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Smith, J.,
(after stating the facts). Upon overruling the motion for a new trial, the law prescribed the judgment that should be entered as follows: “In judgments against the defendant, a judgment for costs, in addition to the other punishments, shall he rendered, which shall be taxed by the clerk for the benefit of officers rendering services, and in case of failure by defendant to pay said costs they shall be paid by the .county where the conviction is had.” (Kirby’s Digest, § 2446). No other judgment can be entered up by the court, as no discretion is allowed under the law, and it is immaterial what the judge might have said or omitted to say in pronouncing sentence. The law imposes the burden of paying costs as an incident to conviction, and the judgment is not properly entered of record until it is so provided. It is true here that this nunc, pro tunc order was not made until after the expiration of the term at which the conviction was secured, but there is no objection to this being done. In the case of Thurman v. State, 54 Ark. 120, where the defendant had escaped, and was absent several years, and was recaptured and sentence formally pronounced by the court in which the conviction was had, Judge Cockrill, speaking for the court, said: “The statute does not require that the sentence shall be pronounced and judgment entered at the same term at which a plea of guilty is entered; and the entering of the judgment at a subsequent term does not alter or conflict with anything done by the court at the previous term. There is, therefore, no lack of power in the court, and the judgment may be deferred until a subsequent term.” The appellant insists that at the hearing of the petition for a nunc pro tunc order they made a showing, which was practically undisputed, that the presiding judge in pronouncing judgment made no order in regard to the costs, and that, in view of this omission, he could not, • after the expiration of the term at which that judgment was pronounced, enlarge its scope by inserting a provision which it should have contained in the first instance; and in support of this contention quotes the following language used by Judge Frauenthal in deciding the case of St. Louis & N. A. Rd. Co. v. Bratton, 93 Ark. 234.
“The entry in the record should correspond with the judgment which was actually pronounced, and the court has the power, and it is its duty, even at a subsequent term, to make such changes in the entry as to make it conform to the truth. But where the judgment expresses the entire judicial action taken at the time of its rendition, the court has no authority, after the expiration of the term, to enlarge or diminish it in matters of substance, or in any matter affecting the merits. Under the guise of an amendment, there is no authority to revise a judgment, or to correct a judicial mistake, or to adjudicate a matter which might have been considered at the time of the trial, or to grant an additional relief which was not in the contemplation of the court at the time the judgment was rendered. ‘The authority of a court to amend its record by a nunc pro tunc order is to make it speak the truth, but not to make it speak what it did not speak, but ought to have spoken;’ ” a part of the above language being quoted from the opinion by Judge Cockrill in the case of Hershy v. Baer, 45 Ark. 240.
In the Bratton case, above cited, the administrator had recovered a judgment against the defendant railway company for killing his intestate, but the judgment entered did not recite that the sum recovered should be a lien against the railway and its equipment, and the plaintiff insisted that the judgment should be amended at the subsequent term of the court at which his motion was heard, to give him the benefit of the lien to which he was entitled upon the entry of his original judgment. The court made the order as prayed, and upon the appeal Judge FrauenthaL used the language above quoted, but the order and the action of the trial court in amending the judgment in the administrator’s favor and awarding him a lien by a nunc pro tunc order was reversed, and it was further said in the same opinion: “In the case at bar, the plaintiff was entitled, upon a recovery of the damages for which he sued, to have a lien upon the property of defendant, and under certain circumstances of the case to have that lien mentioned in the judgment. But he was not entitled to have such lien under any and all circumstances of the case; he was not entitled to the lien in the event the suit had not not been brought within one year after the claim had accrued. He was therefore not entitled to the lien necessarily and as a matter of course. Section 6662 of Kirby’s Digest provides that the lien mentioned in the preceding section shall not be effective unless suit is brought upon the claim within one year after said claim shall have accrued.” Before, therefore, a judgment could have been declared for said lien, it must first be found that the suit was brought within the time specified in the above section. In order to declare and mention said lien in the judgment, it was necessary that the court itself should make a finding and then an adjudication; and if no such finding and adjudication was actually made by the court, the omission can not now be supplied by an amendment of the judgment. For such amendment did not speak the truth, but did speak what should have been done, but was not.” This case is .not like the Bratton case, for the reason that no finding is necessary to be made to determine whether the defendant should be liable for the costs. The law fixes that liability as a consequence flowing necessarily and of course from his conviction:
In the case of In re Jones, 100 Ark. 231, which was a habeas corpus proceeding to take Eunice Jones from the custody of the county convict contractor because the judgment for the fine against him did not direct that, in default of its payment, the defendant be imprisoned until the fine and costs were paid, it being contended that he had never been committed to jail within the meaning of the law, because of that omission, the court said: “This contention is without merit. 'The law requires that where the punishment of an offense is by fine, the judgment shall direct that the defendant be imprisoned until the fine and costs are paid, ’ etc. (Kirby’s Digest, § 2443). And such direction should have been included in said judgment against Jones, in default of payment of the fine levied. Its omission, however, did not render the judgment void, and was a clerical misprision which could have been corrected, even after the expiration of the term.” See also the case of Bobo v. State, 40 Ark. 229.
It is also urged that the defendant had been pardoned at the time the nunc pro tunc order was made, and that there was no felony conviction out of which his obligation to pay costs could arise, and that the order was erroneous for that reason. But the nunc pro tunc order necessarily related back to the date as of which it should have been entered, and the pardon has the effect, and no other, that it would have had if the judgment with proper recitals had been entered at the time of the trial, and the pardon had been subsequently granted by the Governor. The effect of such a pardon is discussed in the case of Edwards v. State, 12 Ark. 123, where the defendant had been sentenced to the penitentiary for manslaughter, but had been granted an absolute pardon by the Governor. After an execution was issued to the sheriff for the costs of the prosecution, he applied to the circuit court to quash the execution, exhibiting his pardon and claiming that it released him from the payment of the costs. The court said: “Costs are neither fines nor forfeitures, nor are they imposed by way of punishment or as amercement at common law, but by way of sequence to every judgment, whether in civil or criminal cases, as a matter of common justice to the parties complainant, witnesses, and officers of the court, although the judgment is in favor of the complainant alone. Costs then, partaking in no respect of the nature either of punishment or of guilt, are without the sphere of the legitimate legal operation of a pardon, however general in its terms.”
In the case of Ex parte Purcell, 61 Ark. 17, which was a petition for a writ of habeas corpus where petitioner had been convicted of simple assault and fined $50, a pardon was granted, “absolving him from the payment of said sum of $50 of the said judgment and all the effect and consequences thereof.” The clerk of the court issued execution for the collection of the costs, and defendant was placed in jail, and the chancellor, on hearing the petition, refused to order his release until the costs were discharged. Upon appeal the court held that the chancellor erred in refusing the relief prayed by the defendant, but in doing so quoted and approved the Edwards case above cited, and expressed these views upon the subject of civil liability for costs where pardon had been granted by the Governor: “It appears that one of the reasons why a general pardon can not exonerate the criminal from the payment of costs is that they go and belong to individuals, and not the public. Logically, then, a general pardon extends to all the judgment that the public has an interest in, but not to that part in which individuals only are interested. Upon reason, then, we think a general pardon exonerates from the payment of the fine proper, because that is a public concern, and for the samé reason it takes away the criminal character of the judgment for the costs — the imprisonment part — leaving the civil obligation still resting upon the delinquent, to be enforced as other civil obligations.”
Judgment affirmed. | [
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Hart, J.,
(after stating the facts). Appellee testified that Mr. Taylor was a servant engaged in the making of hoops, and was standing about ten for twelve feet away when he was injured. Appellee said that Taylor came to him at once when he was injured; and, when asked, “What did he say?” answered, “He said if he had been doing his duty and making them like he should have made them, it wouldn’t have happened, and he wouldn’t have had it happened for a hundred dollars, and I was in so much pain I didn’t pay any attention.”
This testimony was permitted to go to the jury over the objections of the appellant, and the action of the court in this, respect is now assigned as error. We think the assignment is well taken.
Counsel for appellee seek to uphold the ruling of the court by the decision in the case of Beal-Doyle Dry Goods Co. v. Carr, 85 Ark. 479. There the excited declarations of a child to his father while plaintiff was lying injured at the bottom of the elevator shaft, and before he had been discovered, that a man pushed the elevator door open and walked in, were held to be admissible on the issue of whether the door was left open or not. The remark of Taylor was not competent. It did not illustrate or explain how or what caused the accident. His statement was not so connected with the transaction as to characterize and be a part of it. What Taylor said could give character to nothing that happened. It could neither qualify nor explain it. It was a mere narrative of a past occurrence depending for its force and effect solely on the credit of Taylor unconnected with the act done and receiving no credit or significance from the accompanying circumstances. It was not therefore competent as original evidence in the matter of res gestae. Fort Smith Oil Co. v. Slover, 58 Ark. 168; Little Rock Traction & Electric Co. v. Nelson, 66 Ark. 494; Stecher Cooperage Works v. Steadman, 78 Ark. 381; St. Louis, I. M. & S. Ry. Co. v. Pape, 100 Ark. 269; Caldwell v. Nichol, 97 Ark. 422.
The declaration was not made by an officer of appellant company, having the right to speak for it and bind it by declarations of that kind. It follows from the authorities that we have already cited that the declaration was improperly admitted, and was prejudicial to the appellant. In Jones on Evidence, § 357, the rule is stated as follows:
“The declaration of an employee or officer as to who was responsible for an accident, or as to the manner in which it happened, when made at the time of the accident or soon after, have been held incompetent, as against the company, on the ground that his employment did not carry with it authority to make declarations or admissions at a subsequent time as to the manner in which he had performed his duty; and that his declaration did not accompany the act from which the injuries arose and was not explanatory of anything in which he was then engaged, but that it was a mere narrative of a past occurrence.”
It is next contended by counsel for appellant that the evidence did not warrant the verdict. In the case of Arkansas Midland Ry. Co. v. Worden, 90 Ark. 407, the court said: “When an employee takes service with his employer, he impliedly agrees to assume all the obvious risks of the business, including the risks of injury from the kind of machinery then openly used, as well 'as the method of operating the business then openly observed.. * * * This is the rule which applies to an employee of mature years and experience in the particular work or business, for there is no duty on the part of the master to warn an experienced servant of obvious dangers, as they are among the ordinary incidents of the service, and he is bound to take notice of these, and must be presumed to have realized and appreciated such dangers * * * But the rule is different as to a servant who, by reason of youth or inexperience in the particular work, does not fully realize and appreciate the danger. In that case it is the duty of the master to give proper instructions and to warn the inexperienced servant of patent as well as latent dangers. * * * And, before the inexperienced servant can be presumed to have realized the danger and assumed the risk, it must be shown that he was instructed and warned of it.”
Appellee was forty-five years of age, and was in possession of all of bis faculties. He had lived in the country all his life, and was a farmer. The danger from a pole breaking as it was being pulled around in order to fashion it into a hoop was patent and obvious to any one. It may also be said that the danger arising from one end of the pole slipping out from between the stobs while the pole was being bent was an obvious 'and patent danger. The rule is that the master is not required to explain patent dangers which are ordinarily incident to the services, and which it may be reasonably expected under all the circumstances the servant can see and appreciate. But we do noi think that the danger arising from one of the stobs pulling up was an obvious and patent one under the evidence detailed by appellee. He says that he had never seen any work of that kind done, and was wholly without experience as to the method of doing it; that he informed appellant of his ignorance and inexperience before he commenced to work for it. That appellant put him to work carrying poles and placing them in front of and a little to one side of the hoops. The stob in question which pulled up had only been driven down that afternoon and was pulled up while the first hoop was being made. Under these circumstances, the jury might have found that it was the duty of appellant to have informed appellee of the way he should travel to place the poles in the position where he was directed to put them, and to have instructed and to have cautioned him sufficiently to have enabled him to comprehend the danger of the stob pulling out. If the circumstances were such that the appellant owed it as the duty to appellee to instruct him, and it failed to do so, and appellee was injured on account of its failure to do so, appellant was liable in damages for the injury. On the other hand, a witness for appellant testifies that on one trip in carrying a pole appellee walked over the hoop, and that he was warned of the danger of so doing. Whether appellee knew or ought to have known what caution was necessary for him to use while walking along the path in the performance of his work of carrying the poles in order to avoid the injury that he received, or appreciated the danger of the failure to use such caution, or had received the necessary instruction and warning before the injury, was properly a question for the jury.
Other assignments of error are pressed upon as for a reversal, but the views we have already expressed render it unnecessary to discuss them. The assignment in regard to the arguments of appellee’s counsel before the jury is not likely to arise on a retrial of the case, and the principles of law that we have already announced will be a sufficient guide for the court in instructing the jury.
For the error in admitting the declaration of Taylor, the judgment will be reversed, and the cause remanded for a new trial. | [
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McCulloch, C. J.
This is an action instituted by the city of Harrison against appellant to enforce a lien in favor of the city for the cost of constructing a sidewalk in front of appellant’s property, which he had refused, upon notice, to construct. A decree was rendered in favor of the city, and an appeal was taken to this court, but the transcript was not filed here until nearly sixty days after rendition of the decree. The statute provides that if the property owner fails or refuses, after notice, to construct a sidewalk, the same may be done by the city at the owner’s cost, and a lien shall be declared in favor of the city, the same to be enforced by “suits in equity to be brought in the manner and under the terms now provided by law for the foreclosure of property by improvement districts, so far as applicable.” Kirby’s Digest, § 5542. The statute regulating foreclosure suits by improvement districts provides that on appeal to this court the “transcript shall be filed in the office of the clerk of the Supreme Court within twenty days after the rendering of the decree appealed from,” and that “no appeal shall be prosecuted from any decree after the expiration of the twenty days herein granted for filing the transcript in the clerk’s office of the Supreme Court.” Kirby’s Digest, §§ 5706 and 5709. It is manifest from the language of the statute that the Legislature meant to provide a method of procedure in suits like this the same as in improvement district suits and to place the same restrictions thereon with reference to appeals as well as all other steps taken in the litigation. This being true, it follows that the appeal has not been prosecuted by filing transcript within the time prescribed by the statute, and, as no excuse is given for the delay, the question whether this court has the power to extend the time for cause does not arise. The appeal is therefore dismissed. | [
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McCulloch, C. J.
Appellant instituted this action against appellee in the circuit court of White County to recover damages for personal injuries alleged to have been sustained while he was employed by appellee to work at its stave-mill near Searcy, Arkansas. He alleges that other employees were throwing stones and other missiles, and that, while he was returning from his home to his place of work during the noon hour, one of the missiles struck him in the eye and inflicted a serious injury. The paragraph of the complaint setting forth the alleged acts of negligence and the manner in which the injury was inflicted reads as follows: s
“That on the 31st day of October, 1911, and for many days prior thereto the defendant company allowed its hands, servants, and employees to engage in throwing rocks, coal, sticks, chunks and other dangerous missiles about its plant and upon the yards, and that at the noon hour on the 31st day of October, 1911, while the plaintiff, James W. Barrentine, was returning from his home to re-engage at work, he, being one of the employees of the defendant, was struck by a rock thrown by one of the servants of the defendant company in the left eye. That the lick received upon the left eye by the rock from the hand of the servant of the defendant company was because of the wilful disregard of the plaintiff’s rights and Safety by the defendant company. That the defendant company had many times been warned that the throwing of rocks, coal, chunks, sticks and other missiles was dangerous, and that if they did not stop it some one would receive a severe and painful and probably fatal blow sooner or later. That the defendant company had many times promised to stop such conduct, and had expressed itself as knowing that such conduct was dangerous, and that it would sooner or later bring painful affliction to some member of its crew.”
The court sustained a demurrer to the complaint on the ground that facts were not stated therein sufficient to consti tute a cause of action, and, appellant declining to plead further, the complaint was dismissed.
Appellant insists that he has set forth a cause of action in stating that he was injured by reason of the course of wilful or negligent conduct on the part of other employees which was known to appellee, and which it promised to restrain or prevent, but failed to do so. He invokes the rule established by some of the authorities that “the master may be considered in such case guilty, not of the wrongful act itself, but only of neglect to restrain his servants from doing it.” Shearman & Redfield on Negligence, § 141; Fletcher v. Baltimore & P. R. Ry. Co., 168 U. S. 135; Hogle v. H. H. Franklin Mfg. Co., 199 N. Y. 388, 32 L. R. A. (N. S.) 1038; Swinarton v. Le Boutellier, 148 N. Y. 752; Dean v. Depot Co., (Minn.) 43 N. W. 54.
In order to bring the case within the operation of this rule, it is not always essential that the particular act of negligence should have been committed by the servant while he is strictly performing the master’s service; for, as said in the above quotation, even though the negligent act of the servant may not be permitted under such circumstances as would make it the act of the master, the latter is guilty of negligence if he fails to restrain the servant from doing it while under his control. The master owes to his servants, while on his premises to perform service, and also to strangers who. rightfully come upon the premises, the duty of exercising ordinary care to free the premises from known dangers, all dangers of which the master is informed. This, of course, includes dangers arising from negligent or wilful acts of the servants. Though it is not essential to the master’s liability that the negligent servant should be acting at the time within the scope of his authority, yet it is essential that the master should have control of him or the opportunity to control his actions before the liability attaches on account of his conduct. If the servant in committing the negligent act is not proceeding within the line of his duty, and is not at the time within the control of the master, then the latter is not liable. The • difficulty with the case attempted to be made by appellant in his complaint is that he does not state either that the conduct of other servants in throwing the stones was done upon the-premises of appellee or that it was done by the servants while they were in a situation that appellee could have control of them; nor does it allege that appellant was upon the premises of his employer at the time he was injured. If he had stated in his complaint that, while he was on the premises of his employer, the injuries resulted from a danger of which the employer was aware, and failed to exercise ordinary care to prevent them, then a case would have been stated. Or, if he had stated that the other servants, while on the premises of the employer, were negligently or wilfully throwing missiles, and the employer knew of it and failed to exercise ordinary care to prevent it, a case would have been stated. But these facts were not alleged in the complaint. The allegation is that the other servants were on that day, and had been for several days, engaged in throwing rocks and other dangerous missiles about the plant and upon the yard, and that at the noon hour appellant was struck by a rock thrown by one of the servants. As before stated, it is not shown that he was on the premises at the time, or that the servants were on the premises. For aught that the complaint shows, the servants may have been out on the street, beyond the control of the employer, and the appellant himself somewhere on the street returning from his home. The complaint therefore utterly failed to state sufficient facts to make out a case of liability, and the circuit court was correct in sustaining the demurrer.
Judgment affirmed. | [
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Kirby, J.,
(after stating the facts). The testimony on the part of the appellant tends to show that the bank cashier sold and delivered the scrip for the sum of $380 on the promise of I. R. Goodman to pay the whole amount in cash if he could procure $280 of it from the other defendants, or execute the $380 note in payment therefor, in case the cash was not paid.
It is true, he made a statement also that he did not tell Goodman that he would let the scrip out on what he said, but, from his answers to the other questions at the time, it is probable this statement was made relative to selling the scrip upon the Goodman proposition to pay the $100 in cash himself and keep the note of the other defendants for the payment of the balance.
Where there is any evidence tending to establish an issue in favor of the party against whom the verdict is directed, it is error to take the case from the jury; and in determining on appeal the correctness of the trial court’s action in directing a verdict for either party, the rule is to take that view of the evidence that is most favorable to the party against whom the verdict is directed. Williams v. St. Louis & S. F. Rd. Co., 103 Ark. 401.
If no other testimony had been introduced upon the trial, and the jury had returned a verdict in favor of appellant, it could not have been reversed for want of sufficient testimony to support it, and the court erred in directing the verdict against it.
The case does not appear to have been fully developed, and for said error the .judgment is reversed, and the cause remanded for a new trial. | [
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Per Curiam.
On examination of what purports to be the appellant’s abstract, it is found to be no abstract or abridgment of the record at all, but a literal copy of the record. This is not a compliance with the rule of the court, for to print too much of the record is as much an infraction of the rule as to print too little. Rule 9, in plain terms, requires the appellant to furnish “an abstract or abridgment of the transcript setting forth the material parts of the pleadings, proceedings, facts, and documents upon which he relies, together with such other statements from the record as are necessary to a full understanding of all questions presented to this court for decision.” This is required for the convenience of the court in the speedy dispatch of business; for, if the whole record is to be printed, the rule might as well be abrogated. Nor is the application of the rule different where the legal sufficiency of the evidence is challenged by an assigment of error. In that case it is only necessary to set out so much of the evidence as bears upon the particular issue alleged to be unsustained by evidence, and it is unnecessary to set out all -the statements of every witness, including introductory and formal questions and answers. The purpose in requiring the abstract is to reduce the record under investigation to a minimum, and this is not accomplished where the judges are required to read through the whole transcript.
The practice has been that, where attention is called to the insufficiency of the abstract in advance of the submission of the case, and it appears that the delinquent party has in good faith attempted to comply with the rule but failed, and offers to do so, further time is usually given for that purpose; but where the case goes to submission, and the defective condition of the abstract is discovered thereafter, the case is affirmed for noncompliance with the rule. The present case has been regularly submitted, and a strict enforcement of the rule would call for affirmance without giving appellant’s counsel an opportunity to supply an abstract; but, inasmuch as there seems to have been a misconstruction of the rule with respect to printing the entire record, we deem it to be in the interest of justice not to inflict a drastic penalty. Hereafter the rules must be complied with, or the penalty will be strictly enforced. The submission of this case is, therefore, set aside, and appellant is required to furnish an abstract within two weeks from this date; otherwise the judgment will be affirmed. | [
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Wood, J.,
(after stating the facts). The testimony on behalf of the appellee tended to prove that, according to the general custom of those buying, selling, and manufacturing oak timber into lumber, when one buys or sells white oak timber it includes the species known as forked leaf, cow oak, overcup and post oak. The testimony of the witnesses on behalf of the appellant, on the other hand, tended to prove that when one bought timber under a deed specifying “white oak,” in Union County, where this timber is situated, he would get only that species of white oak known as forked leaf, and not including the various other species of cow oak, overcup and post oak. The testimony showed that the government classified oak into two families, viz:, white oak and red oak, white oak including the various species of forked leaf, cow oak, overcup and post oak.
The testimony of the witnesses on behalf of the appellee and the appellant showed that on the lands on which the timber in controversy is situated there were species of oak timber commonly and popularly known and designated as white oak, • cow oak, post oak and overcup oak.
Mr. Webster’s definition of “white oak” is as follows: “An American oak of the eastern United States, having characteristic leaves with usually seven deep,, rounded, entire lobes; also, its very hard strong wood, used in construction work and in manufacturing. By extension, any species of oak of the group of which the above is typical, having acorns maturing the first season,” etc.
There is sufficient ambiguity therefore as to the meaning of the term “white oak,” as used in the deed, to warrant the testimony introduced both on behalf of the appellee and the appellant tending to show the sense in which this term was employed. It could serve no useful purpose to set out in detail and discuss the evidence tending to support the contention of the respective parties.
The appellee contends that the term “white oak” was intended to include all the various species of white oak, cow oak, post oak and overcup oak. The appellant, on the other hand, contends that the term “white oak” was only intended to include the single species of forked leaf oak, or what is commonly and popularly known as white oak, and that the parties did not intend by the term “white oak,” as used in the deed, to include the other species of oak commonly known as cow oak, post oak and overcup oak.
We .are of the opinion that the finding of the chancellor to the effect “that the term ‘white' oak’ as used in the deed of conveyance includes in its meaning the various species of white oak commonly called forked leaf oak, overcup, cow oak, and post oak” is clearly against the preponderance of the evidence.
It is a well-established rule of construction that “in interpreting a contract ordinary words must be taken in their ordinary sense unless a technical sense is established by a preponderance of the evidence, and this use is shown to be of such generality among the class of persons concerned that the party using them may be inferred to have used them in that sense.” Potter v. Phoenix Ins. Co., 63 Fed. 382.
In McCoy v. Erie & Western Trans. Co., 42 Md. 498, it is said, (quoting syllabus): “However terms may be understood in their ordinary sense, if the parties have attached other or unusual or arbitrary meaning to them, to be derived from a fair interpretation of the contract, they have a right .to so employ them, but to accomplish such purpose and to vary the common understanding the meaning ought to be plain and free from reasonable doubt.”
The testimony of the witnesses on behalf of the appellee for the most part shows that they were giving to the term “white oak” its technical sense as generally understood by the trade, or those dealing in the business of manufacturing forest products. But the decided preponderance of the evidence, in our opinion, shows that it was not the intention of the grantor to use the term “white oak” in its technical sense, but according to what was popularly and generally known in the community where the timber was situated as white oak.
Witness Seaman, who made the contract for the appellee, testified that he bought all of the pine and oak timber that appellant’s ancestor, J. R. Taylor had except the pin oak and red oak. He said that he thought “the cow oak and other oaks except pin oak and red oak were all considered in the deed.” Witness Scott, who wrote the deed, stated that Seaman, who made the contract for appellee, reported that the red oak and pin oak were not to be included in the deed, and that in writing the deed, when he got to the kind of timber conveyed, he told Taylor what Seaman said, and that Taylor then told the witness that the pin oak and red oak were not to go in, whereupon the witness wrote the deed specifying white oak, which he intended to cover the white oak species, that is, everything other than red oak and pin oak.
The testimony of Mrs. J. R. Taylor, who executed the deed with her husband, tends to contradict the testimony of Seaman and Scott. She says: “When I signed the deed with my husband, I did not understand that I was selling the cow oak, post oak and overcup, but understood that we were selling nothing but the white oak, and by the term “white oak” I mean what is commonly known as the forked leaf oak. Two deeds were made. Mr. Taylor received a copy of the deed, and the change was made in the copy given to Mr. Taylor so as to make it read ‘white oak.’ ” She further says, “When we went to the office at Huttig (where the deed was executed), my husband had the word ‘white oak’ written on the deed before it was presented to me. He explained to me the con tract before we went down there. When the deeds were presented, they called for all the oak timber, and my husband changed it to ‘white oak’ timber. The word ‘white oak’ was written in after the deeds had been prepared and presented. Mr. Taylor told me he simply had the words ‘white oak’ inserted in the deed.”
The physical appearance of the deed corroborates Mrs. Taylor, showing that the deed, before the word “white” was inserted, first specified “all the pine and oak,” and that the word “white” was inserted above, between the words “and” and “oak.”
There was testimony showing that after the deed was executed Taylor made use of post oak timber on the land for fencing, and that he claimed that he had not disposed of any of his oak timber except the white oak, meaning the forked leaf; that he had not included in the deed the other species of oak on the land.
In the recent case of Ford Hardwood Lumber Co. v. Clement, 97 Ark. 522, 582. we said: “Where the interest of the parties to the contract conflict under a clause of doubtful purport, it should be construed most strongly against the party who prepared the contract.” See also Gulf Compress Co. v. Harrington, 90 Ark. 256. That principle is applicable here. The draftsman for appellee could have easily put the matter beyond dispute by inserting the various species of white oak in the deed if the parties intended to include them.
We are of the opinion that the prepondeiance of the testimony does not show that there was a local usage in Union County to the effect that when white oak was sold under a deed that specified white oak timber the same included, or was intended to include, also the other species of oak known as cow oak, overcup and post oak, and we are convinced that, even if there was such a custom, it was not brought home to J. R. Taylor, the ancestor of appellant, when he made his deed to appellee. If theie was a local usage of trade whereby the term “white oak” included the other species of overcup, cow oak and post oak, that usage must have been uniform, reasonable and well established before it could be held that appellant’s ancestor knew the same and contracted with reference thereto. Walls v. Bailey, 49 N. Y. 464, 12 Cyc, § 1035-1042. True, some of the witnesses on behalf of appellee testify to a general custom prevailing in southern Arkansas to include other species of oak, towit, overcup, cow oak and post oak, under the term “white oak” in conveyances using that term. But we doubt whether the preponderance of the evidence, even by appellee’s own witnesses, shows that there was a uniform custom to include all other species of white oak, towit, cow oak, overcup and post oak. For instance, one of the witnesses, E. C. Nelson, testified that the words “white oak” included forked leaf, overcup and cow oak. He omitted post oak. Another witness, A. S. Johnson, said that the term “white oak” included “forked leaf white oak, cow oak, overcup and post oak,” including them all. Another witness, H. H. Brinkman, said that the term “white oak” included forked leaf and cow oak and overcup, omitting post oak. Another witness, W. V. Brown, testified-that the term “white oak” included all the other species, towit, cow oak, post oak, overcup oak, “and many other varieties of oak timber.” Another witness, Pingle, testified that the term “white oak” included “the different species of white oak, such as forked leaf, overcup, post oak, cow, chestnut,etc.” Witness Scott testified that the term “white oak” included all other species of oak called post oak, overcup and cow oak. Witness Hampton testified that the “accepted meaning of white oak in Union County covers every species of white oak, including cow oak, but I don’t state that the term ‘white oak’ would cover post oak and overcup oak, although post oak and overcup oak are used for staves and bolts, as they are both tight-grained timber, but more defective than white oak and its species.”
It thus appears that the testimony of the witnesses for the appellee by no means establish the fact by a preponderance that there was a uniform custom to include under the term “white oak” all the other species of oak named and claimed by the appellee in its complaint, towit: cow oak, post oak, and overcup oak. The witnesses for appellee differ as to the kinds of oak that are included under the term “white oak.” But, on the other hand, the witnesses for the appellant testify uniformly that the term “white oak” has a popular and well-understood meaning in Union County, where the timber in controversy is situated, and that it does not include overcup, cow oak and post oak.
As the finding of the chancellor, in our opinion, upon the whole record, is not supported by a clear preponderance of the evidence, the judgment is reversed, and the cause remanded with directions to dismiss the complaint for want of equity, and for further proceedings on appellee’s claim for damages, according to law and not inconsistent with this opinion. | [
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Frauenthal, J.
This is ah action instituted by M. F. Norman, the plaintiff below, upon a note executed to her by the defendants. The note was for $3,800, dated February 20, 1906, and due January 1, following. It was signed by A. W. Cammack Company, W. T. Files, J. C. Norman and A. W. Cammack. The suit was instituted against the makers of the note, and was made returnable at the January, 1909, term of the circuit court. At that term of the court W. T. Files filed an answer, and the case as to him was continued. Judgment by default was then taken against the remaining defendants. Subsequently, during the same term of court, the judgment by default against the defendant Norman was set aside, upon motion of plaintiff’s attorney. At the following term of said court, A. W. Cammack filed a complaint seeking to vacate said default judgment against him upon the ground, amongst others, that it had been obtained by fraud practiced by the plaintiff’s attorney. To this complaint the plaintiff made answer, and the proceeding seeking to vacate said judgment was submitted to the court upon said complaint, the response and the evidence of witnesses; and the court entered a judgment vacating said default judgment and permitting the said defendant Cammack to file answer to the original complaint upon said note.- That suit proceeded to trial and resulted in a judgment in favor of the defendants, from which this appeal is prosecuted.
From the judgment vacating the default judgment the plaintiff at the time prayed an appeal, but did not prosecute a separate appeal therefrom. No bill of exceptions was made of the evidence adduced upon the hearing of the complaint seeking the vacation of the default judgment, nor was any motion for new trial filed. The appeal from that judgment is brought up with the appeal taken from the final judgment rendered in the trial upon the merits of the case, and the rendition of the judgment vacating the default judgment is assigned as one of the errors which calls for a reversal óf said final judgment.
The proceeding seeking the vacation of the default judgment was warranted by section 4431 of Kirby’s Digest. It was in effect an independent action for that purpose, and the judgment entered therein was final in settling the rights of the parties to a vacation of the default judgment, and was appeal-able. Ayers v. Anderson-Tully Co., 89 Ark. 163. In order to have such judgment reviewed upon appeal for any errors committed in its rendition, it was essential that the evidence adduced upon the trial of the proceedings should have been preserved by bill of exceptions, as in any other case appealed to this court; otherwise it will be presumed that there was sufficient evidence to support the findings made by the court rendering the vacating judgment. In such judgment it is recited that from the evidence the court found that the default judgment was procured through the fraud of plaintiff’s attorney and the attorney whom defendant Cammack had employed to represent him to make defense to that suit. This was sufficient to justify the rendition of the judgment vacating the default judgment; and if the appeal prayed by plaintiff from that judgment has been properly perfected, although no separate appeal therefrom has been taken to this court, -no alleged errors committed by the court in rendering that judgment have been properly preserved, so that they can be reviewed upon appeal. It follows that the judgment vacating said default judgment must be affirmed.
In their answer to the original complaint the defendants W. T. Files and A. W. Cammack admitted the execution of the note sued on, but alleged that it was executed for a certain interest which the plaintiff owned in a mercantile corporation, and they resisted recovery upon the ground (1) that plaintiff by her agent made false representations as to the assets and liabilities of said corporation which had induced the execution of the note, and (2) that the note was signed upon agreement, that said Files should have thirty days in which to examine whether said representations as to said assets and liabilities were true, and, if not, he would have the right within that time to refuse to make the purchase, and thereupon would be entitled to a return of said note. The testimony which was introduced upon the trial of this case is quite voluminous, and we find it only necessary to state in brief manner the testimony showing the contentions of the respective parties, in order to present the grounds for our determination of this appeal.
It appears from this testimony that James C. Norman and R. C. McBride were the owners of a mercantile business which they had conducted for some years, and in 1908, with the remaining stock of goods as the chief asset, they, in connection with A. W. Cammack, organized a mercantile corporation known as the A. W. Cammack Company with its place of business located at Portland, Arkansas. These three pai’ties were the sole stockholders of the corporation, each being the owner of 120 shares of its capital stock, each share of which was of the par value of $25. In 1904 the plaintiff purchased an interest in this corporation. She was represented at all times in her transactions with this corporation and with the defendants by her husband, John C. Norman, who is the uncle of James C. Norman. She invested in that company something in excess of $6,000, obtaining therefor 160 shares of the capital stock of the A. W. Cammack Company, and an interest in a gin company owned by. that corporation; and her husband as her agent assisted for a year or two thereafter in running the business of the company. Subsequently, the plaintiff desired to sell her entire interest in the corporation and gin company, and the controlling questions involved in this case are, to whom did she sell said interest, and what were the terms and conditions of the sale?
The testimony introduced upon the part of the defendants tended to prove that on February 20, 1906, James C. Norman approached said Files about making a purchase of plaintiff’s interest in said corporation. Files thereupon met with plaintiff’s husband and Jas. C. Norman and A. W. Cam-mack at the company’s office on that day, and he and plaintiff’s agent then entered into an agreement relative to the purchase of said interest. This testimony tended to prove that John C. Norman, as plaintiff’s agent, and James C. Norman then represented to the said Mies that the property of the mercantile corporation consisted of a stock of goods which inventoried $7,000 and of book accounts amounting to $4,000, and of some mules, and that the stock in the gin company amounted to $1,500; that the liabilities of the corporation amounted to $2,000. That it was then agreed that the plaintiff would sell her interest in said companies to said Mies for $8,800, for which the note was then executed by him, with James C. Norman and A. W. Cammack as sureties. That Mies did not know anything relative to the assets and liabilities of the corporation, and it was agreed that he should have thirty days in which to investigate these; and if he found that the representations were not true, he should notify said James C. Norman and A. W. Cammack, and thereupon there would be no purchase and sale of the plaintiff’s interest, and the note should be returned to him. There was also testimony adduced by defendants tending to prove that the representations made as to the amount of the stock of goods and accounts owned by the corporation were false, and that its liabilities were larger than represented. Within three or four days after February 20, Elies learned this, and at once notified said Norman and Cammack that he was not satisfied and would not make the purchase. There was also testimony tending to show that Cammack at once notified plaintiff’s husband and agent of the refusal of Files to purchase plaintiff’s interest, and that he came to Portland at a later date and promised to surrender the note, but later refused to do so.
Testimony on the part of the plaintiff tended to prove that plaintiff sold her interest in the corporation and gin company to the A. W. Cammack Company for $3,800, for which that corporation executed this note with W. T. Mies, James C. Norman and A. W. Cammack as sureties thereon; that she did not sell her interest in the corporation and gin company to said Files at all. This testimony tended also to prove that James C. Norman, in addition to the shares of stock owned by him in the corporation at its organization, had subsequently acquired the 120 shares owned by said McBride, and that on February 20, 1906, he sold this McBride stock to said Files for $500, for which Elies executed to him his due bill, and this was the sole interest which Files at any time purchased or owned in the corporation. This testimony further tended to prove that no false representations had been made to Files as to the assets or liabilities of the corporation, and that no agreement had been made with him that the note sued on should be held thirty days to await an examination of said representations as to the corporation by said Files before it should become effective.
These, briefly stated, were in substance the contentions of the parties as to the issues made by the pleadings in this case. The defendants contended that the plaintiff sold her interest in the mercantile corporation and gin company to said Files, and that he executed the note as principal, with said Norman and Cammack as sureties thereon; that representations were made to him as to the assets and liabilities, which he had a right to examine within thirty days before the note should become effective, and, if he found them untrue, it should be returned to him. That within the stated time he found that the representations made relative to the assets and liabilities of the corporation were false, and notified the parties of his refusal to purchase. The plaintiff contended that she had sold her interest in the properties of the corporation and gin company to the A. W. Cammack Company, which corporation signed the note through its president, A. W. Cammack, and that the defendants signed it as sureties for that corporation. On the trial of the case there was testimony adduced tending to show that the company was in bad financial condition in February, 1906, and that it continued for a year or so thereafter, when it failed and its stock became worthless. But there was no plea made by the defendants that there was a failure of consideration for which this note was executed, and such plea was not made an issue in the case.
The court gave certain instructions requested by the plaintiff, and refused to give a number of instructions requested by her, the rulings upon which it is urged by her counsel were such errors as to call for a reversal of the judgment. We do not deem it necessary to set any of these instructions out or to note them in detail. It is sufficient to say that we have examined them and do not find that any of the rulings in the giving and refusing of instructions asked by plaintiff was so prejudicial as to call for a reversal of this case.
At the request of the defendant the court gave three instructions. Two of them refer to the issues made by the pleadings in the case, and we think correctly presented those issues. The third instruction given at the request of the defendants was as follows; “If the jury find from the preponderance of the evidence that no consideration was paid or delivered for said note, then your verdict will be for the defendant.”
This instruction related to a matter which was not made an issue in the case. As above stated, the defendants did not in their answer plead a failure or want of consideration of the note. No evidence was introduced or directed to the issue as to whether or not there was a want or failure of consideration for the execution of this note. That was not an issue in the case, and did not call for the introduction of testimony thereon. If, as contended by the plaintiff, she sold her interest in the corporation to the A. W. Cammack Company, and the defendant signed the note sued on as sureties for that company, then they would be liable although subsequently the corporation became insolvent, because under such circumstances there was sufficient consideration for the execution of the note. The above instruction No. 3 was therefore entirely abstract and misleading. It may be that, because this corporation subsequently failed, the jury believed that at the time the note was executed it was in a failing condition, and for that reason there was no consideration for the note. On this account the instruction given was highly prejudicial' to the rights of the plaintiff.
For the error in giving said instruction, the judgment must therefore be reversed, and the cause remanded for new trial. | [
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Frauenthal, J.
This is an appeal from a judgment admitting to probate the last will and testament of Emeline D. Triggs. The proponent of the will is R. G. Floyd, administrator of her estate with the will annexed, representing the legatees therein; and the present contestants and appellants are her collateral heirs. The purported will was executed on February 1, 1908, and the testator died in May, 1909. On July 26, 1909, the probate court made an order admitting said will to probate in common form, without notice to interested persons, and without, their being made parties in that court.
On July 26, 1910, one Lula M. Coleman, claiming to be an heir by adoption of the said Emeline D. Triggs, appealed to the circuit court from said judgment of the probate court admitting said will to probate. The appeal was taken by the attorney of said Lula M. Coleman, who was then a nonresident of the State, making an affidavit in form prescribed by law for such appeal. The appeal was then filed and docketed in the circuit court. On the 8th day of February, 1911, the present appellants filed in the circuit court a motion asking that they be made parties to said appeal, and therein stated that they were the collateral heirs of said Emeline D. Triggs, and alleged that the purported will was not her last will and testament. On June 26,1911, said appellants filed an amended motion to be made parties to the appeal, in which they stated that they contested the probate of the will upon the grounds (1) that the instrument offered for probate did not constitute a will, and (2) that it was not regularly and legally probated, (3) that it was not properly and legally attested and published by the testator as her will, and' (4) because'it had been obtained by fraud and undue influence, and the testator was of unsound mind at the time of its execution.
Thereupon the appellees filed a demurrer to, and a motion to strike from the files, said motion of appellants to be made parties, upon the ground that the circuit court was without authority to make the appellants parties to said appeal. With-' out then passing upon said motion, the court proceeded to hear the appeal of said Lula M. Coleman, and found that she was not legally adopted by the deceased, Emeline D. Triggs, and that she was therefore not a party in interest, and had no cause or right to appeal from said judgment of the probate court. The court thereupon entered a judgment dismissing the appeal of said Lula M. Coleman, and in said judgment it is further recited that the dismissal of her appeal should not in any way prejudice the rights of the present appellants on their motion to be made parties thereto. No appeal was taken from the judgment finding that said Lula M. Coleman was not a party in interest, that she had no right to appeal from the judgment of the probate court admitting said will to probate, and ordering a dismissal of her appeal.
Thereupon the court overruled the demurrer and motion of appellees attacking the right of appellants to be made parties to the appeal from the probate court, and entered an order making them parties to that appeal. To this action of the court the appellees duly objected and properly saved, their exceptions.
The cause then proceeded to trial upon the grounds of the contest made by appellants, and resulted in a verdict finding that the purported will was the last will and testament of said Emeline D. Triggs; and the circuit court then rendered judgment admitting said will to probate. From that judgment those persons who had been made parties to the appeal in the circuit court have alone appealed.
It is contended by counsel for appellees that the circuit court was without authority to make appellants parties to the appeal taken by Lula M. Coleman from the judgment of the probate court, and erred in so doing; and for this reason they urge that the judgment should be affirmed. If this contention is correct, then it would not be necessary to note the various assignments of error made by appellants for reversing the judgment of the circuit court, because, if the appellants had no right to be made parties to the appeal from the judgment of the probate court, then that judgment admitting the will to probate would be in full force and effect, for the. reason that the appeal therefrom taken by Lula M. Coleman, the only proper party thereto, was dismissed, and that judgment of dismissal has not been appealed from. The question as to whether or not appellants could be made new parties to the appeal which had been taken by Lula M. Coleman from the judgment of the probate court was, we think, sufficiently raised by appellees in the circuit court. That question was passed upon by the circuit court when it overruled appellees’ demurrer to the motion of appellants to be made parties, and exception was then properly preserved to that adverse ruling. Nor are the appellees precluded from having this question passed upon in this appeal because they did not pray a cross appeal to this court from the judgment of the circuit court admitting the will to probate. The judgment thus rendered by the circuit court was in favor of appellees, and the effect thereof as to them was therefore the same as if appellants had been denied the right to be made parties in that court; for the result of a denial to make them parties would have left the judgment of the probate court admitting the will to probate in full force. And, if we hold that this question should not be decided upon this appeal for the reason that appellees prayed no cross appeal, and thereupon should pass upon the errors assigned by appellants for a reversal of the judgment, and should sustain the same, we would still deem it necessary to pass upon this question in any opinion which we might render. If we should then determine that this contention of appellees is correct, and for the errors assigned by appellants should reverse the judgment, the appellees could, upon the case being remanded to the circuit court, still insist that said court should sustain their objection to making appellants parties to the appeal taken by said Lula M. Coleman from the said judgment of the probate court, and their objection should then be sustained. We are therefore of the opinion that the question as to whether or not appellants were entitled to be made parties to the action appealing from the prohate court judgment is properly before us for determination upon the present appeal.
It is urged by counsel for appellees that the appellants were not entitled to be made parties in the circuit court to the appeal taken from the judgment of the probate court because, (1) the appeal by Lula M. Coleman from said judgment was not taken within six months after the rendition thereof, and (2) because the appeal of Lula M. Coleman was dismissed before the appellants were actually made parties thereto.
The first ground is based upon the provisions of the act of 1909, which prescribe that any heir, devisee, legatee or judgment-creditor who feels aggrieved by the judgment of the probate court must prosecute an appeal therefrom by filing an affidavit and prayer for appeal, together with a bond for the costs, within six months from the rendition thereof. (Acts 1909, p. 957). In the view which we have taken of the matter, however, we do not deem it necessary to determine whether an heir is a party, by virtue of his interest, to a judgment of a probate court admitting a will to probate, although not expressly so made by order of that court, and therefore, as such party, has one year in which to take an appeal therefrom under the provisions of said act of 1909. (See Ouachita Baptist College v. Scott, 64 Ark. 349).
The appeal from the judgment of the probate court admitting said will to probate was taken by Lula M. Coleman alone. When that appeal was lodged in the circuit court, she' was the sole party to the action then pending in that court upon said appeal. It was as if she had brought a cause of action in said circuit court as the sole plaintiff. While that cause of action on said appeal was pending in the circuit court, a motion was made to make appellants new parties thereto, and in effect to amend the proceeding by adding new parties (Kirby's Digest, § 6145). ' It was determined by the circuit court that Lula M. Coleman was not a party in interest in the matter or proceeding — in effect, that she had no cause of action or right to appeal from the judgment of the probate court. The appellants, with different and independent rights, sought to amend the proceeding by displacing Lula M. Coleman and substituting themselves and their own cause of action. This could not be done. If Lula M. Coleman, the sole party to the appeal, and in effect the sole plaintiff, had no cause of action, then no amendment of the cause of action could be made by substituting other parties who did have a cause of action.
In the case of State v. Rottaken, 34 Ark. 144, it was held that where a plaintiff in his complaint shows that he has no such interest as entitles him to invoke the jurisdiction of the court, an amendment can not be made by making other persons plaintiffs who have a cause of action.
In the case of Railway Company v. State, 56 Ark. 166, the court in passing upon a similar question said: “The demurrer to the complaint was properly sustained, as it showed that plaintiff was not, and that the State was, the party entitled to prosecute the action. . Leave to amend by striking out the sole plaintiff and substituting another could not have been granted. The right of amendment is broad, but it does not warrant the substitution of a stranger for the sole plaintiff in the cause.” See, also, Schiele v. Dillard, 94 Ark. 277: Greer v. Vaughan, 96 Ark. 524; 1 Enc. Pl. & Pr. 545; 3 Estee’s Pleading, § 4487; 31 Cyc. 475.
The appellants and Lula M. Coleman had no. interest in common in the appeal which had been taken from the judgment of the probate court. The alleged right and claim of Lula M. Coleman was different from and independent of any right or claim which appellants may have or may make. According to the judgment of the circuit court, she had no right of appeal or cause of action upon an appeal, and her appeal and action was properly dismissed. The proceeding then could not be amended by thus striking out Lula M. Coleman, in effect the sole plaintiff, who had no right in the matter and no cause of action, and by substituting appellants who might have. If these appellants have rights entitling them to appeal from the judgment of the probate court, or any cause of action entitling then to invoke the jurisdiction of the court for its enforcement, it was their duty to institute proceedings to that end themselves.
It follows that the appellants were not proper parties to the proceeding in the circuit court, and that their motion to be made parties thereto should have been denied.
The judgment is accordingly affirmed. | [
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Hart, J.,
(after stating the facts). Counsel for appellant contend that the court erred in refusing to grant appellant’s motion for continuance. The original complaint alleges that appellee received her injuries on April 5, 1911. When the case was called for trial on March-21, 1912, appellee asked the court to amend her complaint by alleging that she received her injuries on May 5, 1911. This was granted, and thereupon the appellant was given permission to change its answer to meet the amendment of the complaint. Then both parties announced ready for trial, and a jury was impanneled to try the cause. While counsel for appellee was stating her case to the jury, appellant asked leave of the court to file a motion for continuance. The motion alleged that appellant was taken by surprise when appellee amended her complaint so as to change the date on which the injury occurred from April 5, 1911, to May 5, 1911, and that it was not prepared to meet this change in the date.
The complaint should state with as much definiteness and certainty as possible the time and kind of train and the particular point where the injury occurred. This should be done' in order that the railroad company might be enabled to prepare for its defense and avoid the necessity of subpoenaing an unnecessary number of witnesses and therefore possibly decrease the efficiency of the service of its trains and also to avoid unnecessary expense. So, if the motion for a continuance had been made at the time appellee was given permission to amend her complaint, the motion should have been granted. In the instant case, however, appellant did not do this. It amended its answer to meet the changed issue and elected to go to trial without asking for a continuance. As far as the record discloses, it knew as much then as it did subsequently about the necessity of having new witnesses to meet the changed condition of the pleadings. The injury occurred on a branch line of appellant’s line of railway where, presumably, appellant had but few trains and train crews. The general rule is that the granting or refusing a continuance is intrusted to the judicial discretion of the trial court, and it is an abuse of that discretion only that is a ground for reversal. Having elected to go to trial under the changed condition of the pleadings and not having shown any additional grounds than that before appellant elected to go to trial, the court did not abuse its discretion in refusing to grant the continuance.
It is insisted by counsel for appellant that the court erred in refusing to direct a verdict for it. This was a suit by appellee to recover damages for injuries received while getting on one of appellant’s trains, which carried both freight and passengers. In the case of St. Louis, I. M. & S. Ry. Co. v. Hartung, 95 Ark. 220, the court in discussing the duty of carriers to passengers getting on mixed trains, said:
“The carrier of passengers on mixed trains is required, like carriers on regular passenger trains, to furnish reasonably safe means of entering the car and to hold the car in a reasonably safe manner for a reasonable time to permit those who wish to enter to do so with safety. If, therefore,- while the passenger is getting on the car, the train is negligently started, or so negligently handled by permitting other cars to be thrown against it with such violence that the passenger is injured, the carrier will be liable. The time that is allowed a passenger to enter a train depends to a great extent on the particular circumstances of each case and of the passenger, the physical ability of the passenger, his incumbrance with baggage and his being accompanied by those who are dependent upon him for attention may all be taken into consideration in determining whether a reasonable time has been afforded the passenger in getting on board the train.”
Tested by this rule, the court did not err in refusing to direct a verdict for appellant. The testimony of appellee shows that, as soon as the conductor announced that the train was ready to receive passengers, appellee and her children started to get on the train and proceeded with as much dispatch as possible to board the train and to get to their seats. The accident occurred just as appellee reached the door of the train and before she had time to walk to a seat.
The court at the request of appellee, among others, gave the following instructions:
“No. 3. You are instructed that it was the duty of the defendant, as a carrier of passengers, to stop its train long enough to allow the plaintiff and other passengers a reasonable time to board said train and reach their seats.”
“No. 5. You are instructed that the reasonable time which the defendant was required to hold its train for passengers to get on and off is such time as a person of ordinary care and prudence should be allowed to take, and in determining this reasonable time it is the duty of the carrier to take into consideration any special condition peculiar to the passenger, and to give a reasonable time under the existing circumstances, as they are known, or should be known, by its servants, for passengers to get on and off its tram.’’
“No. 6. If you find that the defendant did not stop its train a reasonable time, giving the plaintiff a reasonable opportunity to board said train and reach her seat, then the defendant has failed in its duty to the plaintiff.”
Counsel for appellant assign as errors the action of the court in giving the fourth and sixth of these instructions. Counsel insist that the effect of these instructions was to tell the jury that appellant should have stopped" its train long enough for appellee to board the same and reach her seat. We do not think so. The instructions should be read together, and, when that is done, they fall fairly within the rule laid down in the case of St. Louis, I. M. & S. Ry. Co. v. Hartung, above copied.
A passenger is entitled to a reasonable time in which to get aboard a train after he is given an opportunity to do so, and if, without allowing such reasonable time, the train is started, and the passenger is injured, the railway company is liable. The instructions referred to, when considered together, properly submit this question to the jury.
Counsel for appellant also assign as error the action of the court in giving the following instruction:
“No. 3. If you find for the plaintiff, in assessing her damages you will take into consideration her age and condition in life, the injuries sustained by her and the physical and mental pain and anguish endured by her on account of the injury, if any, together with such as she will necessarily endure in the future, resulting from her injury, if any, together with all other facts and circumstances in the case, and assess her damages at such sum as you believe from the evidence will fully compensate her for the injuries.”
They insist that the instruction assumes that future suffering would result to appellee from the injury and also insist that it is not supported by 'the evidence. We can not agree with appellant in this contention. The evidence on the part of the appellee tends to show that she suffered pain from the time she received the injury on May 5, 1911, to the time of the trial on March 21, 1912. She said she still suffered greatly from her injuries. The physicián who attended her also stated that she appeared to suffer great pain, and that it was likely that her injuries would be permanent. Under the testimony, as set out in the statement of facts, the jury might have well found that appellee would continue to suffer pain in the future and that her injuries were permanent. We do not think that the instruction assumes that she would suffer pain in the future, but that fact was left for the jury to determine under the evidence.
Counsel for appellant also contend that the court erred in giving instructions numbered 7 and 8 to the jury,. which read as follows:
“No. 7. You are told that while the plaintiff in taking passage upon a mixed train assumed the risk of necessary and usual jolts and jars, this did not relieve the railroad company from exercising the same high degree of care in the handling of its trains as if she was riding on a regular passenger train, to avoid injuring her. The risk of usual jolts and jars assumed by plaintiff is the risk incident to the mode of conveyance, and it does not relax the rule as to the high degree of care to be exercised by the servants of the defendant to avoid injuring passengers. So in this case, if you believe that the plaintiff was without fault and would not have been injured if the defendant’s servants had exercised such high degree of care, your verdict should be for the plaintiff.”
“No. 8. When a passenger takes passage on .a mixed train, which carries both freight and passengers, such passenger assumes the ordinary risks and inconveniences that are incident to the travel on such trains. But the railway company owes to such passenger the duty to exercise the highest degree of care consistent with the practicable operation of such train to protect the passenger from injury.”
Counsel for appellant insist that the instructions are inconsistent and conflicting, and that both should not have been given. In the case of Arkansas Southwestern Railroad Company v. Wingfield, 94 Ark. 76, the court quoted with approval the following:
“But, as it is not practical to operate freight trains without occasional jars and jerks, calculated to throw down careless and inexperienced passengers standing in the car, the duty of the company is therefore modified by the necessary difference between freight and passenger trains and the manner in which they must be operated; and, while the general rule that the highest practical degree of care must be exercised to protect passengers holds good, the nature of the train and necessary difference in the mode of operation must be considered, and the company is bound to exercise only the highest degree of care that is usually and practically exercised and consistent with the operation of a train of that nature.”
An instruction in precisely the same language as that contained in instruction numbered 7 was given by the court in that case, and in commenting upon the instruction the court held that it was in accord with the statement of the law above made and was not fairly susceptible of the meaning now sought to be given it by counsel for appellant. The same contention in regard to the instruction was made in that case as is made in the present one, and the court held that it was not prejudicial error to give the instruction. The instruction is not happily framed, but when it was considered by the jury in connection with instruction numbered 8, which immediately followed it, and which is conceded by counsel for appellant to be correct, we are of the opinion that the jury could not have been confused or misled by it. The correct rule applicable to such cases is laid down in the case of St. Louis, I.M. & S. Ry. Co. v. Purifoy, 99 Ark. 366, which is as follows:
“Railroad companies are bound to the most exact care and diligence, not only in the management of trains and cars, but also in the structure and care of the track and in all the subsidiary arrangements necessary to the safety of the passengers. While the law demands the utmost care for the safety of the passenger, it does not require railroad companies to exercise all the care, skill and diligence of which the human mind can conceive, nor such as will free the transportation of passengers from all possible peril. They are not required, for the purpose of making their roads perfectly safe, to incur such expenses as would make their business wholly impracticable, and drive prudent men from it. They are, however, independently of their pecuniary ability to do so, required to provide all things necessary to the security of the passenger reasonably consistent with their business and appropriate to the means of conveyance employed by them, and to adopt the highest degree of practicable care, diligence and skill that is consistent with the operating of their roads and that will not render their use impracticable or inefficient for the intended purposes of the same.”
Tested by this rule, and, when considered together, we think the instructions contained a correct guide to the jury in determining the issues submitted to them.
Finally, it is contended by counsel for appellant that the verdict is excessive. The verdict was for $1,550. It is true the appellee did not seek the service of a physician until four or five months after she received her injuries, but she testified that during all of that time she suffered great pain and attempted to alleviate her suffering by the use of liniments and other home remedies. The trial occurred almost one year after she received her injuries, and she states that she was still suffering great pain at that time. Her physician stated that her injuries were severe at the time he visited her; that her injured shoulder was an inch and a half shorter over the shoulder blade than it is over the other shoulder blade. He stated it was his opinion that the injuries would be permanent. Appellee testified that at the time of the trial she could not lift her baby or a bucket of water with her injured arm and could not milk a cow with that hand. She stated that she suffered at that time great pain from her injuries. Under these circumstances, we do not think the verdict was excessive.
Therefore the judgment is affirmed. | [
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Per Curiam.
