'NDI price’ on the piece sold will be forwarded to NDI by Mail. ”
Of course, a contract for the sale of merchandise to be-shipped from a foreign corporation’s place of business in another state to an Arkansas purchaser does not alone constitute doing business in Arkansas even when the contract is executed in this state. In Robertson v. Southwestern Co., 136 Ark. 417, 206 S.W. 755, this court said:
“A contract for the sale of merchandise to be shipped from appellee’s place of business in Tennessee to the purchaser here do.es not constitute business in this State so as to bring the transaction under the ban of our statute, which prohibits a foreign corporation from doing business here without first filing copies of its articles of incorporation and obtaining permission to do business.”
The ownership of the property is a determining factor as to the interstate-intrastate character of a transaction. In the case of Hogan v. Intertype Corporation, 136 Ark. 52, 206 S.W. 58, the appellant agreed to purchase a typesetting machine if it were demonstrated on his premises and performed as represented. The machine -was shipped from out of state to Huntington, Arkansas, set up and demonstrated, whereupon appellant signed a note secured by a mortgage for the purchase price. In reversing the trial court’s finding 'that the appellee was not doing business in Arkansas, this court said:
“We think it conclusively established by the facts in this case that the International Typesetting Machine Company owned the machine in question after it arrived in Huntington, Arkansas, and thereafter sold it to appellant, accepting in part payment notes executed and payable in Arkansas and secured by a mortgage on the machine, which was also executed and filed for record in this state. One test laid down by the Arkansas cases differentiating an interstate transaction from an intrastate transaction is the ownership of the property after it arrives in the state.” (Emphasis supplied.)
In Eisenmayer Milling Company v. George E. Shelton Produce Company, 176 Ark. 620, 3 S.W. 2d 688, appellant shipped a carload of flour to brokers in Arkansas, and had the flour stored with appellee. The brokers were authorized to sell the flour at their own price, and pay appellant’s invoice price and appellant was to be furnished dray tickets so that it could check deliveries. After three or. four weeks the brokers dissolved (heir partnership and the appellant arranged with the appellee to sell the remainder of the flour paying, appellant. as it was sold less charges for storage and selling. In holding that appellant was doing business in Arkansas, this court said:
“... [T]he arrangement made with the brokers, and subsequent thereto, with appellee, was nothing more than an agency. contract with the brokers and appellee to sell appellant’s flour and to remit therefor as the same was sold. There was no outright sale of said flour either to the brokers ... or to appellee. Such flour was not the property of the brokers or appellee, could not have been levied upon by creditors as their property, but on the contrary, according to the undisputed testimony of appellant’s witnesses, said flour had at all times belonged to it, and was being sold for its account ...by the brokers and appellee.
# # #
... Suffice it to sa3^ that the undisputed facts here show; that the shipment of the flour into this State in the first instance was not a sale to ... [the brokers] and that the arrangement between appellant and appellee was not a sale thereof in continuation of the former arrangement between appellant and . .. [the brokers]. It amounted to no. more than the storage of the flour in this State as its own, and the employment of an agent to make sales thereof from time to time, as purchasers could be found thereof. Had it been a' sale in the first instance, with title retained and the flour retaken and a resale thereof; made to appellee, the facts would be wholly different, and the result would be a transaction in interstate, commerce, as held in the-case of L. D. Powell Co. v. Roundtree, supra.”
The intrastate character of the relationship between the parties in the case at bar is clearly evident from the written agreements they entered into, and it is apparent to ns from the plain wording of agreement, supra, that the appellant retained title to the goods in Jackson’s possession until the goods were sold by Jackson’s, and that the appellant was simply engaged in the antique furniture business through Jackson’s Furniture, Inc. in Fort Smith, Arkansas.
It is apparent from the record before us, that Jackson’s simply sold the furniture, paid for and furnished to it by the appellant, and instead of remitting 134% of the cost price to the appellant within eight hours aftei it was collected from the purchasers as Jackson’s agreed to do, Jackson’s either failed to collect or failed to remit until over a two year period it owed the appellant the sum of the chancery judgment, plus the amount appellant received from the liquidation.
The guaranty agreement actually sued on in this ease is a unilateral agreement separate and apart from the contracts entered into in 1963 between the appellant and Jackson’s Furniture, Inc. and is separate and apart from the promissory note given in 1965 on which judgment was entered and partially satisfied in 1967. The guaranty agreement was the only subject before the trial court in the case at bar and the appellee's affidavit in support of his motion for summary judgment states that this agreement was entered into and executed in Fort Smith, Arkansas, at the instance and upon the request of appellant's attorney in Fort Smith. Appellant’s affidavit does not controvert appellee’s affidavit on this point, but only states that the original promissory note, as -well as the guaranty agreement, wTas mailed to appellant in Tennessee from Foil Smith, Arkansas.
The appellant already has its judgment on the promissory note and the validity of that judgment is not be fore us. Tlie question before us is not where the appellant corporation was when it received its copy of the guaranty agreement signed by the appellee, and sued on in this case, the question on this point is where the contract was entered into. The appellee says it was in Fort Smith, Arkansas, and the appellant leaves this fact uncontroverted.
The judgment of the trial court is affirmed.
G-eoege Bose Smith, Brown and Fogleman, JJ., dissent.
John A. Fogleman, Justice.
I would reverse the summary judgment in this case as to Houston H. Simard. I do not believe that the trial court or the majority has required appellee to meet the heavy burden resting upon him to show entitlement to this extreme remedy. Our cases with reference to this burden are outlined in my dissenting opinion in Gordon v. Matson, 246 Ark. 533, 439 S.W. 2d 627. I submit that there is a genuine fact issue in this case. As I see it, both the triah court and the majority have overlooked the most material issue raised by appellant. Although I do not agree with the treatment given the guaranty agreement in the majority opinion as “a unilateral agreement separate and apart from the contracts entered into in 1963, ’ ’ the material fact in issue which determines whether appellant is to be allowed to maintain suit in this state is the place of making of the contract. Our statute closes the doors of our courts to a nondomesticated foreign corporation only on those actions involving contracts made in this state. U. P. I. v. Hernreich d/b/a Station KZNG, 241 Ark. 36, 406 S.W. 2d 317. Under the law of this state, a contract is deemed to have been entered into at the place where the last act necessary to the completion of the contract took place. Cooper v. Cherokee Village Development Co., 236 Ark. 37, 364 S.W. 2d 158; Leflar, Conflicts of Law, § 122, page 230; Leflar, American Conflicts Law, § 144, page 353. See also Hicks Body Co. v. Ward Body Works, 233 F. 2d 481 (1956). It is recognized that a written contract acquires no validity until delivery, either actual or constructive. Dem. Ptg. & Litho. Co. v. Parker, Auditor, 192 Ark. 989, 96 S.W. 2d 16. A mortgage prepared at the office of the •lender in Oklahoma, 'mailed to its representative within Arkansas for signature of the mortgagors and returned to the lender was held to constitute an Oklahoma contract. Smith v. Brokaw, 174 Ark. 609, 297 S.W. 1031.
There is no place of execution, or date, shown on the guaranty agreement exhibited with the amended complaint in this case. Appellee did not allege in his answer and counterclaim that the guaranty agreement was entered into, or made, in the State of Arkansas. Appellee’s only allegation having to do with the status of the appellant as a foreign corporation, and relating to the guaranty agreement, was that appellant has engaged in business in Arkansas without qualifying to do business in the state. Appellee’s motion for summary judgment asked that the trial court adjudicate that the guaranty agreement and promissory note alleged as the basis of appellant’s claim were void and unenforceable. In appellee’s affidavit supporting his motion, he merely stated that the guaranty agreement was presented to him and his wife by an attorney acting for appellant in Fort. Smith, Arkansas, and that it was executed at his place of residence there.
Appellant’s response was supported by the affidavit of Jay Fred Friedman. Friedman stated that he was one of the attorneys for appellant and that he had personal knowledge of the facts set. forth in the affidavit. He stated that the promissory note and guaranty agreement sued on were both sent to the appellant by United States mail in interstate commerce and across state lines, as substantiated by the date receiving stamp placed on all incoming mail by appellant.
1 do not see how it could be more clearly made to appear that appellant was contending that the contract was made in Tennessee and not in Arkansas. Under this state of the record, there is certainly a material fact issue as to the place where the contract was made. At least, appellee failed to show that there was not an issue of fact on this point by simply showing the isolated fact as to the place of signing.