Appellant, Kenneth Dana Brewton, by and through his attorney, John W. Settle, has filed a motion for rule on clerk to file his record and have his appeal docketed. The clerk refused to accept the record. The record before us does not show strict compliance with Arkansas Rules of Appellate Procedure — Rule 5(b)(1)(C), as all parties have not had an opportunity to be heard on appellant’s motions to extend time for filing the transcript.
We have held that Rule 5(b)(1) applies to both civil and criminal cases for the determination of the timeliness of a record on appeal. See Roy v. State, 367 Ark. 178, 238 S.W.3d 117 (2006) (per curiam). Rule 5(b)(1) provides in pertinent part:
(1) If any party has designated stenographically reported material for inclusion in the record on appeal, the circuit court, by order entered before expiration of the period prescribed by subdivision (a) of this rule or a prior extension order, may extend the time for filing the record only if it makes the following findings:
(C) All parties have had the opportunity to be heard on the motion, either at a hearing or by responding in writing;'
Id. We have made it clear that there must be strict compliance with the requirements of Rule 5(b), and that we do not view the granting of an extension as a mere formality. See White v. State, 366 Ark. 295, 234 S.W.3d 882 (2006); Rackley v. State, 366 Ark. 232, 234 S.W.3d 314 (2006). As the record before us does not comply with this rule, we remand this case to the trial court for compliance with Rule 5(b)(1)(C).
Remanded. | [
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Paul Danielson, Justice.
Pro se appellant Charles Alan Baker appeals from the circuit court’s order dismissing his petition for habeas corpus relief brought against appellee Larry Norris, the director of the Arkansas Department of Correction. His sole point on appeal is that the circuit court erred in dismissing his petition. We affirm the circuit court’s order.
A review of the record reveals that Baker’s plea hearing was held in the Monroe County Circuit Court on August 4, 2004. At that hearing, the circuit court read aloud the following charges against Baker: possession of a controlled substance with intent, class Y; possession of a controlled substance, class B; possession of a firearm by a certain person, class B; escape in the second degree, class C; and attempted capital murder, class A. The prosecutor then presented its motion to the circuit court, in accord with plea negotiations:
Prosecutor: Your Honor, the State has a motion subject to plea negotiations. State moves to nolle prosequi counts 1, 3, 4 and 5. Leaving Count 2, Possession of Drug Paraphernalia with Intent to Manufacture, Class B felony.
Following the circuit court’s inquiry as to whether there were any objections, counsel for Baker stated that there were none and that “[t]hat is our understanding.” The following colloquy then took place:
Defense Counsel: We are here to enter a plea of guilty to the remaining charge, a single class B felony.
Circuit Court: Mr. Waters, did you say B?
Defense Counsel: B as in Boy.
Circuit Court: A class B. And the charge will be?
Defense Counsel: Possession of Drug Paraphernalia with Intent to Manufacture.
The circuit court then addressed Baker:
Circuit Court: Is this your signature on the plea statement?
Baker: Yes, it is, your Honor.
Circuit Court: Did you read the plea statement before you signed it?
Baker: Yes, sir, your Honor.
Circuit Court: Do you understand it?
Baker: Yes, sir.
Circuit Court: Are you familiar with the minimum, maximum penalties prescribed by law for a class B felony being five years if convicted and a maximum of twenty years in the Arkansas Department of Correction?
Baker: Yes, sir.
Circuit Court: Do you understand that you do not have to plead guilty and you have a Constitutional right to have a trial by a jury on these charges. Do you understand that?
Baker: Yes, sir.
Circuit Court: Your signature on the plea statement tells this Court that you understand these rights and you also wish to waive these rights. Is that correct?
Baker: Yes, sir.
Circuit Court: Now, do you understand that by entering a plea of guilty you do indeed waive your Constitutional rights?
Baker: Yes, sir.
The circuit court then inquired of Baker as to whether he had discussed the potential penalties and his right to a jury trial:
Circuit Court: Now, have you discussed with [defense counsel] the minimum, maximum penalties, five to twenty years?
Baker: Yes, sir.
Circuit Court: Have you discussed with [defense counsel] your right to a have a jury trial?
Baker: Yes, sir.
And finally, the circuit court inquired of Baker as to the facts and whether he did, in fact, commit the offense and also sentenced him in accordance with his negotiated plea:
Circuit Court: Have you discussed with [defense counsel] the facts surrounding this case? Have you explained to him your version of what happened or how it might have happened and what your involvement might have been?
Baker: Yes, sir.
Circuit Court: Have you discussed with [defense counsel] a plea bargain to know what the State of Arkansas will recommend to the Court in exchange for your plea of guilty?
Baker: Yes, sir.
Circuit Court: You understand that the recommendation of the State is not binding on the Court?
Baker: Yes, sir.
Circuit Court: What does the State allege?
Prosecutor: On or about February the 18th, 2003 in Monroe County, Arkansas, he did unlawfully use or possess with intent to use drug paraphernalia to manufacture methamphetamine against the peace and dignity of the State of Arkansas.
Circuit Court: Did you do that, sir?
Baker: Yes, sir.
Circuit Court: The Court finds that the defendant has freely and voluntarily entered a plea of guilty. There is a factual basis for the plea. He is found guilty of possession of drug paraphernalia with intent to manufacture. What is the recommendation of the State of Arkansas?
Prosecutor: Fifteen years Arkansas Department of Correction to run concurrent with his current sentences, and credit for time served.
Circuit Court: . . . Now, Mr. Baker, was that your understanding of what the State would recommend as your sentence in this case?
Baker: Yes, your Honor.
Circuit Court: Do you have any questions before the Court pronounces sentence in the case?
Baker: No, sir.
Circuit Court: It is the judgment of the Court in case number 03-30, State of Arkansas versus Charles A.
Baker, that he be taken to the Arkansas Department of Correction. There to remain for a period of 15 years on the conviction of Possession of Drug Paraphernalia with the Intent to Manufacture, a Class B. The defendant will be given credit for time served from February 19,2003. The sentence in 2003-30 is concurrent with the current sentence that the defendant is serving at the Department of Correction. It is the same as one sentence. You may stand down.
Subsequent to the hearing, a judgment and commitment order was entered on August 5, 2004, reflecting that Baker entered a negotiated plea of guilty to the offense of possession of drug paraphernalia with intent to manufacture methamphetamine, in violation of Ark. Code Ann. § 5-64-401 (Pamph. No. 2, Sept. 2002), and that he was sentenced to 180 months’ imprisonment. On August 30, 2004, the Department of Correction completed a time computation card that only reflected Baker’s prior conviction for criminal conspiracy. It indicated that he was eligible for transfer on January 4, 2005, and had a discharge date of December 2, 2009.
On October 29, 2004, an amended judgment and commitment order was entered by the circuit court, reflecting that Baker had negotiated a plea of guilty to the offense of possession of drug paraphernalia with intent to manufacture methamphetamine, in violation of Ark. Code Ann. § 5-64-403 (Pamph. No. 2, Sept. 2002), and sentencing him to 180 months’ imprisonment. (Emphasis added.) On November 9, 2004, the Department of Correction completed another time computation card, which reflected the addition of his drug paraphernalia conviction. Accordingly, Baker’s new eligibility date for transfer was August 18, 2013, and his discharge date was computed to be February 17, 2018.
On March 29, 2006, Baker filed an affidavit in support of his pro se petition for writ of habeas corpus in the Jefferson County Circuit Court. In it, he claimed that on August 4, 2004, he agreed to enter a guilty plea to the charge of criminal conspiracy to manufacture and delivery and possession of methamphetamine. He stated that he was told that he would be sentenced and that he would plead guilty to the charge under Ark. Code Ann. § 5-64-401 and that he was advised that he would receive a fifteen-year sentence to be served concurrently with a prior conviction. He claimed that he was told that he would be required to serve only one-half of his sentence, minus statutory credits for good time, and that he would receive 533 days of credit for time served. He specifically stated that he “was never informed by [his] trial counsel, the prosecuting attorney, o[r] the trial court before or at the guilty plea trial that [he] would be pleading guilty to a A.C.A. § 5-64-403 violation that [w]ould require [him] to serve 70% of [his] sentence before being parole eligible.” Finally, he asserted that neither he nor his counsel was present “when the trial court changed the nature of the sentence origionally [sic] imposed and amended the judgment so that [his] conviction would be pursuant to § 5-64-403 rather than under the statute, A.C.[A]. 5-64-401 that [he] agreed to plead guilty to[,]” nor did they receive notice that the order would be changed.
On March 30, 2006, Baker filed his petition for issuance of a writ of habeas corpus. In it, he claimed that the Monroe County Circuit Court lacked jurisdiction to amend his judgment and commitment order without notice to him and without him being afforded the right to be present and represented by counsel. He further asserted that the amended judgment and commitment order clearly prejudiced him by altering the nature and degree of his punishment. In addition, he claimed that because he had already pled guilty to a violation of Ark. Code Ann. § 5-64-401, the amended judgment and commitment order convicting him under Ark. Code Ann. § 5-64-403 violated his double-jeopardy rights. For these reasons, he claimed, the amended judgment and commitment order was invalid on its face.
On April 19, 2006, the Attorney General’s Office, on behalf of appellee Norris, filed a motion to dismiss Baker’s petition. In it, the State conceded that the original judgment and commitment order did list the incorrect code section under which Baker was sentenced. However, the State asserted, the statutory reference was a clerical error, which was corrected by the amended judgment and commitment order to properly reflect the offense to which Baker actually pled guilty. Based on the clerical nature of the correction, the State averred that Baker’s petition for habeas relief should be dismissed with prejudice, as he did not challenge the facial invalidity of the amended judgment and commitment order and because the jurisdiction of the circuit court was not at issue. Baker replied, asserting that the original judgment and commitment order controlled and that the circuit court lacked jurisdiction to enter the amended judgment and commitment order.
On June 1, 2006, the Jefferson County Circuit Court filed its order dismissing Baker’s petition. In it, the circuit court concluded that Baker’s allegations did not demonstrate that the Monroe County Circuit Court lacked jurisdiction or that the commitment was invalid on its face. The circuit court found that the Monroe County Circuit Court had personal jurisdiction over Baker and jurisdiction of the subject matter and, thus, it had the authority to render the judgment. Moreover, the circuit court found that Baker had not stated any facts or advanced any evidence to support his claim. For these reasons, the circuit court concluded that Baker’s petition was frivolous and without merit and dismissed the petition with prejudice. In addition, the circuit court found that the dismissal should be considered a “strike” within the meaning of Ark. Code Ann. § 16-68-607 (Repl. 2005). Baker now brings this appeal.
Baker argues that in the instant case, he pled guilty to a violation of Ark. Code Ann. § 5-64-401 and not Ark. Code Ann. § 5-64-403. He claims that his fifteen-year sentence was a valid sentence under section 5-64-401 and that once it was put into execution, the circuit court lost jurisdiction to amend the judgment and commitment order, especially without notice to him and his counsel. He asserts that the amendment prejudiced him by requiring him to serve seventy percent of his sentence, as opposed to the quarter of his sentence, which he believed would be the case after his plea. In addition, he claims that the amended judgment and commitment order violated his right against double jeopardy.
The State, on behalf of appellee Norris, responds that Baker failed to meet his burden of showing any basis for a finding that a writ of habeas corpus should issue. While the State concedes that the original judgment and commitment order does list the incorrect criminal code section under which Baker was sentenced, it urges that the sentencing court not only had jurisdiction to commit Baker to imprisonment, but also had personal jurisdiction over Baker and had jurisdiction over the subject matter, as well as authority to accept the guilty plea and to render a judgment. It submits that the amended judgment and commitment order was facially valid and that because a circuit court may correct a clerical error, the sentencing court did not lack jurisdiction to amend the original judgment and commitment order.
A writ of habeas corpus is proper when a judgment of conviction is invalid on its face or when a circuit court lacks jurisdiction over the cause. See Noble v. Norris, 368 Ark. 69, 243 S.W.3d 260 (2006). Unless a petitioner can show that the circuit court lacked jurisdiction or that the commitment was invalid on its face, there is no basis for a finding that a writ of habeas corpus should issue. See id. The petitioner must plead either the facial invalidity or the lack of jurisdiction and make a “showing, by affidavit or other evidence, [of] probable cause to believe” he or she is illegally detained. Id. (quoting Ark. Code Ann. § 16-112-103(a)(1) (Repl. 2006)). Moreover, a habeas proceeding does not afford a prisoner an opportunity to retry his or her case and it is not a substitute for direct appeal or postconviction relief. See id. A hearing is not required if the petition does not allege either of the bases of relief proper in a habeas proceeding, and, even if a cognizable claim is made, the writ does not have to be issued unless probable cause is shown. See id. Lastly, an appeal is the proper procedure for the review of a circuit court’s denial of a petition for a writ of habeas corpus. See id.
In the instant case, Baker challenges the sentencing court’s jurisdiction to amend his judgment and commitment order to reflect the correct statute under which he pled guilty. Jurisdiction is the power of the court to hear and determine the subject matter in controversy. See id. While Baker claims that he pled guilty to a violation of Ark. Code Ann. § 5-64-401, a review of the record plainly reveals that he pled guilty to the offense of possession of drug paraphernalia with the intent to manufacture methamphetamine. That offense is a violation of Ark. Code Ann. § 5-64-403(c)(5), not section 5-64-401. Section 5-64-403(c)(5) clearly provides:
(5) It is unlawful for any person to use, or to possess with intent to use, drug paraphernalia to manufacture methamphetamine in violation of this chapter. Any person who pleads guilty, nolo contendere, or is found guilty of violating the provisions of this subsection shall be guilty of a Class B felony and shall be fined an amount not exceeding fifteen thousand dollars ($15,000).
Ark. Code Ann. § 5-64-403(c)(5) (Pamph. No. 2, Sept. 2002).
Accordingly, Baker’s original judgment and commitment order was erroneous, as it listed his offense as a violation of section 5-64-401. The question becomes, then, whether the sentencing court had jurisdiction to amend the judgment and commitment order to reflect the correct statute. We hold that it did.
We have held that our case law is replete with examples of a clerical error in a judgment and commitment order and that such clerical errors have not prevented enforcement of the judgment and commitment order. See Carter v. Norris, 367 Ark. 360, 240 S.W.3d 124 (2006). As clerical errors do not speak the truth, courts have the power to enter an amended judgment and commitment order nunc pro tunc to correct an erroneous judgment. See id. (citing Ark. R. Civ. P. 60(b); McCuen v. State, 338 Ark. 631, 999 S.W.2d 682 (1999); Willis v. State, 90 Ark. App. 281, 205 S.W.3d 189 (2005)). Here, Baker admitted to possessing drug paraphernalia with the intent to manufacture methamphetamine during his plea hearing. The mere correction of the “A.C.A. # of offense” on the judgment and commitment order was the correction of a clerical error, especially where the name of the offense, its seriousness level, and all other information were correct and remained the same.
The principal issue in a habeas corpus proceeding is whether the petitioner is detained without lawful authority. See Carter v. Norris, supra. In Baker’s petition to the circuit court, he failed to demonstrate that he was detained without lawful authority. Because he failed to show that his commitment was invalid on its face or failed to show that the sentencing court lacked jurisdiction, he did not establish any cause to grant the writ of habeas corpus. For that reason, we affirm the circuit court’s denial of habeas relief.
Baker additionally argues that the habeas court erred in designating the dismissal of his petition with prejudice as a “strike” under Ark. Code Ann. § 16-68-607 (Repl. 2005). That section provides:
In no event shall an incarcerated person bring a civil action or appeal a judgment in a civil action or proceeding under the Arkansas indigency statutes if the incarcerated person has on three (3) or more prior occasions, while incarcerated or detained in any facility, brought an action that is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the incarcerated person is under imminent danger of serious physical injury.
Ark. Code Ann. § 16-68-607. The State asserts that this court should not address this argument because Baker has failed to cite any authority in support of his argument. We agree. We have held that we will not consider an argument on appeal that has no citation to authority or convincing legal argument. See Johnson v. State, 356 Ark. 534, 157 S.W.3d 151 (2004). Indeed, we will not research or develop an argument for an appellant. See Flanagan v. State, 368 Ark. 143, 243 S.W.3d 866 (2006). Accordingly, we decline to address his argument.
Affirmed.
We note that a portion of Baker’s argument is premised on his assertion that the correction to the statute with which he was charged with violating resulted in his sentence being more onerous, due to the fact that it was subject to the “seventy-percent rule.” As we read the statute, which governs the seventy-percent requirement, Ark. Code Ann. § 16-93-611 (Supp. 2003), Baker would have been subject to that requirement irrespective of whether he was convicted under section 5-64-401 or 5-64-403:
(a)(1) Notwithstanding any law allowing the award of meritorious good time or any other law to the contrary, any person who is found guilty of or who pleads guilty or nolo contendere to:
(A) Murder in the first degree, § 5-10-102;
(B) Kidnapping, ClassY felony, § 5-11-102;
(C) Aggravated robbery, § 5-12-103;
P) Rape, §5-14-103;
(E) Causing a catastrophe, § 5-38-202(a);
(F) Manufacture of methamphetamine, § 5-64-40i(a)(l)(i); or
(G) Possession of drug paraphernalia with the intent to manufacture methamphetamine, § 5~64-403(c)(5)
shall not, except as provided in subsection (b) of this section, be eligible for parole or community punishment transfer until the person serves seventy percent (70%) of the term of imprisonment to which the person is sentenced, including a sentence prescribed under § 5-4-501.
Ark. Code Ann. § 16-93-611 (Supp. 2003) (emphasis added).
The State further urges that because Baker did not challenge the circuit court’s order under Ark. R. Civ. P. 60, this argument is not preserved for our review; however, we disagree. In McArty v. State, 364 Ark. 517, 221 S.W3d 332 (2006), we observed that we have never applied the Rules of Civil Procedure to postconviction-relief proceedings. Moreover, we held that we do not apply Ark. R. Civ. P. 60 in criminal cases, including those involving a petition for postconviction relief pursuant to Ark. R. Crim. P. 37.1. See id. Nor will we apply it in a case such as the one at hand, a postconviction habeas proceeding. Accordingly, the State’s argument is without merit. | [
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Per Curiam.
Jerry Perez, by his attorney, Troy L. Whit-low, has filed a motion for belated appeal and for rule on clerk.
On August 31, 2006, the circuit court entered a judgment and commitment order convicting Perez of robbery and theft of property and sentencing him to thirty years’ imprisonment for robbery and twenty years’ imprisonment for theft of property. On September 28, 2006, Mr. Whitlow filed Perez’s notice of appeal and designation of the record from the judgment and commitment order. The record in this case was not tendered until February 12, 2007.
Arkansas Rules of Appellate Procedure - Civil 5(a) provides, in pertinent part:
(a) When filed. The record on appeal shall be filed with the clerk of the Arkansas Supreme Court and docketed therein within 90 days from the filing of the first notice of appeal____
This court recently clarified its treatment of motions for rule on clerk and motions for belated appeals in McDonald v. State, 356 Ark. 106, 146 S.W.3d 883 (2004). There we said:
Where an appeal is not timely perfected, either the party or attorney filing the appeal is at fault, or there is good reason that the appeal was not timely perfected. The party or attorney filing the appeal is therefore faced with two options. First, where the party or attorney filing the appeal is at fault, fault should be admitted by affidavit filed with the motion or in the motion itself. There is no advantage in declining to admit fault where fault exists. Second, where the party or attorney believes that there is good reason the appeal was not perfected, the case for good reason can be made in the motion, and this court will decide whether good reason is present.
356 Ark. at 116, 146 S.W.3d at 891 (footnote omitted). While this court no longer requires an affidavit admitting fault before we will consider the motion, an attorney should candidly admit fault where he or she has erred and is responsible for the failure to perfect the appeal. See id. When it is plain from the motion, affidavits, and record that relief is proper under either rule based on error or good reason, the relief will be granted. See id. If there is attorney error, a copy of the opinion will be forwarded to the Committee on Professional Conduct. See id.
It is plain from the motion that there was error on Mr. Whitlow’s part. The language of Ark. R. App. P. - Civ. 5(a) is clear. The time for filing the record may only be extended by an order of the circuit court. See Ark. R. App. P. - Civ. 5(a). There was no such extension in this case and the record was due to be filed with this court by December 28, 2006. Therefore, because the record was tendered after that date, we grant Perez’s motion for rule on clerk and forward a copy of this opinion to the Committee on Professional Conduct.
Granted.
As appellant’s notice of appeal was timely filed, we treat the motion as a rule on clerk rather than a motion for belated appeal. See Bell v. State, CR 06-871 (Ark. Oct. 26, 2006); see also Johnson v. State, 342 Ark. 709, 30 S.W.3d 715 (2000). | [
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Tom Glaze, Justice.
This case concerns the constitutionality of the Emergency Income Tax Rule 2003-4 (“Emergency Rule”), adopted by the Department of Finance and Administration (DF&A) on August 29,2003, and applied in tax years 2003 and 2004. Appellee Charles R. Maples, on behalf of himself and all taxpayers similarly situated, filed this illegal-exaction lawsuit, claiming that the Emergency Rule violated the separation-of-powers doctrine and was unconstitutional. The circuit court agreed and ordered a refund to those who, like Maples, were improperly taxed in 2003 and 2004. On appeal, Appellant Richard Weiss, in his capacity as director of DF&A, contends that the circuit court erred in determining that the Emergency Rule was unconstitutional. We affirm.
To understand the development of this case, some background information is necessary. In Weiss v. McFadden, 353 Ark. 868, 120 S.W.3d 545 (2003) (McFadden I), this court declared Ark. Code Ann. § 26-51-307(c) (Supp. 2003) to be unconstitutional. The statutory provision at issue stated that no recipient of benefits from an individual retirement account or from public or private employment-related retirement systems, plans, or programs was allowed to deduct or recover his or her cost of contribution in the plan when computing his income for state income tax purposes. In Weiss v. McFadden, 356 Ark. 123, 148 S.W.3d 248 (2004) (McFadden II), this court addressed the appropriate remedy or mechanism for the tax refund resulting from McFadden I. In Weiss v. McFadden, 360 Ark. 76, 199 S.W.3d 649 (2004) (McFadden III), the issue was, again, the mechanism for the tax refund.
After McFadden I, but before McFadden II and III were decided, DF&A enacted Emergency Income Tax Rule 2003-4. The Emergency Rule stated in relevant part:
1. For tax years beginning January Í, 2003, and thereafter, individual recipients of benefits from a public or private employment-related retirement system, plan or program shall be allowed to deduct or recover their cost of contribution in the plan when computing income for state income tax purposes.
2. The deduction allowed for Arkansas state income tax purposes for cost of contribution for each tax year shall be the same amount as allowed as a deduction for cost of contribution for federal income tax purposes for the same tax year pursuant to Internal Revenue Code Section 72 as in effect on July 1, 2003.
However, at that time, Ark. Code Ann. § 26-51-404(b)(24) (Supp. 2003) provided that annuity income from employment-related retirement plans should be taxed in accordance with Ark. Code Ann. § 26-51-307. See § 26-51-404(b)(24)(B).
On March 29, 2004, Maples, on behalf of himself and all taxpayers similarly situated, filed the instant illegal-exaction action in Pulaski County Circuit Court. Maples contributed money previously taxed (“after-tax contribution”) by the State to a public or private employment-related retirement system, plan or program. He received an annuity income from that retirement plan in tax years 2003 and 2004. For those tax years, Maples was bound by the Emergency Rule, requiring that annuity income from employment-related retirement plans be taxed in accordance with Internal Revenue Code § 72. Maples’s illegal-exaction suit requested that the Emergency Rule be declared illegal and unconstitutional, because it conflicted with Ark. Code Ann. § 26-51-404(b)(24). Weiss responded, contending that there was no conflict between the Emergency Rule and our statutory law. Both parties filed motions for summary judgment. In response to Maples’s undisputed facts, Weiss admitted the following:
[T]he Department of Finance and Administration used [the] Emergency Income Tax Rule 2003-4, in conjunction with Ark. Code Ann. § 26-51-414, to determine [Maples’s] Arkansas income tax liabilities for tax years 2003 and 2004, but that either source of authority was sufficient to mandate the use of [Internal Revenue Code] § 72 for those years.
(Emphasis added.) The circuit court eventually entered an order granting Maples’s motion for summaryjudgment and denying Weiss’s motion. In the order, the circuit court concluded that the Emergency Rule was directly contrary to Ark. Code Ann. § 26-51-404(b) (24) (B). As a result, the court ordered Weiss to refund the income taxes for tax years 2003 and 2004. From this order, Weiss filed a timely notice of appeal.
Summaryjudgment is a remedy that should only be granted when there are no genuine issues of material fact to litigate and when the case can be decided as a matter of law. Norris v. Baker, 320 Ark. 629, 899 S.W.2d 70 (1995). Here, there are no factual issues in dispute; judgment can be entered as a matter of law. Moreover, we review issues of constitutional interpretation de novo, as it is for us to decide the meaning of a statute. Brewer v. Fergus, 348 Ark. 577, 581, 79 S.W.3d 831 (2002). In the absence of a showing that the circuit court erred in its interpretation of the law, the interpretation will be accepted as correct on appeal. Id.
In 2003 and 2004, Ark. Code Ann. § 26-51-404(b)(24) provided:
(A) Sections 72(a), (b), and (c) of the Internal Revenue Code of 1986, as in effect on January 1,2001, relating to the exclusion from gross income of certain proceeds received under non employment-related life insurance, endowment, and annuity contracts, is hereby adopted for the purpose of computing Arkansas income tax liability.
(B) Annuity income received through an employment-related retirement plan shall not be subject to the provisions of § 26-51-404(b). The income shall instead be subject to the retirement income provisions of § 26-51-307.
Ark. Code Ann. § 26-51-404(b)(24) (Supp. 2003) (emphasis added). Under this provision, § 26-51-404(b)(24)(B) expressly directs that § 72 of the Internal Revenue Code does not apply to annuity income received from an employment-retirement plan; instead, such income should be taxed in accordance with Ark. Code Ann. § 26-51-307. In contrast, the Emergency Rule states that annuity income received from an employment-retirement plan should be taxed in accordance with § 72 of the Internal Revenue Code. In his undisputed facts, Weiss admits that the Emergency Rule applied to Maples, but Weiss contends that DF&A was allowed to do so. Weiss’s argument is that § 26-51-404(b) did not expressly prohibit the use of Internal Revenue Code § 72; rather, that section simply stated that taxpayers must use § 26-51-307. Weiss asserts that subsection (c) became a nullity after § 26-51-307(c) was declared unconstitutional in McFadden I, leaving only the remaining part of § 26-51-307 intact. Thus, Weiss contends that, although § 26-51-307 was still intact, “the statute was not clear on how to allow cost recovery under employment-related . . . annuity contracts.” Thus, Weiss’s argument is that, because neither § 26-51-404(b)(24)(B) nor § 26-51-307 after McFadden I contained express prohibitions against the use of § 72, the Emergency Rule is constitutional. We must disagree.
The basic rule of statutory construction is to give effect to the intent of the legislature. Ainsworth v. State, 367 Ark. 353, 240 S.W.3d 105 (2006); Arkansas Dep’t of Econ. Dev. v. William J. Clinton Presidential Found., 364 Ark. 40, 216 S.W.3d 119 (2005). Where the language of a statute is plain and unambiguous, we determine legislative intent from the ordinary meaning of the language used. Id. In considering the meaning of a statute, we construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Id. We construe the statute so that no word is left void, superfluous, or insignificant, and we give meaning and effect to every word in the statute, if possible. Id. However, when a statute is ambiguous, we must interpret it according to the legislative intent, and our review becomes an examination of the whole act. Id. We reconcile provisions to make them consistent, harmonious, and sensible in an effort to give effect to every part. Id. We also look to the legislative history, the language, and the subject matter involved. Id. Additionally, statutes relating to the same subject are said to be in pari materia and should be read in a harmonious manner, if possible. Id. Remaining mindful of these tools of statutory interpretation, we turn to the case at hand.
In McFadden II, we held in relevant part:
In [McFadden] I we held that both Ark. Code Ann. § 26-51-404(b)(24)(B) and § 26-51-307 are plain and unambiguous and we gave these statutes their plain meaning. The express terms of § 26-51-404(b)(24)(A) clearly state that nonemployment-related retirement plans are covered under IRS Code § 72, while the express terms of § 26-51-404(b) (24) (B) clearly state that employment-related retirement plans are subject to § 26-51-307. The retirement plans at issue are employment-related; therefore, § 26-51-307 governs them.
Subsection (c) of § 26-51-307 was the only subsection of the statute that addressed recovery of after-tax contributions. With the invalidation of subsection (c), the DF & A urges that a “void” now exists in the tax code with regard to after-tax contributions in employment-related retirement plans. The DF & A argues that the trial court should have applied § 72 to fill that “void” because, as it states in its argument, “it is logical to assume the General Assembly would have intended” for § 72 to be used as a guide.
There is nothing in § 26-51-307 to indicate that the General Assembly intended that § 72 be applied to recovery of after-tax contributions in employment-related retirement plans. We will not read into a statute a provision not put there by the General Assembly. Neeve v. City of Caddo Valley, 351 Ark. 235, 91 S.W.3d 71 (2002); State v. Goss, 344 Ark. 523, 42 S.W.3d 440 (2001). We thus hold that the trial court did not err in refusing to apply 26 U.S.C. § 72 to employment-related retirement plans.
Weiss v. McFadden, 356 Ark. at 132, 148 S.W.3d at 254 (emphasis added). In this case, when read in its entirety, § 26-51-404(b)(24) indicates that § 72 is not appropriate for use under subsection (b)(24)(B). Under these provisions, the General Assembly could not have been more clear that, at that time, § 72 should not apply to annuity income relating to employment-related retirement plans. While § 72 applied to the proceeds received under non-employment-related annuity contracts, see § 26-51-404(b)(24)(A), the General Assembly had something else in mind with respect to annuity income relating to employment-related retirement plans; that is, that it wanted another provision of our statute to apply instead of § 72. See § 26-51-404(b) (24) (B). As we noted above in McFadden I and McFadden II, § 26-51-404(b)(24)(B) is plain and unambiguous. Moreover, as quoted above, McFadden II clearly held that there is nothing to indicate that the General Assembly intended that § 72 be applied to recovery of after-tax contributions in employment-related retirement plans, and we refused to read into the statute a provision not put there by the General Assembly. McFadden II, supra.
Likewise, here, regardless of the status of§ 26-51-307 after McFadden I, the General Assembly made it clear that § 72 of the Internal Revenue Code should not apply to annuity income received from employment-related retirement plans. The circuit court correctly determined that the Emergency Rule was in conflict with § 26-51-404(b)(24)(B).
For his final point on appeal, Weiss argues that the circuit court erred in finding that the Emergency Rule violates the separation-of-powers doctrine and is therefore unconstitutional. Recently, in Arkansas Department of Human Services v. Howard, 367 Ark. 55, 238 S.W.3d 1 (2006), we explained that our government is composed of three separate independent branches: legislative, executive and judicial. Each branch has certain specified powers delegated to it. Id. The legislative branch of the State government has the power and responsibility to proclaim the law through statutory enactments. Id. The judicial branch has the power and responsibility to interpret the legislative enactments. Id. The executive branch has the power and responsibility to enforce the laws as enacted and interpreted by the other two branches. Id. The “Separation-of-Powers Doctrine” is a basic principle upon which our government is founded, and should not be violated or abridged. Id.
Arkansas Code Annotated § 19-1-208 provides:
The director of the Department of Finance and Administration is vested with the authority to make such reasonable rules and regulations, not inconsistent with the law, as shall be necessary or desirable for the orderly discharge of the duties vested in the Department of Finance and Administration.
Id. (emphasis added). Thus, any rule or regulation adopted by the director of the DF&A must be consistent with the law. See id. Stated simply, if a rule or regulation is inconsistent with the law, the director acted beyond his or her statutory authority. Id.
As stated in the above section, in 2003 and 2004, § 26-51-404(b)(24)(B) plainly indicated that § 72 of the Internal Revenue Code does not apply to annuity income received from employment-related retirement plans. In contrast, the Emergency Rule provided that § 72 of the Internal Revenue Code would apply to annuity income received from employment-related retirement plans. Because an inconsistency existed, the Emergency Rule is “inconsistent with the law,” and “infringe[s] a legislative function.” Accordingly, the Emergency Rule is outside the scope ofWeiss’s rule-making authority as set forth in § 19-1-208. See also State v. Burnett, 200 Ark. 655, 140 S.W.2d 673 (1940)(holding that the Commissioner of Revenues had no right to promulgate a rule contrary to statute). Consequently, we also affirm the circuit court’s holding that the Emergency Rule violated the separation-of-powers doctrine and is, thus, unconstitutional.
Affirmed.
During the 2005 legislative session, the General Assembly passed Act 189 of 2005, which amended Ark. Code Ann. §§ 26-51-307 and 26-51-404. These amended statutes now provide that § 72 of the Internal Revenue Code applies to annuity income received from an employment-retirement plan. However, those 2005 amendments are not at issue in the instant appeal.
Weiss argues that our language from McFadden II on § 72’s interaction with § 26-51-307 and § 26-5 l-404(b) (24) does not apply here because that conclusion in McFadden II only applied to tax years 1999-2002. However, that argument is without merit because the relevant parts of these statutes were not amended until 2005.
Despite Weiss’s argument to the contrary, our decision in McFadden III did not approve the use of § 72; rather, we affirmed the equitable remedy fashioned by the circuit court in its application of the voluntary-payment rule for tax years prior to 1999. | [
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Donald L. Corbin, Justice.
Appellants, O.F. Duffield, Sue Ann Duffield, Frederic Dohle, Bertha Dohle, James Dohle, Katherine Dohle, Richard Lubera, Jr., Karen Lubera, and Mike Wishon (Landowners), appeal the Benton County Circuit Court’s order granting in part and denying in part their motion to intervene in the suit filed by Appellee, Benton County Stone Company, Inc. (Benton Stone), against Appellee, Benton County Planning Board (Planning Board). On appeal, the Landowners raise two issues for reversal: the trial court erred in (1) denying their motion to intervene as a matter of right under Ark. R. Civ. P. 24(a)(2), and (2) limiting their permissive intervention under Ark. R. Civ. P. 24(b). This case involves an issue of first impression, thus our jurisdiction is proper pursuant to Ark. Sup. Ct. R. 1 — 2(b)(1). Because the trial court’s order is not an appealable order as required by Ark. R. App. P. - Civ. 2, we dismiss the appeal.
This case arises from a proposed development of a rock quarry in Benton County, Arkansas. On November 17, 2005, the Planning Board approved Benton Stone’s petition to develop a rock quarry in an unincorporated area of Benton County. Pursuant to a county ordinance, on December 9, 2005, the Landowners appealed the Planning Board’s decision to the Benton County Appeal Review Board (Review Board), raising the issues of res judicata, incompatibility, improper notice, lack of necessary permits to operate the quarry, and an improper hearing. The Review Board reversed the Planning Board’s decision and denied Benton Stone’s petition based upon the belief that its proposed rock quarry was incompatible with the surrounding uses. On January 27, 2006, Benton Stone filed suit against the Planning Board by appealing the denial to the Benton County Circuit Court.
On April 10, 2006, the Landowners filed a motion to intervene in which they asked the trial court to allow intervention under Ark. R. Civ. P. 19. Benton Stone responded, on April 14, 2006, asserting that the motion was procedurally flawed and wholly insufficient such that the motion should be denied. The trial court denied the motion to intervene on April 28, 2006. That same day, the Landowners filed an amended motion to intervene citing Rule 19, as well as Rule 24 as a basis for intervention. On May 11, 2006, Benton Stone responded to the amended motion to intervene again claiming that the motion should be denied because it was procedurally flawed, and also asserting that the Landowners’ interests were adequately represented by existing parties.
On May 31, 2006, the trial court held a hearing on the Landowners’ motion to intervene. At the conclusion of this hearing, the trial court asked the parties to file supplemental briefs on the issue. The Landowners filed their supplemental brief on June 14, 2006, and Benton Stone and the Planning Board each filed their own separate supplemental briefs on June 26, 2006. On August 24, 2006, after considering both the arguments of counsel at the May 31 hearing and the submitted briefs and exhibits, the trial court granted in part and denied in part the Landowners’ motion to intervene. Specifically, it found “that the [Landowners] shall be allowed permissive intervention under Rule 24(b), to intervene as defendants, for the limited purpose of arguing whether the doctrine of res judicata is a bar to [Benton Stone’s] cause in this case.” The Landowners timely filed a notice of appeal of the August 24 order on September 12, 2006.
The Landowners have appealed the trial court’s order denying intervention as a matter of right, but granting permissive intervention as to the issue of res judicata. This is not an appealable order.
Rule 2(a) of Arkansas Rules of Appellate Procedure — Civil governs when an appeal may be taken from a trial court to this court. We have recognized that there is a right to appeal a denial of a motion to intervene as a matter of right under Rule 2(a)(2). See Matson, Inc. v. Lamb & Assocs. Packaging, Inc., 328 Ark. 705, 947 S.W.2d 324 (1997) (holding that an order denying intervention is appealable); Cupples Farms P’ships v. Forrest City Prod. Credit Ass’n, 310 Ark. 597, 602, 839 S.W.2d 187, 190 (1992) (holding “that the denial of an intervention of right based on a claimed interest in the litigation which may be unprotected, such as we have here, constitutes an appealable order under Ark. R. App. P. 2(a)(2)”). Additionally, we have allowed an appeal from a trial court’s denial of a motion for permissive intervention, but we will reverse only for an abuse of discretion. See Billabong Products, Inc. v. Orange City Bank, 278 Ark. 206, 644 S.W.2d 594 (1983). However, an order granting intervention is not appealable. See Corning Bank v. Delta Rice Mills, Inc., 281 Ark. 342, 663 S.W.2d 737 (1984).
In this case, for the first time, we are faced with the question of whether a trial court’s order granting permissive intervention, but denying intervention as a matter of right, is immediately appealable. It is not. In Cupples, 310 Ark. at 600, 839 S.W.2d at 189, we explained that the trial court’s order denying intervention to Cupples “precludes any other avenue for a [Cupples] appeal.” Here, we are faced with a situation where the Landowners are in a different posture than the appellant in Cupples because they were allowed permissive intervention under Rule 24(b). Thus, the Landowners are not left without another avenue of appeal and could, following final judgment, appeal the issue of intervention as a matter of right, as well as their arguments pertaining to permissive intervention. Consequently, the August 24 order granting permissive intervention, but denying intervention as a matter of right, is not an immediately appealable order under Rule 2(a). Thus, we are barred from considering this appeal.
Lastly, this holding is supported by Stringfellow v. Concerned Neighbors in Action, 480 U.S. 370 (1987), where the United States Supreme Court decided the same issue. There, the petitioners seeking intervention sought to do so under Federal Rules of Civil Procedure 24(a) and (b), which are identical to our rules. The district court denied the request to intervene as of right, but granted the petitioners’ application to become a permissive intervenor subject to three conditions. The Court concluded that “because CNA is now a party to the suit by virtue of its permissive intervention, it can obtain effective review of its claims on appeal from the final judgment.” Id. at 375. Moreover, “while the District Court restricted CNA’s ability to participate fully as it might wish, it is significant that none of the limitations interfere with CNA’s ability to raise its claims on postjudgment appeal.” Id. at 378. Because of this, the Court refused to “find that the grant of permissive intervention, even though subject to conditions, should be treated as a complete denial of the right to participate” and held that the district court order, granting permissive intervention but denying intervention as of right, was not an immediately appealable order. Id.
Because there is not a final, appealable order, we cannot address the merits of the Landowners’ appeal.
Dismissed without prejudice.
The only Appellee to file a brief in this matter was Benton Stone.
This issue was not raised by either party; however, the question of whether an order is final and appealable is a jurisdictional question that we will raise on our own. See Hanners v. Giant Oil Co. of Ark., Inc., 369 Ark. 226, 253 S.W.3d 424 (2007). | [
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Per Curiam.
Appellant Henry Vidal, by and through his attorney, has filed a motion for rule on the clerk, which we will treat as a motion for belated appeal. His attorney, Naif Samuel Khoury, states in the motion that he failed to file a timely notice of appeal.
This court clarified its treatment of motions for rule on clerk and motions for belated appeals in McDonald v. State, 356 Ark. 106, 146 S.W.3d 883 (2004). There we stated that there are only two possible reasons for an appeal not being timely perfected: either the party or attorney filing the appeal is at fault, or there is “good reason.” Id. at 116, 146 S.W.3d at 891. We explained:
Where an appeal is not timely perfected, either the party or attorney filing the appeal is at fault, or there is good reason that the appeal was not timely perfected. The party or attorney filing the appeal is therefore faced with two options. First, where the party or attorney filing the appeal is at fault, fault should be admitted by affidavit filed with the motion or in the motion itself. There is no advantage in declining to admit fault where fault exists. Second, where the party or attorney believes that there is good reason the appeal was not perfected, the case for good reason can be made in the motion, and this court will decide whether good reason is present.
Id., 146 S.W.3d at 891 (footnote omitted). While this court no longer requires an affidavit admitting fault before we will consider the motion, an attorney should candidly admit fault where he has erred and is responsible for the failure to perfect the appeal. See id.
In accordance with McDonald v. State, supra, Mr. Khoury has candidly admitted fault. The motion is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct.
Motion granted. | [
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Per Curiam.
The Arkansas Department of Health and Human Services (DHHS), petitions this court for a writ of prohibition or, in the alternative, a writ of certiorari, to the Circuit Court of Pulaski County, instructing the court that it is without jurisdiction to grant Karen Blaylock’s request for an increase of her Medicaid Community Spouse Monthly Income Allowance (CSMIA) and Medicaid Community Spouse Resource Allowance (CRSA), until her husband applies for Medicaid.
After her husband, Alan Blaylock, was allegedly injured in the couple’s residence, Karen petitioned the circuit court for an increase in her CSMIA and CRSA in anticipation of Alan’s applying for Medicaid benefits. In his response, Alan urged the court to grant the relief his wife had requested. The Blaylocks contended that the court had jurisdiction to adjust the Medicaid allowances prior to Alan’s application for Medicaid benefits. DHHS intervened and moved for summary judgment, maintain ing that federal law does' not create a justiciable claim within the parameters of Amendment 80 of the Arkansas Constitution. The circuit court denied DHHS’s motion, determining that it had jurisdiction to hear the couple’s request for an increase in the allowances.
On January 4, 2006, this petition followed. On May 16, 2006, Karen provided this court with documentation that Alan had passed away and that she had been lawfully appointed by the circuit court as administratix of his estate. However, the documentation did not contain an order of revivor from the circuit court. We remanded the matter to the circuit court in order to determine whether such an order was appropriate. See Ark. Dep’t of Human Servs. v. Smith, 366 Ark. 584, 237 S.W.3d 79 (2006) (per curiam).
The circuit court subsequently determined that Alan’s death did not extinguish the cause of action and that revivor was appropriate. DHHS, joined by Karen, then asked this court to reinstate the petition. We granted the motion to reinstate the petition to this court’s active docket on April 5, 2007, and directed the parties to supplement the record with the order of the circuit court on remand within fifteen days of that date, stating that we would “decide the case on the original briefs.” See Ark. Dep’t of Human Servs. v. Circuit Ct. of Pulaski County, 369 Ark. 345, 254 S.W.3d 726 (2007) (per curiam).
The case is now back before us, but we are unable to consider the merits of the petition at this time. In its brief, DHHS states that this is an action for extraordinary relief, and “[t]he record does not contain testimony. The matter [was] submitted on the pleadings. No abstract is necessary.” However, the trial court held a hearing in this matter. Although no testimony was taken, the parties’ attorneys nonetheless offered the trial court extensive arguments on the pertinent issues, and the circuit court’s order specifically references the hearing that was held on July 27, 2005.
Arkansas Supreme Court Rule 4-2(a)(5) requires an appellant’s abstract to contain “such material parts of the . . . colloquies between the court and counsel ... as are necessary to an understanding of all questions presented to the court for decision.” DHHS failed to abstract the hearing held in the circuit court. Arkansas Supreme Court Rule 4-2(b)(3) explains the procedure to be followed when an appellant has failed to supply this court with a sufficient brief. The rule provides as follows:
Whether or not the appellee has called attention to deficiencies in the appellant’s abstract or Addendum, the Court may address the question at any time. If the Court finds the abstract or Addendum to be deficient such that the Court cannot reach the merits of the case, or such as to cause an unreasonable or unjust delay in the disposition of the appeal, the Court will notify the appellant that he or she will be afforded an opportunity to cure any deficiencies, and has fifteen days within which to file a substituted abstract, Addendum, and brief, at his or her own expense, to conform to Rule 4-2(a)(5) and (8). Mere modifications of the original brief by the appellant, as by interlineation, will not be accepted by the Clerk. Upon the filing of such a substituted brief by the appellant, the appellee will be afforded an opportunity to revise or supplement the brief, at the expense of the appellant or the appellant’s counsel, as the Court may direct. If after the opportunity to cure the deficiencies, the appellant fails to file a complying abstract, Addendum and brief within the prescribed time, the judgment or decree may be affirmed for noncompliance with the Rule.
Ark. Sup. Ct. R. 4-2(b)(3) (2006).
We hereby order DHHS to submit a substituted brief that contains an abstract of the July 27, 2005 hearing. DHHS is directed to file the substituted brief within fifteen days from the entry of this order. Mere modifications of the original brief will not be accepted. See Ark. Sup. Ct. R. 4-2(b)(3). According to Rule 4-2(b)(3), if DHHS fails to file a complying abstract and addendum within the prescribed time, the judgment or decree may be affirmed for noncompliance with the Rule.
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Per Curiam.
Appellant James Studie filed a motion for rule on clerk seeking an order of this court directing the Arkansas Supreme Court Clerk to accept his record for fifing. Appellant attempted to file his record and transcript on February 5, 2006, under an extension of time granted by the circuit court, pursuant to Ark. R. App. P. — Civ. 5(b), on November 6, 2006. The clerk refused the filing because there was no finding in the order by the circuit court that “[a]ll parties had the opportunity to be heard on the motion, either at a hearing or by responding in writing” as required by Rule 5(b)(1)(C).
Arkansas Rules of Appellate Procedure - Civil 5(b)(1)(C) provides in part:
(b) Extension of time.
(1) If any party has designated stenographically reported material for inclusion in the record on appeal, the circuit court, by order entered before expiration of the period ... may extend the time for filing the record only if it makes the following findings:
(C) All parties have had the opportunity to be heard on the motion, either at a hearing or by responding in writingf.]
This court has made it very clear that we expect strict compliance with the requirements of Rule 5(b), and that we do not view the granting of an extension as a mere formality. See, e.g., Keesee v. Keesee, 367 Ark. 416, 240 S.W.3d 573 (2006) (per curiam); Woods v. Tapper, 367 Ark. 239, 238 S.W.3d 929 (2006) (per curiam). The order of extension in this case makes no reference to the findings of the circuit court required under Rule 5(b)(1)(C). Accordingly, we remand this matter to the circuit judge for compliance with Rule 5(b)(1)(C).
Remanded. | [
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Per Curiam.
Petitioner Michael D. Bell petitions this court pro se for an order substituting counsel for purposes of his appeal and for an order clarifying prior per curiam orders. Because Bell’s current counsel of record, Don Gillaspie, has not paid his license fees as of this writing, we grant the motion for substituted counsel and appoint Joseph C. Self as counsel for Bell in this appeal. We deny the motion for an accelerated order clarifying previous per curiam orders in this matter.
It is so ordered. | [
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Per Curiam.
The Public Defender of the 12th Judicial District was appointed to represent Robert L. Wann on petition to revoke a suspended imposition of sentence. The circuit court concluded that Wann violated the terms and conditions of his suspended sentence, and he was sentenced to three years in the Arkansas Department of Corrections with an additional suspended imposition of sentence of three years. The circuit court entered a judgment and commitment order on April 24, 2006. On January 11, 2007, we remanded this case, directing the circuit court to settle the record as to whether Wann advised his trial counsel, Mr. John Joplin and Ms. Rita Howard, that he wished to appeal within 30 days from the date the judgment was entered. See Ark. R. App. P. - Crim. 2(e) (2006).
The circuit court was untimely in tendering the findings due to inclement weather on the date of the scheduled hearing, January 31, 2007. The circuit court rescheduled the hearing and conducted it on February 16, 2007. The circuit court, thereafter, entered an order, almost a month later, on March 15, 2007, finding that Wann requested that his counsel file an appeal within 30 days. Wann now asks that we grant a belated return of the circuit court’s finding. We grant Wann’s motion to file the belated return and grant his request for a belated appeal.
Relief from the failure to perfect an appeal is provided as part of the appellate procedure granting the right to an appeal. McDonald v. State, 356 Ark. 106, 146 S.W.3d 883 (2004). Under Ark. R. App. P. - Crim. 16(a), once an attorney represents a defendant, the attorney is obligated to continue representing the defendant until relieved by the appropriate court. See Hammon v. State, 347 Ark. 267, 65 S.W.3d 853 (2002). There is no indication that Mr. Joplin or Ms. Howard was relieved by the trial court. Thus, Mr. Joplin was obligated to perfect the appeal and lodge the record in the appellate court. Under no circumstance may an attorney who had not been relieved by the court abandon the appeal. See Roger v. State, 353 Ark. 359, 107 S.W.3d 166 (2003) (per curiam).
In this case, Mr. Joplin admits responsibility for failing to perfect Wann’s appeal, and he subsequently seeks to withdraw. This court clarified its treatment of motions for rule on the clerk and motions for belated appeals in McDonald v. State, 356 Ark. 106, 146 S.W.3d 883 (2004). There we said that there are only two possible reasons for an appeal not being timely perfected: either the party or attorney filing the appeal is at fault, or there is “good reason.” McDonald v. State, 356 Ark. at 116, 146 S.W.3d at 891. We explained:
Where an appeal is not timely perfected, either the party or attorney filing the appeal is at fault, or there is good reason that the appeal was not timely perfected. The party or attorney filing the appeal is therefore faced with two options. First, where the party or attorney filing the appeal is at fault, fault should be admitted by affidavit filed with the motion or in the motion itself. There is no advantage in declining to admit fault where fault exists. Second, where the party or attorney believes that there is good reason the appeal was not perfected, the case for good reason can be made in the motion, and this court will decide whether good reason is present.
Id., 146 S.W.3d at 891 (footnote omitted). While this court no longer requires an affidavit admitting fault before we will consider the motion, an attorney should candidly admit fault where he has erred and is responsible for the failure to perfect the appeal. See id.
In accordance with McDonald v. State, supra, Mr. Joplin has candidly admitted fault. The motion is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct.
Mr. Joplin, a full-time, state-salaried public defender, now asks to be relieved as counsel for appellant in this criminal appeal, based upon the case of Rushing v. State, 340 Ark. 84, 8 S.W.3d 489 (2000) (holding that full-time, state-salaried public defenders were ineligible for compensation for their work on appeal) and Ark. Code Ann. § 16-87-201 et seq. (1998).
Since the court’s decision in Rushing, the law was changed by the General Assembly. Act 1370 of 2001 provides in part: “[PJersons employed as full-time public defenders, who are not provided a state-funded secretary, may also seek compensation for appellate work from the Arkansas Supreme Court or the Arkansas Court of Appeals.” That provision is now codified as Ark. Code Ann. § 19-4-1604(b)(2)(B) (Supp. 2001).
Mr. Joplin’s motion states that he is provided with a full-time, state-funded secretary. Accordingly, we grant his motion to withdraw as attorney. Mr. David L. Dunagin will be substituted as attorney for Wann in this matter. We grant Mr. Dunagin 35 days from this opinion to file his abstract and brief.
Motions granted. | [
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Donald L. Corbin, Justice.
Appellant Terry Hanners appeals the Mississippi County Circuit Court’s order granting summary judgment in favor of Appellee Giant Oil Company of Arkansas, Inc. (Giant Oil), and its order awarding attorney’s fees and costs to Giant Oil. On appeal, Hanners raises two arguments for reversal: the trial court erred in (1) granting Giant Oil’s motion for summary judgment in this declaratory judgment action because the purchase-option provision drafted by Giant Oil’s attorney is ambiguous, and (2) awarding $7,500 in attorney’s fees and costs to Giant Oil because Ark. Code Ann. § 16-22-308 (Repl. 1999) does not allow for the award of attorney’s fees in declaratory judgment actions where no claim is made to recover for breach of contract, no claim is made for the recovery of damages, and no damages are recovered. Because this case involves an issue of statutory interpretation, our jurisdiction is proper pursuant to Ark. Sup. Ct. R. l-2(a)(l). We dismiss the appeal for lack of a final order.
On August 12, 1981, Hanners and Giant Oil entered into a lease agreement whereby Hanners leased some property to Giant Oil for use as a gas station and convenience store. The original lease term, beginning on January 1, 1982, was for five years, with the option of renewal for up to four additional five-year terms. Additionally, the lease contained the following purchase-option provision: Throughout the years, Giant Oil exercised its renewal option, and on June 1, 2004, during the last five-year term, Giant Oil sent a letter to Hanners notifying him of its intention to purchase the leased property in accordance with the lease agreement. In a June 25, 2004 letter, Hanners, through his attorney, informed Giant Oil that he would not sell the property because Giant Oil had failed to notify Hanners as required by the lease agreement.
3.4 Lessor hereby grants unto Lessee the right to purchase the premises for $150,000.00 at the end of the primary term and the first option period. Thereafter, for the three 5-year terms, this option price shall increase to $200,000.00.
On September 23, 2004, Giant Oil filed a complaint for declaratory judgment concerning the rights, status, and legal relations of Giant Oil and Hanners in the lease agreement, and seeking a judgment declaring: (a) Giant Oil had provided reasonable notice to Hanners of its exercise of the purchase option; (b) Giant Oil was contractually entitled to purchase the lease property on December 31, 2006, under the terms of the purchase option; and (c) the lease agreement did not contain a notice requirement. On November 14, 2005, Giant Oil filed a motion for summary judgment asserting that the plain and unambiguous language of the lease clearly entitles Giant Oil to purchase the leased property at the end of the primary term of the lease and at the end of any of the four optional terms of the lease.
On December 2, 2005, Hanners filed an amended answer and counterclaim. In the amended counterclaim, Hanners argued that he was entitled to a judgment declaring: (a) the agreement between Hanners and Giant Oil required Giant Oil to exercise its option to purchase no later than the end of the third renewal term; (b) Giant Oil failed to purchase the property within that time provided by the lease agreement; and (c) Hanners is not obligated to sell the real property to Giant Oil at the end of the current lease term. Hanners also prayed that Giant Oil’s complaint be dismissed. That same day, Hanners filed his response to Giant Oil’s motion for summary judgment in which he argued that summary judgment should not be granted because the lease agreement is not clear and, at best, it is ambiguous. Hanners also argued that the lease agreement does not entitle Giant Oil to purchase at any time, but that the purchase option must be exercised before the end of the third renewal term. Lastly, in his response to Giant Oil’s motion for summary judgment, Hanners requested that the court grant the relief requested in his counterclaim. In response, on December 19, 2005, Giant Oil asked the trial court to dismiss Hanners’s counterclaim.
On February 3, 2006, a hearing was held on Giant Oil’s motion for summary judgment. Following this hearing, on March 27, 2006, the trial court entered judgment granting Giant Oil’s motion for summary judgment finding “ [t]he terms of the Lease Agreement are unambiguous, and according to the plain and ordinary meaning of Paragraph 3.4 of the Lease Agreement, Giant Oil Company of Arkansas, Inc. is entitled to purchase the property described in the Lease Agreement for $200,000.00 on December 31, 2006.” The judgment related solely to Giant Oil’s motion for summary judgment and did not mention or rule on Hanners’s counterclaim.
Following the March 27 order, Giant Oil filed a motion for attorney’s fees and costs. On July 5, 2006, a hearing was held on the motion for attorney’s fees and costs. In its July 18, 2006 order, the trial court found that Giant Oil was entitled to $7,500 in attorney’s fees and costs. Again, the order did not mention the cause of action brought by Hanners in his counterclaim against Giant Oil.
Rule 2(a)(1) of the Arkansas Rules of Appellate Procedure — Civil provides that an appeal may be taken only from a final judgment or decree entered by the trial court. Rule 54(b) of the Arkansas Rules of Civil Procedure deals with the finality of orders in connection with judgments upon multiple claims or involving multiple parties and states in relevant part:
(1) Certification of Final Judgment. When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third party claim, or when multiple parties are involved, the 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, supported by specific factual findings, that there is no just reason for delay and upon an express direction for the entry of judgment____
(2) Lack of Certification. Absent the executed certificate required by paragraph (1) of this subdivision, any judgment, order, or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the judgment, order, or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all of the parties.
Thus, our court has held that under Rule 54(b), an order is not final that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties. See Southern Farm Bureau Cas. Ins. Co. v. Easter, 369 Ark. 101, 251 S.W.3d 251 (2007); Sims v. Fletcher, 368 Ark. 178, 243 S.W.3d 863 (2006). More specifically, this court has held that an order that fails to address a counterclaim is not a final, appealable order. Id.
Here, a review of the record reveals that the trial court never ruled upon Hanners’s counterclaim. Accordingly, we are barred from considering this appeal under Rule 54(b) due to the lack of a final order, and we dismiss the present appeal without prejudice.
Finally, we take this opportunity to note that Hanners has failed to file a brief in compliance with our rules. Specifically, his brief contains an insufficient abstract. Arkansas Supreme Court Rule 4-2(a)(5) requires an abstract of the transcript that consists of “an impartial condensation, without comment or emphasis, of only such material parts of the testimony of the witnesses and colloquies between the court and counsel and other parties as are necessary to an understanding of all questions presented to the Court for decision.” (Emphasis added.)
In the case at bar, the abstract submitted contains the following statement:
Since the case on appeal involves an appeal from a summary judgment and an order granting Appellee’s motion for attorney fees, neither of which includes a transcript of testimony, there will be no abstract of testimony in this case.
Although there was no testimony presented at the hearing on summary judgment or the hearing on attorney fees, transcripts of both of those hearings are included in the Addendum to this Brief. Arguments of counsel are not abstracted, but are included in the Addendum. The trial court’s ruling at the summary judgment hearing held February 3, 2006, is abstracted below along with the trial court’s ruling from the bench at the attorney fee hearing held July 6,2006, for the convenience of the Court.
As Hanners points out, counsel for both parties made arguments to the trial court on the merits of both Giant Oil’s motion for summary judgment and its motion for attorney’s fees and costs. However, instead of abstracting the transcript of these hearings as required by Rule 4-2(a)(5), Hanners has included a copy of each transcript in the addendum. This does not comply with Rule 4-2(a)(5). See Simons v. Marshall, 369 Ark. 184, 251 S.W.3d 303 (2007) (per curiam).
Dismissed without prejudice.
Hanners’s original answer and counterclaim was filed on February 18,2005.
Although this issue was not raised by either party, the question of whether an order is final and appealable is a jurisdictional question that we will raise on our own. See Southern Farm Bureau Cas. Ins. Co., 369 Ark. 101, 251 S.W.3d 251. | [
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Per Curiam.
Petitioner Wilfredo Gonzalez-Lora tendered to this court a petition for a “Writ of Supervisory Control,” a pro se original action. After our clerk correctly declined to file the action without a certified record of the lower court proceedings, petitioner filed a motion for leave to proceed without the certified record. We treated the motion as a motion for rule on clerk and denied the motion. Gonzalez-Lora v. Circuit Clerk of St. Francis County, 07-170 (Ark. Feb. 21, 2007) (per curiam). Now before us is petitioner’s pro se motion asking that the material that he tendered with the petition for a writ of supervisory control be returned to him. He contends that the material consisted of original documents for which he has no duplicates.
It is the policy of this court that all tendered material, or in appropriate instances a photocopy thereof, be retained in the case file. As petitioner avers that he does not have a photocopy of the material he tendered, we will permit the return of the material upon receipt from petitioner of the standard fee charged by our clerk of fifty cents per page for photocopying so that a copy can be retained.
Motion granted pending submission of fee for photocopying tendered material. | [
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Per Curiam.
Appellant David E. Looney, by and through his attorneys, Butler Hicky & Harris, has resubmitted a motion for rule on clerk to file the record and have his appeal docketed. Appellant had previously filed a motion for rule on clerk after the clerk refused to docket his appeal and would not accept the record due to a failure to comply with Arkansas Rule of Appellate Procedure - Civil 5(b)(1). On February 1, 2007, we remanded the case to the trial court for compliance with Rule 5(b)(1). See Looney v. Bank of West Memphis, 368 Ark. 639, 249 S.W.3d 126 (2007) (per curiam).
On March 5, 2007, the trial court issued an order for the purposes of strictly complying with the requirements of Rule 5(b)(1) and stated that the order should relate back to its October 11, 2006 order granting an extension of time to file the record to January 12, 2007. Since Appellant had timely filed the record in this matter with the clerk on January 11, 2007, and the extension order is now in compliance with Rule 5(b)(1), the motion is granted. Our clerk is directed to accept the record and docket the appeal.
Motion for rule on clerk granted. | [
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Per Curiam.
Don Gillaspie was ordered to appear before this court to show cause why he should not be held in contempt for failing to timely file a petition for writ of certiorari to bring up the record on behalf of his client, appellant Michael D. Bell, within fifteen days, as directed by this court. The procedural history of this matter is set out in two per curiam opinions. See Bell v. State, CR 06-871 (Ark. Feb. 22, 2007); Bell v. State, CR 06-871 (Ark. Jan. 18, 2007).
On March 8, 2007, Gillaspie appeared before this court, as ordered, and entered a plea of guilty to the contempt charge. Though not couched in terms-of mitigation, he stated that he did not recall receiving the court’s directive about the petition for writ of certiorari. It also came to light during his appearance that Mr. Gillaspie has not paid his license fees to practice law to the clerk of this court. The deadline for doing so was March 1, 2007. Mr. Gillaspie assured this court on March 8, 2007, that he would pay his license fees on March 9, 2007, and file the required petition for writ of certiorari on the same date. As of this writing, Mr. Gillaspie has not paid his license fee, although he tendered a petition for writ of certiorari for filing with the clerk on March 21, 2007.
Based on the foregoing, we accept Mr. Gillaspie’s guilty plea and find him in contempt of this court. We impose a fine of $500 to be paid within thirty days from the date of this order. A copy of this per curiam will be forwarded to our Supreme Court Committee on Professional Conduct to take any appropriate action that the Committee deems necessary.
It is so ordered. | [
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Riddick, J.
The only question in this case is a question of costs in a contest of an election for the removal of a county seat. After the decision of the case a motion was made to retax. costs of the contest of the election in Buck Range Township, and the court retaxed the costs, and refused to allow contestee’s costs of witnesses in that township on the ground that the validity of the election had been fully established before the depositions of these witnesses were taken. He also refused to allow costs of copying stenographer’s short-hand notes. As the validity of the election of that township was challenged by the contestants, and as its regularity was not conceded until after these depositions were taken, we think the contestees had the right to take these depositions, and are entitled to their costs. There is no provision in the statute for costs of copying stenographer’s notes, and that item of costs, amounting to thirty dollars, was properly disallowed.
Judgment reversed and cause remanded with an order to enter judgment accordingly. | [
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Wood, J.,
(after átating the facts.) 1. No objection was made and exception saved at the trial to the portion of the testimony of W. H. Rankin which appellant now urges as -error. We will therefore not consider that question.
2. A street railway may make and enforce reasonable rules to facilitate its business, and to protect itself from fraud and imposition. So long as these rules are not inconsistent with the rights of the public to transportation over- the company’s road, and do not impose unnecessary and unreasonable burdens upon them, they will be enforced. Booth, Street Ry. Raw, § 237; Nellis, Street Surf. Railroads, p. 440, § 8; Clark’s Accident Raw, § 81. A rule requiring -transfer tickets showing the right of passengers who pay a single fare to fide upon the different cars and to various points on the company’s road is reasonable. Where a passenger on a street car pays his fare, and calls for and receives a transfer ticket, which is void upon its face, and which is refused when presented to another conductor, he nevertheless has a valid contract with the company to be carried to his place of destination, and the company in expelling him from its car for a refusal to pay additional fare violates its contract, and is liable in damages for its breach. Thus far there is practical unanimity in the adjudications. But as to the measure of damages for such breach, and whether the action shall sound in tort for wrongful expulsion or be confined solely to one ex contractu, there is great diversity of opinion. See Clark’s Accident Raw, § 83, p. 196, and O’Rourke v. Street Ry. Co., 103 Tenn. 124, where the authorities pro and con are cited and reviewed. Mr. Freeman, in his exhaustive notes to Commonwealth v. Power, 41 Am. Dec. 465, states the rule upon the subject -as to commercial railways as follows: “If, by a mistake of one of the officers of the company, he is not furnished with a proper ticket or check evidencing his right to be carried to his destination, his right nevertheless remains, and if for want of the requisite evidence of that right another servant of the company refuses to carry him without another payment of fare, the contract is broken, and he has a complete right of action for all damages resulting from such breach. But, as the rule requiring him to show a proper ticket or to pay his fare, if de~ manded, is a reasonable one, he will not be justified in refusing compliance with it, and in remaining in the car until forcibly expelled, merely for the purpose of heaping up damages. He should either pay the fare demanded or quit the train; and in either case we think he ought to recover as part of his damages reasonable compensation for the indignity put upon him by the company through the default of its servant. But he can add nothing to his claim by remaining in the car until forcibly ejected, for the rule under which he is ejected, being reasonable, is a complete protection to the company and its servants against the recovery of any damages, directly or indirectly, for an assault made necessary by his own obstinacy, if no more violence than is required for his ejection is used.”
This rule is equally applicable to street railways, and is, we believe, based upon better reason than 'those authorities which hold to a different view. Judge Taft in Pouillin v. Canadian Pac. Ry. Co., 52 Fed. Rep. 197, says: “The law settled by the great weight of authority is that the face of the ticket is conclusive evidence to the conductor of the- terms of the contract of carriage between the passenger and the company. The reason for this is found in the impossibility of operating railways on any other principle, with due regard to the convenience and safety of the rest of the traveling public, or the proper security of the company in collecting fares. .The conductor can not decide from the statement of the passenger what his verbal contract with the ticket agent was, in the absence of the'counter evidence of the agent. To do so would take more time than a conductor can spare in the proper and safe discharge of his manifold and important duties, and it would render the company constantly subject to fraud and consequent loss. The passenger must submit to the inconvenience of either paying his fare or ejection, and rely upon his remedy in damages against the company for the negligent mistake of the ticket agent.” See also, for a cogent statement of the reasons for the rule, Bradshaw v. South Boston R. Co., 135 Mass. 407.
The strongest cases we have read, towit: O’Rourke v. Citizens St. Ry. Co., supra, and Lawshe v. Tacoma Ry. & Power Co., 29 Washington, 682, holding that, under circumstances similar to the case at bar, the passenger may refuse to pay his fare, suffer ejection, and then sue the railway company for the wrong ful expulsion, are not in conflict with the rule we have announced as to the liability of the railway company. They differ only as to the nature of the action and the consequent measure of damages. It follows that under either rule the appellee was a passenger at the time of the alleged assault upon him. Under the rule we have announced, had there been nothing more than a refusal to accept the transfer ticket, a demand for additional fare, and upon refusal an expulsion, without using more force than necessary to accomplish the purpose, the railway company would have been liable only for a breach of its contract. But, under the allegations of the complaint and the testimony on behalf of appellee, there was a wilful breach of the contract under such circumstances of insult and aggravation as to constitute a tort.. Fordyce v. Nix, 58 Ark. 136. These allegations, if true, would render appellant liable, not only for actual and compensatory, but also for punitive, damages.
While we do not find the first instruction obnoxious to the particular objections urged against it in brief of counsel, the latter portion of it was erroneous. It told the jury that, if appellee became a 'passenger, he “was entitled to courteous treatment;” and if he was without fault, and “not treated with care and courtesy, he was entitled to recover.” The court should have defined the duty of appellant to appellee to use ordinary care to protect him, .if he became a passenger, from insults and injuries, and should have told the jury that in case appellee was a passenger, if the conduct of appellant’s conductor towards him, as alleged in the complaint, was established by the evidence, it would render appellant liable. The instruction allowed the jury to generalize and speculate as to what would be “courteous treatment” and left them to say what “care and courtesy” was due from appellant to appellee. That is too uncertain. Jurors might differ greatly in their ideas of what would be “courteous treatment.” The law fixes the. standard, and defines the measure of appellant’s duty in such cases. The learned counsel for appellant has made no criticism of the instruction upon this ground. He seems to concede that, if appellee was a passenger (which the jury found), the conduct of the conductor towards him would render appellant liable, and this is true; for, if appellee was a passenger, the conductor had no right to insult him by saying, as he says he did: “It looks 'to me like you are trying to beat anyway.” Therefore we will treat the error pointed out as non-prejudicial; but we call attention to it so that a correct declaration may be given upon a new trial. The cause must be reversed for an error hereafter indicated.
There was no error in the second and third instructions given at the request of appellee. In the fourth the meaning is not clearly expressed, but it doubtless intended to tell the jury that if appellee boarded appellant’s car with a transfer ticket which he believed to be valid, but which as a matter of fact, turned out to be void, he would still be a passenger if he intended to pay his fare. The instruction was abstract and prejudicial. There was no proof that appellee intended to pay his fare, if the transfer ticket was invalid. . On the contrary, the undisputed evidence is that he “was not going to pay another fare.” Under the rule we have announced supra, appellee was a passenger if he had paid his fare which entitled him to a proper transfer ticket, even though the ticket given him was invalid, provided he presented such transfer ticket in proper time and on the proper car He was a passenger under such circumstances, whether he intended to pay an additional fare or not in case the transfer ticket given him was refused. The only contention of appellant in the lower court, as shown by the pleadings and proof, was that he had paid his fare and had received a transfer ticket which he presented at the proper time and on the proper car, and that this established between him and appellant the relation of passenger and carrier which entitled him to recover for injuries alleged. On the other hand, it was the contention of appellant that appellee had not paid his fare, and had not received a transfer ticket which he presented at the proper time and place, but that appellee was attempting to defraud the company by offering and claiming the right to ride on a spent or bogus transfer ticket, and appellant adduced evidence tending to prove its contention. Appellant was therefore entitled to an instruction presenting this theory to the jury. • The court was asked to give such an instruction in appellant’s request number eight. But the court refused it as asked, 'and modified it by,allowing the jury to find that, if appellee had not paid his fare in the manner indicated in his complaint and proof, he might have intended to pay it in some other way. This was not only without evidence to support it, but, as we have shown, there was positive and undisputed evidence to the contrary. Appellant’s request for instruction number 8 was correct as asked, and should have been granted without modification.
3. The remarks of counsel for appellee, both in the opening and closing argument, were an effort to place before the jury as evidence indirectly by argument that which could not be produced directly in the proof. The remarks were highly improper. But, inasmuch as the cause must be reversed for the errors indicated in the instructions, it is unnecessary to determine whether or not the remarks constituted a reversible error. It is safe to assume that they will not be repeated.
Reversed and remanded for new trial.
Hile, C. J., not participating. | [
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Hill, C. J.
John Williams, an old and experienced miner, was killed by a gas explosion in a mine of appellant company, where he was at work, and his administrator has recovered a judgment for $1,500 against the company, which has appealed therefrom. Appellant pretermits all other questions, and rests upon the contention that there was no evidence to sustain a submission of the case to the jury, and consequently the judgment can not stand.
McGraw, the boss driver, and Williams, two miners, were sent by the pit boss into the Fifth.East Entry to lay a switch. McGraw drove them and the material for the work to the place. There was a door leading into this entry whose purpose was to prevent the air passing therein, thereby forcing it to continue along its course which would carry it through the Fifth Entry, relieving it of accumulated gas, and giving proper ventilation. If this door was left open, the air went through it and sihor-t-circuited to the return course, thereby leaving this entry without ventilation. This, as all other ventilating doors, was constructed so that it would close itself whenever it was opened. Concussions in the mine from shots, especially windy shots, explosions and probably other causes would open the door, but it should be so hung that it would immediately slam shut. The appellee’s evidence shows that this door had become defective. When opened, it would not always slam back, as it should, and this condition had existed for some time, and had been reported to the pit boss, who promised the fire boss that it would be remedied. McGraw, Bussey and Williams only stayed in the entry a short time, and went elsewhere to work, and returned to the entry about two and one half hours after they left it, and found the door open, and went in only a short distance when the gas ignited from their open lamps, and from the explosion Williams was so injured he died after lingering through great suffering.
Appellant contends that it was the duty of Williams and his companions to close the door when they left the entry, and that the evidence shows they failed to do it, and that, irrespective of this fact, it was negligence to enter the entry when they found the door thereto open.
McGraw says that they failed to hear the door slam when they left the entry, and Williams went back to shut the door as he supposed, but he did not know whether Williams did shut it or not. There was much testimony that it was the duty of miners to listen for a door to slam shut after they passed through, and to go back and close it if they failed to hear it. This, however, is not material, as there is evidence from which the jury might well have decided that Williams did close the door. This is the inference to be drawn from the testimony of McGraw, and in addition to that three witnesses, each an experienced miner, testify that, if the door had been open for two and one half hours, the accumulation of gas in that time would have caused a most disastrous explosion, blowing out the door and destroying that part of the mine; while the evidence shows that this explosion did not even have force enough to blow out the door, and did no damage other than burning the men who were in it. This testimony fully justified a finding that Williams, or his companions, closed the door when they left. There is no evidence of how it was opened. The evidence shows that the door on the Fourth West Entry, a door similar to this one and on the same air course, was opened and shut just before the return of these men to the Fifth East Entry. McGraw gives his opinion, from seventeen years’ experience in mines, that this would create sufficient concussion of air to open the door to the East Fifth. If the door was properly swung, it would immediately swing back; if not, it would stay open. Martin, Rafter the State Mine Inspect tor, testified that in his opinion the opening and slamming of the door on the West Fourth Entry could not cause the door of the Fifth East to open. The jury passed on this conflict, and had a right to accept McGraw’s theory in preference to Rafter’s. But it was hardly incumbent upon appellee to account for the opening of the door. It was sufficient for this case to clear himself and fellow-servants of fault in' the matter, for it was the master’s duty to provide a working place free of gas.
It is earnestly insisted that the entrance to this entry by Williams and his companions with the door open was negligence of itself, and in doing this dangerous act they assumed the risk of the danger encountered.
McGraw, who was appellee’s witness, says that Williams was riding in the car, which was drawn by a mule, in returning to this entry, and Bussey stopped the car, and went forward to open the door, and found it open, and drove on in; and from where Williams was he could not see that the door was open. On the other hand, appellant introduces evidence of statements of Williams tending to show he knew the door was open before he went m; tnat he and McGraw talked of it, and that he did not blame any one but himself for the injury. But these statements also show that he and McGraw talked of the reason the door was open, and that McGraw said Pudlass, the fire boss, was in there, and he asked McGraw if he was sure, and McGraw said he would swear it.
McGraw, as driver, had been in other parts of the mine while Williams was at work in the Fourth West Entry, and had met and talked to Pudlass, the fire boss, and Jones, the pit boss, in the interval. If-the fire boss had gone in the entry and left the door open while there, the inference would be that it was for only a few minutes. It would tend to show that there was no immediate danger in the entry when the man whose duty it was to see to the ventilation was then in there. It must be remembered that only a few hours before Williams was in there and found it safe and properly ventilated. Take either view of the case, and it presented a question of fact whether it was negligence on part of Williams, under the circumstances shown, to return to this entry. The court properly submitted this question to the jury, and its finding was sustained by the evidence.
Judgment affirmed. | [
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Hill, C. J.
Clyde, Jr., a minor, by next friend, brought suit for a tract of land claimed to have been inherited from his father, Clyde, Sr., against Mariah V. Greene and Peter G.reene, her husband, and some vendees of theirs for a part of the lot.. There is little dispute over the salient features of the case.
The land was a part of the Hot Springs Reservation, and was owned by the United States Government. Congress passed an act in 1877 for its disposition, and created the Hot Springs Commission. Parties who had made improvements upon the Reservation were permitted to purchase the land containing the improvements from the Government; and the commission was authorized to determine the rights of occupants and claimants as to what each should be entitled to purchase and to fix prices therefor.
One Jones fenced several acres of land on the Reservation, and his improvement was the common source of title to these litigants. Jones sold one tract to Anna K. Morris, another to J. T. Morris, and another to Charles Cutter.
The Anna K. Morris claim fronted on a road, afterwards called “Hawthorne Street,” and extended to another road called “New Courthouse Road;” the J. T. Morris claim fronted on this latter road, and extended along the Anna Morris claim and to its rear from Hawthorne Street. The Morris tracts may be treated as one in this case. Just east of the Ann Morris tract was the Cutter tract, extending along Hawthorne Street to Thornton Ferry Road, afterwards called Ouachita Avenue.
Each of these tracts was purchased from Jones by said parties, and there was no conflict in them, and no overlapping of lines. Application was made to the commission by the Morrises and by Cutter for right to purchase their respective claims, and a plat was attached to each petition showing the land claimed by each claimant, and these plats showed no conflict in the three claims. The Morrises sold part of their tract to Clyde, Sr., the father of the plaintiff in this suit.
The .Clyde tract was on the east end of the Morris tracts, and had a frontage of 126 feet and 8 inches along Hawthorne Street, and ran back through both Morris tracts to the north line of the J. T. Morris tract. Clyde went into possession of this tract, erected a dwelling house upon it, which he occupied with his wife and only child, this plaintiff. While occupying this tract, he built a clapboard fence along his east line, between him and the Cutter, afterwards the Greene tract. Clyde died in his house on the tract, and his widow shortly afterwards went to Missouri, 'carrying the infant with her. She retained possession through tenants of the tract for a year or more after her husband’s death, and was then dispossessed by G.reene.
Maria V. Greene purchased the Cutter title, and went into possession of the tract, and occupied it. She conveyed to her husband, Peter Greene, an undivided half interest. Peter Greene seems to have been the active party in the matter, Maria V. Greene only appearing as holding the title acquired by Peter G.reene. Some time after the commissioners had made their awards of the respective rights of these claimants, an uncle of Clyde, Jr., offered to pay -his (young Clyde’s) part of the purchase price from the Government, and there seems to have been an understanding that either Clyde, Jr’s., uncle or Peter Greene were to make payment when the Morrisses paid their part, so> that the payment of the original Jones tract should be made at one payment. Without the knowledge of Clyde’s relatives, Peter Greene made the payment.to the Government, covering both his and the Clyde tract.
The commissioners widened the Thornton Ferry Road 15 feet • on the west side thereof, thereby cutting off that amount from the east end of the Cutter (or Greene) tract.
In conveying the land, for some reason not shown in the record and not explained, the commissioners did not follow the description of the land as claimed by these réspective claimants, but described it in lots, not theretofore named, and gave a dimension to the lots different from that set forth in the respective plats filed by these claimants. The Cutter or Greene lot was extended back over the Clyde- lot, and its west line was just beyond the Clyde home, thus throwing Clyde’s home and all east of it to the clapboard fence in the Cutter or Greene tract All that was left of the Clyde lot was a narrow strip along the west line. It does not appear that Peter Greene realized this at the time, or at least he made no assertion of right under it. Plis first assertion of right (unless it be his surreptitious payment of the purchase price) was to claim a right to extend his back line 12 feet over Clyde’s clapboard fence owing to the commissioners having cut off 15 feet of the other end of his lot. This claim he enforced some time after the death of the senior Clyde. When one Kiser, under the employ of an aunt of young Clyde’s, was repairing this fence, Greene stopped him, and asserted his claim to at least 12 feet on account of his front being clipped 15 feet. Shortly after this, about 1881, two years after the death of Clyde, Sr., Greene took possession of the remainder of the Clyde tract included in the deed from the Government to his wife, and remained continuously in possession since.
The case is not without precedent. Ahab wanted Naboth’s vineyard, which was hard by his palace. “And Ahab spake unto Naboth, saying, ‘Give me the vineyard, that I may have it for a garden' of herbs, because it is near unto my house; and I will will give thee for it a better vineyard than it, or, if it seem good to thee, I will give thee the worth of 'it in money.’ ” 1 Kings, ch. 21, 1, 2. But this modern Ahab did not offer another vineyard nor money for this one, and, against protests from relatives and friends of the infant Clyde, he proceeded to possess himself of it, and continued to hold it until the decree appealed from dispossessed him of part thereof and vested it in the young Clyde as his inheritance.
The right of Greene under the patent from the Government is not controlled by the doctrine announced in Rector v. Gibbon, in U. S. 276, where it was held that the award of the Hot Springs Commission was final as to matters depending on conflicting evidence as to extent of occupation and value of improvements, etc., because there was no conflict in the evidence; no overlapping claims, and in fact nothing before the commission but the establishment of the respective title of each of the claimants under the Jones improvements, a question -common to all these claims and established by the same evidence. The case is governed by the established principle that where a patent to land is issued, by mistake, fraud, inadvertence, or other cause, to a party not entitled to it, he will be declared trustee for the true owner. This salutary principle has often been applied where land officers of the United States have issued patents to the wrong party through mistake, fraud or inadvertence. Johnson v. Towsley, 13 Wall. 72; Rector v. Gibbon, 111 U. S. 276; Cornelius v. Kes sel, 128 U. S. 456; Monroe Cattle Co. v. Becker, 147 U. S. 47.
Appellee cross-appeals as to adverse judgment for 12 feet of land. Tihe facts were these: Greene sold this 12 feet with other to McDonald and Williams in 1890, and they sold to McCafferty. These sales appear for a valuable consideration, and there is no evidence of notice of the defects in Greene’s title shown as against these purchasers. He and his wife were in actual possession and under the legal title. It is true that the infant Clyde had a cause in equity to hold the Greenes as trustees for him; but, until he brought home notice through suit or otherwise of an equitable right, the Greenes were clothed with the legal title and1 actual possession under it, and these vendees were innocent purchasers and protected as such. Sorrells v. Sorrells, 4 Ark. 296.
Appellee also insists on cross-appeal that he should have judgment for rents. The correct judgment should have been to have 'charged the Greenes with rental value of the land and credited them with the proper proportion of the purchase price paid the Government, with interest, and for taxes. But appellee did not ask for rents in the complaint, and the decree ignored this accounting, and the appellee does not appear to have insisted upon such accounting in the trial cou,rt, and it is too late to ask it for the first time here.
The decree is in all things affirmed. | [
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Hill, C. J.
This is a petition for a writ of mandamus to compel the circuit judge to sign a certain bill of exceptions in the case wherein the appellants were the losing parties.
The petition alleges that the evidence was voluminous and conflicting, and that the instructions asked by appellants and refused by the court presented the question to be determined in this court; and that in pursuance of Rule 13 of this court they omitted from the bill of exceptions the evidence, and stated what the evidence tended to prove. The bill of exceptions prepared in this manner was presented to the judge for approval, and he refused to approve or sign the same until it had been submitted to opposing counsel. The petition states that he also required the bill of exceptions to be “O: K.’ d” by opposing counsel before he would consider it. This, however, is not taken literally; but, taking all the allegations together, means that the judge would not consider a bill of exceptions until presented to opposing counsel; and evidently did not mean he would only sign one approved by Opposing counsel, for that would be abdicating his duty, and the record here does not bear that construction. The response of the judge simply rests upon the statement that the bill of exceptions was not correct. It is a reasonable and proper rule of practice to require bills of exception to be submitted to opposing counsel before being submitted to the judge, and this is especially true where, as in this case, the evidence is not set out in full, but statements made of what the evidence tended to prove.
The petitioners ask that the circuit judge be compelled by mandamus to sign the bill of exceptions which was tendered, and which 'thb jihdge says is not correct. The judge required as a condition1 jjt'e’cédént that it be submitted to opposing counsel. Tills was'a regulation of the practice of his court, and not a refusal to act which could be controlled by mandamus. Moreover, the cofurt.would not'compel him to sign this particular bill of .exceptions, .but .lypuiyin an appropriate case compel him to sign a bill of exceptions; but whether the one presented is a correct one or not is a judicial,question, not controllable by mandamus. Mandamus will compel a judge to act when he should act and refuses, but it will not be used to tell him how to decide a judicial question, such, as settling a bill of exceptions. Garibaldi v. Carroll, 33 Ark. 568; Gunn v. Pulaski County, 3 Ark. 427; Ex parte Williamson 8 Ark. 424; McCreary v. Rogers, 35 Ark. 298.
The petition.for mandamus is refused. * | [
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Riddick, J.
This is a suit in equity by J. A. Smith and other creditors of John J. and William Sumpter to set aside certain conveyances of land made by them and to subject the lands to the payment of the judgments which the respective plaintiffs had recovered against these defendants.
The land in controversy originally belonged to James Sumpter, the father of John J. and William Sumpter. In September, 1861, he conveyed it to his son, William Sumpter. This deed recites a consideration of seven hundred dollars, but William Sumpter testified that he paid nothing for it, and that his father, in apprehension of danger of being slain during the war then raging, conveyed it to him as his eldest child to be held in trust for the benefit of the children of his father, including, besides himself and John J. Sumpter, two sisters, who are parties to this action.
Counsel for the creditors contend that this was not a valid trust under our statute, and that the land must be treated as the property of William Sumpter. It is true that this parol trust can not be enforced against William Sumpter, the grantee named in the deed, yet there is nothing either in law or equity that will prevent him from executing the trust if he chooses to-do so. While the law for good and sufficient reasons refuses to permit an express trust to be added to or engrafted upon, a deed absolute in form by parol evidence alone, yet when property is conveyed by a grantor by absolute deed with directions that it be held in trust for some lawful purpose, there is a moral obligation on the part of the grantee to perform his trust or surrender the property, though the law will not -compel .him. If, however, he elects to do that which in good conscience he ought to do, the courts will protect him in so doing, and, so far as -possible, will -protect the beneficiaries in the executed trust. A conveyance of the trust property by the trustee to the beneficiary under such circumstances would not be a fraud upon his creditors, -for the creditors have no legal right to ask -h-im to hold property to which he has no moral right. 28 Am. & Eng. Ene. Eaw, 877; First National Bank of Appleton v. Bertschy, 52 Wis. 451.
But, while it is true that the evidence shows that William Sumpter never at any time claimed more than an heir’s interest in this land, and that he has always recognized the interest of his brother -and sisters therein, yet, as an express trust can pot be added to an absolute deed by parol evidence, it is necessary to make out a case for relief against William Sumpter before the conveyance of this land made by him can be set aside.
The judgments held by the plaintiffs in this case were rendered not only against John J. Sumpter but against William Sumpter also. In order to entitle plaintiff to come into a court of equity to set aside a conveyance made by William Sumpter, it must be shown that plaintiffs have exhausted their legal remedies against him. But there is nQthing to show insolvency of William Sumpter, beyond the fact that there are several unsatisfied judgments against him. It is not shown that any execution has ever been issued on either of these judgments, or that any effort has been made to collect or enforce them, and the mere fact that there are unsatisfied judgments against a defendant is not, under our decisions, sufficient to show that he is insolvent. Euclid Ave. Nat. Bank v. Judkins, 66 Ark. 486; Davis v. Insurance Co., 63 Ark. 412; Clark v. Anthony, 31 Ark. 546.
There arencases that hold that a creditor may go into equity to set aside a fraudulent conveyance upon showing that he has a judgment which is a lien on the land conveyed, even though no execution has been issued on the judgment. Hunt v. Wiener, 39 Ark. 70. But the judgments set up by the plaintiff in this action were all rendered more than three years before this action was commenced. It is not shown that they were ever revived, and under the statute the lien of the judgment expired before this action was commenced. Plaintiffs then have no lien on the land which equity can enforce against a defendant not shown to be insolvent.
For these reasons we are unable to say that the chancellor erred in dismissing the complaint for want of equity.
Judgment affirmed. | [
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Riddick, J.,
(after stating the facts.) This is an appeal by Herman Arendt from a judgment of the circuit court declaring a certain writing in the form of a letter to be the last will and testament of William Arendt.
Our statute provides that “when the entire body of the will and the signature thereto shall be written in the proper handwriting of the testator, such will may be established by the unimpeachable evidence of at least three disinterested witnesses to the handwriting and signature of the testator, even though there be no attesting witness.” Kirby’s Digest, § 8012.
On the trial of this case in the circuit court the court told the jury that to be valid as a will both the entire body of the instrument in question and the signature thereto must be in the handwriting of William Arendt, and that this must be established by the unimpeachable evidence of at least three disinterested witnesses; that by “unimpeachable witness” is meant one whom the jury find to have spoken truthfully, and whose conclusion they find to be correct.
When applied to the facts of this case, we think this statement of the law is substantially correct. There is nothing in the evidence reflecting on the character or testimony of these witnesses who testified to the handwriting and signature of the deceased, and we think it was clearly established by their 'testimony that the instrument in question was written and signed by William Arendt a short time before his death.
This will is in the form of .a letter from William Arendt to his wife. But, to quote the language of a distinguished author, “the law has not made requisite to the validity of a will that it should assume any particular form, or be couched in language technically appropriate to its testamentary character. It is sufficient that the instrument, however irregular in form or inartificial in expression, discloses the intention of the maker respecting the posthumous destination of his property; and if this appear to be the nature of its contents, any contrary title or designation which he may have given to it will be disregarded.” 1 Jarman on Wills (6 Ed.), 21; Whyte v. Pollock, 7 Appeal Cases, 409.
There are many decisions that illustrate this rule of law. The Supreme Court of California held that a writing in the following language was a will, and admitted it to probate: “Dear. Old Nance, I wish to give you my watch, two shawls and also five thousand dollars. Your old friend, E. A. Gordon.” Clarke v. Ransom, 50 Cal. 595.
So the Supreme Court of North Carolina held the following unattested writing to be a will: “It is my wish and desire that my good friend and relative, Dr. Joseph B. Outlaw, have all my property of every description. David. Outlaw.” Outlaw v. Hurdle, 1 Jones, Law, 150. The same court in a much more recent case held that a letter from the testator to his sister, in which he said: “If I die or get killed in Texas, the place must belong to you, and I would not want you to sell it,” was a valid will. Alston v. Davis, 118 N. C. 202.
There are many other cases to the same effect. Webster v. Lowe, 107 Ky. 293; Jackson v. Jackson, 6 Dana, 257; In Succession of Ehrenberg, 21 La. Ann. 280, 99 Am. Dec. 729; Sullivan’s Estate, 130 Pa. St. 342; Byers v. Hoppe, 61 Md. 206; Cover v. Stem, 67 Md. 449; Gardner on Wills, page 69.
The evidence proves that William Arendt was sincerely attached to his wife, and the language of this letter to her, written under the shadow of impending death, shows, in our opinion, that it was testamentary in character and intended to direct the disposition of his property after his death, and we are of the opinion that the circuit court properly so held.
u As to the question of his sanity, there is very little to show insanity beyond the fact that he became estranged from his brothers and afterwards committed suicide for what seemed a f very trifling cause. Numbers of his friends and acquaintances testify that he never at any time exhibited signs of insanity, but acted at all times up to his death as a man of sound judgment and reason might be expected to act.
The finding of the jury on this question, we believe, was correct. The instructions of the court on this point, as well as those instructions refused by him, were somewhat lengthy; but we have read them carefully, and find no prejudicial error. On the whole case, we are of the opinion that the judgment should be affirmed. It is so ordered. | [
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Hill, C. J.,
(after stating the facts.) It is the duty of the broker to furnish a customer able and willing, to comply with the proposed sale before he is entitled to commission when the commission is conditioned on payment of price. Rapalje on Real Estate Brokers, § § 6i, 62.
To be sure that his purchasers were responsible, Boysen stipulated in the contract with his agent that no part’ of the commission should be paid until one-third of the purchase price was paid; then one-half of the commission became due, and the remainder when one-half of the purchase price was paid. Now, Boysen could not, after having accepted a purchaser’s notes, defeat the broker's commission by surrendering those notes with or without compensation for such surrender unless the purchaser was not a responsible one who could not perform the contract; at least to the extent of Frink's interest in its fulfillment. If the purchaser was insolvent, no harm could be worked to Frink by surrendering worthless notes; nor could any harm be worked him if the purchaser was irresponsible and yet paid Boysen something (less than one-third the purchase price) for return of the notes, because Frink could not recover any commission until payment of one-third of the purchase price was made, nor all of his commission until payment of one-half the purchase price was made. On the other hand, Boysen could not defeat Frink’s commission by an unnecessary compromise. If the notes were good when taken, at least for so much as would earn Frink’s commission, or part of it, and Boysen could have enforced their collection, then he can not avoid Frink’s commission by such compromise.
If the payment of the $1,000 for Hall’s notes was accepted in good faith as a .reimbursement of losses for Hall’s breach of contract, and the contract to the extent of Frink’s interest could not have been enforced, Frink has no case. If the $1,000 was not in good faith accepted as a settlement of an otherwise uncollectible debt, but was a good business deal or to the advantage of Boysen to accept it and hold the land instead of enforcing a valid sale, he must pay Frink'before casting up his profits on the venture.
The instructions’ given by the court were correct, so far as they went, but they-ignored the duty of Frink to furnish a responsible purchaser, and ignored the evidence tending to prove the irresponsibility of Hall, and the diligence of Boysen to collect and his inability to do so, and the other matters discussed herein.
Appellant’s evidence requires that the other phases of the question than those stated in the instructions be sent to the jury.
Other questions are presented on both sides, and all have been considered, but none are of sufficient importance, from the view the court takes of these instructions, to require discussion.
Judgment reversed, and cause remanded for new trial. | [
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McCulloch, J.
W. L. Jackson, the husband of plaintiff, became a member of appellant society and received the polity sued on September 28, 1901, and died on November 25 of the same year. He paid the September assessment in the beneficiary fund, but failed to pay, within the month of October, assessment number 133 called for that month, and he stood suspended on that account.
The laws of the society, which formed a part of the contract, provide that if the member “fails to pay any of the above assessments or dues on or before the first day of the month following, he shall stand suspended, and during such suspension his beneficiary certificate shall be void.”
The question whether Jackson paid the October assessment within due time depended entirely upon the testimony of the clerk of the local camp, as the subordinate body is termed, of which Jackson was a member. No other testimony on the subject was introduced by either party. He testified that the assessment was not paid on or before the first day of November, and that he made report to the sovereign clerk of the suspension of the mem: her. He further testified that some time between the first and twentieth days of November, while he was at El Dorado, the county seat, on business, the amount of Jackson’s assessment, number 133, was left at his (witness’) home by Jackson’s son, and that immediately on his return home, which was about November 20, he forwarded the amount to the sovereign clerk. The witness first stated that when the money was left there he was attending the circuit court at El Dorado, and some confusion in his testimony arose when his attention was called to the fact that circuit court was in session at El Dorado in October, not in November, but he then explained the discrepancy by saying that he was at El Dorado on other business, and was not attending court at that time. We do not think that this slight discrepancy, which was fully and reasonably explained, warranted the jury in rejecting his testimony entirely. He testified positively that the payment was not made until after the first day of November, and after he had reported the suspension. He further said that the money was left at his home “maybe two weeks or not so long” before Jackson’s death, which is admmited to have occurred on the twenty-fifth day of’ November. The plaintiff made no effort to show by the member of her family who paid the money, or otherwise, that it was left at the home of the clerk on or before the first day of November. His testimony is uncontradicted, and the court and jury should have accepted as true his statement as to the time of payment.
A section of the laws of the society with reference to reinstatement of a suspended imemfoe.r is as follows:
“Sec. 115. ’ Should a suspended member personally appear and apply for re-instatement within three months from the date of his suspension and pay all arrearages, if in good health and is not addicted to the excessive use of intoxicants or narcotics, he shall be restored to membership and his beneficiary certificate again becomes valid as soon as said payment shall have been received and recorded by the clerk of his camp. If a delinquent member does not appear in person to pay his arrearages, he must send to the clerk a written statement on the official form furnished by the sovereign camp that he is in good health, and is not addicted to the excessive use of intoxicants or narcotics, as a condition precedent to reinstatement, and waiving all rights thereto if this said written statement shall be found to be untrue. No suspended member shall be reinstated until he has either appeared before the clerk in person, and paid his arrears and dues, or the clerk shall have actually received his written application for reinstatement, accompanied with all arrearages and dues. An attempted reinstatement shall not be operative or binding unless the member be in fact in good health at the time. If any of the representations or statements made by said applicant are untrue, then said payments shall not cause his reinstatement nor operate as a waiver of the above conditions.”
It will be seen from a reading of this section that a suspended member, in order to accomplish his reinstatement, must pay all arrearages, he must be in good health at the time, and must either “appear before the- clerk in. person” or the clerk “shall have actually received-his written application for reinstate ment.” Now, the purpose of the latter provision is two-fold— that the clerk may have an opportunity to observe in person whether the applicant is in good health or have a written statement from him to that effect, and that the clerk may know that the attempted reinstatement .is the act of the applicant himself, and not the act only of some interested person seeking to bring about the reinstatement. The wholesomeness of such a provision in the laws of a fraternal order is obvious. The burden of proof was upon the plaintiff to show reinstatement of the member. There is no proof at all tending to show that Jackson either appeared in person before the clerk or furnished a written application containing a statement as to good health. On the contrary, the evidence is uncontradicted that neither of these provisions was complied with. So there was a total failure of proof on this point to sustain the verdict.
The court gave the following instruction over the objection of appellant:
“The jury are instructed that, although they may find that the said W. L,. Jackson did not pay his dues on the day that the same became due, still if they further find that they were after-wards paid to and accepted by the clerk of the lodge, and that he was the proper person to whom the same should be paid, and that the same was by said clerk forwarded to the defendant, and by them received and placed to the credit of said Jackson on account of said dues, then this action on their part would estop them from setting up such-failure to pay at the proper time as a defense to this action.”
This instruction was erroneous, in that it entirely ignored all the provisions of the laws of the society, which formed a part of the contract of insurance, with reference to method of rein- ■ statement of a suspended member; and also ignored the testimony that the money was promptly returned. ■ No estoppel was worked by reason of the receipt of the money under these circumstances. Nor was appellant estopped, under the terms of the contract, by receipt of the money from showing that the suspended member was not in good health at time of the attempted reinstatement. The laws of the society plainly so provide. 2 Bacon on Ben. Soc., § 385 C. It is true the court instructed, at the request of appellant’s counsel, to the effect that before Jackson could be reinstated he must have complied with all the requisite conditions, -but the instruction quoted above was in direct conflict with this in telling the jury that appellant was estopped by acceptance of the money from insisting on these requirements and conditions.
Appellant introduced as a witness a physician who attended Jackson a few days before his death. He did not know how long Jackson had been ill, but stated his opinion to be, from the condition he found the patient in, that he had been sick about three weeks. No objection was interposed to this testimony of the physician, but appellant offered to prove by him that the plaintiff told him (witness) at the time that her husband had been sick about three weeks and, on objections of the plaintiff, this testimony was rejected. This testimony tended to establish the fact that Jackson was not in good health at the time of his alleged reinstatement, and should have been admitted. He died on November 25, 1901, of typhoid fever, and, according to this testimony, the plaintiff stated to the physician, a few days before death occurred, that he had then been sick about three weeks. This was an admission of plaintiff against her interest, and was competent evidence. If true, it brought the period of Jackson’s last illness within the time the jury could have found from other evidence that the reinstatement was attempted, and tended to show that he was not then in good health.
Counsel for appellee contend that, according to the bill of exceptions, the appellant offered only to prove by the physician what “he was told as to W. L. Jackson’s illness.” They are mistaken about this. The bill of exceptions recites that appellant’s counsel asked the physician to state “how long Mrs. Jackson said that the deceased had been sick when he first visited him,” and that an objection to the question on motion of the plaintiff was sustained by the court. This does not appear in the transcript, of the stenographer, but does appear in the bill of exceptions certified by the presiding judge, and must control.
The judgment is reversed, and cause remanded for a new trial. | [
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Hill, C. J.
1. This was an action by the telephone company against the railroad company for removal by the latter of' thirteen miles of telegraph line from the railroad right of way. The Reporter will state the issues and facts.
The verdict and special finding fix the fact that the telephone line-was constructed before the railroad company had definitely located its line, and the further fact that the telephone line was not interfering with the proper and safe operation of the railroad, and was not a nuisance. These declarations are against the weight of the evidence, but have substantial evidence to sustain them, and hence can not be disturbed here. This takes from the case many questions presented on the instructions and as to the evidence.
This situation is presented, accepting the verdict as sustained by. evidence: A telephone line is lawfully constructed; it obtains right of way over private land by verbal consent of the owners and along a highway under authority granted by section 2934, Kirby’s Digest. Subsequently a railroad is constructed along the way occupied by the telephone line, and it acquires its right of way by purchase and conveyance from the landowners and the county roads occupied by it were vacated (accepting a version most favorable to the appellant). The telephone line is constructed and maintained so as not to render dangerous the operation of the railroad, and not to interfere therewith, and was not a nuisance along the highway or right of way. Can the railroad company, after repeated demands upon the telephone company to remove its line from its right of way, remove the telephone line from the right of way, and thereby destroy its utility?
Concede, without deciding, that the telephone company was a mere licensee, and that the sale of the land containing its line revoked the license for its being there and the vacation of the county roads terminated its rights there, and from .this viewpoint examine the situation of the parties.
The statutes expressly authorize a telephone company to enter a railroad right of way and survey, locate and lay out its line, being liable, however, for damages; and further authorize the condemnation of its way over a railroad right of way if it fails to agree upon its way by consent, contract or agreement. Kirby’s Digest, § § 2934-2936. The statutes further give a property owner damages against a corporation authorized to appropriate private property when it does so without first paying therefor. Kirby’s Digest, § § 2903-2905.
In McKennon v. St. Louis, I. M. & So. Ry. Co., 69 Ark. 104, the court held that the owner of land wrongfully appropriated for a railroad may have prevented such wrongful taking by injunction; but if he has not prevented it, and the railroad does take his land for its way without condemning, then he is remitted to his action for damages, and can not recover his land by ejectment. If the railroad could be- ejected by process at law, certainly the landowner could not forcibly eject and remove the railroad from the land. Exactly the same reasons apply in this case which applied in that one. The same statutes govern here which govern there; and if the statutory remedy for damages was exclusive there, it is necessarily exclusive here. While not mentioned in that case as a reason for the rule against ejecting a railroad company, it is a reason for it that public utilities must not be destroyed when a person has stood by and seen them constructed. Reichert v. St. Louis & S. F. Ry. Co., 51 Ark. 491. The same principle would govern here.
A telephone line is a public utility (Joyce on Electric Dines, § 275) ; and its public importance is recognized by clothing it with the power of eminent domain, and giving it the free use of the State’s highways. Kirby’s Digest, § § 2934-2936, 2937 et seq. Therefore it follows that the railroad company, taking the view of the law most favorable to it under the evidence accredited by the jury, was not authorized to remove the line of telephone from its right of way, and therefore it was liable for damages for so doing. The instructions sent this issue to the jury; and while they are not as clear as might be, yet the court fails to find prejudicial error in them.
2. The court submitted to the jury this question: “Do you find that the act of cutting the poles and wires of the plaintiff-telephone company by the defendant was done wilfully and intentionally?” The jury answered, “Yes.” The court gave judgment for double the amount of damages found as the actual damages. This was done pursuant to sec. 1899, Kirby’s Digest, which makes it a misdemeanor to wilfully and intentionally destroy, injure or obstruct any telegraph or telephone line, and which adds to the penalty therein provided, “and pay to the owners of said line double the amount of all damages sustained thereby.”
The court did not instruct the jury as to the meaning of the words “wilfully and intentionally,” as used in the statute, and hence their finding can have no weight unless the words are to be taken literal^. This is a criminal statute, and the words mean more than a mere doing voluntarily -or knowingly-jhe act in question. The use of the term “willful,” and in this case almost its synonym, “intentional,” in a criminal or penal statute “implies knowledge and a preference to do wrong.” They mean in such statutes, “not merely voluntarily, but with a bad purpose.” “An evil intent without justifiable excuse.” “Doing or omitting to do a thing knowingly and wilfully implies not only a knowledge of the thing, but a determination with a bad intent to do it or omit to do it.” Felton v. United States, 96 U. S. 699; Evans v. United States, 153 U. S. 586; Potter v. United States, 155 U. S. 438; Spurr v. United States, 174 U. S. 728.
These cases and the authorities therein reviewed conclusively settle that there is no place in this case for an invocation of this criminal statute. The weight of the evidence is decidedly that the telephone line was a hindrance and a menace to the safe operation of the road; and if that were true, the appellant was right in removing it. The jury has found that is not true, and it has the testimony of one witness to that effect, and on that question of fact its verdict is conclusive; but this question does not go to the matter decided by the jury, but goes to the good faith or wantonness of the appellant, a question not submitted to the jury. There is no evidence here to submit this issue to the jury. The appellant was right in its position if the telephone line was a nuisance and a menace to its operation. The jury has said on some substantial evidence that it was not, and therefore it is settled that the railroad made a mistake in removing the line, and hence must pay for it; but this is far from proving the bad intent and evil motive necessary to convict it under this criminal statute. It was an error of the court to assess double damages.
Judgment reversed so far as it awards double damages, and affirmed as. to the actual damages found by the jury. | [
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McCulloch, J.
Appellee, Hampton Stave Company, sold to appellants, J. E. Hasty & Sons, at a stated price, a lot of West India and whisky barrel staves, to be delivered on the railway track at Chidester, Ark. The staves were delivered, counted and accepted at the placé named, and were shipped away by appellants, who paid the sum of $14,336.81 on the price. Appellee sued for an alleged balance of $379.80 due on the price according to the count made of the staves at Chidester before shipment, and appellants dispute liability for this balance on the alleged ground that there was a mistake in the count made at Chidester, and that they had paid the agreed price in full according to a correct count of the staves.
The written contract between the parties for the sale of the staves is as follows: •
“We to pay to H. S. Company $47.50 or $48.00 for W. I. and $31.50 for barrels of the McGhee stock at Chidester, we to count the stock there and load same at our expense; counting to be done as soon as possible, and commenced a few days after Der cember 25, 1903. Count to be with McGhee or representative of H. S. Company.
[Signed] “J. F. Hasty & Sons.”
The staves were counted at Chidester before delivery to appellants by a man representing them and a man representing one McGhee from whom appellee purchased the staves. These parties rendered a report in writing of the count, and appellee claims the full price based on this count.
One of the officers of appellee company testified that the staves were manufactured by McGhee, from whom his company purchased them for resale, and that the company, as soon as it received the report of the count at Chidester, settled with McGhee according to that count and paid him for the staves. Appellants introduced testimony tending to establish the fact that there was a mistake in the count at Chidester, and that they had paid for the staves according to a correct count. Their testimony tended to show that there was a shortage of 7,018 West India and 4,303 whisky staves from the Chidester count, and that the final corrected count after shipment varied only 30 staves from the aggregate factory count by McGhee, the manufacturer.
The court, over the objection of defendants, gave the following instruction to the jury:
“If you find by a preponderance of the evidence that the parties here made a contract by the terms of which the staves in question should be counted by defendants at the point of shipment; that they were so counted and statement rendered by defendants to plaintiff; that thereupon, relying upon such statement, plaintiff in good faith paid McGhee for the number of staves specified in the statement; and that according to such statement there is a balance due plaintiff under the contract, you will find for plaintiff in the amount of such balance.”
The jury returned a verdict in favor of the plaintiff for the amount of the claim set forth in the complaint. Judgment was rendered accordingly, and the defendants appealed.
Pretermitting any discussion as to whether or not it is competent for the parties to a transaction of this kind to contract for a final ascertainment at the place of delivery of the quantity of the articles sold, so as to cut off the subsequent right pf the purchaser, in the absence of fraud, to have a mistake in such ascer^ tainment corrected, it is sufficient to say that the parties in this case made no such contract. The contract before us provides for a count of the staves at the place of delivery, but it does not stipulate that the count shall be final, regardless of mistakes. It seems clear to us that, before a party to such transaction can be barred from claiming a correction of mistake, it must be so expressly stipulated in the contract; otherwise the contracting parties will not be deemed to have bound themselves to that extent. It is an elementary principle that if the parties to a contract for the sale of chattels consummate the sale under a mutual mistake as to the quantity delivered, either party on discovery of the mistake has the right to a correction.
The single instruction of the court submitting the case to the jury on the question of estoppel of defendants is erroneous in that it ignores some elements essential to the application of that doctrine to the facts of the case. In order to invoke the rule of estoppel against^ appellants, it must appear that, having information that appellee was dealing with an insolvent vendor and would sustain loss by reason of a mistake in the count, they were guilty of negligence in making the count or negligently failed to discover • and report the mistake within a reasonable time. For, if the contract itself did not bind them conclusively to abide by the count at Chidester, nothing short of their negligence in making the count, or in discovering and reporting the mistake within a reasonable time, having notice or information as to probability of injury to appellee, could cut off their right to have it corrected.
Even in the event of negligence of appellants in making the erroneous count, the estoppel could only be invoked to the extent of the injury resulting to appellee on account of overpayments thereafter made to its vendor by reason of the mistake.
Appellee included in its demand set forth in the complaint the sum of $39.49 balance due on the former sale of another lot of staves. Counsel for appellant contend that this constitutes a separate cause of action, and is not within the jurisdiction of the circuit'court. The suit is not upon written obligations for the payment of separate amounts, and therefore does not include separate causes of action. The complaint sets forth one cause of action upon different items of account for the price of staves sold at different times. The court had jurisdiction.
For the error indicated in the instructions .to the jury the judgment is reversed, and the cause remanded for a new trial.
Hirr, C. J., not participating. | [
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McCulloch, J.,
(after stating the facts.) 1. Appellant contends that appellee is barred from recovery by failing to comply with the condition requiring presentation of claim for damages within sixty days.
This stipulation has been held to be valid by this court in Western Union Telegraph Co. v. Dougherty, 54 Ark. 221, and is generally upheld as reasonable by ¡the courts of the country.
We have said in Western Union Tel. Co. v. Ford, 77 Ark. 531, and Arkansas & La. Ry. Co. v. Lee, 79 Ark. 448, that suits against telegraph companies in this State to recover for mental anguish caused by negligence in failing to receive, transmit or deliver messages are not dependent upon contract, but that the right of action is conferred by the statutes of this State. This does not mean, however, that the service in transmitting and delivering the message rendered by the telegraph company is not performed under contract, and that the contract may not contain reasonable stipulations which will bind the sender and also the addressee for whose benefit it is sent. On the contrary, we hold that the stipulation, which is reasonable, applies to claims under the statute for damages for mental angulish.
The stipulation does not, however, require the amount of the.damages claimed to be asserted in the notice to the company. A reasonable interpretation of the stipulation is that it requires only notice to the company of the negligence of its servants in failing to receive, transmit or deliver the message. Its object is to require notice of the negligent act to be given so that the company may have an opportunity to investigate and ascertain whether or not its servants have been negligent, as claimed.
As was said by the Supreme Court of North Carolina in Sherrill v. Telegraph Co., 109 N. C. 527: “It is a reasonable requirement, enabling the company to inquire into the nature and circumstances of a mistake in or of the delay or non-delivery of the message while the matter is still within the memory of the witnesses. In view of the number of telegrams constantly passing .over the wires, some such stipulation is absolutely necessary to protect the company from imposition. It is not a statute of limitations restricting the time within which action may be brought.”
This is' the interpretation placed by this court upon a similar stipulation in a railroad bill of lading. Kansas & A. V. Rd. Co. v. Ayers, 63 Ark. 331. The notice given by appellee fully apprised the company of the alleged negligence and asserted a claim for damages. He did not then claim damages for mental anguish for the reason, as he states, that he did not know that the law allowed such damages. This omission did not preclude him from thereafter claiming such damages.
2. It is -urged by appellant that damages can not be recovered for mental anguish concerning those not related by ties of blood, unless at the time of sending the message notice was given to the company, in the face of the message or otherwise, of the existence of s.uch relationship as would give rise to mental suffering in the event of delay in the delivery of the message. Counsel argue that this principle must follow from an application of the rule in Hadley v. Baxendale, 9 Exch. 354, which is held by this court to apply to contracts for transmission and delivery of telegraphic messages. W. U. Tel. Co. v. Short, 53 Ark. 434. Cases are brought to our attention holding that, even though ^the message gives notice on its face that it concerned sickness or death of another and contains'a summons to the addressee, still there can be no recovery for mental anguish by one not related by blood unless the company was notified of the relationship which would give rise to the mental anguish. This is the doctrine of the Texas courts. W. U. Tel. Co. v. Coffin, 88 Tex. 94. That court has also held that an uncle could not recover for mental anguish caused by failure to promptly deliver a telegram containing information of the illness of his niece and summoning hiim to attend, because there was no notice to the company that the relationship was such as might cause mental suffering on account of delay in delivering the message. W. U. Tel. Co. v. Wilson, 75 S. W. 482. The doctrine announced by those cases does not commend itself to our aproval. The rule in Hadley v. Baxendale can not be extended further, in this class of cases, than to hold that, before the company can be made to respond in damages for mental anguish inflicted by negligent delay in transmission or delivery of a message, it must have notice of the facts from which it may reasonably be inferred that such damages may result from delay. Where the message upon its face gives notice of a state of facts, as of physical injury, illness or death, from which the company may fairly infer that mental anguish will result to the sender or addressee from delay in its transmission or delivery, then the company will be liable for negligent delay. Special notice that the relationship between the parties is such that delay will cause mental anguish is unnecessary. Cashion v. Telegraph Co., 124 N. C. 459. In Lyne v. Telegraph Co., 123 N. C. 129, it was held that where a telegram relates to sickness or death it is not necessary to disclose to the company the relation of the parties, as there is a common sense suggestion that it is important, and that mental •suffering to some one w|ill result from delay.