While the trial court found that there was no genuine issue of fact relevant to issues raised by the motion for summary judgment and dismissed the complaint holding the note and guaranty agreement null, void and unenforceable, the court made specific findings of fact, none of which has any bearing at all upon the place where the contract was made. The court’s specific finding in that respect was simply that the appellant engaged in business in Arkansas, and, in the course of such business, obtained from appellee the guaranty agreement sued on. This point is argued by appellant under both points relied upon in his brief.
Brown, J., joins in this dissent.
Appellant does not seek reversal of the summary judgment against Dorothy J. Simard, so Houston H. Simard is referred to herein as appellee. | [
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Frank Holt, Justice.
In May v. May, an unpublished per curiam order dated October 24, 1977, we affirmed appellant’s divorce decree because of his failure to comply with Supreme Court Rule 9(d), Ark. Stat. Ann. Yol. 3A (Repl. 1979). Thereupon, appellant filed a motion asking the chancellor to set aside the decree asserting that the property settlement contained therein was not reached by agreement of the parties but was ordered by the court in violation of Ark. Stat. Ann. § 34-1215 (Supp. 1979). The chancellor correctly concluded that all issues presented in the motion to set aside the decree were res judicata due to our prior affirmance of the decree. It is well established that a judgment on first appeal is conclusive as to every question of law or fact that was actually decided, or could have been decided, at that time. Gibson v. Gibson, 266 Ark. 622, 589 S.W. 2d 1 (1979); and Hollingsworth v. McAndrew, 79 Ark. 185, 95 S.W. 485 (1906).
Further, as noted by the appellee, appellant failed to abstract the allegedly defective divorce decree. Again, the appellant has failed to comply with Rule 9(d).
Affirmed.
Harris, C J., and Byrd and Purtle, JJ., not participating. | [
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Lyle Brown, Justice.
This is an appeal from a permanent injunction issued against the Fraternal Order of Eagles, Aerie 3183, Baxter County, at the instance of the prosecuting attorney on behalf of the State. The subject of the injunction was the sale of alcoholic beverages by the club. Appellant here contends that the dispensing of mixed drinks to members of a non-profit club in a “dry” county does not constitute a sale of alcoholic beverages. Alternatively, it is insisted that the dispensing of drinks by a private club to its members, even if considered illegal, does not constitute a public nuisance within the meaning of Ark. Stat. Ann. § 34-101 (RepJ. 1962)
The facts on appeal are stipulated. A lawful search of the lodge in July 1967 resulted in the confiscation of 250 cases of intoxicants and six slot machines. The lodge was operating a bar from which mixed drinks were served to members and guests for cash. A few days thereafter the prosecuting attorney filed a petition against the lodge to abate a nuisance, proceeding under Ark. Stat. Ann. §§ 34-101, 110. A temporary order was entered closing the building pending a final hearing, as authorized by § 34-104. At the final hearing the injunction was made permanent pursuant to § 34-106. The legal effect of that order was to enjoin the defendants from engaging in unlawful activities forming the basis of the nuisance.
Section 34-101 declares the unlawful sale of liquors “in any building, structure, or place in this State” to constitute a public nuisance. The recited statute authorizes the abatement to go against the premises from which the violator is operating. Baxter County is legally a dry county. Ark. Stat. Ann. § 48-811 (Repl. 1964) makes it unlawful to “sell, barter, or loan, directly or indirectly any beverage containing alcohol” in a dry county.
The court made a finding that the sale of alcoholic beverages had been activefy carried on under the direction of the lodge officers. There was ample evidence to justify that conclusion. The volume of business was such that an inventory of 250 cases of intoxicants was on hand at the time of the raid. The number of members of the order is not in the record but the utilization of six slot machines is indicative of substantial patronage. Also, the club was enjoying sufficient profits from its “projects” to finance a new lodge and golf course.
A¥e have no hesitancy in sustaining the trial court’s ruling that the substantial sale of intoxicants from the lodge building by its operating officers brought appellant within the practice condemned as a nuisance by the provisions of § 34-101.
Affirmed.
It is not contended that appellant possessed any type of permit which purportedly would have authorized it to dispense intoxicants in a dry county. | [
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