The fact that a- message is sent relating to death or illness is sufficient to reasonably indicate that the addressee is interested by ties of affection in the person about whom the message relates. The message in the case at bar evidently relates to the physical condition of plaintiff’s father-in-law, and contains the admonition, “You had better come at once.”' Taking a common sense view of its language, no other interpretation could have been put upon the message than that it meant to convey the information that Mr. Robertson’s physical condition remained unchanged since the last communication, and that the plaintiff was interested in him by ties of affection, and should go to him at once. The message could hardly be understood to mean anything élse.
3. Appellant also contends that, because the plaintiff reached the bedside of his father-in-law before the death or loss of consciousness of the latter, there can be no recovery. The question was properly submitted to the jury to determine whether or not the plaintiff sustained mental anguish on account of the delay. He and his wife were in Little Rock awaiting a summons to the bedside of her father, Mr. Robertson, who was ill in Cairo, 111. He communicated with his brother-in-law, Staehle, in Cairo at night, and ascertain the critical condition of Mr. Robertson, and that four physicians were then consulting as to his condition. Staehle promised to telegraph him early the next morning as to Mr. Robertson’s condition and advise him whether or not to go.. He'awaited the message anxiously all the next day, and made repeated inquiries at the telegraph office. He says that he spent a day of extreme- worry and anxiety on account of failing to get the message, and was delayed twelve hours in getting to the bedside of the sick. It is true that he reached there before death occurred, and returned to Little Rock, after some days, before death occurred, but he suffered, nevertheless, during the period of the delay in delivering the message and the delay in reaching the bedside of the slick with his wife. How much he suffered, was a question for the jury. We can not say that $300 was too much to allow.
Judgment affirmed. | [
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McCulloch, J.
This action involves a controversy between the respective owners of two coterminous tracts of land, as to the location of the boundary line. The precise location of the line is disputed, and, in addition to that issue, the defendant asserts that they, and those from whom they deraign title, have adversely held the land in controversy for more than .seven years before the commencement of the action, and they plead the statute of limitations in bar of the plaintiff’s right to recover. The testimony is conflicting as to whether the occupancy of defendant and those from whom they obtained title had been adverse, or whether it was based upon a mistake as to the true boundary line and the occupancy had been in subordination to the claim of the true owner, whensoever asserted.
The court gave the following instructions over the objections of defendant, viz.:
“Second. The defendant in this case, J. A. Hudson, owns a life estate in Spanish Grant No. 2354; and if he agreed with the plaintiff to have the lands surveyed within a period of seven years prior to the commencement of this suit, and to be governed by the survey, this agreement would take it out of the statute of limitation, and he would be bound by said survey as to his interest in said land.
“Third. The minor defendants in this case are not bound by any agreement made by the defendant, J. A. Hudson, as to survey of said land or agreements made with the plaintiff herein, unless you should find that he was the general agent of his wife, manag- • ing and controlling her interest in her estate. If you find he was her general agent for said purpose, and he agreed to have the lines run, and be governed thereby, and said agreement was made within seven years prior- to the trying of this suit and in the lifetime of his wife, then you will find against defendants, and the plea of the statute of limitation.”
The instructions were erroneous, according to the ruling of this court in the recent case of Shirey v. Whitlow, ante p. 444.
The evidence established that the occupancy by the ancestor of the defendants -began more than twenty-five years before the commencement of this action, and, if it was adverse, it ripened into title by limitations more than seven years before the commencement of the action. If the occupancy was adverse for the statutory period, it operated as a complete investiture of title, and a subsequent executory agreement to readjust the boundary lines dr any other act done in recognition of the validity of plaintiff’s claim to the land would not remove the statute bar and reinvest the title. Shirey v. Whitlow, supra; Bayles v. Daugherty, 77 Ark. 201; Parham v. Dedman, 66 Ark. 26; Fulton v. Borders, (Ky.), 61 S. W. 1001.
Any act done after seven years’ occupancy in recognition of the claim of the original owner would only be important, when done by the same person who had held for the statutory period, as a circumstance tending to show the character of the possession, whether adverse or not. Shirey v. Whitlow, supra. If done by a subsequent holder under grant, devise or inheritance from one who had held adversely for the full statutory period so as to' amount to an investiture of title, such act of recognition would not be important for any purpose.
On account of the error committed in giving those instructions the judgment is reversed, and the cause remanded for a new trial. | [
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Battle, J.
Serf Mabry was indicted, by the grand jury of Sebastian County, at the July term, 1906, of the Sebastian Circuit Court for the Greenwood District, for murder in the first degree, committed by killing Grant Smith by striking him on the head with a hammer. At the same term of the court he was arraigned, pleaded not guilty, was tried, found guilty of voluntary manslaughter, and his punishment was assessed at two years in the penitentiary. He moved for a new trial, his motion was overruled, and he appealed to this court.
The evidence tended to prove the following facts: On the morning of the 13th of April, 1906, the father of the defendant ordered him to take a horse and go down to the place on the railroad right of way they had cultivated the year previous, and to “break it up.” He was proceeding to do so when he reached the place where he had the year before taken the fence down for the purpose of taking the horse in and out of the field, and saw Grant Smith in a field plowing. When he commenced knocking the staples out of the post which held the wire that constituted the fence, Grant Smith ordered him away, and threatened him with violence if he brought the horse on the inside. He hitched the horse to the fence, and returned to his father and informed him of what had occurred, and they went to the place where he undertook to enter th'e right of way at the time he was ordered away, and his father ordered him to tear down the fence, which he proceeded to do by knocking the wires from the posts with a hammer which he had brought with him for that purpose, when Smith again interfered and forbade his doing so. Words followed. Smith approached the father, who was at the time attempting to lead the horse into the field, at the same time picking up two rocks, one in each hand. As he approached near where the defendant and father were, he dropped the rocks, but the defendant testified that he did not see him do so. When he came within reach, or striking distance, of the father, he drew back his hand and arm for the purpose of striking the father with his fist. As he did so, the defendant struck him on the head with the hammer, and from this blow Smith died within two days afterwards.
The court gave to the jury the following instructions over the objections of the defendant:
“17. If the jury believe from the evidence that the defendant honestly believed, without fault or carelessness on his part, that, nt the time he struck the blow that killed .the deceased, deceased was in the act of killing the father of defendant or of inflicting upon him great bodily injury, and that the danger appeared to the defendant to be urgent and pressing, then the defendant was justified in assaulting and striking the deceased to prevent his father from being killed or from receiving great bodily injury.
“18. But the defendant would not be justified in assaulting and striking the deceased unless it appeared that deceased was in the act of killing defendant’s father or inflicting upon him great bodily injury. If deceased was in the act of assaulting and beating defendant’s father, with no manifest intention of killing him or inflicting upon him great bodily injury, the defendant would be guilty of some degree of unlawful homicide; and this w'ould be true, although deceased was in the wrong in his assault upon defendant’s father.”
And the court refused to instruct the jury, at the request of the defendant, as follows:
“1. You are instructed that if the defendant believed, at the time that he struck Smith, that Smith was in the act of inflicting upon defendant’s father serious bodily injury, or if the defendant believed that Smith was about to inflict upon his father serious bodily injury, then the court tells you that the defendant would under such circumstances be justified in assaulting and striking the deceased to prevent serious bodily injury being inflicted upon his father, and you should acquit.
“2. What constitutes serious bodily injury, and whether the circumstances in any case are such as to justify one in believing that such an injury is about to be inflicted, are matters to be determined by the jury.
“3. The defendant, under the law, is entitled to every reasonable doubt; and if there is a reasonable doubt in your mind as to whether defendant believed his father’s life was in danger, or that his father was in danger of receiving great bodily injury at the time he struck Smith, then you should give him the benefit of the doubt and acquit him.
“4. In a case of this kind the question for the jury to determine is not whether the life of a person was in danger, or whether he was in danger of receiving bodily injury, but whether under all the circumstances it appeared to the defendant that his father’s life was in danger, or that his father was in danger of receiving great bodily injury at the time he struck Smith. If so, then the court tells you that he was justifiable in striking him.”
The appellant’s objections to the instructions copied in this opinion are: they told the jury that the appellant was not justified in assaulting and striking the deceased, Grant Smith, to prevent his father from being killed or receiving great bodily injury, unless the deceased was in the act of killing the father of the defendant or inflicting upon him great bodily injury; and were calculated to lead the jury to believe that it must appear to them that the deceased was about to kill the father or inflict.upon him a great bodily injury before they could lawfully find the defendant not guilty. We do not so understand the instructions. The first clearly told the jury that if the defendant, not the jury, “honestly believed, without fault or carelessness on his part, that at the time that he struck the blow that killed the deceased, deceased was in the act of killing the father of the defendant, or of inflicting upon him great bodily injury, and that the danger appeared to the defendant” (not to the jury) “to be urgent and pressing, then the defendant was justified in assaulting and striking the deceased, to prevent his father from being killed or from receiving great bodily injury.” The words “in act of” clearly mean about to. This is shown to be the meaning by a subsequent portion of the same instruction in which the court told the jury that the danger of the killing or inflicting great bodily injury must have appeared to the defendant “urgent and pressing.” If this was not the meaning, the words “urgent and pressing” were meaningless. They throw light upon the whole instruction. This instruction should be construed with reference to the evidence. The evidence upon which it was based was adduced to show that the deceased was about to kill or inflict a great bodily injury upon the father of the defendant, and it did not tend to prove more. There is nothing in the instruction or the whole case to show that the court meant that the deceased must have been actually killing the father or inflicting upon him a great bodily injury before the defendant could have taken his life to prevent the consummation of the act.
The instruction copied in this opinion, and numbered 18, is the converse of the other. In the first, the court undertook to tell the jury when the defendant would be justified, and in the latter when he would not be; and they should be construed together. The words “in the act of,” used in the latter, as in the first, evidently meant about to, and the word “appeared” had reference to the defendant. It is in the past tense, and must have meant appeared to the defendant. “Appears” would have been the proper word if it meant appeared to the jury. These words were evidently used in the same sense in both instructions. We see nothing in either of them that was reasonably calculated to mislead the jury.
The requests for instructions numbered i, 2 and 4 refused by the court, so far as correct, were covered by instructions given. The other request, numbered 3, was properly refused. It made the acquittal of the defendant depend on his own belief, without regard to any fault or carelessness on his part in coming to conclusions or the absence of any reasonable grounds of such belief, if there had been none.
Should the court, on its own motion, have instructed the jury as to reasonable doubts as to the guilt or innocence of the defendant ?
In Allison v. State, 74 Ark. 454, this court said: “As there was in this case at least some evidence from which the jury might have concluded that the defendant was guilty of voluntary manslaughter, we are of the opinion that the defendant had the right to have that question presented to the jury. But the fact that an instruction on the law of manslaughter would have been proper in this case does not call for a reversal unless the defendant asked a proper instruction in reference thereto.” This ruling is sustained by previous decisions of this court. In Holt v. State, 47 Ark. 196, it is said: “It is the province of the court to give in charge to the jury such principles of the law as it may deem applicable to the case. If the defendant or plaintiff desires other instructions, he may ask them; but if he fails to do so, and re mains voluntarily silent, he can not complain.” Benton v. State, 30 Ark. 335; Carroll v. State, 45 Ark. 539.
“While in one sense,” says Mr. Bishop, “it is undoubtedly the duty of the judge to give instructions to the jury covering the entire law of the case, as respects all the facts proved, still, if he omits something, and is not asked to supply the defect, the party who remained voluntarily silent can not complain.” 1 Bishop, Cr. Pro. § 980, and cases cited.
In Lackey v. State, 67 Ark. 421, it is said: “In conclusion, counsel for defendants say that the charge of the circuit judge was defective and incomplete in other respects, and contend that it was the duty of the court to give the whole case to the jury, whether asked to do so or not. In support of this contention, they cite decisions of the courts of Texas, but those cases rest upon the peculiar statute of that State (2 Thompson on Trials, § 2340). So far as we know, no other State enforces such a rule. In this State it has been often held that if a party wishes the trial judge to instruct on any particular point not covered by his charge, he should ask an instruction covering such point. If he sits silent, and makes no effort to remedy the defect, he has no legal ground of complaint.”
It is the duty of the court to refuse all requests for improper instructions, and in Allison v. State, supra, the court held that it was not the duty of the court to give a correct instruction, on its own motion, in place of an improper one' asked for by the defendant, notwithstanding there was evidence upon which the defendant was entitled to a correct instruction if it had been asked.
The failure to instruct the jury as to a reasonable doubt was not made a ground of a motion for a new trial in this case.
Judgment affirmed. | [
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Wood, J.
The Attorney General by certiorari seeks to quash the judgment of the chancery court of Union County. The petition sets up that one J. H. Merritt was duly fined by a justice of the peace in Monroe County, Arkansas, in the sum of $50 for violating the provisions of section 6876 of Kirby’s Digest. That afterwards Merritt was discharged on a writ of habeas corpus, by the chancery court of Union ’ County, on the ground that the act of 1901 (sec. 6886, Kirby’s .Digest) repealed section 6876 of the Digest. The Attorney General set out a copy of the proceedings before the justice and the chancellor, and asks that the findings of the chancellor be reviewed, etc.
The only question is, was section 6876 of the Digest repealed by the act of - April 29, 1901 (section 6886, Kirby’s Digest) ?
We held in Ex parte Deeds, 75 Ark. 542, that the act of April 29, 1901, was unconstitutional.
The judgment of the Union Chancery Court is therefore reversed and quashed. | [
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Battle, J.
The assessor of Boone County listed and assessed for taxation for 1903 the following property of KennefickHammond Company: 14 horses, 88 mules, 75 wagons, 17 boilers, 2 light plants, 2 air compressors, harness and blacksmith tools, valuing the boilers, light plants, air compressors, harness and blacksmith tools, in the aggregate, at $20,670. This property was situated in Boone County on the first Monday in June, 1903; how long before and how long after does not appear. It was used by Kennefick-Hammond Company in the construction cf a roadbed for a railroad through a portion of Boone County, about fifteen miles in length. How long it required to complete the roadbed was not shown at the hearing of this cause. The taxes of 1903 were levied upon it, and the collector of Boone County was proceeding to collect the same when he was restrained from so doing by an order made by the chancellor of the Boone Chancery Court, upon application of Kennefick-Hammond Company, which was afterwards made perpetual by the court.
Kennefick-Hammond Company was a partnership composed of William Kennefick and E. S. Hammond, and they were citizens and residents of the State of Missouri before, on and after the first Monday in June, 1903.
In Pullman’s Palace Car Company v. Pennsylvania, 141 U. S. 18, Mr. Justice Gray, speaking for the court, said: “No general principles of law are better settled, or more fundamental, than that the legislative power of every State extends to all property within its borders, and that only so far as the comity of that State allows can such property be affected by the law of any other State. The old rule, expressed in the maxim mobilia sequuntur personam, by which personal property was regarded as subject to the law of the owner’s domicil, grew up in the Middle Ages, when movable property consisted chiefly of gold and jewels, which could be easily carried by the owner from place to place, or secreted in spots known only to himself. In modern times, since the great increase in amount and variety of personal property not immediately connected with the person of the owner, that rule has yielded more and more to the lex situs, the law of the place where the property is kept and used. * * * For the purposes of taxation, as has been repeatedly affirmed by this court, personal property may be separated from its owner; and may be taxed on its account, at the place where it is, although not the place of his own domicil, and even if he is not a citizen or resident of the State which imposes the tax.”
The statutes of this State provide, that “all property, whether real or personal, in this State * * * shall be subject to taxation,” except property exempted by the Constitution, of which the property in question is not a part. Personal property must be assessed in the name of the person who was the owner on the first Monday in June in the year in which the assessment was made. Kirby’s Digest, § § 6873, 6913. And in all cases in which it is necessary for the assessor, “in consequence of the sickness or absence of the person whose duty it is to make out a statement of personal property” or his refusal to do so, “to ascertain the several items and the value thereof,” the assessor may do so and make return thereof from the best information he can get. Kirby’s Digest, § § 6966, 6968.
But plaintiffs insist that the property was in the State, at the time it was assessed, temporarily; that it had not been incorporated in and become a part of the property of the State; had not gained a situs here, but was in transitu, and not subject to taxation in this State. Tangible personal property of a nonresident in transit is not subject to local taxation in the State in which it may be temporarily. But when does property cease to be in transit and become of such permanency as will justify taxation in its new situs? It can not always be in transit.
In Kelley v. Rhodes, 39 L. R. A. 594, the “plaintiff, who was a resident and citizen of the State of Kansas, was the owner o£ certain sheep, numbering about 10,000 head, which, on or about October 29, 1895, were in the county of Laramie, in the State of Wyoming, in charge of an agent, who was driving and transporting them through the State of Wyoming from Utah to Nebraska. In driving the sheep it was the practice to permit -them to spread out at times in the neighborhood of a quarter of a mile, and while being so driven to graze over land of that width,” and they were maintained solely in that way. They were driven across Wyoming for the purpose of shipment, and were not brought into the State for the purpose of being maintained permanently therein. The'time consumed in driving the sheep through Wyoming was 'from six to eight weeks, and the distance traveled was about 500 miles. “Lor shipment purposes, it was not necessary that the sheep should be driven into Wyoming, and the railroad over which they were shipped could be reached from the point from which they were first driven by traveling a less distance than was required to drive them to any point” .in Wyoming. The question was, were the sheep subject to taxation while in Wyoming? The Supreme Court of Wyoming held that they were. The court said: “We are of the opinion, therefore, that in determining the purpose and the situs, the course and method of travel is a proper subject, and one of the elements for consideration. We do not dispute the proposition that an owner of live stock, if not otherwise disobedient to the law, and observant of the police regulations of the State, has the right to transport them to market by driving on foot as well as by rail. Strictly speaking, they will be in transit by the one method as much as by the other. If, however, the purpose of such owner is not alone that of transportation, but comprehends also that of grazing and feeding them upon the natural grasses, which is their natural source of sustenance, not as a mere necessary incident of the travel, but as ope of the purposes of such movement, they would not come within the rule which exempts personal property in transit from taxation.”
This case, Kelley v. Rhodes, was taken to the Supreme Court of the United States, and the judgment therein was reversed on the ground that the sheep were property engaged in interstate commerce. Kelley v. Rhodes, 188 U. S. 1. The Supreme Court of the United States said: “The question to be determined, then, is. whether the stock of the plaintiff was brought into the State for the purpose of being grazed at the time it was assessed for taxation. * * * Had the State court found directly the ultimate fact that these sheep were brought into the State for the purpose of being grazed, such finding might have bound us, but, under the facts actually found or agreed upion, we are at liberty to inquire whether they support the judgment.
“The law upon this subject, so far as it concerns interference with interstate commerce, is settled by several cases in this’ court, which hold that property actually in transit is exempt from local taxation, although, if it be stored for an indefinite time during such transit, at least for other than natural causes or lack of facilities for immediate transportation, it may be lawfully assessed by the local authorities.”
Again it says: “The question turns upon the purpose for which the sheep were driven into the State. If for the purpose of being grazed, they are expressly within the first section of the act (that is subject to taxation in Wyoming). But if for the purpose of being driven through the State to a market, they would be exempt as a subject of interstate commerce, though they might incidentally have supported themselves in grazing while actually in transit.”
After repeating a part of the facts, it says: “It thus appears that the only purpose found for which this herd of sheep wag being driven across the State was for shipment, and the agreed statement (of facts) wholly fails to show that they were detained at any place within the State for the purpose of grazing or otherwise. As they consumed from six to eight weeks in traveling about 500 miles, or, as the Supreme Court found, at the rate of about nine miles per day, it does not even appear that they loitered unnecessarily on the way. As they required sustenance on the journey, and could obtain it only by grazing, it would appear, though there is no testimony upon that point, that they could hardly have been driven more rapidly without a loss of flesh during the transit.”
The doctrine of the Wyoming court is not questioned by the Supreme Court of the United States, but the difference of the two courts is in its application to the facts in the case. As interpreted by the latter court, it is applicable,’ and should control in the case before us.
In Fennell v. Pauley, 112 Iowa, 94, the plaintiff was a resident of the State of Missouri in 1905-6. In December, 1905, he brought into Freemont County, in Iowa, 202 head of cattle for feeding purposes, and kept them upon land owned by him. In April, 1896, the cattle were taken back to the State of Missouri. The court said: “The contention, is that this property, belonging to a non-resident and being only temporarily in this State, was not taxable here. Section 812, Code, 1873, provides that all personal property shall be taxed in the name of the owner on the first day of January. That property of this nature is taxable is fixed by sections 797-801; and section 817 requires personal property in the hands of an agent to be listed by the assessor. Section 823 requires the assessor to return all personal property found in his township. We understand that property in transit through the State can not be taxed here, nor can such as belongs to a nonresident, which is here only an incident of its transfer elsewhere. To give the right to assess the personal property of a nonresident found within this State, it must be located here with something like permanency, or for some purpose other than merely aiding its transit. * * * These cattle were here to be fed, in order to increase their weight and value for market. In principle, it was the same as the investment of money in this State, and we can not see why they should not be taxed here.” To the same effect see Waggoner v. Whaley, 50 S. W. (Texas), 154; Hardesty v. Fleming, 57 Texas, 395.
Grigsby Construction Company v. Freeman, 58 L. R. A. 349, 108 La. 435, is a case like this. In Louisiana all property in that State is subject to taxation, except that expressly exempted from taxation by law. The statutes provide that in case the taxpayer fails’or refuses to furnish a list of his property within the time prescribed, the assessor “shall himself fill out the list from the best information he can obtain.” “In making his assessment for the year 1901 the assessor of the parish of Natchitoches called upon the plaintiff’s agent to furnish, as required by law, a list of its property situated in the parish and subject to taxation. The plaintiff is a Texas corporation, having its domicil at Dallas, Texas. It operates in that State and adjoining States in the construction of dams, dikes, levees, railroad beds, and other earth work, and for that purpose has outfits, consisting of mules, scrapers, wagons, commissary store goods, tents, etc., which it sends to the places where work is to be done. At the time when its agent was thus called upon by the assessor, plaintiff was doing grading work for the Texas & Pacific Railroad in the parish of Natchitoches, and the property sought to be assessed was a construction outfit and other movables necessary or convenient in the doing of that work. The agent questioned whether said property was liable to taxation in Louisiana, and asked for time to consult counsel. A second attempt was made to get from the agent a list of the property of plaintiff, and, this second attempt proving equally fruitless, the assessor, as required by law, made out a list of the property as best he could, and put the same on his roll. Plaintiff failing to pay the tax thus assessed, the tax collector proceeded to enforce payment by seizure of some of the mules assessed, and plaintiff brought suit, enjoining the seizure.” Supreme Court of Louisiana held that the property was subject to taxation and said: “In the instant case the property was not in course of transportation, but was here for use likely to be of some duration — possibly a full year — and for the time being was incorporated in the bulk of the property of the State. It was distinguishable from the rest of the property of the taxing district in no respect except the intention of the owner, to remove it at some future time more or less distant. Under these circumstances its situs approached nearer to permanency than did that of the sheep in the Wyoming case, or- that of the coal in the Brown v. Houston case” (114 U. S. 633). 1 Wharton on Conflict of Laws (3 Ed.), § 80a, and cases cited.
The property, of plaintiff in this case was not in transit, but was here chiefly, if not solely, for use and profit, and was subject to taxation.
Decree is reversed, and the complaint of appellees is dismissed for the want of equity. | [
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Hill, C. J.
Appellants sold appellee two tracts of adjacent land, one called a forty and the other an eighty, gave him bond for title, and he executed notes for purchase price.
This was a suit on the notes and for enforcement of vendor’s lien. Appellee answered, setting up a misrepresentation and failure of title as to the eighty, and praying rescission as to it. The chancellor gave judgment against him for balance of purchase money due on the forty, and rescinded the contract as to the eighty, and the vendors bring the case here.
The extent of the fraudulent or false representation was that the appellants’ father had a tax title and owned the land; the bond for title stipulated that they were to convey the forty-acre tract “by a good and sufficient deed, * * * conveying a good and clear title to the same free from incumbrances,” but as to the eighty-acre tract it was “to be conveyed by quitclaim deed,” without any of the assurances of title given as to the forty-acre tract. The father of appellants acquired a clerk’s deed to the land under the act of March 14, 1879, for the redemption of delinquent lands, which was duly executed on 20th of May, 1882. Under the terms of the act, if the owner of the delinquent land failed to redeem within a year, then during the next year any one who would pay the tax, penalty and costs required to redeem should receive from the clerk “a proper deed of conveyance.” Bradbury received such deed, aptly describing the land redeemed and purporting, for the consideration received, to “grant, bargain and sell it” unto him and his heirs and assigns, with all appurtenances thereto belonging. Under it Bradbury went into possession in the winter of 1886, and commenced clearing and cultivating, and he and his heirs continued in unbroken possession until December, 1894, when his heirs, Bradbury having died, sold the land to appellee. Appellee was in possession as tenant during the year 1894. During 1893 the land lay out and was not cultivated, the fences became broken and dilapidated, but appellee rented it notwithstanding it was in sorry condition, went on to it and cultivated it in 1894. Each tract was fenced, there being a line fence between the tracts, houses on both, and considerable part of each in cultivation every year except 1893. The continuity of the possession was not broken by a failure to have tenants for a year. The property was not abandoned. It only fell into a sorry state of repair; which was necessarily incident to its tenantless condition. The cleared fields, the houses, the fences, even if broken down at places, kept the flag of possession flying. It had not gone so far into decay but that appelled moved on it the first of the succeeding year and paid rent for the privilege of being on it and cultivating it. The evidence fails to show such abandonment as would break the continuity of possession.
The act under which Bradbury received his deed was declared unconstitutional in Bagley v. Castile, 42 Ark. 77. After holding thd act in contravention of the Constitution, the court further held that purchasers, like Bradbury, under the act, and their vendees, had a lien on the land for the burden of taxes discharged, both in the purchase and for subsequent taxes paid.
The question is squarely presented as to the effect of seven years possession of part of a tract under such a deed. Color of title is not necessary to give title by adverse possession, but it is neccessary to extend the title acquired beyond the limits of the actual possession. Actual possession of part of a tract, with color of title for the whole tract, carries the possession to the limits of the land described in the deed giving color. This is the general rule, and the court in this case is not concerned with any of its exceptions. 1 Cyc. p. 1084.
There is, a conflict of authority as to whether a deed, void on its face, will give color of title. See the authorities on each side of that question cited in 1 Cyc. p. 1087 and notes. This court hhs adopted the view that a deed based on a void tax sale, on its face describing the land and purporting to convey it, is color of title within the statute of limitations. See the cases recently reviewed on that subject. Ross v. Royal, 77 Ark. 324.
It is contended that the deed in question is not one of the kind protected by the two-years’ statute of limitation. Kirby's Digest, § 5061. The court recently in Dickinson v. Hardie, 79 Ark. 364, applied the two-years’ statute to a void tax sale; and if this deed falls within those described in said statute, that case and Ross v. Royal, supra, are conclusive. But, concede that the deed does not fall within that statute, and it does not help appellee. The evidence sustains seven years’ possession under color of title, and of course that statute would apply.
Appellee says that the seven years’ statute can not be invoked because not pleaded, but that position is not tenable. The suit was on the notes and to foreclose a vendor’s lien. Appellee answered to it, setting up failure of title, and praying rescission of contract, thus forming the issue whether or not appellants had title when they conveyed to him. They did have title. The seven years’ possession .under the deed, giving color to the eighty-acre tract, ripened and perfected their title thereto. Appellee permitted a judgment by default to be rendered against him for the possession of the land by one Allen; but that is his misfortune, and can not affect the rights of appellants, who were not parties to- that suit.
Decree reversed and cause remanded, with directions to give judgment against appellee on the notes and for foreclosure of vendor’s lien. | [
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Riddick, J.
This is an appeal by the Kansas City Southern Railway Company from a judgment against it in favor of J. W. Blair for $20 damages on account of the killing of a male Duroc Jersey hog. The engineer and fireman testified that they were keeping a lookout, that the hog jumped out of high weeds near the railway and ran upon the track so close ahead of a backing engine that it was impossible to avoid the injury. This testimony was contradicted by witnesses for plaintiff, who testified that there were no weeds near the track high enough to conceal a hog; that the railway embankment at the place where the accident happened was six to ten feet high and very steep, so that it would be difficult for a hog to run rapidly from the right of way up to the railway track, and that there was nothing to prevent the employees in charge of the engine from seeing the hog some distance away, had they been keeping a lookout.
This evidence was' sufficient, taken with other facts in proof, to justify the instruction given by the court and to sustain the judgment.
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Dale Price, Justice.
This is an appeal from a dependent-neglect proceeding pursuant to the Arkansas Juvenile Code of 1989. The issue is whether the trial court erred by not ordering the return of the appellants’ children at the conclusion of the hearing on October 16, 1989. We dismiss.
The appellee, Arkansas Department of Human Services (DHS), through its agent, Kenneth Murphy, filed a petition for emergency custody of the children of appellants Darlene and Donnie Peeks. The petition alleged the children had been abandoned by their mother and thus were dependent-neglected. The court entered an order on the same date, finding there was probable cause to believe the children were dependent-neglected and placed them in the custody of DHS. Following a delay agreed to by the parties, the adjudication hearing was conducted on October 16, 1989. That hearing was subsequently continued to October 23 for additional evidence regarding the appellants’ home condition. The court entered its order on November 16 in which it found the children were not dependent-neglected, returned custody to the appellants and dismissed the action.
The parties acknowledge the threshold question is whether the issue to be decided is moot. As previously noted, the adjudication hearing was continued for one week, and the children were returned to the appellants at its conclusion on October 23. This controversy is moot. The appellants rely upon Campbell v. State, 300 Ark. 570, 781 S.W.2d 14 (1989), in support of their contention that this court should nevertheless review the matter. We stated in Campbell that when a case involves the public interest, or tends to become moot before litigation can run its course, or a decision might avert future litigation, we will not refuse to consider the case on its merits. None of the reasons enunciated in Campbell have application here. In any event our review of the merits is precluded because of the doctrine of invited error. The doctrine provides that a person cannot complain of an alleged erroneous action of the trial court if he himself induced such action. Missouri Pacific Railroad Co. v. Gilbert, 206 Ark. 683, 178 S.W.2d 73 (1944). It was clearly the appellants’ suggestion to continue the hearing for another week.
Accordingly, this action is dismissed. | [
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Donald L. Corbin, Justice.
Appellant, Dorothy M. Black, as parent and next friend of April Renee Black, her minor daughter, filed a complaint against Dr. Charles C. Crawley in St. Francis County Circuit Court on March 9, 1988. Appellant sought to recover damages in her own behalf and that of her daughter for medical malpractice allegedly committed by Dr. Crawley during the delivery and treatment of her daughter in 1981. Appellant subsequently filed an amended complaint and a second amended complaint, in which she added as parties defendant another doctor, along with Dr. Crawley’s corporate employer and its insurance carrier. On February 28, 1990, plaintiff Dorothy M. Black’s personal claim as parent was dismissed because of the running of the Arkansas two-year statute of limitations for actions for medical injury. Ark. Code Ann. § 16-114-203 (1987). This appeal comes from the dismissal of that claim.
We dismiss the appeal pursuant to Ark. R. Civ. P. 54(b) because the order appealed from is not an appealable order. Rule 54(b) provides in part:
[W]hen multiple parties are involved, the 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. [Emphasis added.]
Here, the order dismissing appellant simply states: “ [t] he Motion to dismiss any claim of Dorothy Black, individually, is granted by reason of limitations.” While it does dismiss fewer than all the parties plaintiff, the order neither reflects that any determination was made concerning just reason for delay nor expressly directs the entry of judgment.
Although Dorothy Black’s claim was dismissed, April’s claim is still pending on the record that is now before us. Because there was no compliance with the requirements of Rule 54(b) for entry of a final judgment, Dorothy Black’s appeal must be dismissed. Middleton v. Stilwell, 301 Ark. 110, 782 S.W2.d 44 (1990); Bradley v. French, 297 Ark. 567, 764 S.W.2d 605 (1989).
Appeal dismissed. | [
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Donald L. Corbin, Justice.
Appellee, Harold E. Rushing, brought suit against appellants, Ricky Robert Freeman and Egg City of Arkansas, Inc., for damages arising out of a vehicle accident occurring on July 21, 1986. Appellee claimed he was injured when the vehicle he was driving was struck from the rear by a truck driven by appellant Freeman and owned by appellant Egg City. Appellants admitted liability and the case was tried to a jury on the sole issue of damages. Appellee presented evidence of medical expenses, past and future lost wages, and damage to his vehicle. The jury awarded appellee $450,000.00 as compensatory damages. Appellants filed a motion for remittitur or new trial, which the trial court denied. Appellant Egg City also filed a motion to set aside the judgment claiming that newly discovered evidence indicated fraud had been committed. The trial court denied the motion to set aside the judgment. From the jury verdict and the orders of the trial court denying the post-trial motions comes this appeal.
As the first claim in this appeal, both appellants assert the trial court erred in denying the motion for remittitur or new trial. They argue the damages award was not only contrary to the preponderance of the evidence, but was also excessive and awarded under the influence of passion or prejudice.
We will first consider the motion for new trial as it relates to the question of the preponderance of the evidence. On appeal, when a motion for a new trial has been denied, we will affirm if there is substantial evidence to support the verdict; in determining whether substantial evidence exists, the evidence is viewed in the light most favorable to appellee. Johnson v. Cross, 281 Ark. 146, 661 S.W.2d 386 (1983).
A review of the evidence presented at trial, as viewed most favorably to appellee, reveals that appellee encountered medical expenses of $6,800.00; damages to his vehicle of $2,150.00; and lost earnings, both past and future, of $339,883.47. From the $450,000.00 verdict, this leaves $101,166.53 as damages for pain and suffering.
Appellee presented this evidence through the testimonies of his general physician, Dr. Goins, his chiropractor, Dr. Manus, and his psychologist, Dr. Stevens. Dr. Goins testified that appellee suffered neck and back injuries, namely a bulging disc and extensive muscle spasms. Dr. Manus testified that appellee would have chronic pain for the remainder of his life. Both of these witnesses testified that appellee was disabled. Dr. Stevens testified that appellee’s post-accident condition was consistent with a brain injury. Dr. Stevens diagnosed appellee as suffering from severe depression resulting from the injuries he received in the accident. Appellee presented evidence of his lost earnings by way of an expert in economics. Appellee and his wife testified as to his pain and his unsuccessful attempts to work.
Appellants’ basis for challenging the verdict is grounded in the evidence which they presented at trial to refute appellee’s evidence. Appellants presented the testimony of an expert, Dr. Lasher, a neuro-psychiatrist, who performed psychiatric and medial examinations of appellee. Dr. Lasher concluded that appellee suffered injuries, but was not permanently and totally disabled.
Appellee presented the aforementioned evidence to the trier of fact which, from its superior position, judged the credibility of all the evidence and rendered its verdict accordingly. We find that, although the evidence was disputed, there was indeed substantial evidence to support the verdict.
As for appellants’ claim that the damages award was excessive and rendered under the influence of passion and prejudice, which they allege would justify relief in the form of either a remittitur or a new trial, we find no merit. When considering a claim that a verdict should be reversed because it is excessive, we must decide whether the award of damages is so great as to shock our conscience. Bill Davis Trucking, Inc. v. Prysock, 301 Ark. 387, 784 S.W.2d 755 (1990). While the $450,000.00 verdict awarded in this case may be somewhat generous, it is clear that the amount of economic loss, as opposed to the amount of pain and suffering, makes up the overwhelming majority of the total award. The verdict was therefore not excessive. It is also clear that the jury was not motivated by passion or prejudice toward appellee in that they refused to award his wife any damages for her loss of consortium claim. Accordingly, we find the award of damages is not so great that it shocks our conscience.
We find there was substantial evidence to support the verdict which was not excessive nor motivated by passion or prejudice. Therefore, we affirm the trial court’s denial of the motion for remittitur or new trial.
As a second claim on this appeal, appellant Egg City asserts the trial court erred in denying its motion to set aside the judgment based on newly discovered evidence indicating appellee had committed fraud in obtaining the judgment. Appellant made its motion pursuant to Ark. R. Civ. P. 60(c)(1), (c)(4). The evidence appellant Egg City claimed to have newly discovered was the testimony of Wesley Burris relating that appellee had staged the accident and thus committed fraud.
At the hearing on the motion, both appellants and appellee presented evidence concerning the alleged fraud. There was conflicting evidence by numerous witnesses. Mr. Burris testified that on the day of the accident appellee told him the next time they saw each other appellee would be in the hospital and would probably be getting a lot of money. Mr. Burris also testified that appellee told him he was not even in his truck when the accident occurred. Appellant Freeman testified that appellee was in his truck when the accident occurred. Appellee testified at the hearing and denied that the accident was staged. There was also testimony from disinterested parties that after the accident, appellee was lying in the floor of his truck and was removed only after the steering wheel and door were pried out of the way.
After hearing all the evidence presented at the hearing, reviewing briefs submitted by counsel, and reviewing the law on his own, the trial judge ruled that appellant had not met its burden of proving either fraud or newly discovered evidence. Accordingly, the trial judge denied appellant’s motion to set aside the judgment. We cannot say the trial judge abused his discretion. See Big Rock, Inc. v. Missouri Pac. R.R., 295 Ark. 495, 749 S.W.2d 675 (1988).
Appellee has included in his brief an assertion that the trial court erred in denying his motion for sanctions. This assertion requires us to speculate that appellee intended to appeal the trial court’s order, which summarily denied without explanation, his motion for sanctions made pursuant to Ark. R. Civ. P. 11. However, we are unable to find anywhere in the record where appellee filed a notice of cross-appeal as required by Ark. R. App. P. 3. Where there is no notice of cross-appeal, we will not consider the issue raised by appellee. Elcare, Inc. v. Gocio, 267 Ark. 605, 593 S.W.2d 159 (1980).
Because we feel it is important to do so, we note that “notwithstanding the language in ARCP Rule 52 that makes findings of fact and conclusions of law unnecessary in decisions on motions, we believe the better practice is for the trial court to give an explanation of its decision on Rule 11 motions sufficient for the appellate courts to review.” Bratton v. Gunn, 300 Ark. 140, 143-44, 111 S.W.2d 219, 221 (1989). Even if appellee had properly filed a notice of cross-appeal, we note that, as the moving party, he has not met his burden of providing us with a record sufficient to show prejudice or error with respect to the denial of his Rule 11 motion.
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Robert H. Dudley, Justice.
Act 829 of 1989, the Arkansas Farm Mediation Act, was passed in the 1989 regular session of the General Assembly. It is codified as Ark. Code Ann. §§ 2-7-101 to -310 (Supp. 1989). Under section 4 of the Act, Ark. Code Ann. § 2-7-302 (Supp. 1989), a foreclosure or other similar proceeding which is brought against a farmer and involves $20,000.00 or more cannot be commenced without first satisfying specified mediation requirements. Section 11 of the Act, Ark. Code Ann. § 2-7-103 (Supp. 1989), exempted commercial banks from the mediation requirement. A separate, but companion appropriations act, Act 828 of 1989, appropriated funds to the Arkansas Development Finance Authority to operate the program.
Subsequently, an attorney with the United States Department of Agriculture informed the state mediation agency that the section 11 exemption of commercial banks from the mediation requirements would “disqualify the state mediation program for federal matching grants under §§ 501 and 502 of the Agriculture Credit Act of 1987.” The director of the state program understood that without the federal matching funds, which had been appropriated in Act 828, there would not be enough money to pay the regular salaries, maintenance, and operation of the program. Thus, it was decided to seek repeal of the section 11 exemption.
In the meantime, this Court declared that all appropriations acts passed during the 1989 regular session were invalid, Fisher v. Perroni, 299 Ark. 227, 771 S.W.2d 766 (1989), and the Governor called a special session to reenact all of the improperly passed appropriation's bills. Item 54 of the Governor’s call provided:
To make an appropriation for Personal Service and Operating Expenses of the Arkansas Development Fi nance Authority for the biennial period ending June 30, 1991, as enacted in Act 828 of 1989.
The special session was convened, and Act 36 was enacted. It, in effect, reenacted Act 828 of the regular session, the appropriations act. However, section 16 of Act 36 of the special session, Ark. Code Ann. § 2-7-103 (Supp. 1989), repealed the section 11 exemption for commercial banks.
The appellant, a commercial bank, filed suit asking for a judgment declaring that the repeal of the section 11 exemption was invalid. The Chancellor held that section 16 of Act 36 of the special session was validly passed. We affirm that decision.
Appellant first argues that the repeal of the exemption for commercial banks violated article 6, section 19 of the Constitution of Arkansas, which provides that “no other business than that set forth therein [in the Governor’s proclamation] shall be transacted. . . .” In short, appellant contends that the repeal of the commercial bank exemption was not within the purview of the call.
The purpose of article 6, section 19 is to prevent the enactment of laws which do not have any connection or relation to the subjects embraced in the proclamation. McCarroll v. Clyde Collins Liquors, Inc., 198 Ark. 896, 132 S.W.2d 19 (1939). It does not have as its purpose the prohibition of laws which necessarily or incidentally arise out of the subjects described in the call. On the contrary, such bills arising out of the call may be validly enacted. McCarroll v. Clyde Collins Liquors, Inc., supra. In determining whether an act incidentally arose out of the subjects described in the call, we must be practical, and we give “extensive latitude or wide range” to the General Assembly in determining what comes within the purview of the call. Pope v. Oliver, 196 Ark. 394, 117 S.W.2d 1072 (1938).
The commercial bank exemption in the Farm Mediation Act was repealed in the special session to make the state farm mediation program eligible to receive federal matching funds. The purpose of item 54 of the call was to make an appropriation, which included the federal matching funds, for the state farm mediation program. Thus, the repeal provision constituted a necessary detail in accomplishing the purpose of the call. It was within the purview.
Appellant next argues that the repeal of the commercial bank exemption violates the single subject requirement of article 5, section 30 of the Constitution of Arkansas. The provision is as follows:
The general appropriation bill shall embrace nothing but appropriations for the ordinary expense of the executive, legislative and judicial departments of the State; all other appropriations shall be made by separate bills, each embracing but one subject.
In Cottrell v. Faubus, 233 Ark. 721, 347 S.W.2d 52 (1961), we explained that the purpose of the above constitutional provision is “to prevent the inclusion of separate and unrelated appropriations in a single bill, because that practice opens the door to the evils that have come to be known as logrolling and pork barrel legislation.”
Further, in Reid v. Jones, 261 Ark. 550, 551 S.W.2d 191 (1977), we explained that under similar unity of subject clauses, courts have uniformly held that the unity of the subject of an act was preserved so long as the different parts of the act relate, directly or indirectly, to the same general object fairly indicated by its title.
Here, the title of Act 36 is:
“AN ACT TO MAKE AN APPROPRIATION FOR PERSONAL SERVICES AND OPERATING EXPENSES OF THE ARKANSAS DEVELOPMENT FINANCE AUTHORITY FOR THE BIENNIAL PERIOD ENDING JUNE 30, 1991; AND FOR OTHER PURPOSES.”
The general object of Act 36 of the special session is to provide funding for the farm mediation program. The repeal of the commercial bank exemption was to secure federal matching funds and is directly related to the funding of the farm mediation program. Thus, it does not violate the single subject requirement of the constitution.
Affirmed.
Holt, C.J., and Brown, J., not participating. | [
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Jack Holt, Jr., Chief Justice.
The appellee, Cindy Jennings-Lemon, enrolled in the appellant, Rick’s Pro Dive ‘N Ski Shop’s (Rick’s) underwater diving course. While participating in the course, Jennings-Lemon became extremely cold and apparently had to get out of the water and her diving gear in order to avoid danger of hypothermia. She allegedly sustained injury to her neck when one of Rick’s agents “ripped off’ the mask and headpiece to her wetsuit.
Jennings-Lemon brought suit in Pulaski County Circuit Court for personal injury and negligence. Rick’s moved for summary judgment on the basis of an exculpatory agreement, signed by Jennings-Lemon, that purportedly released Rick’s from all liability for any potential acts of negligence. The trial court denied the motion and the case was tried to a jury, resulting in a verdict in favor of Jennings-Lemon.
Rick’s now bring this appeal, asserting as its sole point of error, that the trial court erred in denying its motion for summary judgment. We dismiss the appeal as the denial of Rick’s motion for summary judgment is not reviewable.
As an initial matter, we must address the issue of reviewability on our own initiative since it was not raised by the parties. We have held that the question of whether an order is final and, therefore, subject to appeal, is a jurisdictional question that we ourselves raise. Ark. Sav. & Loan v. Corning Sav. & Loan, 252 Ark. 264, 478 S.W.2d 431 (1972); Associates Fin. Servs. Co. of Okla., Inc. v. Crawford County Memorial Hosp., Inc., 297 Ark. 14, 759 S.W.2d 210 (1988). By the same analysis, the question of whether we can review a prior interlocutory order is likewise jurisdictional and, furthermore, is dispositive in this appeal. We thus raise it sua sponte.
The denial of a motion for summary judgment is not an appealable order. Malone & Hyde, Inc. v. West & Co. of LA, Inc., 300 Ark. 435, 780 S.W.2d 13 (1989). Furthermore, we have said that such an order is not subject to review on appeal, even after a trial on the merits. Henslee v. Kennedy, 262 Ark. 198, 555 S.W.2d 937, (1977); American Physicians Ins. Co. v. Hruska, 244 Ark. 1176, 428 S.W.2d 622 (1968); Widmer v. Ft. Smith Veh. and Mach. Co., 244 Ark. 971, 429 S.W.2d 63 (1968). Obviously, a final judgment should be tested upon the record as it exists at the time it is rendered, rather than at the time the motion for summary judgment is denied since further evidence may be supplied at trial. See American Physicians Ins. Co. v. Hruska, supra.
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Jack Holt, Jr., Chief Justice.
The appellee, Robert Dean Sypult, was charged with first degree sexual assault on an eight-year old girl. During the discovery process, the state notified Sypult of its intent to use statements he made to doctors and a counselor at the Veterans Administration Hospital in Fayetteville. Sypult moved to suppress the statements on the basis that such communications are protected by the physician and psychotherapist-patient privilege.
The trial court held a hearing on the motion and ruled that the state could admit evidence only that Sypult sought treatment, the type of treatment sought, and that the VA Hospital made a report in accordance with Arkansas law concerning the reporting of suspected child abuse to the proper authorities. The trial court further ruled, however, that any confidential statements between Sypult and his doctors and counselor were inadmissible.
The state appeals this interlocutory order, contending that the “confidential” statements are admissible pursuant to Ark. Code Ann. § 12-12-511 (a) (1987 andSupp. 1989). We disagree and affirm the trial court’s decision.
Section 12-12-511(a) states:
Any provision of the Arkansas Uniform Rules of Evidence notwithstanding, and except as provided in subsection (b) of this section, any privilege between husband and wife or between any professional person, except the privilege between a lawyer and client, and the privilege between a minister, including a Christian Science Practitioner, and any person confessing to or being counseled by the minister, including, but not limited to, physicians, counselors, hospitals, clinics, day-care centers, and schools and their clients shall not constitute grounds for excluding evidence at any proceeding regarding child abuse, sexual abuse, or neglect of a child or the cause thereof. (Emphasis added.)
In its memorandum opinion, the trial court noted sound reasons behind the enactment of section 12-12-511, yet recognized that a literal application of the statute would, on the other hand, completely erode the well-established policies embodied in the physician and psychotherapist-patient privilege. To avoid this conflict, the trial court designed its ruling to enforce provisions of our child abuse and sexual abuse statutes while preserving the sanctity of private communications between patients and their doctors and therapists under the Arkansas Uniform Rules of Evidence. Ricarte v. State, 290 Ark. 100, 717 S.W.2d 488 (1986), was cited for the proposition that this court “is the authority which controls the Rules of Evidence that apply in circuit court”; thus, the legislator’s enactment of an exception to our rules of evidence was invalid.
In Curtis v. State, 301 Ark. 208, 783 S.W.2d 47 (1990), and St. Clair v. State, 301 Ark. 223, 783 S.W.2d 835 (1990) we reaffirmed our inherent rule-making power as identified in Ricarte, supra', however, we went on to say that we share this power with the General Assembly and that we will defer to its authority where legislation involving matters of public policy conflicts with court rules. See also Lyons v. Forrest City Mach. Works, Inc., 301 Ark. 559, 785 S.W.2d 220 (1990).
Section 12-12-511(a) is clearly grounded in strong public policy — the protection of child abuse victims. So, once again, we are faced with sharing our rule-making powers with the legislature — this time involving the physician and psychotherapist-patient privilege. In doing so, we retreat from the positions we have taken in Curtis and St. Clair, supra, and redefine the parameters of our “shared” rule-making power with the legislature.
It is obvious that, in the interests of promoting important public policies and interests of the state, legislation enacted in this spirit will, on occasion, bring about conflict with rules of the court. It is equally obvious, however, that literal application of our decisions in Curtis and St. Clair to cases such as the one before us, could well open the door to total abrogation of the rules of evidence and procedure we deem vital to the interest and policies inherent in the judicial process. To protect what we hold inviolate we now declare that we will defer to the General Assembly, when conflicts arise, only to the extent that the conflicting court rule’s primary purpose and effectiveness are not compromised; otherwise, our rules remain supreme.
The policy behind the physician and psychotherapist-patient privilege is to encourage patients to communicate openly with their physicians and therapists and to prevent disclosure of the patient’s infirmities. Arkansas State Medical Bd. v. Leonard, 267 Ark. 61, 590 S.W.2d 849 (1979). Giving complete deference to the legislature would, in this instance, completely abolish the purpose and policy behind the rule. We cannot permit this.
The trial court’s finding in the present case reflects our new position. The admission into evidence of the fact that Sypult sought counseling for sexual abuse and that a report was made to the proper authorities satisfies the General Assembly’s purpose of enacting section 12-12-511 without taking from Sypult a privilege that has been firmly entrenched in Arkansas law since 1889. See Casenote, 36 Ark. L. Rev. 658 (1983).
We find strong support for our position in State v. Andring, 342 N.W.2d 188 (1984).There, the Minnesota legislature passed a child abuse reporting act very similar to ours, which provides that no evidence pertaining to a child’s injuries is to be excluded in any proceeding arising from the abuse. In addressing the conflict presented by the existence of the physician-patient privilege, the court refused to allow elimination of the privilege and held that evidentiary use of only the information contained in the abuse report would best promote the legislature’s policy behind the reporting act.
The central purpose of the child abuse reporting statutes is the protection of children, not the punishment of those who mistreat them.
This policy, which recognizes that the child may return to the same home environment in which the maltreatment occurred,-is best effectuated by continued encouragement for child abusers to seek rehabilitative treatment.
»}»
A narrow construction of section 626.556, subd. 8, which would achieve the purpose of the reporting act without destroying the benefits that result when those who maltreat children seek confidential therapy programs, should be, and hereby is, adopted.
In sum, we hold that deference to legislation involving rules of evidence and procedure will be given only to the extent the legislation is compatible with our established rules. When conflicts arise which compromise these rules, our rules remain supreme. Under this pronouncement, Sypult’s confidential statements to his doctors and therapist remain privileged; however, there is no privilege with regard to the fact that Sypult sought and received treatment. See Baker v. State, 276 Ark. 193, 637 S.W.2d 522 (1982).
The trial court further held that the admission of Sypult’s statements would violate his fifth amendment right against self-incrimination and his sixth amendment right to counsel. It is not necessary, however, that we address these issues inasmuch as we uphold the trial court and its findings on the basis of the foregoing analysis.
Affirmed.
Dudley, Newbern, Turner and Price, JJ., concur.
Hays and Glaze, JJ., dissent. | [
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Conley Byrd, Justice.
Appellant, C. H. Scott, appeals from an order of the trial court sustaining the demurrer of appellee, Loma Beatrice Rutherford, to a complaint in ejectment.
The complaint as amended, together with the attached documents, alleges that appellant, through J. H. Mize, holds an undivided 1/5 interest in the lands involved. The allegation regarding the deed from appellee to J. H. Mize is as follows:
“That defendant has admitted execution of said deed to plaintiff’s predecessor in title; defendant has admitted acknowledgment of said deed conveying the lands described in the original complaint herein to plaintiff’s predecessor in title; for an amendment to his orginal complaint herein plain tiff alleges that defendant delivered said deed to her agent and brother, Keith Rutherford, with instructions to him to deliver said deed to the Union National Bank and there to be held by said bank and delivered during regular banking hours on or .before February 5, 1960, to Oresta Wilkins, agent, for plaintiff’s predecessor in title, upon payment of $5,000.00 therefor; that a letter addressed to Oresta Wilkins and signed by Keith Rutherford is attached hereto as Exhibit ‘A’ as evidence of the circumstances giving rise to the deposit of said deed in escrow with said bank; that a facsimile of the receipt of said deed by said bank is attached hereto as Exhibit ‘B.’
“That subsequent thereto and before the close of regular banking hours on February 5, 1960, said deed was surreptitiously recovered from said bank by one of defendant’s attorneys; that said deed was then mutilated by removal of the signatures thereon; that defendant has admitted that said deed is at this time in possession of her attorneys; that said attorney's have promised the court that the original deed would be produced in lieu of the facsimile heretofore produced by defendant which deed has been made a part of the record and is adopted by way of amendment to the original complaint herein.”
Exhibit A, a letter from Keith Rutherford, a brother of appellee, to Oresta Wilkins, reads as follows:
“This will confirm our recent conversations pertaining to the receipt that you and I secured from Mrs. White, an employee of the Union National Bank, Little Rock, Arkansas, in acknowledging the .deposit of a Warranty Deed executed by Miss Loma Rutherford, my sister, to J. H. Mize, Grantee for her one-fifth interest in the J. H. Rutherford’s estate. Deed deposited on February 3, 1960.
“This Agreement was consummated at the home_ of my sister, Miss Loma Rutherford, and her signature was witnessed by me, Keith Rutherford, her brother C. H. Rutherford, and yourself, and notarized by you. C. H. Rutherford and I, after a thorough discussion of this proposal with our sister told her that we thought it a fair and equitable proposal but that she should make up her own decision in accepting it. She did sign the instrument in good faith. I might add that you, as the purchaser, in behalf of J. H. Mize, Grantee, that you did not use any pressure of any character.
“You and I deposited the Warranty Deed on February 3, in the Union National Bank, and of course, I was acting as my sister’s agent, and followed her instructions by accompanying you to the hank. I specifically told Mrs. White to deliver this Warranty Deed to you, upon payment of $5,000.00, as first payment on purchase of her interest during regular hanking hours by February 5th, 1960.
“When you telephoned me on February 5, 1960, and told me that you had tendered the $5,000 payment, per agreement, but was told that the Union National Bank had delivered the Deed to Mr. Harry Meek, Attorney,. I was surprised and embarrassed, as this agreement of sale was entered into in good faith and should have been completed.
“I do hope that this statement will .assist you in clarifying any unfavorable feeling that Mr. Mize might have had against you, because of the manner in which this agreement was violated.
“I want to emphasize the fair and equitable manner which you have .always carried out your promises to me.”
Exhibit B, attached to the amended complaint, is a receipt used by Union National Bank when accepting items for collection. The receipt shows the total amount to be $10,0.00, payablé $5,000 cash in hand and $1,000 annually. On its face is this notation: “This Receipt is NOT NEGOTIABLE and is accepted subject to the rules of the Union National Bank governing Collection Items.”
In ruling on appellee’s demurrer and alternative motion to transfer to equity, the trial court properly offered to transfer same to equity before ruling on the demurrer. However, on appellant’s objection to the transfer to equity, the trial court ruled that the complaint failed to state a cause of action in ejectment.
Under Ark. Stat. Ann. § 34-1401 et seq (Repl. 1962), the exhibits attached to the complaint, as required by § 34-1408 to show plaintiff’s title in an ejectment action, are part of the pleadings, Jones v. Harris, 221 Ark. 716, 255 S. W. 2d 691 (1953).
Although it is true that appellant alleged as a conclusion that the bank was an escrow agent from whom the deed was surreptitiously recovered, we agree with the trial court that the facts pleaded do not show legal title in appellant on which he can recover in ejectment. We have consistently held that in ejectment a plaintiff must recover on the strength of his own title and not on the weakness of his adversary’s title, McCrory School Dist. v. Brogden, 231 Ark. 664, 333 S. W. 2d 246 (1960), and that the owner of an equitable title can not maintain an action in ejectment, Percifull v. Platt, 36 Ark. 456 (1880). In such case the owner of an equitable title is required to go into a court of chancery to secure the recognition and assertion of his title. Maupin v. Gaines, 125 Ark. 181, 188 S. W. 552 (1916).
Appellant, to sustain his argument that the complaint was sufficient against the demurrer filed, relies on Shreve v. Carter, 177 Ark. 815, 8 S. W. 2d 443 (1928). However, in Shreve v. Carter it was pointed out that the complaint in equity was very loosely drawn and that a motion to make more definite and certain, if it had been filed, should have been sustained. Here appellee’s motion asking that appellant comply with Ark. Stat. Ann. § 34-1408 (Repl. 1962) by attaching the muniments of title upon which he relied took the place of a motion to make more definite and certain, and the result thereof clearly shows that Union National Bank received the deed from appellee for collection purposes. The receipt certainly refutes appellant’s position that the bank was acting as agent for appellant’s grantor, J. H. Mize.
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Lyle Brown, Justice.
Appellants, J. L., J. C., and W. A. McEntire brought this suit against their adjoining neighbor, appellee Curtis Robinson, to establish the boundary line between the parties. The McEntires claimed title up to a line fixed by the county surveyor; Robinson claimed title by adverse possession up to a fence line. "When all the litigants completed their testimony the chancellor ruled that the McEntires’ complaint should bo dismissed for their failure to meet the burden of proof. 'That ruling left the location of the boundary line undetermined. The McEntires assert on appeal that the boundary line issue was squarely raised by the pleadings and proof on the issues was submitted; therefore, say the McEntires, it became the duty of the chancellor to establish the boundary.
The Pleadings. The McEntires alleged record title to the west half of the involved forty-acre tract. Robinson, their neighbor on the east, was charged with encroaching on the McEntires’ land by running a north- and-soúth fence some twenty feet west of the true line. They alleged the fence to have been built within the last few years. They asked the court to fix the boundary as determined by the county surveyor and to order Robinson’s fence removed.
Curtis Robinson answered by claiming title to the disputed strip by adverse possession. He asserted that the fence line had been established with the consent and approval of the McEntires and pleaded estoppel. Robinson asked that plaintiffs’ complaint “be dismissed for ■want of equity and for any and all other proper relief. ’ ’
The Evidence. The McEntires produced two surveyors and six other persons as witnesses. Their testimony was directed to the survey line and their allegation that the fence was not erected by Robinson until 1962. The McEntires testified that the fence was erected without their knowledge or permission.
Curtis Robinson produced seven witnesses. Their testimony centered around these contentions: Robinson lived in a house' on his property since 1944; the house was there as far back as 1909 and had since been enlarged north and south; the McEntire survey line ran through the center of the house; a survey was made in 1957 and that line ran some eight steps west of Robinson’s house; Robinson built the fence in 1957; the shrubs on Robinson’s side of the fence were first'planted in 1944; in 1956 J. L. McEntire and Robinson worked out a line after a survey and the following year the fence was placed on that line; for many years before the fence was erected the parties cultivated up to that line.
The Chancellor’s Findings. The formal recorded order contained this single finding: “1. That the plaintiffs’ Complaint should'be dismissed with prejudice.” That statement was followed by formal words of dismissal with prejudice. However, at the conclusion of the trial the chancellor pronounced orally his findings. They were recorded and styled “Court’s Ruling.” The evidence on both sides was reviewed and the conclusion reached that the testimony was “as opposite as the poles.” The chancellor concluded with this statement: “In view of the fact that the present survey divides the house in which the defendant has been living since 1944 and in view of the fact that all of his improvements have been made since he acquired this property and sét out trees and one thing and another,_I can’t see anything other than that the plaintiff has failed to meet the burden of proof and therefore the complaint will be dismissed. ’ ’
The pleadings clearly placed before the court the respective theories of the adjoining owners with regard to a boundary line. Plaintiffs and defendant certainly understood the respective contentions. There were no objections to the pleadings. Proof was pointedly directed toward each allegation. In that situation it was incumbent on the trial court to fully adjudicate those issues pleaded and litigated.
In Mandel v. Peet, Simms & Co., 18 Ark. 236 (1856), the trial court sustained a demurrer to nine pleas in abatement and entered a final judgment. This court held the entry of the judgment to be in error because there remained an issue in the case not affected by the ruling on the demurrer. Hollis v. Moore, 25 Ark. 105 (1867), was a suit in trespass. The defendant made three separate pleas of defense. Judgment was entered for the plaintiff without defendant’s pleas being resolved. For that error the case was reversed and remanded.
In the last century our own trial courts have evidently been careful to avoid the pitfalls reflected in Mcmdel and Hollis; otherwise we assume later citations would have been called to our attention. The rule in those cases is sound because it discourages piecemeal litigation. Particularly when a controversy as to possession of real property is in issue and can be concluded in one action, that should be done. Bobinson was required by statute to plead his defenses. Ark. Stat. Ann. § 27-1121 (Bepl. 1962). Logically, those defenses should be resolved.
We agree with appellants’ first point, namely, that “the issue of the boundary line location was squarely raised by the complaint and answer,” and should have been resolved. By their second point, the McEntires ask us to hold that the evidence preponderates in their favor. This we cannot do, for the simple reason that the trial court did not resolve the issues of adverse possession and estoppel.
The cause is reversed and remanded with directions to the trial court to fix the boundary line with such certainty that it can be identified by reference to the decree. | [
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Robert H. Dudley, Justice.
The appellant was driving his car in the City of Beebe when an auxiliary officer stopped him for a traffic violation. The auxiliary policeman saw that appellant appeared to be intoxicated, so he radioed his supervising officer and administered a field sobriety test. The supervising officer arrived, arrested appellant, and took him to the police station. There, he observed appellant for the required twenty minutes, and gave him a breathalyzer test. The result was a blood alcohol content of .22 %.
The appellant moved to suppress the results of the field sobriety test and breathalyzer test because, he alleged, the supervising officer did not meet the minimum standards set by the Commission on Law Enforcement Standards and Training. The trial court refused to suppress the evidence. We affirm that ruling.
Ark. Code Ann. § 12-9-303 (a) and (b) (1987) provides that the authority of an auxiliary police officer is derived from his supervision by a certified officer, but if the supervising officer does not meet the standards for a certified officer, the auxiliary officer shall have no authority except that of a private citizen. Ark. Code Ann. § 12-9-108 (1987) provides that the failure of a regular police officer to meet the qualifications set by the Commission on Law Enforcement Standards and Training requires that his official actions “be held as invalid.”
Appellant argues that section 1002 (1), (2), and (4) of the Standards requires that a police officer’s personnel file contain, among other things, a high school diploma or a G.E.D. certificate and a report from a physician stating that the officer is in good physical health. He then contends that the trial court erred in holding that the supervising officer’s personnel file contained these documents, and that the trial court erred in refusing to suppress the evidence.
We need not determine whether the trial court was clearly erroneous in his finding of fact that the supervising officer’s personnel file contained a diploma and physical report, because, even if it did not, the supervising officer was grandfathered in by statute. Ark. Code Ann. § 12-9-106(e)(l) (1987) provides that law enforcement officers serving under full-time permanent appointment on December 31, 1977, are not required to meet the standards as long as they are continuously employed. The supervising officer in this case testified he had been employed continuously as a full-time police officer for the past fourteen years, or since 1976, at various police departments. On cross-examination he did state there had been one interval of three weeks between the time he worked for the Cities of Stuttgart and England, but he was not asked whether he was on some type of leave during this period. Thus, it cannot be said that his testimony that he had been continuously employed as a policeman was in error. See Kittler v. State, 304 Ark. 344, 802 S.W.2d 925 (1991). In addition, even if appellant were not grandfathered in, we would not reverse for refusal to apply the exclusionary rule under those circumstances. State v. Henry, 304 Ark. 339, 802 S.W.2d 448 (1991).
Appellant next argues that a prior conviction for driving while under the influence should not have been used to enhance his sentence. He contends that the certified copy of the prior conviction does not show a knowing and intelligent waiver of his right to assistance of counsel. The docket sheet contains the following: “On 11/11/87, after waiving his right to consult with an attorney, Mr. King plead guilty to DWI first offense.” The authenticity of the certified copy of the docket sheet is not questioned.
The appellant cites a number of cases which stand for the proposition that an accused must make a voluntary, knowing, and intelligent waiver of his right to counsel. The minimum for determining whether a waiver was knowing and intelligent is a record which shows that the accused was made aware of the dangers and disadvantages of self-representation, and that he understood the consequences of his choice. The general statement is applicable to matters on direct appeal or post-conviction proceedings, but the issue here is, must we apply the same standard to collateral proceedings? We think not.
The overwhelming majority of DWI misdemeanor cases are disposed of in municipal courts. The usual “record” from such courts is the docket sheet. Such a limited record usually is not going to be detailed enough to show a voluntary, knowing, and intelligent waiver such as we require on direct appeal. As a practical matter, if the appellant were successful in his argument, it would wholly frustrate the intended effect of the enhancement concept of the Omnibus DWI Act. Even so, if the record were not sufficient to create a reliable presumption that the guiding hand of counsel was available, his argument would prevail. Here, however, the record is sufficient to create a presumption of regularity.
The constitutionally protected right to counsel will not be presumed from a silent record, Baldasar v. Illinois, 446 U.S. 222 (1980), but here the record is not silent. Instead, it reflects that he waived “his right to consult with an attorney. . . .” Such language is sufficient to create a presumption that the guiding hand of counsel was available in order to withstand collateral attack.
There must be a finality to all litigation, criminal as well as civil. The general rule is that a defendant who does not appeal a criminal conviction must be barred from collaterally attacking a judgment. There are exceptions to the general rule, but none of them are applicable to the facts of this case. Accordingly, we affirm the ruling that the judgment in this case is regular on its face and not subject to collateral attack.
Affirmed. | [
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George Rose Smith, Justice.
In 1948 the appellant was convicted of murder and sentenced to life imprisonment. He was still confined to the penitentiary when he filed the present petition under Criminal Procedure Rule No. 1, asserting that his constitutional rights were violated at the original trial. The trial court, after affording the petitioner the hearing contemplated by Rule 1, made the required written findings of fact and conclusions of law. The court dismissed the petition, holding that there was no showing that Cox’s constitutional rights had been infringed. At Cox’s request this appeal was taken.
We affirm the judgment, finding the appeal to he wholly without merit. At the original trial Cox was represented by competent counsel employed by his family. The jury found him to be guilty. At the Rule 1 hearing Cox made no complaint about his original trial and had no competent new evidence to offer. He admitted that “The only thing I can say is that I didn’t do it.” He conceded that he had a chance to make that denial before the jury in 1948. Two other witnesses testified. Cox’s sister stated that Cox’s daughter or stepdaughter, who was two years old in 1948, had said that Cox’s wife later admitted that she was the guilty person. Needless to say, such hearsay evidence is not admissible. Cox’s niece testified that if a certain witness living in Indiana were produced he would testify that he was with Cox when the crime was supposedly committed. Even so, the matter of Cox’s asserted alibi was an issue of fact that was or could have been raised at the trial in 1948. Rule 1 is not intended to provide the petitioner with a new trial simply because a jury found him to be guilty, on conflicting testimony.
Affirmed.
Brown, J., disqualified. | [
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David Newbern, Justice.
The chancellor held that Sheriff Carroll Gravett had no authority to cure a constitutionally deficient post-judgment execution statute by requiring notice to garnishees not required by the statute. The chancellor was correct. The decision is affirmed.
The Sheriff designed a notice form to supply the constitutional deficiency in Ark. Code Ann. §§ 16-66-211 and 16-66-401 (1987). The form was used in conjunction with service of judgment execution documents upon appellee Meyer Marks. The chancellor held the service on Marks was invalid due to the invalidity of the statute on which it was based, and the constitutional deficiency was not supplied by actual notice to Marks of items constitutionally required.
The Sheriff appeals relying on two cases. In Duhon v. Gravett, 302 Ark. 358, 790 S.W.2d 155 (1990), the decision declaring our post-judgment execution law constitutionally deficient for lack of a requirement of proper notice, we wrote “it is the lack of a requirement of notice to the judgment debtor that makes statutory provisions constitutionally deficient. With proper notice to the judgment debtor, that aspect of the due process mandate of the 14th amendment is satisfied.” In Kennedy v. Kelly, 295 Ark. 678, 751 S.W.2d 6 (1988), we held that a garnishee had no standing to challenge the garnishment law on the basis of violation of the debtor’s constitutional entitlement to notice. In the process of reaching that holding we discussed Davis v. Paschall, 640 F.Supp. 198 (E.D. Ark. 1986), and the consent decree approved in that case which related to the manner of supplying constitutionally sufficient notice in post-judgment garnishment proceedings.
The holdings in the Duhon and Kennedy cases remain correct. We did not intend, in obiter dicta or otherwise, to suggest that a property seizure proceeding based on a statute which has been declared unconstitutional may succeed. We have held in many cases that “when a statute is declared unconstitutional it must be treated as if it had never been passed.” Green v. Carder, 276 Ark. 591, 637 S.W.2d 594 (1982); Huffman v. Dawkins, 273 Ark. 520, 622 S.W.2d 159 (1981); Morgan v. Cook, 211 Ark. 755, 202 S.W.2d 355 (1947). Actual notice is insufficient where a notice statute is constitutionally insufficient. Wuchter v. Pizzuti, 276 U.S. 13 (1928).
Affirmed. | [
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JOSEPHINE LINKER HART, Associate Justice
| Appellant, Larry W. Walther, in his official capacity as the Director of the Arkansas Department of Finance and Administration (ADFA), appeals from the order of the circuit court finding that “prop-pants” are “equipment” under Arkansas Code Annotated section 26-52-402 (Repl. 2014) and thus exempt from taxation. We affirm the circuit court’s decision.
According to the circuit court’s order, appellee Weatherford Artificial Lift Systems, Inc. (Weatherford) provided oil-field services that included hydraulic fracturing to the oil-and-gas production industry in Arkansas. The proppants, which accord ing to the circuit court’s order are granular substances used in extracting natural gas from unconventional natural-gas reservoirs such as the Fayetteville Shale in Arkansas, prevent rock fractures from closing when used in connection with the hydraulic fracturing of new natural-gas wells. ADFA conducted an excise-tax audit of Weatherford’s purchases and sales for the period of October 1, 2006, ^through July 31, 2009. ADFA’s assessment included $1,347,096.66 in gross-receipts tax and interest. Weatherford paid the entire amount, including additional interest accrued, and then brought this lawsuit to recover the amount paid. A trial was held to determine whether the proppants were exempt from the gross-receipts tax.
The circuit court entered judgment in favor of Weatherford. The court concluded that the proppants used by Weather-ford are exempt because they constitute equipment as defined by the statutes and ADFA’s own rules. Further, the circuit court found that ADFA’s Gross Receipts Tax Rule GR-57(E)(5), which characterized proppants as nonexempt, was invalid and unenforceable as applied in this case because it was contrary to applicable statutes and cases, lacked a rational basis, violated the separation-of-powers provisibn of the Arkansas Constitution, was arbitrary and capricious, and exceeded the regulatory authority of ADFA. The circuit court concluded that Weatherford was entitled to judgment in the amount of $1,356,440.60, with interest.
ADFA appeals. For its first point on appeal, ADFA maintains that proppants do not constitute equipment. In sum, ADFA argues that proppants are not equipment because they are not complex tools or devices, with continuing utility, that are used directly in the process of extracting oil and gas, and further, proppants do not cause a recognizable and measurable mechanical or chemical action to take place as a necessary and integral part of manufacturing, without which oil-and-gas production would cease. ADFA’s second point on appeal is that the circuit court erred in finding that Arkansas Gross Receipts Tax Rule GR-57(E)(5), which characterized proppants as nonexempt, was invalid and unenforceable as applied to this case.
| ¡¡Under our statutes, exempt from taxation are “[gjross receipts or gross proceeds derived from the sale of tangible personal property consisting of machinery and equipment used directly in producing, manufacturing, fabricating, assembling, processing, finishing, or packaging of articles of commerce at manufacturing or processing plants or facilities in the State of Arkansas[.]” Ark.Code Ann. § 26-52-402(a)(2)(A). “Manufacturing” specifically includes the extraction of oil and gas. Ark.Code Ann. § 26-52-402(b)(4). The statute exempts “only the machinery and equipment , as shall be used directly in the actual manufacturing or processing operation at any time from the initial stage when actual manufacturing or processing begins through the completion of the finished article of commerce and the packaging of the finished end product.” Ark. Code Ann. § 26-52-402(c)(2 )(A). Further, the word “directly” is “used to limit the exemption to only the machinery and equipment used in actual production during processing, fabricating, or assembling raw materials or semifinished materials into the form in which such personal property is to be sold in the commercial market.” Ark.Code Ann. § 26-52-402(c)(2)(B). The statute further defines the phrase “used directly,” as “[mjachinery and equipment used in actual production,” including “machinery and equipment that meet all other applicable requirements and which cause a recognizable and measurable mechanical, chemical, electrical, or electronic action to take place as a necessary and integral part of manufacturing, the absence of which would cause the manufacturing operation to cease.” Ark.Code Ann. § 26-52-402(c)(2)(A)(i). This court has noted that the word “equipment” has been referred to as an exceedingly elastic term, the meaning of which depends on context, and has stated, “In sum, we believe it is clear that the General Assembly, |4by the use of the terms machinery and equipment, intended implements, tools or devices of some degree of complexity and continuing utility.” Ragland v. Dumas, 292 Ark. 515, 520, 782 S.W.2d 118, 120 (1987); see also Weiss v. Chem-Fab Corp., 336 Ark. 21, 26, 984 S.W.2d 395, 397-98 (1999) (same).
In its findings of fact, the circuit court concluded that the proppants at issue included silica-sand proppants, cured and uncured resin coated proppants, and ceramic proppants, and that all proppants were used in establishing new natural-gas wells in the Fayetteville Shale during the audit period. The circuit court further noted that these Fayetteville Shale wells were developed using modern horizontal-well and hydraulic-fracturing technologies that rely on the proppants in order for the wells to be productive.
The court stated that the proppants used by Weatherford were selected by it to conform to certain industry specifications and to meet the specific requirements of the type of reservoir involved. The circuit court further noted that hydraulic fracturing created fractures in the formation that surround the horizontal well bore, and that proppants are selected based on their ability to form proppant packs to hold the fractures open when the hydraulic-fracturing fluids are withdrawn and establish permanent channels through which natural gas flows from the unconventional natural-gas reservoir at the production site through the well bore to the surface. The court stated that proppants are necessary to extract the natural gas in the Fayette-ville Shale using the horizontal-well and hydraulic-fracturing technology.
IsThe circuit court concluded that the proppants, which form proppant packs, are used directly to extract oil and gas in wells developed using horizontal-well and hydraulic-fracturing technologies and have a continuing utility and extended useful life that corresponds to the production life of each well. The circuit court also concluded that the proppants, which form prop-pant packs, cause a recognizable and measurable mechanical action in holding fractures open in order for the natural gas to flow from the unconventional reservoir to the surface. The court also found that the proppants are reactive to each other to the extent that they form proppant packs and therefore have an ancillary chemical action. The court noted that “[w]hite silica sands selected and processed for use as proppants are less prone to failure than brown sand because of the monocrystalline as opposed to polycrystalline structure, and are selected based on their respective physical characteristics and ability to meet production requirements at the well sites.” The court further noted that “[r]esin coated proppants and ceramic proppants are also designed and selected for use based on their respective physical characteristics and production requirements at the well sites.” The court found that “[p]roppants which form proppant packs have a degree of complexity, possess continuing utility, and are not folly integrated in another object.” The circuit court concluded that the “proppants are used directly in manufacturing ... as a necessary and integral part of the process, and their absence would cause the manufacturing operation to cease.”
Tax-exemption cases are reviewed de novo on appeal, and the findings of fact of the trial court are not set aside unless they are clearly erroneous. Weiss v. Bryce Co., LLC, 2009 Ark. 412, at 3, 830 S.W.3d 756, 757. In Ragland, this court considered whether a contractor’s gravel furnished to build temporary roads can be viewed as equipment used directly in the process of extracting oil. Ragland, 292 Ark. at 520, 732 S.W.2d at 120. This court concluded that “equipment” was defined as “implements, tools or devices of some degree of complexity and continuing utility.” Id., 732 S.W.2d at 120. Applying this definition, the court rejected the contention that the gravel at issue was equipment because the gravel “beeome[s] fully integrated into a temporary road, the utility of which ends upon the termination of each oil-extraction project.” Id. We note, however, that this court did not specify the degree of complexity, only that there be “some degree of complexity.” Further, the gravel became integrated into the road, not the oil-extraction project itself, and the utility of the road ended at the conclusion of the project.
Subsequently, in Weiss v. Chem-Fab Corp., 336 Ark. 21, 984 S.W.2d 395 (1999), this court held that chemicals used to manufacture aircraft parts constituted “equipment.” In Chem-Fab, this court referred to the two-part definition established in Ragland and looked at (1) whether the chemicals constituted “implements, tools or devices of some degree of complexity” and (2) whether the chemicals had “continuing utility.” On the first point, the court concluded that the chemicals were implements because they served as instruments or tools to soften metal or to mill away excess metal. Moreover, the court determined that |7chemicals are, by their very nature, complex substances. The court also found that the chemicals possessed “continuing utility” and therefore satisfied the second part of the test;- the chemicals were used directly in the process of manufacturing a number of different parts, and the chemicals were not fully integrated into some other object, the utility of which was confined to an individual project. Id. at 26-27, 984 S.W.2d at 398. Thus, in Chem-Fab, the chemicals were equipment because they were used to manufacture a number of parts without being integrated into the part.
In Bryce Co., LLC, the question posed was whether “stickyback tape” used in its printing process constituted equipment. This court considered the two-part-equipment definition set out in Ragland as well as the statutory requirement that the equipment be used directly in the manufacturing or processing operation. In concluding that the stickyback tape at issue was subject to the tax exemption, this court stated:
We conclude that the stickyback tape in the present case meets these case-law-based criteria as well as the regulatory definition of equipment and the simple statutory requirement that the alleged equipment be “used directly in the actual manufacturing or processing operation.” § 26-52-402(c)(l)(A). As noted above, the word “equipment” is “an exceedingly elastic term, the meaning of which depends on context.” Ragland, 292 Ark. at 520, 732 S.W.2d at 120.
Here, the tape possesses some degree of complexity, as described by site manager Swain, in that it is cross-hatched to permit proper airflow and of a specific thickness and softness to provide for even printing. A given segment of tape is used over as much as one million linear feet, and even though it must eventually be discarded, it can be — and sometimes- is — retained and reused for smaller printing jobs. Finally, the statute declares that, for an item to be “used directly” in the manufacturing process, it must “cause a recognizable and measurable mechanical, chemical, electrical, or electronic action to take place as a necessary and integral part of manufacturing, the absence of which would cause the manufacturing operation to cease.” § 26-52-402(c)(2)(A)(i). Without the stickyback tape, the mechanical process of printing the polyethylene packaging could not be accomplished. Accordingly, we conclude that the circuit court did not err in determining that the stickyback tape was equipment that was exempt from sales taxes.
Bryce Co., LLC, 2009 Ark. 412, at 11-12, 330 S.W.3d at 761-62.
IsThus, in Bryce Co., LLC, the tape was deemed complex because of its physical characteristics. Furthermore, the discarding of the tape did not mean that it was not equipment, as the court noted its continuing utility over one million feet and its possible re-use.
With this case law in mind, we turn to the merits. The evidence presented by Weatherford supports the circuit court’s findings and refutes ADFA’s claims that proppants are not equipment because they are not complex tools or devices, with continuing utility, that are used directly in the process of extracting oil and gas, and do not cause a recognizable and measurable mechanical or chemical action to take place as a necessary and integral part of manufacturing, without which oil-and-gas production would cease. To summarize the evidence from one witness, Weatherford established that proppants are used directly in the process of extracting oil and gas by presenting testimony that proppants are used during each stage of the hydraulic-fracturing process and that proppants are necessary to perform the type of hydraulic fracturing that is performed in the Fayetteville Shale. Relating to complexity, Weatherford also presented testimony that proppants are not just a load of sand that can be picked up anywhere and used; rather, proppants are high-purity silica that is mined, washed, and sized for consistency. In addition, Weatherford presented testimony that the physical characteristics of the proppants are very important and are tested. As for continuing utility, Weatherford presented testimony that the-proppants are injected into a well and are used for the life of the well, potentially several years, and that while the prop-pants remain in the well during and after use, they are not absorbed into the rock formation. With regard to the mechanical action, Weatherford presented testimony that the proppants change the direction of the flow of the gas in the well and increase the speed of the flow. Further, Weather-ford | presented additional testimony from another witness that the proppants produce a physical and mechanical action by preventing the fracture from closing and by directing the flow of the gas; possess a certain degree of complexity; have a continuing utility for the life of a well; and do not become part of the well itself The same witness testified that without prop-pants, production would cease in the Fay-etteville Shale. Given this evidence, we cannot say that the trial court clearly erred in concluding that the proppants in the present case were equipment.
ADFA’s second point on appeal is that the circuit court erred in finding that Arkansas Gross Receipts Tax Rule GR-57(E)(5), which characterized proppants as nonexempt, is invalid and unenforceable as applied to this case. However, as explained above, there is sufficient evidence to affirm the trial court’s finding that prop-pants are equipment. An administrative regulation cannot be contrary to a statute. Pledger v. C.B. Form Co., 316 Ark. 22, 30, 871 S.W.2d 333, 337 (1994). Therefore, we affirm the trial court’s finding that Rule GR-57(E)(5) is invalid and unenforceable as applied in this case because it is contrary to the applicable statutory provisions. Thus, we need not address the circuit court’s remaining reasons for finding the rule invalid and unenforceable.
Affirmed.
Hannah, C.J., and Danielson and Wynne, JJ., dissent.
. In 2015, the statute was amended to provide that máchinery and equipment "used directly” in the manufacturing process included "[s]and and other proppants used to complete a new oil or gas well or to re-complete, redrill, or expand an existing oil or gas well.” 2015 Ark. Act 1125, § 1.
. While this court has previously stated that a taxpayer had to establish an entitlement to an exemption from taxation beyond a reasonable doubt, in April 2009 the General Assembly changed the standard of proof for the taxpayer to clear and convincing evidence. See Weiss, 2009 Ark. 412, at 3-4, 330 S.W.3d at 757-58. We further note that in 2015, the burden of proof was changed to a preponderance of the evidence. 2015 Ark. Acts 896, § 3. | [
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BRANDON J. HARRISON, Judge
I,Bryce Allen was convicted by a Pulaski County jury of one count of second-degree murder and two counts of attempted second-degree murder. He now appeals, arguing that the jury should have been instructed on attempted reckless manslaughter as a lesser-included offense of attempted second-degree murder. We affirm.
The facts underlying this criminal case are not in dispute. On 19 March 2012, Allen’s mother, Thelma, was involved in a one-vehicle accident on Highway 161 at approximately 10:30 p.m. Thelma was unhurt, but her vehicle ruptured a gas main on the side of the highway. Thelma called Allen to tell him about the accident, and he indicated that he was on his way there.
Meanwhile, Jacksonville Police Officer Daniel DiMatteo responded to the accident, along with Captain Donald Jones and Engineer Jason Bowmaster from the Jacksonville Fire Department. Both DiMat-teo’s police cruiser and the fire truck were |2parked on the side of the road with lights flashing, and all three men were wearing reflective vests as they worked on scene. Jones and Bowmaster attempted to shut off the gas but were unable to do so, and after determining that the gas company would have to be called, the three men stood in front of their vehicles on the side of the road discussing the situation.
Suddenly, DiMatteo heard the sound of an engine accelerating and turned to see an Oldsmobile van come around the emergency vehicles and turn toward the three men. The van, driven by Allen and traveling approximately twenty-three miles an hour, struck all three men. Captain Jones died at the scene; Bowmaster and DiMat-teo both sustained severe injuries, including multiple broken bones. A video of the impact, captured by the dashcam in Di Matteo’s police cruiser, showed that Allen did not apply the van’s brakes until after he hit the men. DiMatteo also described Allen as “death gripping the steering wheel” right before the impact with a “mean scowl on his face” and stated that “because of where I was standing and the way in which that vehicle was steered and aimed towards the three of us, there’s no doubt in my mind that that was done on purpose.”
In an accident form filled out that night, Allen claimed that the cruise control on the van had malfunctioned, that the áccel-erator went to the floor, and that he lost control of the vehicle. The van was inspected by an automotive mechanic, who testified at trial that there were no problems with the accelerator or the cruise control and that the cruise control would not engage in a vehicle traveling at twenty-three miles per hour. Also at trial, it was undisputed that Allen suffered from bipolar disorder, although expert medical opinions differed on whether that was a contributing factor to the incident.
|aAfter all of the evidence had been presented, jury instructions were selected, and pertinent to this appeal, the parties agreed on attempted first-degree-murder and attempted second-degree-murder instructions regarding DiMatteo and Bow-master. Allen also proffered an instruction for attempted manslaughter, which read as follows:
Criminal Attempt to Commit Manslaughter. A person commits the offense of Manslaughter if he recklessly causes the death of another person. .
To sustain the charge of Criminal Attempt to Commit Manslaughter, the State must prove beyond a reasonable' doubt:
First: Bryce Allen intended to commit the offense of Manslaughter;
Second: The defendant purposely engaged in conduct that was a substantial step in a course of conduct intended to culminate in the commission of Manslaughter; and
Third: The defendant’s conduct was strongly corroborative of the criminal purpose.
Definition
“Recklessly.” — A person acts recklessly with respect to the results of his conduct when he consciously disregards a substantial and unjustifiable risk that the results will occur. The risk must be of a nature and degree that disregard thereof constitutes a gross deviation from the standard of care that a reasonable person would observe in the same situation.
Allen argued that attempted manslaughter was a lesser-included offense of attempted first- and second-degree murder and that the instruction for attempted manslaughter was appropriate because
Arkansas [Code] Annotated [§] 5-3-201(B) states that with respect to offenses respecting attendant circumstances were required by the definition, recklessly does have a result element of causing the death. And that is it complied [sic] to both the result and the attendant circumstances. And because it requires proof of a result and proof that Mr. Allen acted recklessly with [sic] disregarding the substantial and unjustifiable risk of his conduct, we argue that he’s entitled to a jury instruction setting forth that he took a substantial step toward that.
|4The State objected to the instruction, arguing that “there’s not an intent on a reckless or negligent conduct if we were going down that far. The intent would be the mens rea of purpose and knowingly. But one can’t attempt to cause what is a reckless offense.” After some discussion, the circuit court agreed with the State, noting that “manslaughter’s a crime because of reckless conduct, not knowing or purpose,” and denied the request to instruct on attempted manslaughter.
The jury found Allen guilty of second-degree murder as to Captain Jones and attempted second-degree murder as to DiMatteo and Bowmaster. The circuit court sentenced Allen to consecutive terms of thirty years’ imprisonment for second-degree murder and twenty years’ imprisonment for each count of attempted second-degree murder, for a total of seventy years’ imprisonment. Allen appealed.
On appeal, he argues that the jury should have been given an instruction on attempted reckless manslaughter. A party is entitled to a jury instruction when it is a correct statement of the law and when there is some basis in the evidence to support giving the instruction. Vidos v. State, 367 Ark. 296, 239 S.W.3d 467 (2006). An instruction should be excluded when there is no rational basis for giving it. Grillot v. State, 353 Ark. 294, 107 S.W.3d 136 (2003). A circuit court’s decision whether to give an instruction will not be reversed unless the court abused its discretion. Vidos, supra. Abuse of discretion is ■ a high threshold that does not simply require error in the circuit court’s decision but requires that the circuit court act improvidently, thoughtlessly, or without |fidue consideration. Dixon v. State, 2011 Ark. 450, 385 S.W.3d 164. A party is entitled to an instruction on a defense or a lesser-included offense if there is sufficient evidence to raise a question of fact or if there is any supporting evidence for the instruction. Norris v. State, 2010 Ark. 174, 368 S.W.3d 52.
A person commits manslaughter if the person recklessly causes the death of another person. Ark.Code Ann. § 5-10-104(a)(3) (Repl. 2013). “Recklessly” is defined as follows:
(A) A person acts recklessly with respect to attendant circumstances or a result of his or her conduct when the person consciously disregards a substantial and unjustifiable risk that the attendant circumstances exist or the result will occur.
(B) The risk must be of a nature and degree that disregard of the risk constitutes a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation[.]
Ark.Code Ann. § 5-2-202(3) (Repl. 2013). When causing a' particular result — such as death — is an element of an offense, a person commits the offense of criminal attempt if, acting with the required culpable mental state of the target offense, he purposely engages in conduct that constitutes a substantial step in a course of conduct intended or known to cause the particular result. Ark.Code Ann. § 5-3-201 (b) (Repl. 2013). To be considered a “substantial step,” conduct must be strongly corroborative of the person’s criminal intent. Ark.Code Ann. § 5-3-201(c).
Allen argues that attempted reckless manslaughter is a lesser-included offense of attempted first-degree and attempted second-degree murder. He says that he was “aware of a substantial and unjustifiable risk that the two victims who did not die were present when he drove his vehicle toward them” and that “he purposely engaged in conduct that | ^constituted a substantial step in a course of conduct that he intended or knew would cause the victims’ deaths.” Thus, he argues, the circuit court abused its discretion in denying his request for an instruction on attempted reckless manslaughter.
The State contends that attempted reckless manslaughter is not a lesser-included offense of attempted first- or second-degree murder and that Allen has misconstrued the law of criminal attempt. The State explains that
[t]he crime of reckless manslaughter requires that the result of death occur. Where a result is required for the commission of a crime, the criminal attempt statute requires that the substantial step taken by the defendant be initiated with the intent or knowledge to cause that result — here, death of the victim. Because the crime of reckless manslaughter does not require intent to kill, appellant could not have attempted to commit reckless manslaughter.
In other words, Allen requested an instruction that required, in part, for the jury to find that he purposely engaged in conduct that was a substantial step in recklessly causing the death of another person. But if a person purposely (or knowingly) engages in conduct that constitutes a substantial step toward causing the death of another person, then the conduct is an intentional act and, by definition, either attempted first-degree or attempted second-degree murder.
The State also argues that, even assuming that attempted reckless manslaughter is a lesser-included offense of attempted second-degree murder, there was no rational basis for giving the instruction on attempted reckless manslaughter in this case. According to the State, the evidence established that Allen purposely accelerated his van and hit the victims, which was intended or practically certain to cause the death of Bowmaster and DiMatteo.” Indeed, by Allen’s own admission, “[h]is conduct in running over the victims ^constituted a substantial step in a course of conduct that he knew would cause the death of the victims.” (Emphasis added.) In other words, he acted knowingly. Thus, an instruction on attempted second-degree murder was proper, and the circuit court did not abuse its discretion in denying the proffered instruction on attempted reckless manslaughter.
Allen acknowledges that some jurisdictions have agreed with the State’s position and found that attempted reckless manslaughter does not exist because of the inherent inconsistency in acting both recklessly and purposely. See, e.g., Stennet v. State, 564 So.2d 95, 96 (Ala.Crim.App.1990) (holding that it is impossible to intend to recklessly cause the death of another because “intentional” and “reckless” are inconsistent terms); State v. Howard, 405 A.2d 206, 212 (Me.1979) (“Because of the discrepancy in culpable mental states between criminal attempt on the one hand and manslaughter on the other, the proffered crime of ‘attempted manslaughter’ is a logical impossibility.”); State v. Zupetz, 322 N.W.2d 730, 735 (Minn.1982) (holding that it is “illogical that someone could intend to cause someone else’s death through negligence or even recklessness”); State v. Hemmer, 3 Neb.App. 769, 531 N.W.2d 559 (1995) (acknowledging that the attempt statute applies only to crimes committed knowingly or intentionally); State v. Kimbrough, 924 S.W.2d 888, 892 (Tenn.1996) (“[I]t does not make sense to say that a defendant intended to kill the victim by being reckless.”).
| sAllen also cites People v. Thomas, 729 P.2d 972 (Colo.1986), which held that attempted reckless manslaughter was a cognizable crime. The Colorado Supreme Court explained that the culpable mental state for attempted reckless manslaughter is that the accused knowingly engage in conduct while consciously disregarding a substantial and unjustifiable risk of death, and even though death is an element of reckless manslaughter, one may commit the crime of attempted reckless manslaughter without intending that death occur. Id. at 974-75. And because attempt requires the same mental culpability as the underlying crime, the Colorado Supreme. Court held that there is no inconsistency between the mental-culpability requirement for attempt and that for the underlying crime, reckless manslaughter. Id. at 975. According to Allen, our criminal attempt statute
resolves the “recklessíy”/“purposely” paradox by removing the result element of “recklessly” manslaughter — consciously disregarding a substantial and unjustifiable risk that the defendant’s conduct will cause the death of another person — from modification by a culpable mental state element in the definition of attempted “recklessly” manslaughter. ... Pursuant to § 5-3-201(b), neither a recklessly nor a purposely culpable mental state modifies the result element where the offense that is attempted requires proof of a result.... [Vjiewing the evidence in the light most favorable to Appellant Allen, he was entitled to a lesser offense jury instruction defining attempted “recklessly” manslaughter because he acted purposely with regard to his conduct and he acted recklessly with regard to the attendant circumstance[s] of the existence and presence of the victims.
We agree with the State, and a number of other jurisdictions that have addressed the issue, and hold that the crime of attempted reckless manslaughter is inherently contradictory. The phrase “[w]hen causing a particular result is an element of the offense,” as it is used in the criminal-attempt statute, means that the attempted offense involves an intentional act. It would be illogical to ask the jury to find that Allen intended to act recklessly or that he purposely engaged in conduct that was a substantial step in a |9course of conduct intended to culminate in acting recklessly. Because the proffered instruction is not an accurate statement of Arkansas law, the circuit court did not err in denying the instruction.
Even if the instruction was based on sound law, there was no rational basis for giving the instruction in this case. As noted earlier, by Allen’s own admission, he acted knowingly, thus an instruction on attempted second-degree murder, and not attempted reckless manslaughter, was proper. Also, Allen’s act of driving the van into the three men without even attempting to brake goes beyond a gross deviation of the standard of care that a reasonable person would observe. In other words, it was not a rational activity that was carried out recklessly; instead, Allen’s actions were intentional, regardless of whether he intended to bring about the particular result of death. See Bankston v. State, 361 Ark. 123, 205 S.W.3d 138 (2005) (holding that defendant who approached an occupied vehicle and fired a gun four times into vehicle while it was stopped at a light was not entitled to jury instruction on manslaughter based on recklessly causing the death of another person). In Bankston, our supreme court concluded that “[rjegardless of what her intentions may have been, the evidence shows that her actions were deliberate, not merely reckless.” Id. at 133, 205 S.W.3d at 145. Likewise, the evidence in this case sufficiently supported the contention that Allen deliberately hit the men with his van, so there was no rational basis for a jury instruction on attempted reckless manslaughter.
Affirmed.
Gruber and Vaught, JJ., agree.
. Allen's sentencing order and amended sentencing order were filed electronically, with the circuit judge's signature appearing on a separate, fourth page of the orders. We remind counsel and the bar that all pages of a sentencing order must be included in the addendum, including the circuit judge's signature page.
. A person commits second-degree murder if he knowingly causes the death of another person under circumstances manifesting extreme indifference to the value of human life. Ark.Code Ann. § 5-10-103(a)(l) (Repl. 2013). | [
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ROBERT J. GLADWIN, Chief Judge
| Appellant Michael Todd appeals the revocation of his suspended imposition of sentences (SIS) by the Hempstead County Circuit Court. He does not challenge the preponderance of the evidence supporting his revocation; rather, he argues that the circuit court erred when it opted to run his sentences consecutively rather than concurrently. Appellant also contends that the circuit court erroneously sentenced him without evidence of when his suspension began, basically not knowing how much of his SIS remained on which to sentence him. Additionally, appellant argues for the first time on appeal that his original sentences were facially illegal pursuant to Arkansas Code Annotated section 5-4-301(a)(2)(A) (Supp. 2009). Because this court lacks jurisdiction to hear the appeal, pursuant to Arkansas Rule of Appellate Procedure-Criminal (2)(a) (2014), we dismiss.
On March 6, 2009, in CR-2009-74, appellant was charged with nine counts of fraudulent use of a credit card or debit card, Class C felonies, and one count of theft by | ¿receiving (credit card or account number or firearm worth less than $2,500), a Class C felony. On March 6, 2009, in CR-2009-75, appellant was charged with breaking or entering, a Class D felony, theft of property $500 or less, a Class A misdemeanor, fraudulent use of a credit card or debit card, a Class A misdemean- or, arid theft of property less than $2,500 and greater than $500, a Class C felony. On April 14, 2009, appellant entered a negotiated guilty plea to all of the charges in the above two cases.
On May 28, 2009, appellant pled no contest in case numbers CR-2009-74 and CR-2009-75, to ten counts of fraudulent use of a credit card, two counts of theft of property, and one count each of theft by receiving and breaking or entering. Running the sentences concurrently, the circuit court sentenced appellant to an aggregate term of eight years’ imprisonment in the Arkansas Department of Correction (ADC), to be followed by seven years’ SIS. Conditions of his suspension included that he not commit any offense punishable by imprisonment. On April 14, 2009, appellant signed the conditions-of-suspended-sentence order in each of the two cases.
On June 4, 2014, in CR-2009-74 & CR-2009-75, the State filed a petition to revoke the suspended sentences, alleging that appellant was convicted of forgery, a Class C felony, in Howard County, Arkansas, and that he had violated a condition of the suspended sentence in that he had committed a crime against the State of Arkansas.
A hearing was held on June 9, 2014, and the circuit court found that the allegations in the petition to revoke suspended sentence were true. Appellant objected to sentencing without proof of his release from the ADC, and the circuit court took the matter under advisement until June 16, 2014. On June 11, 2014, the State filed a motion to re-open record | afor supplemental proof. On June 16, 2014, the circuit court granted the State’s motion to reopen record for supplemental proof. The State entered a certified copy of the PEN pack, and the circuit court found that appellant had five years remaining on his suspended sentence.
After the revocation hearing, the circuit court found that appellant had violated the terms of his SIS and revoked his suspensions. Based upon that finding, appellant was sentenced, in CR-2009-74, to ten sixty-month sentences to run consecutive to each other and consecutive with the Howard County case and the other Hempstead County cases. In CR-2009-75, the circuit court sentenced appellant to two sixty-month sentences to run consecutive to each other and consecutive with CR-2009-74 and consecutive with the Howard County case and the other Hempstead County cases for a total, in both cases, of sixty years in the ADC. Sentencing orders were filed on June 26, 2014, and amended sentencing orders were filed on July 8, 2014.
Appellant filed a notice of appeal on July 22, 2014, which would have been timely filed as to both the original and amended sentencing orders, but it does not specifically refer to either. In the heading of the notice of appeal, appellant does list both case numbers, CR-2009-74 and CR-2009-75, but in the body, he states only:
The defendant, Michael Todd, hereby gives notice to all interested parties that he intends to appeal the conviction of the jury. The defendant requests that all documents in his court file and the entire transcript be designated as the record in this matter.
Arkansas Rule of Appellate Procedure-Criminal 2(a) (2014) provides in part:
the person desiring to appeal the judgment or order or both shall file with the clerk of the circuit court a notice of appeal identifying the parties taking the appeal and the |4judgment or order or both being appealed. The notice shall also state whether the appeal is to the Court of Appeals or to the Supreme Court.
We hold that appellant’s notice of appeal is flagrantly deficient with respect to these requirements. We decline to say the order appealed from is easily identifiable because the notice does not specify the orders. Also, the notice of appeal states that he was appealing a “conviction of the jury,” when this was a revocation before the circuit court. Finally, the notice of appeal does not state to which appellate court he is appealing.
Our supreme court has held that whether an appellant has filed an effective notice of appeal is always an issue before the appellate court. Smith v. State, 2009 Ark. 85, 2009 WL 416464. The filing of a notice of appeal is jurisdictional. Id. Absent an effective notice of appeal, this court lacks jurisdiction to consider the appeal and must dismiss it. Id.
On the civil side, in Brown v. United Bank, 2014 Ark. App. 643, 448 S.W.3d 726, we held that a notice of appeal that fails to designate the judgment or order appealed from as required under the rules of appellate procedure is deficient, but such a defect is not necessarily fatal to the notice where it is clear which order the appellant is appealing and the notice was filed timely as to that order. Ark. R.App. P.-Civ. 3(e). But see Smith v. Freeman, 2014 Ark. App. 569, at 2, 2014 WL 5384993, where this court held:
Normally, where an appellant attempts to designate the order-and simply misidentifies the order by date, our courts will find substantial compliance. The present situation, however, does not involve accidental inaccuracy. Appellant made no attempt to designate the order appealed. He merely requested “the case cited above be appealed.” Such an omission forecloses the possibility of substantial compliance with Rule 3(e). These deficiencies in appellant’s notices of appeal prevent us from establishing whether appellant’s appeal is timely and, accordingly, whether we have jurisdiction.
In Duncan v. Duncan, 2009 Ark. 565, 2009 WL 3786850, the supreme court held thht, when it was clear which order the appellant was appealing from given the issues raised in the notice of appeal, an inaccurate date listed for the order appealed from in the notice of appeal was merely a scrivener’s error. The only criminal cases citing Duncan are Edwards v. State, 2014 Ark. 185, 2014 WL 1673751, and Hayes v. State, 2011 Ark. App. 79, 381 S.W.3d 117, but the facts are not identical. And in Callaway v. Abshure, 2013 Ark. App. 21, at 2, 2013 WL 168012, our court distinguished Duncan and noted that
[o]ur courts require substantial compliance with [Ark. R.App. P.-Civ. 3(e) ]. Consequently, where an appellant attempts to designate the order appealed from and simply misidentifies the order by date, our courts will find substantial compliance despite the inaccuracy or “scrivener’s error.” The present situation, however, does not involve an inaccuracy or a scrivener’s error. Unlike the appellants in the cited cases, Calla-way did not ascribe an incorrect date to the order appealed from or make a similar mistake. Rather, he made no attempt at all to “designate” the order appealed from, as required by Rule 3(e). He merely stated that he objected to “the order” entered in the case. Because such an omission forecloses the possibility of substantial compliance with Rule 3(e), Callaway’s notice of appeal is ineffective, and we must dismiss the appeal.
In a recent opinion, we stated, “Pursuant to Rule 3, a notice of appeal must designate the judgment or order appealed from, and an order not mentioned in the notice of appeal is not properly before an appellate court.” Johnson v. De Kros, 2014 Ark. App. 254, at 11, 435 S.W.3d 19, 26.
Accordingly, despite appellant’s notice of appeal being timely filed, the language of the notice of appeal does not fairly and accurately inform us of (1) the order(s) being appealed from as required by Rule 2(a), (2) the appellate court to which he is appealing, or (3) whether the order(s) resulted from a bench hearing rather than a jury trial. Appellant’s notice |6of appeal fails to substantially, or otherwise, comply with Rule 2(a). Accordingly, we dismiss the appeal.
Appeal dismissed.
Virden and Hixson, JJ., agree. | [
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ROBIN F. WYNNE, Associate Justice
|, This is an appeal from the Lee County Circuit Court’s order granting appellee Ulonzo Gordon relief in his habeas-corpus proceeding upon finding that the holding of Miller v. Alabama, — U.S. -, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), which prohibited mandatory sentences of life without the possibility of parole for juvenile offenders, applies retroactively. On appeal, Wendy Kelley, Director, Arkansas Department of Correction (the State), argues that the circuit court erred by ruling that Miller applies retroactively and that the circuit court’s equal-protection/due-process ruling was erroneous. We affirm.
This is the second time this habeas appeal has been before us. Previously, this court reversed for failure to follow the procedures mandated by our habeas-cor-pus statutes, beginning with making a finding of probable cause to issue the writ, and remanded the case to the circuit court. Hobbs v. Gordon, 2014 Ark. 225, 434 S.W.3d 364. As set out in that opinion,
|aOn June 16, 1995, a Crittenden County jury convicted appellee, Ulonzo Gordon, of capital murder and sentenced him to mandatory life without the possibility of parole. We affirmed his conviction, as well as the sentences and convictions of his two codefendants in Cooper v. State, 324 Ark. 135, 919 S.W.2d 205 (1996), overruled on other grounds by MacKintrush v. State, 334 Ark. 390, 978 S.W.2d 293 (1998). Gordon subsequently filed a Rule 37 petition seeking post-conviction relief which the circuit court denied. We affirmed the circuit court in Gordon v. State, No. CR-96-878, 1997 WL 583031 (Ark. Sept. 18, 1997) (unpublished opinion).
On June 24, 2013, Gordon filed a petition for writ of habeas corpus pursuant to Ark.Code Ann. § 16 — 112— 118(b)(l)(A)-(B) (Repl. 2006), alleging that he was being held without lawful authority pursuant to Miller v. Alabama, - U.S. -, 132 S.Ct. 2455,183 L.Ed.2d 407 (2012), and asserting that his sentence to life imprisonment was illegal because he was a juvenile at the time of the offense. Gordon further asserted that the Crittenden County Circuit Clerk entered the wrong birth date on his judgment and commitment order having stated that his birthday was August 18, 1976. However, Gordon claimed that his birthday was August 18, 1977, which would make Gordon seventeen years old and a juvenile at the time of the offense. -
Id. at 1-2, 434 S.W.3d at 365-66. On August 23, 2013, without holding a hearing, the circuit court granted Gordon’s petition, vacated and set aside Gordon’s sentence, and reinvested the Crittenden County Circuit Court with jurisdiction to conduct resentencing proceedings. Id. The State appealed, and we held that while Gordon’s claim was cognizable in habeas-corpus proceedings, the circuit court had not followed the procedures mandated by our habeas-corpus statutes and, as noted above, reversed and remanded. See id.
On remand, the circuit court entered an order finding probable cause to believe that Gordon was being held without lawful authority within the meaning of Arkansas Code Annotated sections 16-112-101 et seq. and issued the writ. The Director of the Arkansas Department of Correction filed a return, stating that Gordon was in his custody based upon Gordon’s conviction for capital murder in Crittenden County Circuit Court Criminal Case |sNo. 95-149. Pursuant to Arkansas Code Annotated sections 116-112-108(c)(2) & - 109(a), the director- attached copies of the judgment and commitment order and Gordon’s institutional file. The judgment and commitment order reflects that the date the murder was committed was January 28, 1995, and that Gordon’s date of birth is August 18,1976.
At the hearing before the circuit court, at which Gordon was present, the parties presented evidence on the issue of Gordon’s true date of birth. As the circuit court’s finding that Gordon was born on August 18, 1977 — not 1976, as reflected on the judgment and commitment order — is not challenged on appeal, it is not necessary to address the details of that evi dence. The circuit court also heard argument regarding whether Miller should be applied retroactively to afford Gordon relief. At the conclusion of the hearing, the court ruled from the bench that Gordon was entitled to relief, and a written order was subsequently entered as follows:
1. That Ulonzo Gordon was born on August 18, 1977. The murder for which he was convicted occurred on January 28, 1995. Thus, Gordon was under 18 years of age at the time of the murder.
2. That habeas corpus is the proper procedure to bring this claim.
3. That Miller v. Alabama/Jackson v. Hobbs [— U.S. -], 132 S.Ct. 2455 [183 L.Ed.2d 407] (2012), is retroactive. The Court finds that the clear intent of the United States Supreme Court in Miller/Jackson, as demonstrated by its reliance on fully retroactive cases; that the distinction between Miller’s situation on direct appeal and Jackson’s post conviction situation is of such jurisprudential significance under Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060 [103 L.Ed.2d 334] (1989), and other cases explaining the Teague rule that Jackson’s case would have been decided differently if Miller/Jackson was not retroactive; that Miller/Jackson ... is retroactive as a matter of state constitutional law as well; and considering that Jackson is an Arkansas case and Jackson has obtained relief, it would also violate Gordon’s federal and state constitutional rights of due process and equal protection to treat Gordon differently than Jackson.
|44. The Court thus vacates Gordon’s sentence of life imprisonment without parole imposed by the Crittenden Circuit Court and remands the matter to that Court for appropriate resentencing proceedings.
The State now brings this appeal.
In Miller v. Alabama and its companion case, Jackson v. Hobbs, — U.S. -, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), the Supreme Court of the United States consolidated two cases for review of the constitutionality of mandatory sentences of life imprisonment without the possibility of parole for crimes committed by juveniles. The court summarized its decision as follows:
The two 14-year-old offenders in these cases were convicted of murder and sentenced to life imprisonment without the possibility of parole. In neither case did the sentencing authority have any discretion to impose a different punishment. State law mandated that each juvenile die in prison even if a judge or jury would have thought that his youth and its attendant characteristics, along with the nature of his crime, made a lesser sentence (for example, life with the possibility of parole) more appropriate. Such a scheme prevents those meting out punishment from considering a juvenile’s “lessened culpability” and greater “capacity for change,” Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 2026-2027, 2029-2030, 176 L.Ed.2d 825 (2010), and runs afoul of our cases’ requirement of individualized sentencing for defendants facing the most serious penalties. We therefore hold that mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on “cruel and unusual punishments.”
Id. at 2460. Notably, Jackson v. Hobbs was an Arkansas case on collateral review. On remand from the United States Supreme Court this court reversed the denial of Kuntrell Jackson’s petition for writ of habeas corpus and issued the writ. Jackson v. Norris, 2013 Ark. 175, 426 S.W.3d 906. We further remanded the ease to the Jefferson County Circuit Court with instructions that the case be transferred to the Mississippi County Circuit Court and instructed that a sentencing hearing be held in the Mississippi County Circuit Court where Jackson was to have the opportunity to present for consideration evidence that would | .^include that of his “age, age-related characteristics, and the nature of his crime.” Further, we rejected the State’s argument that this court could sentence Jackson to a mandatory sentence of life imprisonment with the possibility of parole, and we instructed that his sentence must fall within the statutory discretionary sentencing range for a Class Y felony of not less than ten years and not more than forty years, or life. Ark.Code Ann. § 5-4-401(a)(1) (Repl. 1997).
In the present case, the State argues in its first point on appeal that the circuit court erred by ruling that Miller is applicable retroactively because (1) it is not retroactive under Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989); (2) neither Miller nor Jackson v. Norris, 2013 Ark. 175, 426 S.W.3d 906, implies that the Miller rule is retroactive; (3) Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), and Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), do not make Miller retroactive; and (4) there is no basis in state law to hold Miller retroactive. For its second point on appeal, the State contends that the circuit court’s ruling regarding equal protection and due process was erroneous.
| fiIn Teague v. Lane, supra, the United States Supreme Court adopted a new approach to retroactivity for criminal cases announcing new rules. The court held that, unless they fall within an exception to the general rule, new constitutional rules of criminal procedure will not be applicable to cases that have become final before the new rules are announced. Teague, 489 U.S. 288, 310, 109 S.Ct. 1060 (plurality opinion). However, while many states have chosen to do so, this court is not required to follow Teague. In Danforth v. Minnesota, 552 U.S. 264, 128 S.Ct. 1029, 169 L.Ed.2d 859 (2008), the United States Supreme Court held that the Teague rule does not constrain the authority of state courts to give broader effect to new rules of criminal procedure than is required by that opinion.
We- have never expressly adopted the Teague rule, and we hold that the particular posture of this case makes it unnecessary to decide as a general matter whether this court will do so. This court has al ready granted relief to Kuntrell Jackson on remand from the United States Supreme Court. Of course, Jackson was entitled to the benefit of the United States Supreme Court’s decision in his own case. Yates v. Aiken, 484 U.S. 211,108 S.Ct. 534, 98 L.Ed.2d 546 (1988). Nonetheless, as it now stands, a juvenile offender sentenced to an unconstitutional mandatory sentence of life without the possibility of parole by the State of Arkansas has obtained a new sentencing hearing. It would be patently unfair to decline to do so for other prisoners who are similarly situated. Teague, 489 U.S. at 300, 109 S.Ct. 1060 (“[Ojnce a new rule is applied to the | defendant in the case announcing the rule, evenhanded justice requires that it be applied retroactively to all who are similarly situated.”). Therefore, as a matter of fundamental fairness and evenhanded justice, we affirm the circuit court’s order vacating Gordon’s sentence of life without parole and reinvesting the sentencing court with jurisdiction to hold a new sentencing hearing under Miller. Gordon is entitled to the same relief from his unconstitutional sentence as Kuntrell Jackson received — namely, a sentencing proceeding at which he will have the opportunity to present Miller evidence.
We are not unmindful of the State’s arguments regarding fairness to those involved in and affected by Gordon’s trial and sentencing. The State argues that Gordon received a fair trial and lawful sentence at the time of his conviction, and it would upset the expectations of all involved to vacate his sentence and have a new sentencing proceeding. Furthermore, the State argues that the costs, both in resources and human suffering, particularly that of the victim’s family, should not be forgotten. These are compelling interests, but we hold that-the Eighth Amendment’s ban on cruel and unusual punishment outweighs the factors favoring finality.
Because we affirm for the reason stated above, we do not address the circuit court’s equal-protection and due-process rulings. In sum, we affirm the circuit court’s order vacating Gordon’s sentence of life imprisonment without parole and remanding to the Crittenden County Circuit Court for appropriate resentencing proceedings.
Affirmed.
. While we are not asked to decide the appropriate sentencing range in this case, we note that the General Assembly has amended the Criminal Code regarding the permissible sentences for those under the age of eighteen who commit capital murder. 2013 Arkansas Laws Act 1490. The intent of the General Assembly was expressly stated as follows:
(a) It is the intent of the General Assembly to revise the punishments authorized for persons who are not yet eighteen (18) years of age when they commit capital murder after the effective date of this act.
(b) It is not the intent of the General Assembly to authorize the revised punishments for those persons who committed capital murder when they were not yet eighteen (18) years of age prior to the effective date of this act.
Act of Apr. 22, 2013, No. 1490, § 1, 2013 Ark. Acts 6587, 6588.
. E.g., In re New Hampshire, 166 N.H. 659, 103 A.3d 227, 236 (2014) (concluding that, pursuant to the Teague framework, the rule announced in Miller constitutes a new substantive rule of law that applies retroactively to cases on collateral review); Ex parte Maxwell, 424 S.W.3d 66, 71 (Tex.Crim.App.2014) ("[w]e follow Teague as a general matter of state habeas practice.”); Jones v. State, 122 So.3d 698, 701 (Miss.2013) ("This Court expressly has adopted Teague's ‘very limited retroactive application standard.' ”). | [
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McCulloch, C. J.
Otis G. Baw, a resident of Prairie County, died intestate and without issue in said county on December 22, 1918, and his sister, who is one of the heirs, applied to the probate court for letters of administration, which were duly granted by that court. She filed a claim against the estate for services rendered the decedent, and on presentation of the claim to the probate court it was set down for hearing on May 10, 1920. The two other heirs were infants and appeared in the probate court by guardian to resist the allowance of the aforesaid claim 'against the estate and procured a postponement of the trial for the purpose of filing an answer and taking depositions. Before the day for trial in the probate court, said infants by their guardian, instituted an action in the chancery court of Prairie County, setting forth the death of Otis Gr. Baw and the fact that appellant and said infant plaintiffs were the heirs-at-law, and that appellant had been appointed administratrix of said estate and had presented a claim for allowance against the estate.
It was further alleged in the complaint that Otis Gr. Baw left a large amount of personal property, consisting of money in bank and other personal property, amounting in the aggregate to the snm of $16,000, and “that the said Eva Baw Nissen was fraudulently attempting to set up some kind of indebtedness due by the said Otis Gr. Baw to her, and through fraud was attempting to have herself appointed, and did have herself appointed for that purpose, as administratrix for said estate with the fraudulent purpose of presenting said claim individually and of failing- to make any defense against the same as administratrix and of thus fraudulently endeavoring to obtain a judgment against said estate.” It was further alleged that appellant “had moneys belonging to said estate in her possession and had personal property of said estate, in her possession amounting to at least $16,000 and was fraudulently secreting and hiding-same and withholding same.” And it was also alleged that Otis Gr. Baw was not indebted to appellant in any sum or to any other person and that there were no debts of the estate.
The prayer of the complaint was that appellant be required to answer and make disclosure of all real estate which had been conveyed to her by said Otis Gr. Baw and of all moneys and other personal property which had come to her hands and that on final hearing there be a partition of all the property owned by the said Otis Gr. Baw between appellant and the plaintiffs in that action and that appellant be restrained from any further proceeding in the probaté court toward the allowance of her claim against said estate and from selling or obtaining an order to sell the property of said estate.
The chancellor granted a temporary injunction in vacation. Appellant appeared before the chancellor at the time and made objection to the jurisdiction of the court, which objection was overruled, and the injunction issued over objections of appellant. She has appeared here and 'filed her petition for writ of prohibition to restrain further proceedings in that cause in the chancery court. The chancellor has responded, and asserts that the chancery court has jurisdiction of the cause of action set forth in the complaint. He also demurs to the petition on the ground that the court should not restrain his action in issuing the temporary injunction in vacation. The complaint in the action in which the chancery court is sought to be restrained is clearly an attempt to lift the administration proceedings out of the probate court. This is not within the jurisdiction of the chancery court. Reinhardt v. Gartrell, 33 Ark. 728; Brice v. Taylor, 51 Ark. 75.
The action of the probate court in appointing the administratrix was conclusive of the necessity for administration (Lambert v. Tucker, 83 Ark. 416), and the chancery court can not assume jurisdiction to set aside the order for fraud. It is not an instance of an insufficient statement of a cause of action in a court having jurisdiction, but it is one where the court is entirely without jurisdiction of the subject-matter. This being true, prohibition is the appropriate remedy.
There is no appeal allowed from an order of a chancellor in vacation granting an injunction, and this is not an indirect attempt to have this court review the action of the chancellor in granting the injunction. The relief now sought is to prevent the chancery court from further proceedings, and the writ, if granted, will be in restraint of the court itself, and not of the chancellor in vacation. The proper practice ordinarily is not to grant a writ of prohibition until objection to the jurisdiction is made in the court below, but, since the chancellor has appeared here in response to the petition and asserts jurisdiction of his court, to proceed in the action, it is unnecessary to await the making of a formal objection in the chancery court when it convenes in session. Monette Rd. Imp. Dist. v. Dudley, 144 Ark. 69.
The writ of prohibition will therefore, be awarded in accordance with the prayer of the petition in restraining the chancery court from further proceeding. | [
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Humphreys, J.
Appellant was indicted, tried and convicted in the Baxter Circuit Court for the crime of murder in the first degree, and his punishment fixed at a life term of imprisonment in the penitentiary. From the judgment of conviction, an appeal has- been duly prosecuted to this court.
A copy of the indictment was delivered to appellant on the 9th day of March, 1920. On the next day, and within forty-eight hours after a copy of the indictment was delivered to appellant, he was arraigned and entered a plea of not guilty. After entering the plea of not guilty, and without having withdrawn same, appellant objected to the ruling of the court in arraigning and requiring him to plead at that time.
It is insisted that the court committed reversible error in arraigning and requiring appellant to plead within forty-eight hours after a copy of the indictment was delivered to him. In support of this contention, appellant cites section 2274 of Kirby’s Digest, which is as follows: “It shall be the duty of the clerk of the court in which an indictent against any person, for a capital offense, may be pending, whenever the defendant shall be in custody, to make out a copy of such indictment, and cause the same to be delivered to the defendant or his counsel at least forty-eight hours before he shall be arraigned on such indictment; but the defendant may, at his request, be arraigned and tried at any time after the service of such copy.”
This section is mandatory, and, had appellant objected he could not have been arraigned until the expiration of forty-eight hours after the delivery of a ¿opy of the indictment to him. Appellant did not object to arraignment, or to entering a plea to the indictment. On the contrary, according to the record, he was arraigned and entered his plea of not guilty. The purpose of the statute was to give one charged with a capital offense' forty-eight hours after receiving a copy of the indictment within which to consider what course to pursue in reference to the indictment or what plea to make to it. In the instant case, appellant, having pleaded to the indictment when arraigned without objection, waived his statutory right of forty-eight hours for consideration, and cannot thereafter be heard to complain that he was arraigned before the expiration of forty-eight hours after a copy of the indictment was delivered to him. Again, the objection made to arraignment after appellant had been arraigned and entered his plea of not guilty was not specific. The objection simply stated that appellant objected to being arraigned at that time, and did not give the ground of the objection. For aught that appears, he may have objected to arraignment for some other reason than the fact that forty-eight hours had not expired after the delivery of a copy of the indictment to him.
It is next insisted that the court erred in refusing to grant a new trial on account of the disqualification of U. I. Hornbuclde, one of the jurors who sat in the case. Appellant sought to show by affidavits that, although U. I. Hornbuclde qualified himself as a juror on his voir dire, after the trial it was discovered that he had made statements to disinterested parties to the effect that T. T. Lee was guilty and that he, the said juror, could burn the s— of a b—. The juror, under oath, denied making such statements. This assignment of error cannot be considered by the court on appeal for the reason that the assignment of error was brought into the record by a supplemental motion for a new trial, which was filed in April, after the adjournment of court until court in course. The court necessarily adjourned on the 27th day of March, because, under the law, it was required to meet in Izard County on the 4th Monday in March, which was the 29th day of March. The record recites that “Now, on this ............day of April, 1920, comes the defendant (appellant) • and filed a supplemental motion for a new trial supported by the affidavits of” numerous parties therein named. #The prayer for appeal from the judgment herein was made on the 20th day of March, 1920, immediately after the motion for a new trial was overruled. No prayer for appeal was made and no appeal was granted after the supplemental motion for a new trial aforesaid was filed, but the supplemental motion was filed after the original prayer for appeal was made and granted.
Appellant was charged with assassinating K. V. Loba. The evidence disclosed that the said K. V. Loba was assassinated on November 13,1919, about six o’clock p. m., at his home, near Cotter, in Baxter County. At the time he was assassinated he was sitting at the dining-room table with his back toward the window through which the assassin’s bullet came. The bullet entered the body of deceased on the left side at the lower part of the shoulder blade, ranged upward and came out on the opposite side. The testimony of the State tended to show that appellant had quarreled with deceased over a settlement and threatened to get even with him if it took a lifetime; that, on the night preceding the tragedy, a horse was seen hitched near and a man was seen around deceased’s home; that the horse was the same horse appellant, was riding at the time of his arrest; that, immediately after the shot was fired, appellant was seen looking from the outside through the window whence the bullet came; that appellant stepped off the porch over the banister and disappeared. That appellant was seen at Cotter at 10:30 p. m.; that the next morning, early, a man resembling appellant was seen on a horse resembling appellant’s horse near Pontiac, Missouri, about thirteen miles from Cotter that, at the time appellant was arrested, he was asked whether he intended to kill that man when he shot through the window, to which he responded, “I wanted a settlement;” that at the time appellant was arrested, he had a 38 pistol, wrapped in rags, a false face, a false mustache, a telescope, pistol and Winchester shells.
Appellant’s evidence tended to show that he was at Cotter, about five miles from the home of the deceased, between five and six o’clock p. m., on the night deceased was assassinated.
On the twelfth day of March, 1920, appellant moved the court for an order to take the deposition of Ed. Paddock and others, who resided in Missouri, by whom he expected to prove that he was in Jackson County, Missouri, on the night the killing occurred, at a point about 210 miles, distant from the scene of the tragedy. The court granted the request. On the 15th day of March, the day set for the trial, appellant renewed the motion. The court refused to grant the motion. It is urged that the court committed reversible error in overruling it. No showing was made as to why the depositions had not been taken under the first order. No good excuse having been presented, it cannot be said that the court abused its discretion in refusing further' time in which to secure the depositions.
The motion for continuance was filed by appellant on the same day in order that he might procure the depositions of said parties and the evidence of John Hon, who lived in Marion County, Arkansas, and who would testify, if present, that, a short time after the tragedy, a man ran into his house and informed him that he had killed a man in the same vicinity where the tragedy occurred and that bloodhounds were chasing him; that the’ man who made this confession was not appellant. The court overruled the motion for a continuance, which action on the part of the court is urged as reversible error. While the motion alleged that diligence was used to procure the depositions of the Missouri witnesses, none was shown. It w.as not shown that appellant could not establish his alleged alibi by other witnesses. The alibi sought to be established was in direct conflict with appellant’s own witnesses who testified that he was in Cotter at the time of the murder. Neither does it appear that diligence was used by appellant in procuring the attendance and evidence of John Hon. No process had been requested or issued for him. The acts of diligence in attempting to procure the depositions of the Missouri witnesses and the attendance of John Hon should have been shown. Dent v. People’s Bank of Imboden, 99 Ark. 581, and cases cited therein to the same point.
Lastly, it is insisted that the court erred in refusing to give appellant’s requested instruction No. 1-A, which is as follows: “You are instructed that it is the privilege of the defendant to either testify in his own behalf, or decline to so testify. The failure to testify is neither an evidence of his guilt or a presumption of law or fact of his guilt. Such fact.is not to be considered by you in determining his guilt or innocence in this case.”
This instruction is a correct declaration of the law, but was not requested until the attorney for the State had made the opening- argument and imtil counsel for appellant had completed their first argument. It is provided by section 2382 of Kirby’s Digest that “When the evidence is concluded, the court shall, on motion of either party, instruct the jury on the law applicable to the case.” It is said by Mr. Thompson on Trials, section 2358, concerning statutes of this character, that “In several jurisdictions the rule prevails that requests-for instructions must be presented to the judge before the commencement of the argument of the cause to the jury, and that, if not so presented, it is not error to disallow them, though the judge may allow them in his discretion. It is an objectionable practice to allow counsel to send up these points after the argument is closed. * * * In Indiana it is not error for the court to refuse to submit interrogatories to the jury after the argument has commenced. At this stage of the proceedings, the court may, but is not bound to, submit them.” To the same effect, see, also, Hege v. Newsom, 96 Ind. 426.
No error appearing, the judgment is affirmed. | [
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Smith, J.
This is an action to enjoin an alleged unlawful assessment of benefits of a local improvement district. The complaint alleged that the plaintiff, who is the appellant here, is a real estate owner in Sewer Improvement District No. 1 and Waterworks District No. 1, of Nashville, Arkansas, the said districts being coterminous and coexistent, and that both had been recently organized for the purpose of furnishing water and sewer service to the citizens of the city of Nashville. That in pursuance of the purpose and object of the said improvement districts assessments had been made against the real property in said districts for both water and sewer purposes, and that an additional or supplemental assessment had been made against the property of the district for sewer purposes. It was further alleged and shown that appellant’s property was assessed for State and county taxes upon a valuation of $7,000, and that his assessment for the waterworks was $4,000 and for the sewer $3,000, with a supplemental assessment for the sewer district of $1,000. That appellant had appealed from this additional assessment of $1,000 for the sewer district, and at a meeting of the city council, at which his appeal was heard, that assessment was reduced to $500. That the council refused to strike off the remaining additional assessment of $500, and this suit was brought to cancel that assessment.
The authority of the district to make the additional assessment which was made against all the lands in the city is not raised or questioned, except appellant says as to Ms property it is excessive, discriminatory and confiscatory.
Appellant’s chief insistence is that the assessment is confiscatory, and in his brief it is pointed out that the total assessment for the two improvements exceeds the assessed value of his property for State and county taxation. It is argued that the valuation for State and county taxation is the actual value of property, so far as it is important to consider what the market value of property is in making assessments of benefits for local improvements in municipalities; and it is insisted that there can be no assessments of benefits for these local improvements in excess of the valuation fixed for State and county purposes. It is true that the statute provides that the total cost of any single improvement district in a municipality shall not exceed 20 per cent, of the valuation of the property in the district as assessesd for State and county taxation. But it has been held that this limitation' does not exist against each separate tract or block of land; but the limitation is against the total valuation of all the property in the district. Kirst v. Improvement District, 86 Ark. 1; White v. Loughborough, 125 Ark. 63. There is no provision that the assessment of benefits against a particular piece of property shall not exceed the valuation as fixed for State and county purposes. We judicially know that in no case is this valuation supposed to exceed 50 per cent, of the market value of the property, that being the basis upon which the assessments are made; and, practically speaking, it is no doubt true that in many cases the assessed value for State and county purposes does not equal 50 per cent, of the market value. Indeed, while appellant’s property is assessed for State and county taxes at only $7,000, no contention is made that that sum represents even half its market value. Upon the contrary, the admission is made that the cost of the construction of the building in 1913 was $17,000 or $18,000. Of course, there is a constitutional limitation that no assessment for an improvement shall exceed the enhanced value or benefit to be derived from the improvement; but this limitation has never been construed as meaning that the valuation for State and county purposes imposes a limitation beyond which betterments may not be imposed for improvement district purposes—if benefits in excess of that valuation will be derived from the improvement.
In opposition to the proposed additional assessment, appellant testified that he would be unable to realize any more income by reason of said improvements, and that burdening it with these assessments was confiscatory. Appellant also testified that he had a private sewerage and water system for his building. It was shown, however, that the property in question comprised the finest building in the city, and it was not shown that the property would not be very substantially benefited by a general waterworks system, with sewerage for the town at large.
Appellant compares the assessment of his property with that on another building having more floor space but neither water nor sewer facilities, and yet with a smaller assessment of betterments, and offers this circumstance as conclusive proof of a discriminatory assessment. It must be remembered, however, that the assessment complained of was made by officers whose duty it was to become familiar with the physical conditions of the property against which they assessed the anticipated benefits to result from the proposed improvement; and, as we said in the case of Board of Improvement v. S. W. Gas & Electric Co., 121 Ark. 112: “It is our duty to accept as correct the assessment of the board of assessors unless it is affirmatively and satisfactorily shown that the assessment is incorrect. McDonnell v. Improvement District, 97 Ark. 334.”
Appellant was not the only owner whose benefits were assessed at a sum in excess of the valuation fixed for State and county taxation; and it is not shown that those other owners complained, or that their assessments were reduced, and the record does not warrant us in concluding that appellant has been discriminated against.
Appellant’s property was assessed in the usual manner by the assessors, and that assessment was reviewed by the town council, where a reduction of $500 in the assessment was made, and an assessment of only $500 was allowed to stand against the property. The question, therefore, is, whether this $500 assessment should be stricken from the assessment roll.
There is no way to measure with mathematical exactness what the enhanced value will be from a proposed improvement, as this is very largely a matter of opinion, and necessarily a question about which opinions are widely variant; and, as we clo not think the case made warrants us in reversing the decree of the court below, in which the assesssment complained of was approved, that decree must be affirmed, and it is so ordered. | [
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McCulloch, C. J.
(on motion to dismiss appeal). This cause was instituted in the chancery court of Baxter County by appellee South and was tried before Joseph W. Stayton as special chancellor, the Honorable L. F. Reeder, chancellor of the district, being disqualified. The record shows that at the regular October term for the year 1919, of the Baxter Chancery Court, Mr. Stayton was duly elected as special chancellor to hear this cause, and that all of the parties, acting through their respective solicitors, agreed to try the cause before the special chancellor at the latter’s office in Newport, in Jackson County. The cause was heard by the special chancellor at Newport, according to the agreement above recited, on October 24, 1919, the Baxter Chancery Court being in session on that day at the courthouse at Mountain Home, the county seat of Baxter County, the regular chancellor presiding, and a decree was pronounced by the special chancellor at Newport on that day, but was not entered on the records of the court until January 6, 1920, which was after the adjournment of the court for the term. The transcript with a prayer for appeal was lodged in this court on July 2, 1920. The decree entered as aforesaid recites all of the above facts and also recites that an appeal was prayed for and granted on October 24, 1919, the day of the pronouncement of the decree.
Learned counsel, in support of the motion to dismiss the appeal invokes the rule announced by this court that the time prescribed by statute for taking an appeal runs from the date of rendition of the judgment appealed from—not from the-date of its entry on the record. Chatfield v. Jarrett, 108 Ark. 523. If that rule be applied, then the appeal was obtained too late, for it was obtained more than six months after the rendition of the decree, though within six months'after its entry on the records. The decree was not rendered by the spe cial chancellor at the place prescribed by law for holding court in Baxter County, but was rendered in another county while the regular chancellor was holding court at the courthouse in Mountain Home. This was done by consent, but jurisdiction can not be thus conferred. A court can not be in session at any other time or place than that prescribed by law. Mell v. State, 133 Ark. 197. Nor can a special judge hold court at one place while the regular judge is holding court at another place. State ex rel. v. Williams, 48 Ark. 227; Streett v. Reynolds, 63 Ark. 1.
The trial before the special chancellor, and the decree rendered by him, amounted therefore to no more than vacation proceedings, and their validity must be tested as such.
Counsel insist that the proceedings were valid under the statute (Acts 1913, p. 318) which provides that a chancellor may by consent of parties “try causes and deliver opinions, and make and sign decrees in vacation, ’ ’ and that ‘‘ decrees which the chancellor may make in vacation shall be entered and recorded on the records of the court in which the cause or matter is pending and shall have the same force and effect as if made, entered and recorded in term time, and appeals may be had therefrom as in other cases.” Under this statute a vacation decree does not become effective until it is signed and entered of record, and until it is so entered, it can not be appealed from, therefore, the time allowed for taking an appeal runs from the date of entry. In this respect a vacation decree differs in effect from one rendered in term time. In the very nature of things, a judgment pronounced by a judge in vacation does not, before entry, have the force and effect of a judgment pronounced by a court duly assembled at the time and place prescribed by law, unless the statute in express terms gives it such force.
The rule’ announced by the authorities is that the time for appeal runs from the date of entry of a judgment unless the plain language of the statute is to the contrary.
This being true, the appeal was taken and the transcript was lodged here in time. But there is another question necessarily presented in the record which can not be ignored, though not assigned in the motion as grounds for dismissing the appeal. Can a special chancellor either render or enter a decree in vacation? If not, there is no final decree in this cause to appeal from.
The Constitution (art. 7, § 21) provides for the election of a special judge in the absence of the regular judge and specifies that the authority of such special judge ‘ ‘ shall cease at the close of the term at which the election shall be made.”
Counsel contend that this provision applies only to circuit judges and not to chancellors, but this court decided to the contrary in Goodbar Shoe Co. v. Stewart, 70 Ark. 407, and cited in support of the decision the provision referred to above.
We do not think that the Legislature has attempted to confer authority on special chancellors to render decrees in vacation. The act of February 21, 1913, supra, only provides that a chancellor may try causes and render decrees in vacation. If it had been intended to refer to special chancellors, it would have been so specified. There being no valid final decree, the cause stands on the docket of the Baxter Chancery Court for further proceedings as if no appeal had been taken.
The appeal is therefore premature, and for that reason will be dismissed. It is so ordered.
Wood and Humphreys, JJ., dissent. | [
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McCulloch, C. J.
(On motion to dismiss appeals). The plaintiffs, Camden National Bank, Cotton Belt Savings & Trust Company, First National Bank of Fort Smith, C. H. Triplett, Standard Lumber Company, Hammett Grocer Company and Citizens Bank of Pine Bluff and certain other parties who have not attempted to appeal and do not now appear in this court, instituted separate actions against the defendants, George W. Dona gliey and certain others, sued as alleged copartners, to recover money due from the copartnership. The causes of action were separate. Seven of the actions were instituted in the circuit court of Jefferson County, and were subsequently transferred to the chancery court. The other actions were instituted in the Jefferson Chancery Court, and all of the actions were there consolidated pursuant to the statute (Acts 1905, p. 798), which provides that separate causes of like nature may be consolidated for trial.
Defendant Donaghey alone appealed and made defense, and the consolidated causes proceeded to final decree, dismissing each of the complaints against Donaghey for want of equity. The several decrees were, under one caption and under one recital as to the appearances, hut in all other respects the decrees were separate. The day before the expiration of the time allowed by law for appeals to be prosecuted, there was presented to the clerk of this court in writing, the following prayer for appeal:
‘ ‘ In the Supreme Court of Arkansas. ’ ’
Camden National Bank et al., Appellants, v. W. A. Mathews, et al., Appellees.
“motion and prayer, eor appeal.
“Come the appellants, Camden National Bank et al. and pray an appeal to the Supreme Court of the State of Arkansas from the judgment of the chancery court of Jefferson County, Arkansas, rendered in this behalf on the 14th day of January, 1920'.
“Taylor, Jones & Taylor,
“Rowell & Alexander,
“Crawford & Hooker,
“Attorneys for Appellants.”
The clerk endorsed on the above writing the words “Appeal granted” and signed the endorsement and issued summons. All of the plaintiffs above named have since that time filed abstracts and briefs, and the defendant Donaghey now moves against all the parties except Camden National Bank to dismiss the appeals, on the ground that they have not properly appealed.
It will be observed that none of the plaintiffs, save Camden National Bank, are named in the prayer for appeal, unless it be held that the abbreviation “et al.” is sufficient to designate them. The prayer does not refer to the plaintiffs by name or class, but merely refers to “the appellants'Camden National Bank et al.” Is this sufficient to include any of the plaintiffs not expressly named?
An appeal, when granted by the clerk of the court, is in the nature of a new and independent proceeding before a different court than that in which the cause originated, and there must be an appropriate designation, in some form, either expressly or by necessary inference, showing what parties are prosecuting the proceedings. Conceding that the parties could, under the circumstances of this case, jointly prosecute ap1 peals to this court, they have not done so. unless we hold that the abbreviation “et al.” includes them. "We think that by no process of reasoning- can we so hold. The abbreviation used, interpreted literally, is “and another,” and does not indicate which one of the other parties joined in the prayer for appeal. But, assuming that according to popular usage the abbreviation could be interpreted in the plural as “and others,” the designation is no more definite, for it does not show which of the numerous other plaintiffs joined in the appeal. If the word “plaintiffs” had been used, it might be- urged that all of the plaintiffs were joining, but that word was nowhere used in the prayer or caption. The prayer was signed, it is true, by several attorneys, and if we permit ourselves to explore the record to ascertain which of the plaintiffs they severally represented, we would find that each of the attorneys represented more than one of the plaintiffs in the trial below, so the designation would then be equally uncertain, for there is nothing to -show which one of the plaintiffs—whether one or two— joined in the prayer. There seems to be an abundance of authority on this precise question that such a designation of the parties is not sufficient. Miller v. McKenzie, 10 Wall, 582; State v. Canfield, 40. Fla. 36; Cornell v. Franklin, 40 Fla. 149; Sadler v. Smith, 54 Fla. 671, 45 So. 45; Lyman v. Milton, 44 Cal. 630; Brabham v. Custro, 3 Neb. 801, 92 N. W. 989; Cameron v. Sheppard, 71 Ga. 781; Swift v. Thomas, 101 Ga. 89, 28 S. E. 618; Orr v. Webb, 112 Ga. 806.
This rule finds direct support from our own decision in Boqua v. Marshall, 88 Ark. 373. The case of Waters-Pierce Oil Co. v. Van Elderen, 84 Ark. 555, does not, as urged by counsel for plaintiffs, sustain the appeals in the present case. In that case each party specifically prayed an appeal.
The case of Johnson v. West, 89 Ark. 604, has no application to the present case. The defense interposed in that case was common to all and was a joint one, the appeal was granted by the trial court and no question was raised as to which of the defendants attempted to appeal. The record recited that the attorney (naming him) prayed an appeal and that the appeal was granted. The attorney was not a party to the record except as the representative of his clients, all of the defendants and the question for decision whether or not any effect could be given to his prayer for appeal, and this court held that his prayer for appeal was necessarily referable to a prayer in his representative capacity for his clients. The instant case presents no such state of facts. Neither does the case of Wimberly v. State, 90 Ark. 514, cited by counsel, have any application. That case involved the question of the right of the proper party to .adopt an appeal taken by another.
However, it is not correct to say that the appeals ought to be dismissed, for there are no appeals properly here except that of Camden National Bank. The abstracts and briefs of the other plaintiffs will be stricken out, for the reason that they have not appealed. It is so ordered. | [
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Humphreys, J.
On April 12, 1920', appellants filed a petition in the Cross Circuit Court to remove appellees from the board of commissioners of Bayou DeView Drainage District No. 1 of Cross, Jackson and Woodruff counties, which petition was as follows:
“In the Cross Circuit Court.
“In Matter of Bayou DeView Drainage District No. 1 of Cross, Jackson and Woodruff Counties, Arkansas.
• “Petition for Removal of Commissioners.
“The undersigned real property owners in said drainage district respectfully ask that this court remove J. F. Shue, W. F. Beede, and R. J. Kibler, the present Board of Commissioners for the said district.”
A short time thereafter, on the same day, appellants, through their attorney, filed a motion to docket the application for removal, which motion is as follows: “Come your petitioners who have on this date filed herein their petition requesting the removal of the present commissioners of said district, J. F. Shue, W. F. Beede and R. J. Kibler. A copy of said petition is filed herewith and made a part of this motion, marked exhibit “A” and moves the court that this cause, or matter, be docketed.
“And your petitioners in this motion represent that they constitute a majority of the real property owners in said district, and also that they are the owners of a majority in acreage, or more than fifty per cent, of the lands in said district, and respectfully request an order of this court, removing said commissioners.
“E. M. CarlLee, attorney for Dr. R. L. Frazier and others, who filed in this court on this date, petition for removal of the commissioners J. F. Shue, W. F. Beede, and R. J. Kibler.”
By order of the court, the clerk docketed the case. On the same day, appellees, by attorney, filed a demurrer to the petition for removal of said commissioners (omitting caption and signatures), as follows: “Come now the Commissioners of Bayou DeView Drainage District No. 1 of Cross, Woodruff and Jackson Counties, Arkansas, J. F. Shue, R. J. Kibler and F. W. Beede, and demur to the petition of certain landowners of said drainage district .asking for the removal of said commissioners and for cause allege that said petition does not state facts sufficient to warrant or authorize the removal of any one of said commisisoners by said court.”
The court found that the petition did not state any cause for removal of said commissioners, and, upon that ground, sustained a demurrer to it, and, upon failure to plead further, dismissed the petition of appellants, from which judgment of dismissal, an appeal has been duly prosecuted to this court.
Bayou DeView. Drainage District No. 1 of Cross, Jackson and Woodruff Counties, Arkansas, was organized under order of the circuit court of Cross County on May 15, 1915, under act 279 of the Acts of Arkansas, 1909, providing for the creation of drainage districts in this State. The proceeding for the removal of the commissioners was based on the following clause in section 4 of said act: “The county court shall remove any member of the board on the petition of a majority of the owners of lands within the district, who shall also own a majority of the acreage therein.”
Appellants contend that the pleadings filed by them stated a canse of action for the removal of appellees, as commissioners, within the meaning of said clause. Appellees contend that the petition must be treated as the only pleading of appellants in the case, and that the demurrer was properly sustained to that pleading. In other words, appellee contends that the motion to docket the case was no part of the petition, and that the cause for removal specified in the motion can not be regarded as a part of the petition. The petition and motion were filed about the same time on the same day. The petition was referred to and made a part of the motion. It was alleged in the motion that the petitioners constituted a majority of the real property owners, as well as acreage, in said district. We think the two pleadings should be read together, and, when read together, clearly allege a cause of action under said section and act. It is therefore .unnecessary to determine whether the petition alone constitutes a cause of action under said section and act.
Appellees insist that the judgment of the lower court should be sustained because it was not intended by the clause in question to work a removal of the commissioners except for cause. This contention is not supported by the language used. The clause is plain, unambiguous, and clearly mandatory. By it, a majority of the landowners in the district, in number and acreage, can remove commissioners on petition without cause. This interpretation of the clause is correct, because another section of the same act deals with the removal of commissioners for cause. The latter part of section 13 of said act is as follows: “The county court may remove any commissioner and appoint his successor, upon proof of incompetency or neglect of duty; but the charges shall be in writing, and such commissioner shall have the right to be heard in his defense, and to appeal to the circuit court. ’ ’
The judgment is reversed with instruction to rein: state the cause, over the demurrer to the petition, and for further proceedings not inconsistent with this opinion. | [
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McCulloch, C. J.
The subject-matter of this controversy is a house and lot in the city of Little Bock, owned originally by appellee Dortch, who mortgaged it to a trust company of this city, and the mortgage was foreclosed under a decree of the chancery court. The sale by the court’s commissioner took place on March 12, 1915,. and appellant Coates became the purchaser for the price of $982. A few days after the sale Dortch went to appellant and told the latter that he had intended to get some one to buy the property in and give him a chance to pay it out. Whereupon appellant told Dortch that he would accept repayment of all that he was out on the property, together with the taxes and another debt of $57.50 which Dortch owed to appellant, and that he would reconvey the property to Dortch on the completion of such payments. This was a verbal agreement between. the parties and Dortch paid the old debt and a part of the accrued taxes, and about three months after the sale he began to pay rent to appellant for the use of the property—Dortch having remained in possession after the sale and having continued to do so up to the present time. Appellant borrowed $800 from a bank to pay for the property, and, on account of Dortch and his wife being in possession, they, at the suggestion of the bank, joined appellant in the execution of the note and mortgage. This was on August 12, 1915, the day before the sale tó appellant was confirmed by the court. There is a conflict in the testimony as to whether 'or not appellant knew this, but the finding that appellant did know it is not against the preponderance of the testimony. The mortgage was renewed several times thereafter as late as the year 1918, and Dortch and his wife joined in the renewals at the request of the bank. This debt to the bank was subsequently paid to the bank by Dortch, and he continued to make payment to appellant on the accrued taxes. In February, 1916, a friend of Dortch applied to appellant for a statement of the amount necessary for Dortch to pay to redeem the property from sale. Appellant replied to the inquiry by giving a statement of the amount necessary to redeem. In that statement he charged Dortch with the amount paid at the sale, together with the taxes on the property, and credited Dortch with the amount paid by him to appellant. He also charged Dortch with a fee of $50, which he testified was intended as compensation for his services and trouble in the transaction. In this statement he wrote that he bought the property to collect the debt Dortch owed him, expecting the property to be redeemed, as it was worth considerably more than the price paid for it.
Subsequently another oral agreement was entered into between Dortch and appellant in which the latter agreed to allow Dortch to pay $5 per month in addition to the monthly rental price, and that when all the purchase money together with the taxes should be paid, he would accept the sum so paid as a redemption of the property from the sale. Dortch remained in possession, as before stated, and paid the rent of $10 per month and in addition made other payments of $5 per month for three months, and also paid the taxes on the premises. This continued for more than two years, and Dortch continued to pay the rent, but made no further payments in addition to the rent.
This action was instituted against Dortch to recover possession of the property, and it was transferred to equity and proceeded there to final hearing.
Dortch claimed in his answer that the purchase was made for him by appellant at the sale, and that he offered to pay off the balance due to appellant, and when the court rendered a decree in his favor this was done. It was conceded that appellant had the statutory right to redeem the property from the sale. The record evidence of the right of redemption in the mortgage was not introduced, but appellant’s written statement to Mr. English, who was acting for Dortch in the negotiations with appellant, shows that appellant conceded that there was a right of redemption and offered to allow it to be done. During the period of redemption appellant accepted payments from Dortch on the amount to be paid in the redemption of the property from the sale. The amounts were small, it is true, but appellant’s agreement was that in addition to these amounts he would apply the rent toward the redemption of the property.
Appellant pleaded the statute of frauds and that the verbal agreement is within the statute, but we think the circumstances of the case take it out of the operation of the statute. The fact that there was an oral agreement for the redemption on specified terms made within the time allowed for redemption and the payments made made thereon, together with the fact that Dortch bound himself to pay the mortgage to the bank, was sufficient to take the case out of the operation of the statute. This is not a case of an oral contract for sale of property to one already in possession, but it is a case where the original owner is in possession with the right to redeem and there is an oral extension of the period of redemption on specified terms, and we hold that the acceptance of part of the redemption money pursuant to this agreement is sufficient to take the transaction out of the operation of the statute of frauds.
It is contended that the question of redemption was not presented in the pleadings; but the proof was ilirqptecl to that issue, without objections, and the pleadings should be treated as amended.
Decree affirmed.
Hart, J., dissents. | [
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Hart, J.
(after stating the facts). According to the testimony of the engineer, he was keeping a lookout as the engine approached the point where the steer is said to have been struck by the engine and killed. There was a sharp curve in the track there, and on that account he could not see anything on the track at the point where the steer was killed. A demonstration was made by the engineer at a later date, and he testified that he could not see a man on' the.track at that point from the engine. His tesimony was corroborated by that of another person who was on the engine with him.
According to the testimony of the fireman, he was busy shoveling coal at the time the steer was killed. The engine was approaching at the time a flag station, and there had beemno signal given to stop at the station that morning. Hence the train was running at its regular speed of thirty miles an hour. This testimony was amply sufficient to sustain a verdict for the defendant.
It is next insisted that the court erred in modifying instruction No. 2 given at the request of the plaintiff. The instruction reads as follows:
“You are instructed that if you believe from the preponderance of the evidence that the animal in question was killed by one of the defendant’s trains, then the presumption that the injury was the result of the defendant’s negligence arises and tends to contradict the testimony of the employees that a proper lookout was kept.”
The modification consisted in striking out the words, “arises and tends to contradict the testimony of the employees that a proper lookout was kept.”
There was no error in modifying the instruction. It is true the language of the instruction may be found in the opinion in the case of Fenton v. DeQueen & E. Ry. Co., 102 Ark. 386, but the court was there discussing a question of law, and the remarks by the court were entirely appropriate. The trial court properly mod ified the instruction so as to strike out the language. To have given the instruction without the modification would have been, under our system of practice, an invasion of the province of the jury. It is not the duty of the presiding judge to point out what inferences are made, or should be drawn, from particular facts. This rule is so well settled in this State that a citation of authorities in support of it is unnecessary. The court should have left in the instruction the word, “arises.” Doubtless, the presiding judge would have done this, had his attention been called to it. Having failed to do so, the plaintiff is not now in an attitude to complain.
It is next insisted that the court erred in giving an instruction relating to the right of the plaintiff to recover double the value of the steer. We do not dee'm it necessary to set out this instruction or to discuss it. The jury returned a verdict for the defendant, and for this reason the instruction could not have in any wise prejudiced the rights of the plaintiff.
It is next insisted that the court erred in giving instruction No. 3 requested by the defendant. The instruction reads as follows:
“If the animal was upon the track, and if in the darkness it was impossible by reason of the light going in a straight line or other reason to see the animal on the track, then the engineer nor the fireman would be guilty of negligence by failing to see the animal on the. track, provided said animal was in the darkness .so that it could not be seen. If the animal was in the darkness by reason of there being a curve, and if, after they have seen it upon the track, it was- impossible to avoid the killing, then’ and in that event the plaintiff can not recover.”
It is insisted that the instruction is too broad, and that under it the defendant would be relieved from all liability if its servants had purposely placed something in front of them to prevent them from seeing the animal on the track, or were looking another way. In making this contention, counsel refers to the words, “or other reason.”
We can not agree with counsel in this contention. The instruction must he construed with reference to the facts in the case. The instruction was given to present the defendant’s theory of the case. The position of the engineer was on the right-hand side of the cab, and the steer was killed on a sharp curve to the left. The testimony showed that the headlight shone directly in front of the engine in a straight line, and it was the theory of the' defendant that on this account the engineer could not see the track at the point where the steer was killed. The words, “or other reason,” evidently referred to some fact as shown by the testimony which would prevent the engineer from seeing the track at the place where the steer was killed, and they were doubtless so understood by the jury. It was dark when the accident occurred, and this was one of the facts included in the words, “or other reason.” In any event, these words plainly referred to some fact or circumstances introduced in evidence and would be readily so understood by the jury.
There is no prejudicial error in the record, and the judgment will be affirmed. | [
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McCulloch, C. J.
Appellee sues for damages resulting from personal injuries alleged to have been sustained on account of being assaulted by a fellow passenger while he was riding on a train. The jury awarded damages in the sum of $2,500, and the Director Greneral has appealed.
Appellee’s injuries occurred on November 3, 1918, while he was riding on a passenger train running between Little Rock and Camp Pike. It was a train which left the Union Station at Little Rock early in the morning before daylight, and was operated principally for the convenience of mechanics and other laboring men who were engaged in construction work at Camp Pike, and they traveled in large numbers on that train. There were fifteen coaches in the train, the front five being set apart for negro passengers and the others for white passengers, the rule governing the embarkation of pas sengers being that negroes should load from the front and white passengers from the rear.
Appellee is a white man and was at work as a carpenter at Camp Pike. He boarded the train at the Union Station at Little Rock and went into one of the coaches set apart for white passengers, and he took possession of a seat in the coach just behind a seat occupied by two negroes. The coach was not completely filled at that time, but it was filled up by other white passeiigers when the train stopped at the Argenta station. After the train moved out from the Argenta station appellee reached over and took hold of one of the negroes by the right arm or sleeve and said, “Lad, go into the coach ahead; this is the white coach.” The negro replied, “I came in here first,” and then appellee retorted, “We need the room in here, and there is plenty of room ahead.” Thereupon the negro struck at appellee with a knife and cut through his coat sleeve and into his arm, inflicting a wound which left a scar, but which was not serious. The negro fled from the coach immediately after cutting appellee, and the incident created a commotion among the passengers. Appellee followed the negro out to the front platform, calling out, “Stop that negro! he has a knife!” and just as appellee reached the door of the coach the negro, who had gotten out on the platform, turned on appellee and cut him with the knife, this time striking him in the right temple and cutting downward the full length of the side of his face. The flesh was cut through to the bone, and two of the arteries were cut, and the wound was a very serious one. The negro then made his escape, and the train was stopped, and appellee was taken therefrom and sent to a hospital. He was incapacitated from work for three or four months and suffered great pain and inconvenience and had not recovered from the effects of the wound at the time of the trial. The evidence tended to show that it would be a good while before there would be complete recovery from the injury, and that there was plainly observable a scar which would be left permanently the full length of appellee’s face.
There is a conflict in the testimony as to what passed between appellee and the negro, so far as relates to appellee’s conduct. The testimony adduced by appellant tended to show that appellee attempted to eject the negro from the coach, and that, after he was cut the first time, he followed the negro to the platform in án effort to engage in a fight with him. In other words, there was testimony adduced which would have warranted the finding that appellee provoked the assault by his own conduct, but appellee’s own testimony was sufficient to warrant the finding that his conduct, in requesting the negro to leave the coach and in following the negro to the platform for the purpose of causing his arrest, was not sufficient to provoke the assault.
The court gave, over appellant’s objection, the following instruction, which is assigned as error:
“You are instructed that the law requires that all railway companies carrying passengers in this State shall provide separate accommodations for the white and African races by providing two or more passenger coaches for each passenger train or by carrying one partition car, one end of which may be used by white passengers and the other end by passengers of the African race, and that the officers of such passenger trains are required to assign each passenger or person to the coach or compartment used for the race to which such passenger belongs. And if you find from the evidence in this case that plaintiff became a passenger upon one' of the defendant’s trains about the date mentioned in the complaint, and was assigned to or was riding in the coach or compartment provided for white passengers upon said train and that defendant’s officers in charge of said train knowingly permitted a negro passenger to enter said compartment and ride therein, or by the exercise of ordinary care and diligence could have known that said negro passenger was riding in said compartment among white passengers, and made no effort to expel him therefrom, and that said negro passenger, while riding therein, made an. assault upon plaintiff and thereby injured him, then you will find for plaintiff, unless you further find that plaintiff, by his own wrongful act, provoked the assault, and but for such act or conduct on his part he would not have been assaulted.”
The court also refused to give an instruction at the request of appellant, telling the jury that “a carrier is not liable for damages caused to a passenger by the assault of another passenger unless the carrier’s employees had knowledge, or in the exercise of due degree of care should have had knowledge, that the assault was about to occur; or, unless, after the trouble started, they have reasonable opportunity to prevent the injury and fail to do so.”
The rulings of the court in giving the first instruction and refusing to give the one requested by appellant are each assigned as error. The argument of learned counsel for appellant in support of these assignments of error is, in substance, that a violation of the statute of this State requiring the separation of white and colored passengers in a train (Kirby’s Digest, section 6622, et seq.) does not create a cause of action in favor of an injured passenger, and that liability in this case is dependent on the question whether or not the servants of the company exercised proper degree of care to prevent the injury after they knew or had reason to anticipate that injury might result. Counsel cite two decisions of this court which they argue support their contention. St. L. & S. F. R. Co. v. Petties, 99 Ark. 415; C., R. I. & P. Ry. Co. v. Allison, 120 Ark. 54. Neither of these cases support the contention. In the Petties case the alleged injury resulted from the failure of a carrier to furnish a seat to a female passenger who was riding in a coach assigned to passengers of her race, but which was crowded with passengers of the other race and the defense was that on account of an unanticipated emergency there was not sufficient seating capacity in the train for all passengers. We held that the carrier was not liable for failure to furnish a seat to the passengers, if, on ac count of the unusual and unanticipated emergency, accommodations could not he furnished for all of the passengers, even though passengers of another race were allowed to go into the coach properly occupied by the plaintiff and took up all the seats.
The Allison case was one where a passenger sued for being compelled to ride in a coach with passengers of another race. We said in the opinion that there might be a violation of this statute without necessarily conferring a cause of action for damages in favor of a passenger, and we reversed the case because of improper instructions and because the award of damages was excessive, but the opinion clearly recognized liability by the carrier to a passenger on account of humiliation resulting on account of being compelled to ride in a coach with passengers of the other race. The decision in that case seems to support, to some extent, the. ruling of the trial court in the present case. At any rate, we are of the opinion that neither of these cases support the contention made by learned counsel for appellant, that there is no liability unless the carrier knew or had reason to anticipate the injury inflicted upon a passenger riding in a coach assigned to his race by another passenger who was wrongfully permitted to ride in that coach.
Our statute is almost identical with the one on that subject in force in the State of Kentucky, and the instructions given by the court in this case are in accord with the rules of law announced by the Court of Appeals of Kentucky on that subject.
The first case on that subject decided by the Kentucky court was Quinn v. Louisville & N. R. Co., 98 Ky. 231, 32 S. W. 742. In that case a white passenger went into a coach assigned to negro passengers, and while there was guilty of conduct which resulted in injury to a négro woman who was in the coach. The trial court in that case applied the rule contended for by learned counsél for appellant in the present case, but the Court of Appeals in reversing the judgment in favor of the carrier said: “It is contended by counsel, and upon this idea the instruction below was framed, that if the conductor was otherwise vigilant, and was ignorant of the passenger’s condition and treatment of the colored passenger, no recovery could be had. * * # While the mere presence of the intruder into the coach for colored persons, with the knowledge of the conductor, would not give to the occupants a cause of action against the corporation, we can not concur with counsel or the court below that the separate coach law has no application to the facts of this case. It is not necessary, in order to permit a recovery, to show that the conductor knew of this bad treatment of the colored passenger, or from his condition had the right to anticipate it was the purpose of the intruder to produce trouble. He should not be allowed to enter the car; or to remain there after his presence is discovered. In the transportation of passengers prior to the passage of the separate coach bill, the frequent disturbances arising between the two races, resulting often in serious injuries being inflicted by the one on the other, and the danger to other passengers, led to the enactment of this law as a police regulation, in order to prevent, as far as possible, these altercations upon railroad trains, and to check the disposition of those of the dominant race to offend and humiliate those who were entitled to the protection of the law. * * * If, and as we shall assume was the case, each one of the passengers had been assigned the coach required by the statute, and the white passenger had left his coach, and gone into the coach with these colored people, without the knowledge of the conductor, while he was attending to his duties in the other cars and had there abused and insulted the appellant, it is plain no action could be maintained against the company; but when the white passenger is assigned to the cars set apart for those of another racé, the com-pany will be held responsible for his bad conduct, affecting the rights of other passengers, although the conductor may be ignorant of what is transpiring; and where the conductor, or those managing the train, knows that one is in the wrong car, it is his duty to expel him, and, by consenting to his remaining, the company becomes responsible for his conduct, so long as he does remain.”
The doctrine of that case has been reaffirmed with liberal quotations therefrom in several later decisions of the same court. Wood v. L. & N. R. Co., 101 Ky. 703; L. & N. R. Co. v. Renfro, 142 Ky. 590; L. & E. R. Co. v. Vincent, 96 S. W. 898.
It is true that the separate coach statute does not of itself create a right of action in favor of an injured passenger. Nevertheless, in testing the question of the carrier’s liability, a violation of the statute can not be ignored; and if the servants of the carrier permit a violation of the statute and injury results to a passenger, the unlawful act in permitting such violation of the statute is the proximate cause of the injury, and it is not essential to liability that the servants of the carrier must have had reason to anticipate that injury would result from the contact in the same coach between passengers of different races. When a carrier knowingly suffers a violation of the statute, it is liable for the reason stated by the Kentucky court that, by consenting to the occupancy of the wrong coach by a passenger, it becomes responsible for the conduct of that passenger so long as he wrongfully remains in the coach. In other words, when a carrier permits a passenger to occupy a coach set apart to passengers of another race, it will not be heard to say that it had no reason to anticipate injury to another passenger, for a violation of the law itself is tantamount to warning that injury may result and makes the carrier liable for any injury resulting to another passenger—not as a cause of action based upon the statute, but from the duty of the carrier to its passengers to protect them from harm and inconvenience. We are of the opinion therefore that-the instructions were correct.
It is earnestly argued that the evidence was not sufficient to sustain the verdict, and that it shows that appellee provoked the assault himself, and also that it is not shown that the conductor in charge of the train knew of the presence of the negro passenger in the white coach. There is a conflict in the testimony, as we have already stated, and, viewing the conduct of appellee in the light most favorable to him, it can not be said as a matter of law that he provoked the difficulty and was himself responsible for his own injury. That question was properly submitted to the jury upon the instructions quoted and also another instruction, and the verdict of the jury is conclusive. Appellee had no right to eject the negro passenger himself, for that duty devolved upon those in charge of the train, but his own evidence shows that he did not attempt to eject the negro from the train, but merely called the latter’s attention to the fact that he was in the wrong coach, and that the seat occupied by him was needed for other passengers. It was a question for the jury to determine whether this statement was calculated to provoke an assault. The testimony shows that the train auditor ascertained, as he passed through this coach shortly before the assault on appellee, that the negro was wrongfully occupying a seat in that coach, and that he made no effort to get the negro out of the coach. The statute malíes it the duty of the “officers of such passenger trains” to assign passengers to the proper coaches and to enforce the provisions of the statute with reference to the separation of the races. It is unnecessary to determine at this time what servants of the carrier in charge of the train fall within the term “officers,” for the evidence was sufficient to show that the train auditor discovered the presence of the negro passenger and could have notified the conductor who undoubtedly had authority to enforce the law with respect to separation of races. The jury could have found from the testimony that there was fault on the part of the carrier ?s servants in permitting the negro to remain in the coach assigned to white passengers where appellee was riding, and, that being true, the carrier was liable for the injury as the assault was not provoked by appellee himself.
The final contention is that the verdict is excessive, but we are of the opinion that such is not the case. Ap pellee suffered a very serious and painful wound, which incapacitated him from his work for a considerable length of time and will leave permanently a scar on his face. We can not say that the sum of $2,500 is excessive.
The judgment is therefore affirmed. | [
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Humphreys, J.
Appellee instituted suit in replevin against appellant in the municipal court of North Little Bock, to recover a Chevrolet automobile, motor No. 10117, alleging that he was the owner thereof by virtue of a reservation of title therein until the purchase money was paid, when he sold it to Frank Watson, appellant’s vendor.
The case proceeded to trial in the municipal court upon the issue of whether title to said automobile was reserved in Wesley Walker at the time he sold same to Frank Watson, which resulted in a judgment of title in appellant. An appeal was prosecuted from that judgment to the Third Division of the Pulaski Circuit Court.
On March 16, 1920, the issue of title to the automobile was tried before a jury, which resulted in a finding that the title to said automobile rested in appellee. In accordance with the verdict of the jury, a judgment was rendered in favor of appellee for the possession of the automobile, from which judgment an appeal has been duly prosecuted to this court.
The evidence of appellee (plaintiff below) was to the effect that in September, 1919, he sold the automobile in question to Frank Watson for $375—$60 in cash and the balance to be paid in weekly installments of $10 a week; that, at the time of the sale, it was understood between them that the car was to remain the property of appellee until all the purchase money was paid; that, on the succeeding day, pursuant to a request of Frank Watson, appellee prepared the following writing: ‘ ‘ September 18, 1919, Tie Plant, Arkansas. Wesley Walker lias sold to Frank Watson a Chevrolet car for $375 and received $60, and the rest to be paid at $10 per week or more until the balance paid out, which is $315. CAR STAND GOOD FOR THE DEBT, and amount is all due to be paid by March 1, 1920, or sooner, which is the balance of $315. Wesley Walker, Frank Watson, X.” That on or about November 24,1919, Frank Watson traded the car to appellant for another.
The evidence of appellant (defendant below) was to the effect that it purchased the ear in question from Frank Watson without notice that he owed any balance thereon.
At the conclusion of the evidence the court sent the case to the jury upon the theory that the phrase in the contract “car stand good for the debt” was ambiguous, and its proper interpretation a question for the jury from all the facts and circumstances in the case.
Appellant insists that the phrase was not ambiguous, and that the court erred in not construing it as creating a lien enforceable between the parties only.
The contract was reduced to writing and purports on its face to he a completed contract. It sets out the parties to the contract, the description of the automobile, the full consideration of the sale and the terms thereof. No material essential of the contract seems to have been omitted. This being the case, the only oral evidence admissible was evidence in explanation of any ambiguous word, clause or phrase in the contract. Unless ambiguous in whole or in part, it was error for the court to refuse to construe it. We do not think the phrase, “car stand good for the debt,” amounted to a reservation of title, either in terms or by inference. The following similar phrases have been legally defined as creating liens: “Property shall be bound for the debt.” Atlanta National Bank v. Four States Grocer Company (Tex.), 135 S. W. 1135. “That.oxen should stand good for themselves until they are paid for.” Barnhill v. Howard, 104 Ala. 412. “That certain personal property belonging to him should stand good for his indebtedness.” Jackson, Morris & Co. v. Rutherford, 73 Ala. 155.
For the error in permitting the jury to interpret said clause in the contract, the judgment is reversed and the cause dismissed. | [
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Wood, J.
This action was instituted by appellants against the appellees. The appellees were commissioners of a road district established by the county court of Lincoln County under act 338 of the Acts of 1915, called the Alexander Road Law.
The complaint alleged that the road improvement district and the proceedings thereof were invalid, for the following reasons, towit:
1. “That the order or judgment of the said Lincoln County Court creating and establishing said road improvement district was procured by fraud, collusion and mistake.”
2. “That the name of W. H. Atkinson.appears on said petition, although the said Atkinson has been adjudged insane by a court of competent jurisdiction, and was laboring under the disability of insanity at the time of the alleged signing of said petition.”
3. “That the board of commissioners of said road improvement district altered and changed the original plans on which said benefit assessments were made, without notice to the landowners in said district, contrary to the provisions of section 16 of said act No. 338.”
4. “That said county court was without jurisdiction, for the reason that said petition did not have a majority in numbers, acreage or value.”
The complaint set up that the plaintiffs and other taxpayers of the district had no adequate remedy at law; that the commissioners of the district had caused a special assessment to be placed against all real estate in the district and filed the same in the county clerk’s office in Lincoln County, and that same would become a lien on the lands in the district. Plaintiffs prayed for a restraining order restraining the taxing officers from collecting the taxes assessed against the lands in the district and that the commissioners be perpetually enjoined from carrying out the contract, which had been entered into for the construction of the highway. Attached to the complaint were affidavits of two persons. One of the affiants stated that he was a landowner in the district and knew that Leander Boyd, whose name appeared on the original petition for the establishment of the district, had never owned any land in the district, and that the promoters knew such fact at the time of the signing of the petition by Boyd; that affiant knew that there were other names on the petition who did not own real estate in the district. The other affiant stated that he had signed the petition for the creation of the district j that he did so upon the representation of the county judge that the cost per acre on the land for the improvement would not exceed the sum of seven cents per acre for the third mile, ten cents per acre for the second mile, and thirteen cents per acre for the first mile; that these representations were false and fraudulent; that the county judg’e knew at the time that the improvement would exceed -this amount. Affiant stated that he relied on the representations and signed the petition to his own injury; that he relied on the statements of the county judge as a county official; that the cost of making the improvement had already exceeded the amount stated as shown by the assessments made against affiant’s lands and the other lands in the district.
The appellees filed a general demurrer to the complaint. The cause was heard upon the demurrer, and the court entered a judgment sustaining the same and dismissing the appellants’ complaint, from which judgment is this appeal.
It will be seen that appellants challenged the validity of the district upon four grounds.
As their first ground they say that the order creating the district was “procured by fraud, collusion, and mistake.” These are only general allegations. “General averments amount to nothing unless the facts constituting the charge are distinctly and specifically averred.” Twombley v. Kimbrough, 24 Ark. 459; McIlroy v. Buckner, 35 Ark. 555, and other cases cited in 3 Crawford’s Digest, page 2299, “Fraud.” See also McCloud v. Griffis, 51 Ark. 1; Nelson v. Cowling, 77 Ark. 355.
The second and third grounds are likewise too general. They do not allege facts from which the conclusion necessarily follows that the order establishing the district is invalid. The signing of a petition for the creation of the district by an insane person would not per se render the order creating the district invalid. Neither would the change in the original plans without notice to the land owners render the order invalid, for such change might be wholly immaterial.
„ The fourth ground could not be made the basis for a suit in equity for setting aside the judgment of the county court creating the district. This ground constituted but a collateral attack upon the judgment of the county court creating the district, -which is expressly forbidden by section 3 of the act under which the district was created. See also section 14. •
The appellants were all parties to the proceedings, and some of them signed the petition. The act itself, under which this district was created, furnished appellants a complete and adequate remedy at law. See Chapman & Dewey Land Co. v. Road Imp. Dist., 127 Ark. 318.
The alleged false and fraudulent representations, set up by one of the affiants, upon which signatures to the petition are said to have been obtained, were not statements of past or existing facts and were not such fraudulent representations as entitled appellants to have the judgment creating the district declared invalid. The appellants had no right to rely upon such representations. The act itself “ provides an appropriate scheme for advising the land owners of the character of the improvements to be undertaken and the cost thereof, so that they could act upon the petitions intelligently.” Lamberson v. Collins, 123 Ark. 205.
The act itself, if complied with, protects the property owners from such frauds as are set up in that affidavit. See section 2. Luck v. Magnolia-McNeil Road Imp. Dist. No. 1 of Columbia County, 141 Ark. 603.
The judgment is correct, and it is therefore affirmed. | [
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Hart, J.
Dan Morris prosecutes this appeal to reverse a judgment of conviction against him for the crime of robbery. The evidence is sufficient to support the verdict.
The indictment charges Dan Morris to have robbed C. C. Baker in the city of Little Bock, in Pulaski County, Arkansas, in March, 1920. C. C. Baker was the prosecuting witness. According to his testimony he resided in the city of Little Rock, Pulaski County, Arkansas, at the time the robbery occurred. He had come in from .Shreveport, Louisiana, on the night of the 26th of March, 1920, and arrived in Little Rock on the night of the 27th inst. at the Union Station. He started to walk home between 3 and 4 o ’clock in the morning. On his way there he was stopped by a couple of. negroes and robbed. One of them stuck a pistol in his face and the other one grabbed him and went through his pockets, taking therefrom the sum of $118 in money. Dan Morris was the one who went through his pockets and took the money from him. Baker positively identified Morris as the one who took the money from his pockets and said that he looked at him all the time the robbery was being committed.
The defense of Dan Morris was an alibi, and he introduced a number of witnesses who testified that he was in another part of the city at the time Baker says he was robbed.
T. R. Gentry was in the court room during the trial and remembered that he had seen an account of the robbery in the paper the next morning after it occurred. This brought to his mind that he had seen the defendant on the streets of Little Rock on the night of the robbery at an hour, when, according to the defendant and his witnesses, he was in a house in another portion of the city.
Counsel for the defendant insist that the court erred in not granting him a new trial for newly discovered evidence. The witness, Gentry, had testified that he had been to church on the night the robbery occurred and had seen Balter on the streets on his way home between 11:30 and 12 o ’clock p. m: In support of his motion he offered the affidavits of several personé who swore that they were at the church on the oocasiofi testified to by the witness Gentry, and that it was a different night to that testified to by him.
It has often been held by this court that as a general rule newly discovered evidence that goes only to impeach the credibility of a witness is no ground for a new trial, Jones v. State, 72 Ark. 404, and cases cited, and Dewein v. State, 114 Ark. 472.
The newly discovered evidence in the case at bar is no exception to the general rule. The main witness for the State was the person who had been robbed. Gentry was introduced by the State to corroborate his testimony, and the newly discovered evidence only went to impeach the testimony of Gentry.
It is next insisted that the court erred in instructing the jury as follows:
“One of the defenses interposed by the defendant is what is known as an alibi; that is, that the defendant was at another place at the time of the commission of the .alleged offense. Here the burden of proof shifts. And the burden of proof is on the defendant to show that he was in another place when the alleged crime was committed, but that is discharged if the proof raises a reasonable doubt in your mind that he was not at the place at the time the crime was committed, but was in some other place. The defendant is not required to prove this defense beyond a reasonable doubt to entitle him to an acquittal; it is sufficient if the evidence upon that point raises a reasonable doubt that he was present at the time of the commission of the crime.
“The defense is an affirmative one. If, however, from the evidence in the whole case there is in the minds of the jurors a reasonable doubt as to whether or not the defendant was at the place at the time the offense was committed, then there would be a reasonable doubt of his guilt for the reason that he could not be guilty if he was not there.”
Counsel made a specific objection to this language: “Here the burden of proof shifts.”
It is first insisted that the judgment should be reversed because the coult refused to eliminate the language just quoted from the instruction when the defendant specifically objected to it. We can not agree with counsel in this contention. It is true that the defense of an alibi forms no exception to the general rule that if a reasonable doubt of guilt arises from the whole testimony the def endant is entitled to its benefit, and that the burden of proof to establish the guilt of the accused never shifts from the State.
It is evident, from the connection in which the term “burden of proof” is used in this instruction of the court in the case at bar, that it does not imply that the defendant must prove his defense by a preponderance of the evidence, but only that, after the State has made out its case and established the guilt of the defendant beyond a reasonable doubt, it devolves upon the defendant to introduce evidence to prove his alibi, if he relies upon such a defense. In short, in order to maintain his defense of an alibi, the burden is on him to establish it by such facts and circumstances as will, with all the other evidence in the case, create in the minds of the jury a reasonable doubt of his guilt. We do not think any intelligent jury could have understood the charge of the court in any other sense, when it is considered as a whole.
Again it is contended that the instruction is erroneous in using the following language: “It is sufficient if the evidence upon that point (referring to the alibi) raises a reasonable doubt that he was present at the time of the commission of the crime.” We do not think the court should have used this language, but under the circumstances it was not prejudicial to the defendant. A better expression of the law would be, when the jury have considered all the evidence, as well that touching the question of the alibi, as the criminating evidence introduced by the State, then, if they have a reasonable doubt of the guilt of the defendant, they should acquit.
In the case at bar the .court, in effect, told the jury that if the evidence introduced by the defendant on the question of alibi was sufficient to raise a reasonable doubt, the jury should acquit. In the same connection the court further told the jury, under the theory that the State must prove the defendant’s guilt, that the State’s evidence and the alibi should be considered by the jury in connection with the rest of the evidence as a part of the whole from which they were to determine whether the guilt of the defendant was established beyond a reasonable doubt. Joiner v. State, 113 Ark. 112, and Hawthorne v. State, 135 Ark. 247.
Therefore, the court did not err in giving the instruction. We find no reversible error in the record, and the judgment will be affirmed. | [
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"Wood, J.
The only question presented by this appeal is whether or not the appellee, a city of the second class, had authority to sell a lot with a two-story brick building thereon* owned by it, and which for more than twenty years had been used as a city hall and for other municipal purposes, but which for two or three years had been abandoned, because on account of its location and physical condition it could no longer be used to advantage or with economy for such-purposes by the ap pellee. In Town of Searcy v. Yarnell, 47 Ark. 269-283, we said: “A municipal corporation may be the owner of two classes of property. One class includes all property essential to, 'or even convenient for, the proper exercise of municipal functions and corporate power. The other class includes all property held for general convenience, pleasure or profit.” See also Fort Smith v. Wilson, 100 Ark. 587, 588.
The classification of property owned by municipalities into this dual nature and the double character of the functions possessed by such corporations, one being governmental or public, and the other in a sense proprietary or private, is recognized by the authorities generally. See 28 Cyc. 124, note No. 59, and cases there cited.
In Searcy v. Yarnell, supra, we held that “a municipal corporation has power to dispose of property held for general convenience, pleasure or profit.” The property in that case was a majority of stock in a railroad company. It was held by the municipality for the public in a proprietary or private sense, rather than governmental. The lot in controversy, after it ceased to be useful for the purposes of government and was abandoned by the appellee for such purposes, was held by the city in its proprietary or private character. Under section 5436 of Kirby’s Digest, cities or incorporated towns “may acquire, hold and possess property, real and personal.” Fort Smith v. Wilson, supra.
There is nothing in this record to show that the lot in controversy had been donated or deeded to the city to be used alone for governmental purposes. The city held the naked legal title and had for a long period devoted the property to governmental use, but had ceased to so use the property after it became unfit for the purposes of government. “Property,” says Mr- McQuillin, “devoted to a public use can not be sold or leased without special statutory authority, although property which has ceased to be used, or is not used, by the public, may be sold or leased as the public welfare may demand.” ' 3 McQuillin’s Municipal Corporations, p. 1141; Palmer v. Albuquerque, L. R. A. 1915A, p. 1106.
In 19 Ruling Case Law, page 773, section 78, is this statement: “In this country, however, it is generally held that a municipal corporation has no implied power to sell property which is devoted to a public use. Such property, even if the title is in the municipality, is held in trust for the people of the State as a whole, and can not be alienated except by the. express consent of the Legislature or upon the discontinuance of the public use in the maimer provided by law. Property held by a municipal corporation in its private or proprietary capacity, since such property is not subject to the control of the State to any greater extent than the property of a private corporation, may be alienated without the consent of the Legislature, although in this connection the courts limit the private and proprietary powers of a municipality very closely.” “Municipal corporations possess the incidental or implied right to alienate or dispose of the property, real or personal, of the corporation, of a private nature, unless restrained by charter or státute.” 3 Dillon on Municipal Corporations, section 991. See, also, 28 Cyc., p. 621 D.
These declarations are well sustained by court decisions cited in notes to above texts. We conclude, therefore, that it was in the power of the appellee to sell the lot in controversy. The decree of the chancery court in so holding was in all things correct, and it is therefore affirmed. | [
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Hart, J.
On the 31st day of January, 1920, appellee filed a petition for mandamus in the circuit court against appellants to compel them to reinstate him in the State Agricultural School of the First District of Arkansas.
The material facts upon which the petition is based are as follows: Appellants were the trastees of the State Agricultural School of the First District of Arkansas, and' suspended Fred Boyd, a student of the school, for conduct unbecoming a gentleman, as it was expressed in the order.of suspension.
Appellee introduced evidence tending to show that the order of suspension was wrong, and appellants introduced evidence to sustain the order of the board of trustees, suspending him.
On the 16th day of February, 1920, the circuit court tried the case, sitting as a jury, and found that the order of the board of trustees suspending Boyd on January 26, 1920, was wrong. It was therefore by the court ordered and adjudged that Boyd be reinstated in the school, and that he be restored to all the rights and privileges belonging to the students of the school.
An appeal was prayed by the board of trustees and a transcript was filed in this court on the 11th day of May, 1920. The case was duly reached on the call of the calendar and submitted to this court.
Appellee states that the term of the school has passed pending the appeal, and that there is now no actual controversy involving real and substantial rights between the parties to the record.
It is the duty of this court to decide actual controversies by a judgment which can be .carried into effect and not to give opinions upon abstract propositions or-to declare principles of law which can not affect the matter in issue in the case at bar. In the case at bar the court granted the prayer of the petitioner and ordered the board of trustees to restore him to full scholarship in the Agricultural School. He says this was done. The term has lapsed pending the appeal of the board to this court. Therefore, a decision of the case could have no practical application to the controversy between the litigants.
In a case note to Ann. Cas. 1912 C, at page 247, it is said that the current cases have held that a-court in reviewing a decision upon an application for a writ of mandamus will not disturb the judgment of the lower court, where, pending the appeal, an event occurs whereby the question litigated and determined below has ceased to be of any practical importance, but is academic merely. See also case note to 5 Ann. Cas., at.p. 626, and Mills v. Green, 159 U. S. 651.
It will be readily seen from the statement of facts that the question of costs only was of any practical importance in this appeal. In Pearson v. Quinn, 113 Ark. 24, the court held that where there is nothing to be determined on an appeal to this court but the question of liability for the -costs of the litigation, the appeal will be dismissed.
It follows that, for the reasons stated, the appeal will be dismissed. | [
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McCulloch, C. J.
This action was institned by appellees, J. Y. Malone, Jr., and Willie Malone, against appellants in the chancery court of Monroe County to compel specific performance of an alleged contract between the parties whereby appellants agreed to sell and convey to appellees two tracts of land situated in Monroe and Lee counties. The alleged contract is in writing, and, according to its terms, appellants granted to appellees, in consideration of twenty-five dollars, cash in hand paid, the option to purchase, within a stated time, said lands described as the “Joe Lusk farm” and the “Dave Kirby farm,” containing 106 acres in Monroe County and 160 acres, more or less, in Lee County. The contract was dated May 31, 1917, and recited that the price for the purchase of the land was to be the sum of $7,000, and that the option must be exercised by the payment of said money before the first day of January, 1918. The instrument of writing appears to have been signed by appellants, D. M. Kirby and his wife, Henrietta Kirby, and witnessed by Mrs. Hettie Wynne.
Appellees elected to purchase said lands under the option, and tendered to appellants the stipulated purchase price on December 25, 1917, and also tendered a deed in proper form for execution by appellants, but the latter refused the tender and declined to execute the conveyance. In the answer filed in the court below appellants denied that appellees had purchased the land described in the complaint, or that they (appellants) had signed the contract set forth in the complaint, or that appellees had made a tender of the purchase price.
The case was heard by the chancellor on oral testimony reduced to writing and properly filed as part of the record, and it appears that the proof was directed entirely to the issue whether or not the contract relied on by appellees and exhibited with the complaint was the contract which the parties had entered into. Appellants admitted that they had signed a written contract with appellees granting an option to the latter to pur chase the lands, but they testified • that the contract exhibited was not the one they signed, and that its terms were different, in that the contract actually signed provided for a termination ,of the option on December 1, 1917, instead of January 1, 1918, as recited in the instrument relied on by appellees, and that it did not contain an acknowledgment of payment of the twenty-five dollars, the consideration for the option, as appears in the instrument relied on by appellees. Appellants both testified that the instrument exhibited was not the same that they signed, and that their signatures to the instrument exhibited were not genuine.
There was nothing presented to us for consideration except the bare question of fact whether .or not the instrument exhibited and relied on by appellees is genuine.1 The testimony on this issue is voluminous. Both of appellees testified that the contract was the same as the one originally signed by appellants. The attorney who prepared the contract testified that it was the same. One witness testified concerning an express admission by appellant D. M. Kirby that the option extended to January 1, 1918, as shown by the instrument exhibited, and numerous other witnesses testified to statements made by Kirby which in effect amounted to the same admission. Both of the appellants, as well as Mrs. Wynne, testified that the instrument exhibited was not the contract signed by them, and that the signatures were not genuine. Quite a number of checks admitted to have been signed by D. M. Kirby were exhibited in evidence for comparison of his admitted signatures with that on the instrument in suit. Mrs. Kirby, and also Mrs. Wynne, each exhibited their genuine signatures for comparison with the signatures on the instrument in suit. The original instrument and the admitted signatures are brought up in the record here for our inspection, and have been duly examined. The judges of this court are' not experts in the comparison of signatures, but it does not appear that there is sufficient dissimilarity to be controlling. There are slight differences in the signatures, hut the general appearances are the same. The same differences appear by comparison between the admitted various signatures of D. M. Kirby.
Upon the consideration of all the testimony in the case, it does not appear that the finding of the chancellor in favor of appellees on the issue involved is against the preponderance of the evidence.
It is further contended that specific performance should not be decreed for the reason that the land is not accurately described. The description in the contract was sufficient, for it mentioned the farms by names, which could be made definite by extrinsic evidence. No extrinsic evidence was introduced on that subject, but in the complaint, accurate descriptions of the lands by Government plats were set forth, and the answer contained no denial that the names mentioned in the contract correctly covered the lands described.
Again, it is urged here for the first time that specific performance of the contract should not be compelled for the reason that a portion of the lands constituted the homestead of appellants. There was no reference in the pleadings to the fact, if it be a fact, that any of the lands in controversy constituted the'homestead of appellants, and the testimony adduced in the case was not directed to that issue. On appeal, this court tries chancery causes de novo and must try them upon the record made in the trial below. The only testimony in the record which could have had any bearing on the question of homestead was the incidental reference by some of the witnesses concerning the preparations by appellants to remove from the land where they were living. Thesé references were made as circumstances to show an admission, on the part of Kirby that the contract did or did no,t extend to January 1, 1918, and were not sufficient to be treated as raising the issue that ,a part of the lands constituted the homestead.
We are of the opinion that there are no grounds shown for a reversal .of the decree, and the same is therefore affirmed. | [
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Humphreys, J.
Appellee instituted suit against appellant, I. H. Woods and J. B. Jarvis, in the Second Division of the Greene Circuit Court, to recover $10,000 on a bond conditioned that Tom Gibson, who had been convicted of murder in the second degree and appealed from the judgment, would surrender himself in the Supreme Court upon the dismissal of the appeal or upon rendition of a final judgment upon said appeal, in obedience to the orders and mandate of said court.
Appellant pleaded, in addition to other defenses, that two days after the bond was signed and approved, Tom Gibson, at the instance of his co-bondsman, I. H. Woods, surrendered to the sheriff of Greene County, which surrender fulfilled the conditions of the bond.
The cause was submitted on the pleadings and evidence, which resulted in a directed verdict against appellant for $10,000, and the rendition of a judgment in accordance therewith. From that judgment an appeal has been duly prosecuted to .this court.
The facts are that, after Tom Gibson was convicted of murder in the second degree, he appealed from the judgment of conviction to the Supreme Court of the State and executed a bond with appellant and I. H. Woods as sureties, pursuant to and in accordance with section 2173 of Kirby’s Digest, which is as follows: “On appeals to the Supreme Court in criminal cases the defendant shall be permitted to give bail pending the appeal in such amount as the court may think proper and safe, in all cases, except in appeals from a conviction of a capital offense.”
The bond was executed, filed and approved on the 18th day of May, 1918. On the 20th day of May, two days thereafter, I. H. Woods, cosurety with appellant, during appellant’s absence in Texas, through the instrumentality of a deputy sheriff, turned the custody of Tom Gibson over to the sheriff and ex-oificio jailer of Greene County, Arkansas, who accepted him. Thereafter, on the same day, the sheriff released Tom Gibson on the substitution of the name of J. B. Jarvis on the bond for I. H. "Woods’ name, which bond, thus signed, was refiled and approved without the knowledge or consent of appellant. Later, the Supreme Court affirmed the judgment against Tom Gibson and declared a forfeiture on the bond. This suit was then instituted upon the bond.
Appellant insists that the bond in question is a bail bond, the conditions of which were fully satisfied by the surrender of Tom Gibson, in substantial compliance with sections 2176, 2177 and 2178 of Kirby’s Digest, which are as follows:
“Section 2176. At any time before the forfeiture of their bond the bail may surrender the defendant, or the defendant may surrender himself, to the jailer of the county in which the offense was committed; but the surrender must be accompanied by a certified copy of the bail bond to be delivered to the jailer, who must detain the defendant in custody thereon as upon a commitment and give a written acknowledgment of the surrender, and the bail shall thereupon be exonerated.”
“Section 2177. For the purpose of surrendering the defendant, the bail may obtain from the officer having in his custody the bail bond or recognizance a certified copy thereof, and thereupon, at any place in the State, arrest the defendant, or by his written indorsement thereon authorize any person over the age of twenty-one years to do so.”
“Section 2178. The bail may arrest the defendant without such certified copy.”
On the contrary, appellee contends that the bond in question is an appeal bond, which operated as a stay of the judgment of conviction exactly as an appeal bond in civil cases, and that sections 2176, 2177 and 2178 of Kirby’s Digest relate to a. surrender before, and not after, a conviction.
Appellee is in error in saying that the bond after conviction, provided for in section- 2173 of Kirby’s Digest, supersedes the judgment of conviction. The appeal itself does that. The bond effectuated the release of Tom Gibson from custody during the pendency of the appeal. Section 2173 of Kirby’s Digest, providing for bond after conviction, characterizes the bond as a bail bond, and is clearly an extension of the right of bail after conviction. Being an extension of the bail statutes then in existence, it can not be said it was enacted without reference to other laws on the subject. It is not an independent statute, and its provisions are consistent with other laws on the subject. Sections 2176, 2177 and 2178 of Kirby’s Digest are general statutes applicable as well to surrenders after as before convictions and pari materia with sections 2172 and 2173 of Kirby’s Digest.
It is also suggested by appellee that the surrender of Tom Gibson was not effected in the manner provided by statute, in that no receipt was taken from the sheriff for his body and the surrender was made without a certified copy’ of the bond. It-is provided in section 2178 of Kirby’s Digest that “the bail may arrest the defendant without such certified copy; ’ ’ and substantial compliance .with the statutes on surrender is all that is required. Sternberg v. State, 42 Ark. 127; Carter v. State, 43 Ark. 132.
For the error indicated, the judgment is reversed and the cause dismissed. | [
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Smith, J.
Appellant brought this suit to recover damages for an alleged false imprisonment and malicious prosecution. There was a trial before a jury, and a verdict and judgment for the defendant, from which is this appeal.
Appellant was arrested upon a warrant issued by Y. S. Ledgerwood, judge of the municipal court of the city of Hot Springs, charging him with the offense of malicious mischief, and upon a trial of that charge the cause was dismissed. Appellant brought this suit, and offered testimony tending to show that the prosecution was instituted by appellee without probable cause, and was malicious, and was begun for the purpose of ejecting appellant from the house which he was occupying as a tenant of appellee. On the other hand, appellee offered testimony to the effect that appellant had failed and refused to pay rent, and had given a worthless check in payment of rent, and that appellant had used, and was using, the walls of a barn on the premisés for fuel.
It is contended that the court erred in refusing to give an instruction to the effect that the municipal court had no jurisdiction of the offense charged in the warrant of arrest. This instruction was properly refused. The act of the General Assembly creating the municipal court gave it jurisdiction, “exclusive of the justices of the peace in townships subject to this act, and concurrent with the circuit court, over all misdemeanors committed in violation of the laws of the State, within the limits of the county.” A similar statute was upheld in the case of the State ex rel. Moose v. Woodruff, 120 Ark. 406. The offense charged was a misdemeanor, and the court had jurisdiction to try it. The trial involved no determination of title to, or lien on, land, nor order of court involv ing its possession. No other question was presented there except the inquiry, whether appellant had been guilty of violating the criminal laws of the State.
Appellant requested an instruction to the effect that the verdict of not guilty of the criminal charge made a prima facie case of liability, and cast upon the appellee the burden of showing matter of justification. The court refused that prayer for instruction, and charged the jury that “the mere fact that the defendant was found not guilty, or the prosecution against him dismissed, does not prove want of probable cause or malice, but these facts may be considered along with all the facts and circumstances in the case.”
We think no error was committed in refusing the instruction requested and in giving the one set out above. In 18 R. C. L. 40, it is said: “Accordingly, the great weight of authority and reason is that the mere fact of the acquittal of a defendant upon the trial of a criminal charge is not prima facie evidence of the want of probable cause for the prosecution. The evidence of acquittal is admissible, of course, in showing* that the prosecution has terminated favorably to the accused, but it is generally held that its consideration should be limited to that purpose.”
The reason of the rule is there stated to be that, “The defendant is entitled to an acquittal and discharge if, upon the whole evidence, both of the prosecution and defense, there remains a reasonable doubt of his guilt, although it may appear that there was not only probable cause for the prosecution, but a strong probability of his guilt. And it would tend very much to discourage honest efforts to enforce the criminal laws if every person who instituted a prosecution in which the defendant was subsequently acquitted should for that reason be presumed to have acted without probable cause, and liable in damages for malicious prosecution. The result of a trial often depends upon many contingencies which could not have been anticipated, and a prosecution may turn out to be entirely groundless, although the facts and cir eumstances known to or ascertainable by tbe prosecutor at tbe time it was instituted seemed to point unerringly to the defendant’s guilt.”
Counsel for appellant complains of tbe action of tbe court in refusing to give certain other requested instructions. But, as tbe instructions are not set out in tbe brief, tbe presumption must be indulged tbat tbe instructions which were given fully declared tbe law of tbe case.
It is finally insisted tbat tbe judgment should be reversed as contrary to all tbe evidence entitled to belief. But tbe credibility of tbe witnesses was a question for tbe jury; and when tbe testimony tending to support tbe verdict is given its highest probative value, we are unable to say, as a matter of law, tbat appellee did not have probable cause to believe tbat appellant had committed tbe offense charged.
No error appearing, tbe judgment is affirmed. | [
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Per Curiam.
Petitioner Larry Gene Smith was found guilty by a jury of two counts of aggravated robbery and sentenced to consecutive terms of 20 years imprisonment on each count. We affirmed. Smith v. State, 277 Ark. 403, 642 S.W.2d 299 (1982). Petitioner now seeks permission to proceed in circuit court for postconviction relief pursuant to A.R.Cr.P. Rule 37.
Petitioner first contends that he should not have been convicted of two aggravated robberies because both robberies grew out of one criminal episode. Although both crimes were committed in the same place and at nearly the same time, there were two victims, and, thus, two separate aggravated robberies. Swaite v. State, 272 Ark. 128, 612 S.W.2d 307 (1981).
He next argues that the State improperly used its preemptory challenges to exclude all but one black person from the jury and that counsel was ineffective for failing to object to the composition of the jury. We have previously held that the mere fact that the State challenged prospective black jurors does not constitute a showing that the defendant’s constitutional rights were violated. Miller v. State, 269 Ark. 341, 605 S.W.2d 430 (1980); Rogers v. State, 257 Ark. 144, 515 S.W.2d 79 (1974). Petitioner’s conclusory allegation of prejudice arising from the jury selection process is not enough to demonstrate that he was denied his right to an impartial jury or that counsel was remiss in not objecting to the panel.
Kory Zuniga, one of the two men whom petitioner robbed, was not present at trial. The other victim, Mark Kessinger, and James Donaldson, an eyewitness to the crime, each gave an account of petitioner’s robbing Zuniga. Petitioner alleges that Kessinger’s testimony was hearsay and that he was denied the right to confront his accuser because Zuniga did not testify. There is no requirement that a criminal defendant be allowed to confront every witness to the crime. Holloway v. State, 268 Ark. 24, 594 S.W.2d 2 (1980). Kessinger’s testimony that he watched the aggravated robbery of Zuniga was admissible and constituted sufficient evidence to support the jury’s verdict.
Petitioner was asked on cross-examination if he had been convicted of a felony. When he admitted to a prior felony conviction, the prosecutor inquired as to the number of counts. Petitioner alleges that the questioning was improper. He also argues that the State was not entitled to bring up the prior convictions without providing documentary proof of them. Neither allegation has merit. Once the petitioner took the stand, he was subject to cross-examination about his prior felony convictions. Jones v. State, 282 Ark. 56, 665 S.W.2d 876 (1984). Moreover, both issues could have been raised at trial but were not and cannot now be raised in a petition for postconviction relief. Questions not raised in accordance with the controlling rules of procedure are waived, unless they present a matter of such fundamental nature that the judgment would be rendered void. Neil v. State, 270 Ark. 442, 605 S.W.2d 421 (1980).
James Donaldson, who was working at a nearby service station, observed petitioner take a wallet from one of the victims. He immediately went inside and telephoned the police. Petitioner contends that if counsel had investigated Donaldson’s version of the events he would have learned that the crime scene wasn’t visible from the service station office; but, as Donaldson testified to seeing the crime from the outside, the point would have no bearing on the case.
A police officer patrolling in the vicinity responded to Donaldson’s report and saw petitioner running from the scene of the robbery. He apprehended him after a short chase and retrieved Kessinger’s wallet. The officer returned petitioner to the service station where Donaldson identified him as the robber. Petitioner alleges that counsel should have objected on the ground that this pretrial identification tainted Donaldson’s in-court identification.
The criterion forjudging any claim of ineffectiveness is whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. Strickland v. Washington, _U.S. _, 104 S. Ct. 2052 (1984). We find nothing to indicate that counsel’s conduct here denied petitioner a fair trial. It is the likelihood of misidentification that taints the out-of-court identification process. Harrison v. State, 276 Ark. 469, 637 S.W.2d 549 (1982); James & Elliot v. State, 270 Ark. 596, 605 S.W.2d 448 (1980). A “show up” rather than a line up does not violate a defendant’s constitutional rights unless there are other circumstances rendering the identification unreliable. Neal v. Biggers, 409 U.S. 188 (1972); Harrison v. State. The victim Kessinger pointed out the petitioner to the police officer. The officer immediately gave chase. Shortly after petitioner was arrested, he was taken to Donaldson who identified him. Since there was no substantial likelihood of misidentification and there was independent evidence of petitioner’s identity, Donaldson’s in-court identification was not unreliable.
Petitioner asserts that counsel failed to call any defense witnesses. He does not, however, say what witnesses were available or what their testimony would have been. Allegations without factual support do not warrant an evidentiary hearing. Bosnick v. State, 275 Ark. 52, 627 S.W.2d 23 (1983).
Petitioner alleges that counsel allowed too many leading questions without objecting. He cites several examples but none are sufficient to establish that he was denied a fair proceeding by counsel’s failure to object. Without a showing of some prejudice, there is no basis for granting postconviction relief. Strickland v. Washington.
Petitioner chose to testify and now contends that he would not have done so if counsel had told him that his prior felony record could be brought out. Petitioner does not deny that he was in fact convicted of the prior felonies. When an accused takes the stand he may be asked as a means of attacking his credibility whether he has been convicted of a crime, unless the probative value of the testimony does not outweigh its prejudicial effect. Unif. R. Evid., Rule 609. The question of whether the accused should take the stand is a difficult one, particularly where the accused has been previously convicted of a crime. Counsel may advise, but the actual decision must be made by the accused. Watson v. State, 282 Ark. 246, 667 S.W.2d 953 (1984). Ordinarily, counsel’s advice is a matter of trial strategy and outside the purview of Rule 37, but in petitioner’s case he is alleging that counsel failed to fully advise him about the rules of evidence and thus caused him to testify to a fact that prejudiced him. As with all allegations of ineffective assistance of counsel, petitioner must demonstrate by clear and convincing evidence not only that counsel’s conduct prejudiced him but that it denied him a fair trial. This is a heavy burden which petitioner has not met. The purpose of Rule 609 is to allow the witness’s credibility to be impeached. Floyd v. State, 278 Ark. 342, 645 S.W.2d 690 (1983). The rule does not permit proof of an earlier crime merely to bolster the prosecution’s case by showing that the accused is of bad character and likely to commit other crimes. Jones v. State, 274 Ark. 379, 625 S.W.2d 471 (1981). Here, petitioner’s credibility may have been affected adversely by his testimony, but the effect was not so prejudicial that it tainted his entire trial to the degree that the proceeding was unfair. Even if petitioner would have been better off not taking the stand, mere mistakes on counsel’s part do not establish the denial of a fair trial. Hayes v. State, 280 Ark. 509, 660 S.W.2d 648 (1983).
Petitioner’s final allegation concerns an agreement between counsel and the prosecutor that the jury would be instructed that the sentencing range for aggravated robbery was from six to forty years or life. The agreement came about because the aggravated robbery statute which set the range at five to fifty years or life conflicted with the provisions of Act 620 of 1981, which provides that aggravated robbery was punishable as a class Y felony by a sentence of ten to forty years or life. The law in effect at the time of the offense controls sentencing for the offense. Easley v. State, 274 Ark. 215, 623 S.W.2d 189 (1981). When petitioner committed the two aggravated robberies on July 22, 1981, Act 620 was in effect. He could therefore have suffered no prejudice from the jury’s being instructed that the minimum sentence was less than the actual sentence under the applicable law. Smith v. State, 277 Ark. 64, 639 S.W.2d 348 (1982). Moreover, petitioner received twenty-year sentences which were within the statutory range under either law.
Petition denied. | [
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Webb Hubbell, Chief Justice.
Appellants Baldwin-United Corporation and D. H. Baldwin Company appeal from the circuit court’s order which adopted a Plan of Rehabilitation proposed by appellee, the Arkansas Insurance Commissioner, and denied appellants’ motion to amend the Plan. The Plan concerns three Arkansas insurance companies: National Investors Pension Insurance Company, National Investors Life Insurance Company, and Mt. Hood Pension Insurance Company. All three companies are appellants’ subsidiaries. Appellants argue two points on appeal. First, they assert that the circuit court erred in making a series of rulings about its jurisdiction which prevent appellants from asserting claims against their subsidiaries in any other forum. Second, appellants argue that the Plan of Rehabilitation is not fair and equitable because it will compensate policyholders far beyond what they would have received had the insurance companies never encountered financial difficulties. We affirm.
Baldwin-United Corporation is the corporate parent of the Baldwin-United group of companies. D. H. Baldwin Company is a subsidiary of Baldwin-United. Two of the Arkansas insurance subsidiaries, National Investors Pension Insurance Company and National Investors Life Insurance Company, are direct subsidiaries of D. H. Baldwin. Mt. Hood Pension Insurance Company is an indirect subsidiary of Baldwin-United.
The Arkansas insurance companies’ principal insurance product is a single premium deferred annuity (SPDA). An SPDA guarantees the purchaser the right to a deferred stream of annuity payments in exchange for the payment of a one-time premium. Interest is periodically credited to the policyholder’s account at a specified crediting rate. The policyholder can withdraw principal and interest by surrendering the policy, by making periodic withdrawals, or by electing to receive annuity payments.
On July 13, 1983, the circuit court entered Orders of Rehabilitation concerning each of Appellants’ Arkansas insurance subsidiaries, appointed the Arkansas Insurance Commissioner as Rehabilitator of the insurance companies, and ordered her to take possession of all the insurance companies’ property and to propose a plan for their rehabilitation.
In its July 13, 1983 order, the court entered an injunction “restraining all persons and other legal entities” from “the making of claims or the commencement of further prosecution of any actions in law or equity or administrative [proceedings] except in this Court,” and from “the making of any levy, garnishment or execution against any of the property, personal or real, of respondent or its assets or its policyholders.”
On September 26, 1983, appellants entered reorganization proceedings under Chapter 11 of the Federal Bankruptcy Code, 11 U. S. C. §§ 1101 et seq. Those proceedings are pending in the United States Bankruptcy Court for the Southern District of Ohio.
On October 17, 1983, appellee submitted to the court below a proposed Plan of Rehabilitation. The proposed Plan sought to provide the Arkansas insurance companies, within 3-1/2 years, with assets at least sufficient to support the amount of the accumulated value of their single premium annuities as of May 1, 1984 plus, at a minimum, an assured rate of interest from May 1, 1984 with the possibility of receiving a higher crediting rate from May 1, 1984.
Appellants intervened in these proceedings and filed a motion to amend the Plan. Appellants challenged: (1) the parts of the Plan which continued the July 13 injuction of actions against the insurance subsidiaries in any other forum and provided that no judgment obtained elsewhere would be paid until the rehabilitation ended and all policyholder claims had been satisfied; (2) the part of the Plan which subordinated all claims against the assets to the claims of the policyholders; and (3) the part of the Plan which proposed certain rates of interest for some of the options available to holders of single premium deferred annuities. The court held hearings concerning the proposed Plan and various motions to amend, and on March 23,1984, the court approved the Plan of Rehabilitation substantially as proposed and denied appellants’ motion to amend.
In addition to its ruling on the Plan, the court made three rulings concerning its purported power over all controversies relating to the insurance companies. First, the court found that it had exclusive jurisdiction to adjudicate all claims involving the property of the insurance subsidiaries:
[T]he Court has exclusive jurisdiction of the [subsidiaries] and the assets of the [subsidiaries] and has exclusive jurisdiction with respect to the administration of the assets of the [subsidiaries] to determine the validity or invalidity of all claims against such assets.
Second, the court continued the injunction originally entered in its July 13 Rehabilitation Order:
The injunctions issued by the Court on July 13, 1983 are hereby reaffirmed the same being reasonable and necessary to protect the jurisdiction of the Court . . . and all persons or other entities are hereby enjoined from the commencement, prosecution, or further prosecution of any suit, action, claim or proceedings against the [subsidiaries] and their assets or the Receiver other than in this Court except to the extent, if any, this Court grants it permission to do so upon written Orders entered hereafter upon good cause shown
Finally, the court announced it would not recognize any judgment affecting the Arkansas insurance companies from any other court:
No sale, assignment, transfer, hypothecation, lien, security interest, judgment, order, attachment, garnish ment or other legal process of any kind or nature with respect to or affecting these [insurance companies] or their assets or the Receiver shall be effective or enforceable unless entered in this Court in accordance with [the injunction provision quoted above].
I.
Appellants claim that, beginning in 1981, they gave their Arkansas insurance subsidiaries cash, securities, and other assets for less than fair consideration. Appellants believe that they may be entitled to set aside these transfers as fraudulent conveyances and preferential transfers under Bankruptcy Code §§ 544, 547, and 548. Although the record is silent as to the size or exact nature of their claims, appellants assert on appeal that the transactions could amount to hundreds of millions of dollars. Appellants.have not presented any other claims other than those they claim might arise under the bankruptcy act.
Appellants contend that the circuit court erred in making a series of rulings concerning its purported jurisdiction which prevent appellants from presenting their fraudulent conveyance and preferential transfer claims in any forum other than the rehabilitation court. By these rulings appellants are enjoined both from bringing their claims in bankruptcy court and from petitioning the bankruptcy court to determine whether certain assets should be included in the bankruptcy estate. The bankruptcy court is also enjoined from attempting to exercise jurisdiction over assets which appellants assert might be determined to be part of appellants’ bankruptcy estate. Appellants claim that Congress has given them the right to bring their claims in federal bankruptcy cSurt and that the state court cannot impair that right. Appellants contend the central issue is whether the court can deny appellants their right to present their claims in a federal forum.
Arkansas has enacted a comprehensive statutory scheme dealing with impaired insurance companies. This scheme is designed to protect the interests of policyholders and to provide for the adjustment of the right of creditors and policyholders in the event of insolvency. This scheme expressly authorizes the issuance of injunctions. Ark. Stat. Ann. § 66-4804 (Repl. 1980) provides:
The court may at any time during a proceeding under this chapter issue such other injunctions or orders as may be deemed necessary to prevent interference with the Commissioner or the proceeding, or waste of the assets of the insurer, or the commencement or prosecution of any actions. . .
The injunction issued by the rehabilitation court does not exceed the court’s statutory authority, nor do appellants so contend.
Appellants argue a Congressionally mandated right to pursue their claims in federal bankruptcy court. It is of prime significance, however, that insurance companies are not eligible to be debtors in bankruptcy. 11 U. S.C. 109 (b) (2) and (d). Congress has thus decided that rehabilitation and liquidation of insurance companies should be left to the several states. By exempting state insurance liquidation and rehabilitation proceedings, Congress prevented bankruptcy courts from interfering with the rights of insureds protected by state regulations. See In Re Equity Funding Corporation of America, 396 F. Supp. 1266, 1275, (C. D. Cal. 1975)
Of even greater significance is the fact that Congress has expressly left the regulation of insurance to the states by its passage of the McCarran-Ferguson Act, 15 U. S. C. 1011 et seq. This act provides in pertinent part:
The Congress hereby declares that the continued regulation and taxation by the several states of the business of insurance is in the public interest, and that silence on the part of Congress shall not be construed to impose any barrier to the regulation or taxation of such business by the several states.
No Act of Congress shall be construed to invalidate, impair, or supersede any law enacted by any state for the business of insurance . . . unless such Act specifically relates to the business of insurance.
The purpose of the McCarran-Ferguson Act was to preserve intact from any federal intrusion, existing and future state regulation of the insurance industry subject only to the exceptions expressly provided. Prudential v. Benjamin, 328 U.S. 408, 420-30 (1946). The McCarran-Ferguson Act does not purport to make the states supreme in regulating all activities of insurance companies. Insurance companies may do many things which are subject to federal regulation, but when they are engaged in the business of insurance, the Act applies. S.E.C. v. National Securities, 393 U.S. 453, 459-60 (1969). When a state does act to regulate the insurance business, particularly in respect to the rights of policyholders, it is free from the intervention of Congress in the absence of a specific law concerning that matter.
Appellants assert that state rehabilitation proceedings are not business of insurance within the meaning of the McCarran-Ferguson Act. The focus of “business of insurance” is the relationship between the insurer and an insured, particularly the policy’s reliability. Statutes aimed at protecting or regulating the relationship between an insurance company and a policyholder, directly or indirectly, are laws regulating the business of insurance. S.E.C. v. National Securities, at 460. The Plan of Rehabilitation protects over 300,000 policyholders throughout the United States by attempting to provide the Arkansas insurance companies with assets at least sufficient to support the full amount of the accumulated value of the annuities. Ark. Stat. Ann. § 66-4810 (Repl. 1980) provides that the order to rehabilitate a domestic insurer shall direct that the Commissioner take possession of the company’s property and “conduct the business.” The Arkansas statute which authorizes the rehabilitation court to issue an injuction is a law enacted for “the business of insurance” within the meaning of the McCarran-Ferguson Act. Ark. Stat. Ann. § 66-4804 (Repl. 1980).
The McCarran-Ferguson Act prohibits Congress from impairing any law enacted by a state for the business of insurance unless such congressional action specifically relates to the business of insurance. Therefore, since the Bankruptcy Act does not specifically relate to the business of insurance, and indeed expressly excludes insurance companies from being debtors in bankruptcy, appellants cannot pursue their claims under the Bankruptcy Act once enjoined by a valid state injunction. If any meaning is to be given to the congressional exclusion of insurance companies from the Bankruptcy Act and the mandate of the McCarranFerguson Act, it must be that the determination of rights among an insurance company’s creditors must be left to state proceedings.
We do not hold that the McCarran-Ferguson Act prohibits a person from making a claim in Bankruptcy against an insurance company under any circumstances. In this instance, however, an insurance company is being rehabilitated pursuant to a state statutory scheme, and the rehabilitation court found it necessary to enjoin other proceedings in order to secure an orderly rehabilitation. Therefore, the McCarran-Ferguson Act prevents the Bankruptcy Act from being used to invalidate or impair the Arkansas statutes. The appellants do not have an absolute right to pursue their claims in bankruptcy court.
The rehabilitation of these three insurance companies is of vital state concern. On July 13, 1983, the appellants joined in appellee’s petition to seek an Order of Rehabilitation. The parties joined in this effort in order to protect the interest of the companies’ assets, the companies’ creditors, the policyholders, and the public at large. The over 300,000 policyholders affected by the rehabilitation and the appellants’ bankruptcy proceedings are at a distinct economic disadvantage in the protection of their interests. An orderly rehabilitation of the three insurance companies may provide the policyholders the only opportunity to recover their investments. The rehabilitation court needs to be able to subject the companies and those asserting claims to a coherent and compulsive legal process, or it would be severely constrained in its efforts. The rehabilitation court’s injunction does not leave the appellants without remedies. They may petition the court for relief from the injunction or litigate their claims in rehabilitation court. The trial court did not err in finding that in order to secure an economical, efficient, and orderly rehabilitation, it was essential not only that title and custody to the insurance companies’ assets be entrusted to a single court, but that all claims to those assets be adjudicated in that same court.
II
Appellants’ final argument is that the approved Plan of Rehabilitation is contrary to law and is not fair or equitable to the extent it will compensate policyholders far beyond what they would have received had the subsidiaries never encountered financial difficulties.
The Rehabilitation Plan offers policyholders several options with respect to their policies. Options A and B offer policyholders a crediting rate of the average of first year crediting rates offered by other insurers on comparable policies plus .5%. The .5% bonus is to provide compensation to policyholders for the difficulties encountered in the rehabilitation process. The court denied appellants’ motion to amend the Plan to base the crediting rate on the average rate offered by other issuers which are not in their first year guaranteed period plus .5%.
Appellants assert that first year rates guaranteed during the first year are artificially high to induce sales. After the guaranteed period, these high rates are reduced significantly to reflect true market conditions. Appellants assert that unless the court’s order is reversed the policyholders will receive a perpetual first year guaranteed rate throughout rehabilitation.
The court found the Plan “is fair, just, and equitable to all interested persons, creditors, claimants, and entities affected by the Plan.’’ The standard of review is whether the trial court’s finding is clearly erroneous. ARCP Rule 52.
The policies sold by the appellants’ insurance com panies had a one year minimum crediting rate that was substantially higher than the interest rate guaranteed in subsequent years. However, significant reduction in the rate would have allowed the policyholders to surrender their policies and receive their full policy accumulation, plus the high first year rates. The policyholder could then obtain a new first year rate from another insurance company. The record reflects that appellants’ companies would have had to maintain high crediting rates to keep their business. Under the Plan of Rehabilitation the policyholders are locked in and cannot reinvest with another company. The Rehabilitation Plan’s crediting rates have a reasonable basis, and the adoption of the rates is not clearly erroneous.
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Robert H. Dudley, Justice.
In this original action the petitioner, the Arkansas Women’s Political Caucus, asks this court to declare invalid proposed Constitutional Amendment No. 65, “The Unborn Child Amendment.’’ We hold that the popular name of the proposed amendment constitutes a partisan coloring of the ballot and declare the measure ineligible for consideration at the November 6, 1984, election.
In two historic cases, the Supreme Court of the United States decided that the Constitution protects a woman’s right to decide whether to terminate her pregnancy and that a state may not unduly burden the exercise of a woman’s fundamental right to obtain an abortion. Roe v. Wade, 410 U.S. 113 (1973) and Doe v. Bolton, 410 U.S. 179 (1973). These two 1973 cases did not resolve all of the complex issues involved in the abortion controversy. In 1977, in a trilogy of cases, the Court ruled that neither the Constitution nor federal statutes required public funding of elective abortions for poverty stricken women. Beal v. Doe, 432 U.S. 438 (1977); Maher v. Roe, 432 U.S. 464 (1977); and Poelker v. Doe, 432 U.S. 519 (1977). The 1977 trilogy did not address the question of whether state laws could validly prohibit governmental funding of medically necessary abortions.
The original action now before us is a continuation of the abortion controversy at the state level. On one side, the intervenor, The Unborn Child Amendment Committee, desires to amend the Arkansas Constitution to adopt a policy limiting abortion, not only from viability, but from conception. The intervenor would also prohibit the use of public funds for abortion, directly or indirectly, unless it was for the purpose of saving the woman’s life. On the other side, the petitioners, the Arkansas Women’s Political Caucus, desires to maintain the present silence of the Constitution of Arkansas on the subject. That silence allows a statute to provide that a woman and her physician may make the choice under certain circumstances. See Ark. Stat. Ann. § 41-2554. It allows the state, if it chooses, to treat abortion as an accepted medical procedure under Medicaid type programs.
Amendment 7 to the Constitution of Arkansas gives all citizens of this state the right to initiate constitutional amendments. The intervenor, Unborn Child Amendment Committee, seeks to exercise that right. They have drafted a proposed amendment, a proposed popular name and a proposed ballot title. They have submitted the proposed popular name and ballot title to the Attorney General for approval. See Ark. Stat. Ann. § 2-208 (Repl. 1976 and Supp. 1983). The Attorney General has ruled that the popular name and title are not misleading and has approved them for circulation. They have circulated initiative petitions and the Secretary of State has determined that they had obtained sufficient signatures in order to have the initiated proposed amendment on the November 6, 1984, ballot.
The petitioner contends that the ballot title and popular name are partial and misleading to the extent that the electorate will be deceived. Our standard of review for these actions is clear. It is the duty of this court to see that ballot titles and popular names are (1) intelligible, (2) honest, and (3) impartial. Leigh v. Hall, 232 Ark. 558, 339 S.W.2d 104 (1960).
The requirements for the popular name are not as stringent as those for the ballot title. It is simply a legislative device which is useful for voters to discuss a measure before an election. Pafford v. Hall, 217 Ark. 734, 233 S.W.2d 72 (1950). However, popular ballot names which contain catch phrases or slogans that tend to mislead or give partisan colorings to the merit of a proposal will be rejected. Moore v. Hall, 229 Ark. 411, 316 S.W.2d 207 (1958). The popular ballot name, “The Unborn Child Amendment” is misleading.
An unborn child cannot exist before life begins, but those trained in the disciplines of law, medicine, philosophy and theology are unable to arrive at a consensus of when life begins. A synopsis of thought is found in Roe v. Wade, 410 U.S. at 160-61.
. . . There has always been strong support for the view that life does not begin until live birth. This was the belief of the Stoics. It appears to be the predominant, though not the unanimous, attitude of the Jewish faith. It may be taken to represent also the position of a large segment of the Protestant community, insofar as that can be ascertained; organized groups that have taken a formal position on the abortion issue have generally regarded abortion as a matter for the conscience of the individual and her family. As we have noted, the common law found greater significance in quickening. Physicians and their scientific colleagues have regarded that event with less interest and have tended to focus either upon conception, upon live birth, or upon the interim point at which the fetus becomes “viable,” that is, potentially able to live outside the mother’s womb, albeit with artificial aid. Viability is usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks. The Aristotelian theory of “mediate animation,” that held sway throughout the Middle Ages and the Renaissance in Europe, continued to be official Roman Catholic Dogma until the 19th century, despite opposition to this “ensoulmén t” theory from those in the Church who would recognize the existence of life from the moment of conception. The latter is now, of course, the official belief of the Catholic Church. As one brief amicus discloses, this is a view strongly held by many non-Catholics as well, and by many physicians. Substantial problems for precise definition of this view are posed, however, by new embryological data that purport to indicate that conception is a "process” over time, rather than an event, and by new medical techniques such as menstrual extraction, the "Morning-after” pill, implantations of embryos, artificial insemination, and even artificial wombs.
From this synopsis it can be seen that there are three schools of thought on the issue of when life begins; at conception, upon live birth, or at the point upon which the fetus becomes viable. The intervenor committee follows that school of thought which believes that life begins at conception. The ballot name “unborn child,” standing alone, would tend to mislead those voters who follow an alternate school of thought and do not think of fetuses of certain gestational ages as unborn children. Those voters could well make a distinction between a one-second old conceptus and a fetus of eight months gestation which this popular name does not acknowledge. More significantly, the enactment of the proposed amendment would do two things, equally far-reaching: it would immediately prohibit the use of public funds for abortion, including a female impregnated by rape or incest, unless the life of the mother were in danger; and two, it would empower the General Assembly tó prohibit abortion under any circumstances to the extent permitted under the Constitution of the United States. Yet, the popular name makes no reference whatsoever to this emotionally charged subject. Instead, the ballot name contains only the inviting catch words "unborn child,” which gives the voters only the impression the proponents of the amendment want them to have. Very few would vote against a child, born or unborn, even though they are for a woman’s right to have an abortion or for the state paying for it. The popular name is a clear-cut example of the partisan coloring of ballots which we have uniformly condemned in our decisions holding that a ballot name must be fair and impartial.
We are aware that overshadowing this particular proposed amendment are the rights of initiative and voting. We are keenly aware that all citizens of this state are being denied those rights by this opinion, even after the sponsors have been through a long and expensive process. However, in a case of this kind, the Constitution plainly places the responsibility on this court to see that the result of an election represents the objective judgment of the voters. The popular ballot title conveys a biased view of the merits of the proposal. It is plainly our duty to declare it misleading.-
Petition granted.
Hubbell, C.J., and Hickman, J., dissent.
Purtle, J., not participating | [
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George Rose Smith, Justice.
Victor London brought this action for malicious prosecution against Crockett Motor Sales, from whom London had bought a car on credit in 1975. When the car was repossessed for delinquency in 1976, the motor was missing. London’s complaint alleged that Crockett Motors, without probable cause and with malice, charged London with having taken the motor and transmission to defraud a secured creditor, a felony. Ark. Stat. Ann. § 41-2304 (Repl. 1977). The trial resulted in a verdict and judgment awarding London $7,500 actual damages and $5,000 punitive damages. For reversal Crockett Motors argues that it was entitled to a directed verdict and that the awards are excessive. Tort cases come to us. Rule 29 (1) (o).
The testimony was in dispute. London testified that he fell behind in his payments on the car when the engine developed a knock in April, 1976. London, who is a mechanic, decided to save about $700 by removing the engine himself and having it repaired instead of putting the car in a shop. He had to pay $350 in advance, however, resulting in his becoming delinquent in his monthly payments to the financing bank.
London testified that he had no prior notice before the car was picked up by the bank in his absence and taken to Crockett Motors, a recourse dealer. London, looking for his car, could get no information at the bank and went to Crockett Motors, where he unexpectedly saw his car on their lot. He then talked to Mr. Crockett (who died before the trial). Crockett demanded to know where the motor was and refused to listen to London’s explanation; so London left. A day or so later Crockett called London and a refinancing was arranged, under which London completed his purchase of the car without further difficulties.
In the interval before the refinancing, however, and unbeknown to London, Crockett had sent his employee, James Cabe, to the prosecuting attorney’s office to swear out a warrant against London. Cabe did so, but the warrant lay dormant for more than four years. It finally happened that in 1981, when London went to the police headquarters to pay a traffic ticket, a computer check of his record disclosed the warrant. London was at once arrested, booked, fingerprinted, and held until he arranged for bail. He had to employ a lawyer and go to court for arraignment before the charge was nol-prossed. The present suit was then filed, in 1982.
Crockett Motors argues primarily that it had probable cause for thinking that London had taken the motor with intent to defraud. On disputed facts, however, such a question is for the jury and has rxen in Arkansas for more than a century. Chrisman v. Carney, 33 Ark. 316 (1878); Whipple v. Gorsuch, 82 Ark. 252, 101 S.W. 735, 10 LRA (NS) 1133, 12 Ann. Cas. 38 (1907); Myers v. Andre, 161 Ark. 393, 256 S.W. 363 (1923); Wm. R. Moore Dry Goods Co. v. Mann, 171 Ark. 350, 284 S.W. 42 (1926); Parker v. Brush, 276 Ark. 437, 637 S.W. 2d 539 (1982). In the present case all the issues were submitted to the jury by instructions about which no complaint is made.
The jury could have found, in harmony with the court’s instructions, that by the test of a reasonably cautious man Crockett did not have probable cause for believing that London had been guilty of dishonesty. Crockett refused to listen when London tried to tell him that “I put money down on it, on having the engine repaired, ánd I didn’t want to just lose out.” London had been making his payments regularly before his delinquency and had paid the $3,300 debt down to about $1,500. The jury could conclude that on those facts Crockett was not justified in jumping to the conclusion that in effect London was a thief. Indeed, it is almost impossible to reconcile the existence of probable cause with Crockett’s almost contemporaneous action in refinancing the debt and returning the car to London. There was ample proof to justify the jury in finding a want of probable cause for the prosecution.
Crockett Motors argues that a directed verdict was required for two other reasons. One, the company acted on advice of counsel, because a deputy prosecuting attorney made out the information for Cabe to sign. It is essential to this defense, however, that the facts be fully and impartially stated to counsel. Parker, supra. Cabe testified that he was instructed by Mr. Crockett to go down and get a warrant, but Cabe admitted that he had not heard the conversation between Crockett and London. The jury doubtless concluded that he could not have detailed London’s side of that conversation to the prosecutor. In fact, the prosecutor testified that if he had been told that London claimed to have removed the motor for repairs, he would have tried to verify that fact before approving the charge. Moreover, London denied all along that the transmission in the car was missing, but the information charged that London had also taken that; so the prosecutor was not accurately informed in that particular. The second argument, that the prosecution did not terminate in London’s favor, is without merit, for the entry of a nolle prosequi is a sufficiently favorable termination. Prosser, Torts, 839 (4th ed. 1971).
In view of the gravity and the consequences of an innocent man’s being wrongfully charged with a felony, we do not find the award of damages to be excessive.
Affirmed. | [
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Richard B. Adkisson, Chief Justice.
This is the second suit involving these parties. The suits involved two certificates of deposit issued by appellee, Citizen’s Bank of Beebe. The certificates were purchased by Frances Quattlebaum, aunt of the present appellants, Thelma Martin and Norma English. After the death of Frances Quattlebaum, a dispute arose between her estate and the present appellants as to the ownership of the proceeds of the certificates.
In the first case, the administrator of the estate filed a suit for declaratory judgment to determine the ownership of the certificates. In answer to the suit, appellee bank filed a “Complaint to Interplead” the proceeds from the certificates and asked to be relieved from any liability to the parties. On appeal this Court held that the certificates of deposit designating appellants as co-owners issued by appellee bank did not create a right of survivorship in them. Martin v. First Security Bank, 279 Ark. 273, 651 S.W.2d 70 (1983).
Appellants then brought the present suit against appellees alleging breach of contract, negligence, constructive fraud, and unjust enrichment in preparing and handling the certificates of deposit. Appellees answered by specifically pleading that these issues should have been adjudicated in the prior suit, and the appellants are now barred by the doctrine of res judicata from litigating them in this independent action. Upon appellees’ motion the trial court granted summary judgment stating that the appellants “are now barred by the doctrine of res adjudicata.” On appeal we affirm.
Appellants initially argue that the “Complaint for Interpleader” filed in the first suit was not an interpleader pursuant to ARCP Rule 22. Rule 22 provides that, “A defendant. . .may obtain such interpleader relief by way of a cross-claim, third party complaint or counterclaim.” Therefore, in order to effectuate this interpleader against the present appellants, it was necessary for the appellees to file a cross-claim. It is a well settled rule of law that a pleading will be judged by what it contains. Beam v. Monsanto Co., Inc. 259 Ark. 253, 532 S.W.2d 175 (1976). Appellees’ complain for interpleader stated that appellees had no interest in tht certificates, requested permission to deposit the funds in the registry of the court or hold them subject to the orders of the court, and asked that it be dismissed from any liability to the parties. Appellees’ request for a discharge from the proceedings and judicial protection against further claims constitutes a seeking of “affirmative relief” against the parties sufficient to be termed a cross-claim against the co-defendants, appellants herein. In the original suit the parties, the trial court, and this Court on appeal accepted the pleadings as an interpleader without objection.
The doctrine of res judicata is based on the assumption that the litigant has already had his day in court. Dickerson v. Union National Bank of Little Rock, 268 Ark. 292, 595 S.W.2d 677 (1980). To apply the doctrine, it must appear that the particular matter involved was raised and determined or that it was necessarily within the issues which might have been litigated in the previous action. May v. Edwards, 258 Ark. 871, 529 S.W.2d 647 (1975). From the time that appellees filed the “Complaint for Interpleader,” appellants were on notice of appellees’ request for relief. It was at this time that it became incumbent on the present appellants to state any claim which, at the time .of the pleadings, they had against their adversaries. ARCP Rule 13 (a). Therefore, by not filing a claim against the appellees in the first suit, appellants were barred by the doctrine of res judicata.
Finally, appellants argue that they were not properly served with process on the cross-claim for interpleader and, consequently, the trial court lacked personal jurisdiction of appellants. Smith v. Edwards, 279 Ark. 79, 648 S.W.2d 482 (1983). However, that issue was not raised in the original suit and was, therefore, waived. Strahan v. The Atlanta Nat. Bank of Atlanta, Texas, 206 Ark. 522, 176 S.W.2d 237 (1943).
Affirmed.
Dudley, J., not participating. | [
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Per Curiam.
Appellant, Michael Daniel Herrington, by his attorney, has filed for a rule on the clerk. His attorney, Bruce D. Switzer, admits that the record was tendered late due to a mistake on his part.
We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our Per Curiam opinion dated February 5,1979, In Re: Belated Appeals in Criminal Cases.
A copy of this opinion will be forwarded to the Committee on Professional Conduct. | [
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Steele Hays, Justice.
Appellant was convicted of first degree murder and arson, resulting in consecutive sentences of forty years for murder and twenty years for arson. Two points for reversal are raised: The trial court erred in denying a motion to suppress custodial statements because the appellant was not promptly brought before a judicial officer and in denying a motion to suppress evidence because of an invalid arrest in violation of the Fourth and Fourteenth Amendments to the Constitution. We affirm.
On September 1, 1982 the burned body of Lester Richardson was found among the ashes of his home in Arkansas County. Later that day appellant, his father and step-mother, who lived nearby and who reported the fire, were taken to the sheriff’s office for questioning. While there, appellant was charged with public intoxication, searched and placed in a jail cell. Ten days later he was charged with murder and arson, but not until October 25, 1982 was he brought before a judicial officer, at which time counsel was appointed.
Appellant gave three custodial statements between the time of his arrest and his appearance before a judicial officer. The first was given on the evening of September 1, and two later ones on October 5 and 6. Appellant submits that all three statements must be suppressed because of the inordinate delay in compliance with A.R.Cr.P. Rule 8.1, which provides:
An arrested person who is not released by citation or by other lawful manner shall be taken before a judicial officer without unnecessary delay. (Our italics.)
We have held that compliance with this rule is mandatory, Bolden v. State, 262 Ark. 718, 561 S.W.2d 281 (1978), and in Cook v. State, 274 Ark. 244, 623 S.W.2d 820 (1981) we said that a delay of seventeen days in presenting an accused to a judicial officer constituted a violation of Rule 8.1, and that the remedy was not a dismissal of the charges, but the suppression of in-custodial statements. See Gerstein v. Pugh, 420 U.S. 103 (1975).
The State, appropriately, concedes that a delay of fifty-six days, which occurred in this case, cannot be defended, with which we emphatically agree. However, the state submits that the error is harmless because the three statements are all exculpatory, in that they merely give appellant’s account of how Lester Richardson accidentally dis charged a 20 gauge shotgun as he was changing the sheets on a bed for the appellant, his nephew, to sleep in. Whether the nature of the statements requires reversal cannot be determined, as none of the three statements is abstracted and their admission may have been harmless. At least we are not willing to presume that the statements are prejudicial when their content is not divulged and we have no way of knowing whether they are incriminating. Rule 9(d) of the Rules of the Supreme Court provides that appellant’s abstract should include “such material parts of the pleadings, proceedings, facts, documents, and other matters in the record as are necessary to an understanding of all questions presented to this court for decision.” While the rule uses the word “only ”, that cannot excuse the total omission of exhibits or other material, the substance of which is essential to a determination of whether appellant’s argument has merit, and warrants a reversal of the judgment. Adams v. State, 276 Ark. 18, 631 S.W.2d 828 (1982); Byers v. State, 267 Ark. App. 1097, 594 S.W.2d 252 (1980); Vail v. State, 267 Ark. App. 1078, 593 S.W.2d 491 (1980); Ellis v. State, 267 Ark.App. 690, 590 S.W.2d 309 (1979).
The remaining argument is that other evidence should have been suppressed because it was obtained by a search based on an invalid arrest. Appellant submits that his arrest for public intoxication was a mere pretext to aid the state in its investigation of the felony charges which were later filed. We cannot sustain that contention. The proof established that appellant had been drinking the night before and showed the effects of alcohol when he was brought to the sheriff’s office around midday on September 1. During the next hour or so he made frequent trips to the rest room as he became increasingly inebriated, until he was arrested, searched and an empty half pint whiskey bottle found in his boot. The proof that his condition justified the charge is not seriously challenged. Appellant’s argument is based on nothing more than the mere assumption that the motive for his arrest related to the murder and arson crimes and not to the fact that he was, by all accounts, publicly drunk. Appellant submits that the offense of public intoxication, as defined in Ark. Stat. Ann. § 41-2913, requires an element missing here, i.e. a likelihood that the accused poses a danger to himself or to the persons or property of others. But the appellant was a possible suspect for homicide and arson and the circumstances were entirely sufficient to place him under arrest for being drunk in public. It is not necessary that a dangerous propensity from excessive alcohol become manifest before the police are justified in arresting someone for being intoxicated in a public place.
We cannot overlook the extraordinary delay in bringing this appellant before a judicial officer as required by A.R.Cr.P. Rule 8.1. Abuses of this sort warrant the strongest censure. The sheriff, along with the prosecuting attorney, was and is primarily responsible for this breach of responsibility. Furthermore, the circuit judge as the head of the local judicial system, must set the tone of justice in his circuit. If he oversees the system properly, it should work well; if he neglects it, it will result in similar abuses. We note, parenthetically, that neither the Circuit Judge nor the Prosecuting Attorney, currently serving in Arkansas County, were holding office at the time appellant was held improperly.
The exclusionary rule was created by the United States Supreme Court to remedy flagrant violations of constitutional rights. Weeks v. United States, 232 U.S. 383 (1914); see also Cook v. State, 274 Ark. 244, 623 S.W.2d 820 (1981). Its purpose is to deter improper practices in our legal system. Arkansas v. Sanders, 442 U.S. 753 (1979). While many believe the exclusionary rule should be changed (and it is being relaxed), the reasons for its existence are arguably valid simply because no effective alternative has been found. Other writers have discussed the advantages and disadvantages of the rule. See Schroeder, Deterring Fourth Amendment Violations: Alternatives to the Exclusionary Rule, 69 vol. J. 1361, 1423 (1981); Oaks, Studying the Exclusionary Rule in Search and Seizure, 37 U. Chi. L. Rev. 665 (1970). Cf. Dellinger, Of Rights and Remedies: The Constitution as a Sword, 85 Harv. L. Rev. 1532 (1972).
However, the question remains, how do we prevent a sheriff from wrongdoing or require him to do his duty? Unfortunately, we can’t as a practical matter, because prosecutors are reluctant to intervene. But we can express disapproval of such conduct, and we must, if a relaxation of the exclusionary rule is to be justified. Theoretically, there are remedies for victims of such abuses through civil litigation, and we should not discourage such recourse. But that is not enough, officials must be called publicly to account and given more than perfunctory admonishment; they must be censured and the people of the locality informed that their legal system has failed to work in the manner contemplated by our constitution. The responsibility in such cases must be placed on those officials who failed in their duty. It is unfair to the public, indeed it is wrong, to permit a defendant to escape prosecution for a crime because of such mistakes, unless his right to a fair trial is actually prejudiced. See Pace v. State, 265 Ark. 712, 724, 580 S.W.2d 689 (1979). At the same time, officers of the judicial system must answer to the public for their neglect.
The judgment on the sentences is affirmed.
Purtle, Hollingsworth and Dudley, JJ., dissent. | [
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Robert H. Dudley, Justice.
Appellee, Schueck Steel, Inc., filed suit against appellant, Kinco, Inc., for unfair interference with Schueck’s business expectancy. Schueck asked for $15,000 as lost profit and $25,000 as punitive damages. The trial judge refused to give an instruction on punitive damages. The jury returned a verdict for Schueck and awarded $25,000 in compensatory damages. The trial judge reduced the amount of damages to the amount of compensatory damages prayed, $15,000. Kinco appeals, asserting that Schueck failed to make a prima facie case of tortious interference with a business expectancy, or alternatively, that Kinco’s interference was privileged. Schueck cross-appeals, asking that the $25,000 verdict be reinstated but, at oral argument, Schueck dismissed its cross-appeal. We affirm on direct appeal. Jurisdiction is in this court under Rule 29 (l)(o) as the case presents a question in the law of torts.
The pertinent facts are as follows. In 1981, the Pulaski County School District hired an architectural firm to prepare plans and specifications for the construction of the J. A. Fair school. The architectural firm chose to use a metal wall paneling to cover part of the exterior of the building. The architects thought only one company manufactured the desired type of metal panel and that it was sold under the brand name of Walcon. Appellee Schueck is the local distributor for Walcon. Thomas B. Schueck, Schueck’s chief executive officer, also thought it was the only distributor for this type of panel.
The architects decided to establish an allowance in the bid documents for the wall panel. An allowance notifies bidders of the amount which will be allowed for the purchase of a particular item. Accordingly, Thomas B. Schueck met with the architects and they arrived at a cost of $98,952, which included a gross profit of $15,000 for Schueck. An.allowance of $99,000 for the wall panel was then put in the bid specifications. The architects did not use the brand name Walcon in the description of the allowance. One of the school’s architects, who was working with Schueck on the allowance, told him that they were going to use Walcon if the project came within the budget. All of the bidders on the general contract used the $99,000 allowance figure as their cost for the metal paneling. Obviously, an expectancy existed at that time. After the bids on the general contract were received, all parties still thought the Walcon product would be used. Richardson Construction Company was awarded the contract and Richardson, in turn, subcontracted with Kinco tó supply and erect the wall panels. Later, Kinco, after asking the architects if they were interested in receiving quotes on other wall panel, undertook to locate a panel similar to Walcon and found MorWall. Kinco contracted to become a distributor for MorWall. Kinco then became a competitor of Schueck but concealed that from Schueck.
The school district decided to use an additional amount of wall paneling and so the architects issued an addendum requesting price quotations for additional paneling, custom color, and warranties. The addendum stated that a product “similar to” Walcon paneling should be used. Kinco’s project manager talked with Schueck about the additional wall paneling and about a quote for custom color. Schueck still did not know that Kinco was his competitor. There is substantial evidence that Kinco used knowledge of Schueck’s prices to make its bid on the addendum lower. There is evidence that, at the time Kinco submitted the Walcon and the MorWall bids to the architect, Schueck’s additional price was really $3,000 but Kinco’s manager had added profit to the total cost of paneling so that it appeared Schueck was asking $13,000. The architects saw this, thought it was excessive and became irritated with Schueck. Schueck told the architects that somebody had altered his price. Schueck asked Kinco’s project manager why his price went from $3,000 to $13,000 and the manager did not give a satisfactory answer. Schueck wrote a letter to the architects and offered to make a gift of the added material and also offered a twenty year guaranteed color for $2,500. His purpose in doing so was to avoid upsetting the architects and school board and because he didn’t want to lose the business.
One of the architects later called Kinco’s manager to ask about the price discrepancy. The manager’s failure to reveal to the architect that he added a profit to the price can be construced as intentionally misleading. A memorandum was put in evidence which indicates that Kinco’s manager was delighted at Schueck’s predicament.
In addition, Kinco’s manager submitted confusing comparisons to the architects about custom colors and the warranties between the two wall panels. The architects asked Kinco for both a “custom color quote only” and a “custom color with ten year warranty.” Kinco quoted no extra charge for the custom color and a $4,900 charge for the color with ten year warranty. Kinco never asked Schueck for a “custom color only” quote. Schueck quoted a $2,377 price for a custom color which included the ten year warranty. The warranty dictated the extra charge. The architects then told Kinco to use MorWall.
Lastly, Kinco’s manager notified the general contractor that if Schueck’s product was selected, the general contractor would have to deal directly with Schueck, despite the fact that the contract between the general contractor and Kinco stated that Kinco would both supply the materials and erect the exterior.
Appellant’s first point is that the lower court erred in refusing to direct a verdict because appellee failed to make a prima facie case of tortious interference with a business expectancy. We find no merit in the argument. The elements of the tort are the existence of a valid business expectancy; knowledge of that expectancy on the part of the interferor; intentional interference inducing or causing termination of that expectancy; and resultant damage. Walt Bennett Ford, Inc. v. Pulaski County Special School Dist., 274 Ark. 208, 624 S.W.2d 426 (1981); Mason v. Funderbunk, 247 Ark. 521, 446 S.W.2d 543 (1969). The test for the trial court in ruling on a motion for a directed verdict by either party is to take that view of the evidence that is most favorable to the non-moving party and give it its highest probative value, taking into account all reasonable inferences deducible from it; after viewing the evidence in this manner, the trial court should: (1) grant the motion only if the evidence is so insubstantial as to require that a jury verdict for the non-moving party be set aside, or (2) deny the motion if there is substantial evidence to support a jury verdict for the non-moving party. Farm Bur. Mut. Ins. Co. v. Henley, 275 Ark. 122, 628 S.W.2d 301 (1982). Substantial evidence is that which is of sufficient force and character that it will compel a conclusion one way or another. It must force or induce the mind to pass beyond a suspicion or conjecture. Id. Here, there was substantial evidence that: (1) Kinco, through its employee, concealed from Schueck the fact that it was competing against him, (2) Schueck would never have disclosed its prices to a known competitor, (3) Kinco used knowledge of Schueck’s prices to underbid him, (4) Kinco added its profit to Schueck’s price and then intentionally misled the architects when they tried to determine if Schueck had padded its price for the additional wall panel, (5) Kinco submitted confusing comparisons between wall panels concerning custom color and warranty, (6) Kinco’s actions as evidenced by its employee’s memorandum were not in good faith, (7) Kinco told the architects that if Schueck’s product was used then the architects would have to deal with Schueck directly, and (8) these actions caused the ter mination of Schueck’s valid expectancy and he suffered damages. Therefore, the trial judge correctly refused to grant a directed verdict.
Appellant’s second point is that even if it did interfere with appellee’s expectancy, such interference was privileged and the lower court erred in refusing to direct a verdict in favor of appellant. Appellant had the burden of proof to show justification. Stebbins & Roberts, Inc. v. Halsey, 265 Ark. 903, 582 S.W.2d 266 (1979). Appellant contends that no conduct challenged by appellee rises to the level of wrongful or improper competition because appellant’s submission of a lower price saved the school district money.
The Restatement 2d of Torts § 767 comment (e) (1977) provides that if a social interest is advanced by someone who interferes with an expectancy, the conduct will be less likely to be considered improper. In Walt Bennett Ford, Inc. v. Pul. Co. Spl. Sch. Dist., 208 Ark. at 214-B, 624 S.W.2d at 430, we stated thát “an impersonal or disinterested motive of a laudable character may protect the defendant in his interference. This is true particularly where he seeks to protect a third person toward whom he stands in a relation of responsibility. . . .” In that case, school directors, in good faith, were trying to protect the school district. Here, the appellant, without good faith and for its own benefit, gained an unfair advantage by sharp and overreaching actions. There is no privilege for self-enrichment by devious and improper means.
We do clearly recognize a privilege to compete. The scope of this privilege is discussed by Prosser:
In short, it is no tort to beat a business rival to prospective customers. Thus, in the absence of prohibition by statute, illegitimate means, or some other unlawful element, a defendant seeking to increase his own business may cut rates or prices, allow discounts or rebates, enter into secret negotiations behind the plaintiff’s back, refuse to deal with him or threaten to discharge employees who do, or even refuse to deal with third parties unless they cease dealing with the plaintiff, all without incurring liability.
W. Prosser, Law of Torts, § 130 (3rd ed. 1971).
The Restatement Second on Torts defines the circumstances under which competition will justify interfering with another’s business expectancy. Section 768 provides:
(1) One who intentionally causes a third person not to enter into a prospective contract relation with another who is his competitor or not to continue an existing contract terminable at will does not interfere improperly with the other’s relation if
(a) the relation concerns a matter involved in the competition between the actor and the other and
(b) the actor does not employ wrongful means and
(c) his action does not create or continue an unlawful restraint of trade and
(d) his purpose is at least in part to advance his interest in competing with the other.
Restatement (Second) of Torts § 768 (1977).
The trial court correctly refused to grant a directed verdict because there was substantial evidence from which the jury could find that appellant employed wrongful means to interfere with appellee’s expectancy.
Appellant’s efforts were not directed toward fair competition. They were directed toward unfair evasion of competition.
Affirmed on direct appeal.
Adkisson, C.J., dissents.
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George Rose Smith, Justice.
The two appellants, Curtis and Billy Howard, brothers, were charged with and convicted of aggravated robbery and theft of property. Curtis, as an habitual offender, was sentenced to consecutive terms of life and 30 years. Billy was sentenced to concurrent terms of 10 and 5 years. In separate briefs they argue that owing to various gaps in the State’s proof it is insufficient to sustain the convictions. Viewing the evidence most favorably to the appellee, we find it amply sufficient. In narrating the events as the jury could have fairly believed them to have occurred we will refer to the two brothers by name, though some of the witnesses could only describe Curtis Howard as a short black man and Billy Howard as a tall black man.
The robbery occurred early in the afternoon on February 4, 1983. The brothers first drove up to the Safeway store in Pine Bluff, in a black Mercury sedan owned by Curtis. After circling the store twice they parked, entered the store, came out, and drove away. They returned shortly and parked across the street. Curtis got out and went to the store, pulling on a ski mask. A witness who saw him before he was masked identified him later from a photograph.
In the store Curtis, armed with a pistol, held up the manager and his assistant. Curtis was wearing a plaid shirt, blue jeans, and shoes with white rubber soles. He took about $3,500, mostly in packages of $20 bills. Curtis was seen as he ran from the store with a gun in one hand and a sack in the other. He ran across the street and got in the car, where Billy was waiting. A witness who saw them pursued them in his car. He saw a ski mask being thrown from the car. He followed the fleeing vehicle for two miles and wrote down the license number, which, after the two men had been apprehended, was found to be that of Curtis’s car.
An off-duty officer heard a police-radio broadcast describing the crime and the car. The officer, reasoning that the robbers might have fled on Highway 79, jumped into his own unmarked car and drove south on that highway at a speed of 85m.p.h. or more. After 10.9 miles he overtook a car corresponding to the broadcast description, occupied by two men, and being driven at about 55 m.p.h. The officer radioed ahead for a road block and followed the car until it was halted at the road block.
The two men in the car were Curtis and Billy Howard. Curtis had evidently changed clothes, for the plaid shirt and blue jeans were in the back seat, but he was still wearing shoes with white rubber soles. Curtis said he had $500 in his pocket but a search showed the amount to be only $54. Billy had $400 in his pocket in folded $20 bills, and another $79. The officers saw two $20 bills sticking out of the bottom of a car door. Curtis said that they had set out to buy a car and had put $ 1,000 in their car door because they were afraid they would be robbed in Pine Bluff. When the panel of the door was peeled back, the officers found $400 in $20 bills. There are other lesser incriminating circumstances we need not detail. Neither brother made a statement to the police or testified at the trial.
In questioning the sufficiency of the State’s proof the appellants point out that the gun and most of the stolen money were never found and that there are minor discrepancies in the testimony for the prosecution. Granted, but there is nevertheless much substantial evidence of guilt. Curtis’s explanation that he and his brother had started out with cash to buy a car cannot be squared with his not knowing even approximately how much money was in his pocket or in the car door. A defendant’s false and improbable explanations of incriminating circumstances are admissible as proof of guilt. Surridge v. State, 279 Ark. 183, 650 S.W.2d 561 (1983). That the two brothers had $800 in bills of the same denomination as those taken is a further indication of guilt. The pistol and the rest of the money could easily have been disposed of had the two men stopped for a few seconds to hide those articles while their car was not being followed. The jury doubtless found it impossible to believe that Billy Howard could have been apprehended in the getaway car a few minutes after the robbery, some 15 miles away, with $400 in his pocket, and yet be innocent of any knowledge that his brother had just committed a planned robbery. There is an abundance of substantial evidence to support the jury’s conclusion that both defendants were guilty participants in the crimes.
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Steele Hays, Justice.
This case began some years ago when James Williford, appellee, brought a taxpayer’s suit in chancery for the benefit of Crittenden County against its Sheriff, Marion Thomas, for an accounting of misappropriated funds. Those efforts resulted in an award in behalf of the county which was partially affirmed on appeal. [See Thomas v. Williford, 259 Ark. 354, 534 S.W.2d 2 (1976)]. On remand, the county was awarded $106,467.43 against Thomas, with lesser awards against the two bonding companies.
Williford then filed a claim of $25,480.07 with the Crittenden County Court seeking reimbursement of attorneys fees and costs incurred in prosecuting the case. The claim was denied and Williford appealed to the Crittenden Circuit Court. Crittenden County filed a response and without objection the case was transferred to the Crittenden Chancery Court on Williford’s motion that equitable remedies were sought.
The Chancellor found that as a result of Williford’s suit, which he likened to a class action in behalf of all taxpayers of Crittenden County, a common fund in excess of $75,000 was established from which Williford and other contributing taxpayers were entitled to be reimbursed in the sum of $22,980.07 for their costs and expenses. On appeal, we affirm the Chancellor.
Appellant’s first assignment of error attacks subject matter jurisdiction in chancery. City Section 57 of Article 7 of the Arkansas Constitution, and statutes defining equity jurisdiction, the county urges that its motion to set aside the decree should have been granted notwithstanding its failure to object to Williford’s motion to transfer, or its failure to challenge subject matter jurisdiction until after the Chancellor had announced his conclusions and a final decree was entered. It is true our cases hold that since jurisdiction of the subject matter cannot be conferred by consent of the parties, the absence of an objection on that basis is not ordinarily fatal. However, it must be said the rule applies only in those instances where such jurisdiction could not, under any circumstances, exist. Smith v. Whitmire, 273 Ark. 120, 617 S.W.2d 845 (1981); Whitten Developments, Inc. et al v. Agee, 256 Ark. 968, 511 S.W.2d 466 (1974); Price v. Madison County Bank, 90 Ark. 195, 118 S.W. 706 (1909).
We have held that where a court of equity was not “wholly incompetent” to grant the relief sought, questions of the adequacy of the remedy at law are waived when raised for the first time on appeal. Titan Oil & Gas v. Shipley, 257 Ark. 278, 517 S.W.2d 210 (1974). The Titan court stressed the failure to raise the argument before the trial court as the “underlying basis” for its holding. That is the situation before us now, and the same reasoning applies. The relationship between Williford’s suit and chancery jurisdiction was not wholly lacking, yet the county not only failed to object to a transfer from law to equity, it approved an order transferring the case to chancery upon a finding that the plaintiff sought equitable relief, which might well be construed as a stipulation that the issues were cognizable in equity.
Nor can those issues be seriously questioned now. Williford’s case against Marion Thomas was a taxpayer’s suit for funds diverted from the county; it sought an accounting; it was filed and tried in chancery; it was remanded to chancery for modifications that doubtless entailed additional findings; the litigation succeeded in creating a substantial fund which still exists separate from the general funds of Crittenden County and, presumably, is still subject to the orders of the chancery court. Finally, Williford’s suit was an attempt to recoup the expenses he had incurred in that difficult and costly litigation which plainly benefitted the county. In that context, how can it be said that under no circumstances could Williford’s suit be entertained in equity?
Williford relies on our decision in Powell, Mayor v. Henry, 267 Ark. 484, 592 S.W.2d 107 (1980), where we upheld the Chancellor in awarding attorneys’ fees out of a common fund established in behalf of taxpayers. We called such awards “well recognized and proper,” citing Marlin v. Marsh & Marsh, 189 Ark. 1157, 76 S.W.2d 965 (1934). In Marlin, our opinion noted (and as the Chancellor observed in this case) that an important factor in consideration of fee allowance was the realization that it would be a discouragement if those who might otherwise pursue this type of litigation were inadequately compensated. Language from Marlin v. Marsh & Marsh, supra, is particularly appropriate here:
When many persons have a common interest in a fund, and one of them for the benefit of all brings a suit for its preservation, and retains counsel at his own cost, a court of equity will order a reasonable amount paid to him out of the funds in the hands of the receiver in reimbursement of his outlay.
We conclude that equity was not incompetent to grant the relief sought by Williford, that is, an award of costs and attorneys’ fees out of a common fund established because of his efforts in behalf of the other taxpayers of the county. The county may not join in a transfer of that suit to equity, try the issues on their merits, lose, and now be heard to say that subject matter jurisdiction was wholly lacking.
Another argument is that by amending his pleading after appeal, Williford enlarged upon his original cause of action. The county cites us to Sharp County v. Northeast Arkansas Planning and Consulting Company, 275 Ark. 172, 628 S.W.2d 559 (1982) and Madison County v. Nance, 182 Ark. 775, 32 S.W.2d 1073 (1930) where we held that cases tried de novo in circuit court on appeal from county court are limited to the same parties and issues. In Madison, after appealing to circuit court, claimants against the county were permitted to amend their complaints to increase the amount claimed, which we said they could do. In Sharp, we found no prejudice to the county where, on appeal, a claimant had amended his claim to reduce the amount from $7,000 to $4,530.
Here, except for a downward correction in the amount claimed, neither the parties nor the amounts were changed on appeal. We find no fundamental transformation of Williford’s claim to have occurred here, and we have held that on appeal from county court the trial court has discretion in permitting amendments which do not change the original cause of action. Saline County v. Kinkead, 84 Ark. 329, 105 S.W. 581 (1907); Freeman v. Lazarus, 61 Ark. 247, 32 S.W. 680 (1895).
Next, the county contends Williford should not be awarded interest of $2,862.26, or $12,500 of the attorneys’ fees advanced by others and for which he was not legally obligated. Appellant urges that interest is not recoverable against counties under Ark. Stat. Ann. § 29-124 (Repl. 1979), and that when a person pays money on an unenforceable demand, the payment is deemed to be voluntary and cannot be recovered [citing Ritchie v. Bluff City Lumber Co., 86 Ark. 175, 110 S.W. 591 (1908); see also Northcross v. Miller, 184 Ark. 463, 43 S.W.2d 734 (1931) and Turpin v. Antonio, 183 Ark. 377, 240 S.W. 1976 (1922)]. The county claims that because other persons, not parties to the suit, had contributed some $12,500 of the amount awarded Williford, those were voluntary contributions which could not be enforced against Williford and, hence, should not be recovered by him. Appellee responds that these arguments are new on appeal and the abstract bears out this contention. Since the appeallant has left these assertions unanswered, we will assume their accuracy. Sun Gas Liquids Co. v. Helena National Bank, 276 Ark. 173, 633 S.W. 2d 38(1982).
Finally, the county argues that the Chancellor should not have reinstated the case following its dismissal without prejudice under Rule 10 of the Rules of Circuit and Chancery Courts. But it is quite clear that the dismissal order was entered as the result of a clerical mistake and the reinstatement of the case was a matter for the Chancellor’s discretion. Keith v. Barrow-Hicks Ext. Imp. Dist. 85, 275 Ark. 28, 626 S.W.2d 951 (1982).
Finding no error, we affirm the decree.
Smith, J., and Dudley, J., dissent.
In all cases of allowances made for or against counties, cities or towns, an appeal shall lie to the circuit court of the county, at the instance of the party aggrieved, or on intervention of any citizen or resident and taxpayer of such county, city or town, on the same terms and conditions on which appeals may be granted to the circuit court in other cases; and the matter pertaining to any such allowance shall be tried in the circuit court de novo. | [
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Per Curiam.
Petitioner Pickens was found guilty of capital murder committed in 1975 in Arkansas County. The case was moved on a defense motion for change of venue to Prairie County which was then in the same judicial district. A sentence of death was imposed.
On January 30, 1984, the United States District Court vacated petitioner’s death sentence as the 8th Circuit Court of Appeals had ordered it to do. See Pickens v. Lockhart, 714 F. 2d 1455 (8th Cir. 1983). On February 2, 1984, the State asked this Court to vacate the death sentence and reinvest the Circuit Court of Prairie County with jurisdiction to resentence petitioner. We granted the motion on February 23, 1984. The resentencing procedure is scheduled to begin on July 17, 1984 in Prairie County.
Petitioner now requests this Court to issue a writ of prohibition barring the resentencing in Prairie County and a writ of mandamus compelling the trial judge to issue subpoenas for certain witnesses to testify at the resentencing proceeding.
Petitioner bases his petition for writ of prohibition on the ground that jurisdiction lies in Arkansas County. Petitioner argues that the resentencing is a new trial with a new jury, not a continuation of the old trial; therefore, jurisdiction should revert to the county in which the crime was committed.
Prohibition is an extraordinary remedy which does not lie unless the trial court is wholly without jurisdiction. Ferguson v. Martineau, 115 Ark. 317, 171 S.W. 472 (1914). We do not find the Circuit Court of Prairie County to be wholly without jurisdiction and accordingly deny the petition for writ of prohibition. The statute under which a defendant is resentenced following remand of a capital case after vacation of the death sentence provides that re-sentencing shall be conducted in “the trial court in the jurisdiction in which the defendant was originally sentenced.” Ark. Stat. Ann. § 41-1358 (Supp. 1983). Since petitioner was originally sentenced in Prairie County, jurisdiction in his case is now in Prairie County. Petitioner may challenge the jurisdiction of Prairie County by appeal. Springdale School District v. Jameson, 274 Ark. 78, 621 S.W.2d 860 (1981).
Petitioner asks whether it is relevant that Arkansas and Prairie counties are no longer in the same judicial district and whether resentencing is a separate trial or a continuation of the original trial. We need not address either issue now. Petitioner may raise the questions and others he deems pertinent in the trial court. Issues decided against him may be argued on appeal.
Petitioner’s petition for writ of mandamus is .also denied. Petitioner submitted to the federal district court the affidavits of sixteen witnesses who could present testimony in mitigation at his resentencing. Petitioner moved to have those witnesses subpoenaed at government expense but the trial court declined to issue subpoenas for them. Even though it may be the better course for the trial court to issue the subpoenas in this case, the issuance of a subpoena for a material nonresident witness at government expense is discretionary. Wright v. State, 267 Ark. 264, 590 S.W.2d 15 (1979). Mandamus will not lie to compel the trial court to change a ruling on a matter within its discretion. State ex rel Purcell v. Nelson, 246 Ark. 210, 438 S.W.2d 33 (1969). Again, petitioner’s remedy is an appeal if he desires to challenge the trial court’s decision.
Petition denied. | [
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Per Curiam.
The petitioners in this action seek a stay which would prohibit the Pulaski County Election Commission from placing proposed initiated ordinance #1 and proposed initiated ordinance #2 on the election ballot November 6, 1984. In order that the matter can be head in a timely manner, the following preliminary orders áre entered:
1. The motion to consolidate appeals is granted.
2. The motion to advance the cases on this docket is granted.
3. Oral arguments on the motion for a temporary stay will be heard on October 10, 1984 at 1 p.m. in the courtroom of the Supreme Court.
4. The motion to expedite the briefing schedule is granted. The petitioners’ brief is due on October 12, 1984. The respondents’ brief is due on October 15, 1984. The reply brief is due on October 17, 1984.
Hubbell, C.J., and Hollingsworth, J., not participating. | [
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Robert H. Dudley, Justice.
Appellant was convicted of the aggravated robbery and kidnapping of Colleen Butler in Little Rock on July 10, 1983. Appellant was sentenced as an habitual offender to life imprisonment for the aggravated robbery and thirty years for the kidnapping. We affirm. Jurisdiction is in this court under Rule 29 (l)(b).
Appellant’s first contention is that the identification procedures violated the Due Process Clause of the Fourteenth Amendment. There is no merit in the argument. There were two procedural steps involved in the ruling on the identification evidence. First, prior to trial, the judge examined the out-of-court identification to see if there were suggestive elements which made it all but inevitable that the victim would identify appellant as the perpetrator of the crime. This preliminary ruling is a ruling on a mixed question of law and fact and consequently we do not reverse the ruling unless it is clearly erroneous. Glover v. State, 276 Ark. 253, 633 S.W.2d 706 (1982). The second procedural step is the in-court identification.
The out-of-court identification at issue in this case was a lineup identification. The lineup consisted of six white males dressed in orange jumpsuits. The four in the middle were of a similar height and weight while the two on the end were taller and heavier. Counsel for appellant was present and, after objecting to the two taller men, noted that the lineup was physically fair.
Factors to be considered in testing the reliability of a lineup identification are set out in both federal and state law. See Manson v. Braithwaite, 432 U.S. 98 (1977); Fountain v. State, 273 Ark. 457, 620 S.W.2d 936 (1981); and Glover v. State, supra, at 256, 633 S.W.2d at 708. These factors include the opportunity of the victim to observe the crime and its perpetrator; the lapse of time between the crime and the lineup; discrepancies between descriptions given the police and the defendant’s true physical characteristics; the occurrence of pretrial misidentification; the certainty of the witness in identifying the accused; and the totality of the facts and circumstances regarding the identification. Glover v. State; supra.
The lineup in this case was conducted only three days after the crimes. The crimes occurred in broad daylight. The victim had ample opportunity to observe the perpetrator. As she started the engine of her parked car, a man stuck a gun in her face and told her if she screamed he would kill her. He forced her to drive him from Adams Field to downtown Little Rock. She observed his face in the rear view mirror for the fifteen to twenty minutes it took for the trip. The victim described the perpetrator as a dark complected Caucasian, six feet tall, slender, with gray hair. She said that he wore glasses and a gray suit with a red plaid. The victim identified the appellant in a non-suggestive lineup, then identified him at the suppression hearing and later again identified him in court.
Although the victim described the perpetrator of the crimes as being six feet tall and appellant is only five and one-half feet tall, the description in other respects fits the appellant. The fact that she misjudged his height is easily understood. She was already seated in her car when he put the pistol to her face and he subsequently was seated behind her for the entire trip. When he got out of the car he told her not to look back. Under these circumstances, we cannot find that the trial judge’s ruling was clearly erroneous in allowing the identification evidence, even though the victim was mistaken in appellant’s height.
Appellant’s second point of appeal is that the trial court unduly restrained his closing argument. A trial court has wide discretion in controlling the arguments of counsel. Rulings on argument will not be reversed except in cases of clear abuse of that wide discretion. McCroskey v. State, 271 Ark. 207, 213, 608 S.W.2d 7, 11 (1980). We find no abuse of discretion in this case. The appellant was initially charged with two counts of kidnapping and one count of aggravated robbery. The court granted appellant’s motion to sever the second kidnapping charge and ruled that the state could not use evidence of the second kidnapping in this case. However, as a practical matter, the police had investigated both cases together and probable cause for the arrest was based on both cases. The appellant, in this case, had initially argued there was a lack of probable cause. At closing argument, appellant began to argue that the state had no evidence, other than the victim in this case, linking appellant to the charges in this case. The trial judge sustained the state’s objection and, out of the hearing of the jury, commented that there was other evidence but, since the state could not bring it up, the appellant could not comment on it. Under these circumstances, we cannot say that the trial judge clearly abused his discretion to control closing argument.
Affirmed.
Purtle, Hays and Hollingsworth, JJ., concur. | [
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Webb Hubbell, Chief Justice.
This case is consolidated on appeal with the companion case of Baldwin-United Corp. and D. H. Baldwin Co. v. Linda Garner, Insurance Commissioner of the State of Arkansas, Rehabilitator.
Appellants Jack Mendel and G. William Ogden, trustee, are annuity policyholders of National Investors Life Insurance Company, one of the three subsidiary insurance companies owned by Baldwin-United Corp. and D. H. Baldwin Co. which were placed into rehabilitation on July 13,1983. Prior to June 13, appellants had surrendered their policies for the cash surrender value as provided by the insurance contract, but their requests had not been paid by July 13, 1983. On March 23, 1984, the trial court ordered the adoption of the Plan of Rehabilitation submitted by appellee Linda Garner, Insurance Commissioner. Under the Plan, appellants are not permitted to receive an immediate 100% refund of their money but áre allowed to select from various Plan options and receive their funds in accordance with the provisions of the Plan of Rehabilitation. Appellants contend that they should receive an immediate 100% refund because they attempted to surrender before June 13, more than 30 days before rehabilitation.
Appellants attack the fairness of the Plan by arguing that the cut-off date of July 13,1983 for payment of claims is arbitrary and unfair. Appellants further argue that National Investors Life Insurance Company was under a contract to pay them the full surrender value of their policies and that the implementation of the Plan constitutes a taking of appellant’s property without due process of law. The trial court permitted appellants to intervene in the rehabilitation proceedings and, at a hearing during the week of January 9, 1983, considered evidence in the form of affidavits, exhibits including a log of annuity policyholders, and the testimony of two employees of National Investors Life Insurance Company.
The court found that the Plan “is fair, just and equitable to all interested persons, creditors, and claimants and entities affected by the plan, including the intervenors, and treats fairly and equitably each class of policyholders and certificate holders of the companies.” Those policyholders including appellants with claims not processed to the point of checks having been mailed by July 13,1983 were granted the options available to all policyholders. We affirm the rehabilitation court.
The insurance companies were placed into rehabilitation because of serious financial problems. Appellee determined that surrenders must be cupoff at some point and a plan implemented to treat all policyholders as equally and as fairly as possible. Appellee approached the issue by honoring surrender payments for which checks had actually been mailed as of the close of business on July 13, 1983 and by treating all other policyholders in accordance with the plan.
Appellants admit that the court should establish a date before which all surrendered policies be paid, but they ask that the date be established so that their surrenders will be honored. This issue is one that must rest in the sound discretion of the trial court and should not be disturbed absent a showing of abuse of discretion. Couch on Insurance, 2d § 22:19 (Rev. ed. 1984). We will not overturn a discretionary act of a trial court simply because one or more members of the court might have attempted to address the problem by a different method. See Midwest Lime v. Independence County Chancery Court, 261 Ark. 695, 551 S.W.2d 537, 543 (1977).
Appellants suggest that surrender requests received by June 13,1983, should be fully honored regardless of whether a check had been mailed on July 13, 1983. The Plan, which provides that surrender requests having been processed up to the point of checks having actually been mailed be honored, is easily administered and requires no additional time or expense. Appellants’ requested modification would require the rehabilitator to determine when a request was “received.” This modification could also lead to further modification requests by other policyholders to include all surrender requests mailed prior to June 13, 1983. Other policyholders might then request other modifications equally as meritorious. No one disputes that it would be inappropriate to honor surrender requests until all of the insurance company’s assets were exhausted, and, upon a review of the record, we cannot say that the trial court abused its discretion in establishing the cut-off date it did.
The trial court also denied appellants’ contention that they should be paid because National Investors Insurance Company was under a contractual obligation to do so and found no merit to appellants’ claim that the Plan constituted a taking of property without due process of law. The rehabilitation of insurance companies pursuant to state insolvency statutes does not impair the obligation of contracts. Neblett v. Carpenter, 305 U.S. 297 (1983); Lewelling v. Manufacturing Wood-Workers’ Underwriters, 140 Ark. 124, 215 S.W. 258 (1919). A hearing with the submission of evidence and testimony satisfies the constitutional requirement of due process of law.
Appellants’ final argument is that the trial court erred in denying a motion for class certification. The Commissioner of Insurance acting as rehabilitator is the statutory representative of the policyholders, creditors and shareholders. Ark. Stat. Ann. § 66-4814 (Repl. 1980). Individual policyholders were given ample opportunity to appear and make statements concerning the various plans considered before the adoption of the Plan. Moreover, in rehabilitation proceedings, the rights of all policyholders are already before the court. The certification of a class action depends upon the trial court’s finding that a class action is superior to other means for the fair and efficient adjudication of the controversy. ARCP Rule 23. The findings of the trial court are not clearly erroneous. ARCP Rule 52.
Affirmed.
Hollingsworth, J., dissents. | [
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Per Curiam.
Appellant, Sammy Joe Elmore, by his attorneys, John Wesley Hall, Jr., and Tom Hinds, has filed a motion for rule on the clerk.
The motion admits that the transcript of the case was not timely filed and it was no fault of the appellant. His attorneys admit that the transcript was filed late due to a mistake on their part.
We find that such an error, admittedly made by the attorneys for a criminal defendant, is good cause to grant the motion. See our Per Curiam opinion dated February 5,1979, In Re: Belated Appeal in Criminal Cases.
A copy of this opinion will be forwarded to the Committee on Professional Conduct. | [
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Darrell Hickman, Justice.
Jerome F. Knapp was convicted in Garland County Circuit Court of six counts of passing bad checks totaling over $4,000. He was sentenced to six years imprisonment. There were two “hot check” statutes in existence when Knapp was charged. The first was a 1943 statute concerning checks drawn only on out of state banks. Ark. Stat. Ann. § 67-717 (Repl. 1980). The second was a 1959 statute pertaining to either in state or out of state banks. Ark. Stat. Ann. § 67-720 (Supp. 1983). Knapp was convicted under the 1943 out of state “hot check” law, § 67-717. Knapp’s checks were all drawn on a Texas bank.
On appeal Knapp raises one argument: the trial court instructed the jury under the wrong law because the instruction given was based on the later law, not the one Knapp was charged with violating. The instruction provided that if a check was passed on an account and returned “account closed,” that is prima facie evidence of intent to defraud.
It would seem that if the crime were exactly the same it would make no difference that the instruction was given, because it involves an evidentiary rule rather than a substantive rule of law. Romano v. B. B. Greenberg Co., 108 R. I. 132, 273 A. 2d 315 (1971). Furthermore, if we can, we should give legislation a construction to effect legislative intent. Vandiver v. Washington, 274 Ark. 561, 628 S.W.2d 1 (1982) . However, this is a criminal statute which must be strictly construed with doubts being resolved in favor of the accused. Clayborn v. State, 278 Ark. 533, 647 S.W.2d 433 (1983); Breakfield v. State, 263 Ark. 398, 566 S.W.2d 729 (1978).
The statute under which Knapp was convicted does not require intent to defraud as § 67-720 does. Furthermore, the later statute is prefaced with the phrase “For the purposes of this section. . . .” We cannot say with any confidence that the legislature intended the language in the later act to apply to all existing legislation pertaining to bad checks. The instruction therefore contains a provision missing from the old statute. Later the legislature corrected the mistake or oversight and repealed §§ 67-717 and 67-718, but that action has no bearing on this case.
We do not rule on the question of whether the instruction on prima facie evidence was proper: it may not be a proper instruction. See McAdams v. United States, 74 F.2d 37 (8th Cir. 1935); Cecil v. State, 283 Ark. 348, 676 S.W.2d 730(1984).
Knapp filed a pro se motion below alleging ineffective assistance of counsel and argues that issue on appeal. This issue is obviously moot.
Reversed and remanded. | [
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P. A. Hollingsworth, Justice.
The appellant, Sanders Carter, pleaded guilty to burglary and criminal attempt to commit rape and was sentenced to two ten-year prison terms, to run concurrently. Seven months after the judgment was entered, the appellant filed a motion seeking post-convic don relief pursuant to Ark. R. Crim. P. 37. After a hearing, the relief was denied. We affirm.
In his petition for post-conviction relief, the appellant argues that his plea was rendered involuntary by the court’s failure under Ark. R. Crim. P. 24.4 (d) to inform him of the direct consequences of his guilty plea. Because this is the appellant’s second conviction, he is subject to Act 93 of 1977, Ark. Stat. Ann. § 43-2829 (Supp. 1983), which requires a second offender to serve one-half of his sentence before becoming eligible for parole. In contrast, first offenders must serve one-third of their sentences under the parole rules and regulations. The appellant argues that he voluntarily pled guilty based on what the court told him when he entered his plea and that no mention was made to him of the parole requirement for second offenders.
This Court reverses a denial of post-conviction relief only if the lower court’s findings are clearly against the preponderance of the evidence. Williams v. State, 273 Ark. 371, 620 S.W.2d 277 (1981). Here, the trial court’s findings are correct.
We have held several times that a question involving parole eligibility is not an attack on the validity of the sentence imposed, but rather is an attack on the execution of the sentence. Such a challenge is not a proper matter to be considered in a petition for post-conviction relief. Bosnick v. State, 275 Ark. 52, 627 S.W.2d 23 (1982); Rightmire v. State, 275 Ark. 24, 627 S.W.2d10 (1982); Higgins v. State, 270 Ark. 19, 603 S.W.2d 401 (1980); Houff v. State, 268 Ark. 19, 593 S.W.2d 39 (1980).
In Clark v. State, 271 Ark. 866, 611 S.W.2d 502 (1981), the petitioner raised the same argument, that Ark. R. Crim. P. 24.4 (d) required the trial judge to advise him that he might be subject to additional or different punishment because of his status as a prior offender. In Clark, we stated that substantial compliance with Rule 24.4 is sufficient and that the critical question is whether the plea was voluntary. Here, the petitioner did nqt designate the portiqn of his transcript that covered his plea and sentencing, making a review impossible. We said in Clark however, “that even a silent record does not require automatic reversal if it be proved at a post-conviction hearing that the plea was voluntarily and intelligently made.” At his evidentiary hearing, the appellant testified that the only reason he was challenging the voluntariness of his plea was because of the court’s failure to inform him of parole considerations. When asked by the trial judge if he would still have entered his guilty plea if he had known about his parole status, the appellant replied that he was unable to say whether or not he would have pled guilty if he had known of Act 93 but that “it would have carried considerable weight in making my decision to plead guilty and. . .1 would have consulted with my attorney to get a full understanding of Act 93 and what consequences it would have served on my sentence.” Because he does not state that he would not have pled guilty had he been so informed by the court, the appellant fails to establish that he has been prejudiced in any way. The only other evidence the appellant offered at his hearing was the testimony of his mother and sister who both stated that the only thing they heard was that the appellant could either “take 10 years or get 40.” An accused’s justified fear of receiving a higher sentence if he went to trial does not warrant post-conviction relief. Thomas v. State, 277 Ark. 74, 639 S.W.2d 353 (1982).
In Rightmire, supra, an almost identical situation is presented, except there the petitioner stated that he definitely would not have accepted the plea agreement had he known of its effect on his consideration for parole. In Rightmire, we held: within the control of the Departent of Correction and the courts have nothing to do with the parole system in the ordinary course of events.
It appears the appellant was satisfied with his sentence until he determined he was going to have to serve a longer period than he anticipated when he entered the guilty plea. There is no requirement that his attorney or the court or anyone else tell him how long he will have to serve on any given sentence. In fact, it would be sheer speculation for an attorney or the court to tell an accused that upon being sentenced to a time certain he would only have to serve a certain percentage of that time. This is a matter that is solely
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Per Curiam.
The judgment was filed for record on October 5, 1983. The motion to set aside the judgment had been filed the day before entry of the judgment. The motion was therefore timely. The order denying the motion was not filed until February 7, 1984. Appellants filed notice of appeal on March 1,1984. Arkansas R. App. P. 4 (d) provides that a party has ten days following denial of a post judgment motion to file notice of appeal from the original judgment provided the time cannot be reduced below the 30 days allowed to file notice of appeal. Additionally, Ark. R. App. P. 4 (c) requires the party filing the motion to present it to the court within 30 days. If the court cannot hear it within 30 days, the party must request the court to set it for a definite date. Unless the court sets a hearing date or takes it under advisement during the 30 days, the ten days for filing rioticé of appeal commences to run 30 days after the motion is filed. Therefore the motion to dismiss the appeal is granted. | [
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Richard B. Adkisson, Chief Justice.
The declarant, Emma Belle Clanton Ricketts, pursuant to Ark. Stat. Ann. § 61-301 (Repl. 1971), executed a document entitled “Desig nation of Heir” on August 21, 1965, naming appellee, Homer Monroe Ferrell, as her sole heir at law. The document was delivered to appellee at this time. On April 14, 1982, the declarant died intestate, leaving an estate composed of real and personal property. On May 7, 1982, after notification of her death, appellee recorded the document pursuant to Ark. Stat. Ann. § 61-302 (Repl. 1971). These statutes provide:
Ark. Stat. Ann. § 61-301
Declaration — Acknowledgement. — In all cases hereafter, when any person may desire to make a person or persons his or her heirs at law, it shall be lawful to [do] so by a declaration in writing in favor of such person or persons, to be acknowledged before any judge, justice of the peace, clerk of any court, or before any court of record in this State.
Ark. Stat. Ann. § 61-302
Record of declaration. — Before said declaration shall be of any force or effect, it shall be recorded in the county where the said declarant may reside, or in the county where the person in whose favor such declaration is made, may reside.
Appellee then petitioned the court to be declared the sole heir at law. The petition was granted.
Appellant, administrator, argues on appeal that the document must be filed before the declarant’s death for it to be of any effect. We do not agree. No time limitation is provided for in these statutes. Here, the declarant died on April 14, 1982, and the document was punctually filed twenty-three days later on May 7. If the legislature had intended that the document be recorded before the declarant’s death for it to be effective, they would have said so.
Appellant further argues that the trial court erred in admitting testimony regarding the relationship between the declarant and the appellee. Although this testimony properly should not have been admitted, we fail to see any possible prejudice to the appellant in its admission.
Affirmed. | [
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Steele Hays, Justice.
Jerry Don Owens, appellant, was charged with capital felony murder, rape, and aggravated robbery. The state alleged in the felony information that Owens, acting in the commission of the offense of rape, caused the death of Gladys Anna Moore and on the same date engaged in sexual intercourse and deviate sexual activity with her by forcible compulsion. Another count charged Owens with the use of physical force for the purpose of committing a theft. Owens was convicted on all counts and sentenced to life imprisonment without parole. This appeal comes to us under Rule 29( 1 )(b) of the Rules of the Arkansas Supreme Court and the Court of Appeals.
Appellant raises three points on appeal. He claims the trial court erred in admitting a confession given by him soon after he was taken into custody. He argues that because the police lacked probable cause to arrest and detain him, his statements were the product of an illegal arrest.
Appellant’s second argument is a challenge to the constitutionality of death qualified juries and to the overlapping between the capital felony murder and first degree murder statutes.
Before considering the argument that Owens’ arrest was illegal, necessitating the suppression of his confession, we address the second and third points, both of which have been answered in other cases. We considered the question of death qualified jurors in depth in Rector v. State, 280 Ark. 385, 659 S.W.2d 168 (1983), rejecting the premise that jurors selected according to Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L. Ed. 2d 776 (1968) are so prone to convict that defendants tried by a jury so constituted are deprived of the right to a fair trial. We decline to overturn our decisions. See Linell v. State, 283 Ark. 162, 671 S.W.2d 741 (1984), and Keeten v. Garrison, 742 F.2d 129 (1984).
Similarly, the proposition that our capital felony murder statute, Ark. Stat. Ann. § 41-1501 (l)(a) (Repl. 1977), and our first degree murder statute, § 41-1502 (1)(a), are void for vagueness because they overlap has been answered. Ruiz and Denton v. State, 273 Ark. 94, 617 S.W.2d 6 (1981), Certiorari denied, 454 U.S. 1093 (1981). Wilson v. State, 271 Ark. 682, 611 S.W.2d 739 (1981); Cromwell v. State, 269 Ark. 104, 598 S.W.2d 73 (1980); Martin v. State, 261 Ark. 80, 547 S.W.2d 81 (1977).
Owens lived with his girlfriend, Margie Cherry, and her mother and sister, whose home was near Ms. Moore, who kept a great many cats, more than she could clean up after. Ms. Moore kept fifteen to twenty cats,and was known as the "Cat Lady.” Owens’ confession provides this account: He asked Ms. Moore if he could use her telephone. Inside, he became annoyed by a comment she made and by an overpowering stench of cat feces. He said it was so strong that he became nauseated! He struck Ms. Moore twice in the face with his fist and she fell backward on a bed. He removed her clothing, covering her battered face with an undergarment, and sexually assaulted her. Before leaving, he took $20 from her billfold. There was proof that earlier that evening Ms. Moore had asked a neighbor, Dorothy Howard, to go to the grocery for her because she was not feeling well. Mrs. Howard used her own money to make the purchases and placed $20 in Ms. Moore’s wallet, delivering the wallet and groceries to Ms. Moore about 6:30 p.m. on December 15, 1982. Ms. Moore’s body was discovered about 4:00 p.m. on the next day. The medical examiner said her death occurred between 10 and 11:00 p.m. on the 15th.
Owens’ primary argument is that the trial court erred in admitting his confession and clothing as evidence. He maintains this proof is tainted because he was arrested without probable cause, citing Dunnaway v. New York, 442 U.S. 200 (1979) and Brown v. Sullivan, 422 U.S. 590 (1975).
On the morning of December 17, Sgt. Thorn, of the North Little Rock police department, went to Ft. Roots to interview Wayne Provencio, whom he knew. Provencio had left word at police headquarters for Thorn to contact him. When Thom questioned Provincio he told him that his neighbor Angela Cherry, Margie’s sister, had told him that Owens had come home on the night of the murder with blood on his clothing. Provencio, he said, thought Owens was responsible for the murder of Gladys Moore. Owens had come to Provencio’s house that same evening asking to be taken to a liquor store and Provencio noticed that his clothing was very clean and neat.
Sgt. Thorn knew Owens had been arrested for burglary and first degree battery involving a stabbing and, against the possibility of violence or flight, took three officers with him to the Cherry residence, arriving about 10:00 a.m. They were permitted to come in and found Owens still in bed. They said Owens gave them permission to examine and take his clothing and Margie Cherry told them she had washed blood stains from the clothing. One of the officers noted Owens’ boots had a strong odor of cat excrement, which he related to the victim’s house. Owens gave an alibi for his whereabouts at the time of the murder. There was testimony that Owens voluntarily accompanied the officers to police headquarters where the Miranda warnings were read to him and where he readily admitted his involvement in the crime.
Whether Owens accompanied the officers willingly is, of course, a material consideration, as one who does so cannot then claim he was coerced. See Simmons v. State, 278 Ark. 305, 645 S.W.2d 680 (1983). If so, the issue of probable cause for the arrest fades quickly, as there was proof that Owens’ alibi did not check out, adding to the evidence against him. We find nothing about the actual taking of the confession that renders it inadmissible. Owens claims he was under the influence of drugs when he confessed, but that testimony was refuted by other proof. Whether Owens’ presence at police headquarters was forced rather than voluntary is sharply disputed and much could be said in support of either side. The testimony was conflicting, as often occurs in these cases. The officers were unable to recall whether Owens was handcuffed before accompanying them, though Owens and the Cherrys assert that he was. If that were so, it would lend credence to the premise that Owens’ trip to headquarters was not by invitation but by com pulsion, although there was testimony by the State that it was customary to handcuff individuals when the police car lacked a protective screen, as in this case. The trial court resolved these conflicts surrounding the confession in favor of the State and while we review the proof independently on appeal, we do give considerable weight to the findings of the trial judge where the evidence is in dispute. Harvey v. State, 272 Ark. 19, 611 S.W.2d 762 (1981); Harris v. State, 244 Ark. 314, 425 S.W.2d 293 (1968). But assuming the arrest occurred at the house, we believe there was probable cause at that point. Probable cause is said to exist when the facts and circumstances within the officers’ knowledge and of which they have reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution to believe that an offense has been committed by the person being arrested. Brinegar v. United States, 338 U.S. 160 (1949); Coble v. State, 274 Ark. 134, 624 S.W.2d 421 (1981). The officers had reason to believe that Owens, who lived near Ms. Moore, had come home with blood on his clothing the night of her murder. That information was confirmed by the comments of Margie Cherry the next morning. The scene of the murder was splattered with blood, and cat excrement from the twenty or so cats she kept was deposited profusely around the house. Owens’ boots bore the strong traces of cat feces. We make no contention that Owens could be convicted on that proof, but probable cause need not equate with proof sufficient to convict. It is enough if practical, common sense considerations of reasonable men, rather than legal technicians, point to guilt. McGuire v. State, 265 Ark. 621, 580 S.W.2d 198 (1979); Holmes v. State, 262 Ark. 683, 561 S.W.2d 56 (1978). In Sanders v. State, 259 Ark. 329, 532 S.W.2d 752 (1976) we said:
[P]robable cause is only a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man to believe that the accused committed a felony, but not tantamount to the quantum of proof required to support a conviction. . . . The existence of probable cause depends upon the facts and circumstances of which the arresting officer has knowledge at the moment of the arrest.
Moreover, on appeal all presumptions are favorable to the trial court’s ruling on the legality of the arrest, and the burden of demonstrating error rests upon the appellant. Brewer v. State, 271 Ark. 810, 611 S.W.2d 179 (1981).
Even if it could be said that probable cause was lacking at this point, and that Owens’ remqval from the Cherry residence to the police station was involuntary, an illegal arrest does not necessarily taint what follows. If intervening circumstances occur which break the causal connection between an unlawful arrest and a confession, the confession, if otherwise admissible, may be used in evidence. Brown v. Illinois, 422 U.S. 598 (1975); Wong Son v. United States, 371 U.S. 471 (1963); Nardone v. United States, 308 U.S. 341 (1939); Brewer v. State, supra. Here, Officers Thorn and Farley went directly from the Cherry residence to investigate Owens’ claim that he had been with Jimmy Brown at Burns Park at the time of the murder. Brown denied being with Owens at all and this information was called in to police headquarters within thirty minutes, which would have been shortly after Owens arrived there. We take it that Owens’ confession took place at about eleven o’clock, as the taping interview was concluded at 11:27 a.m. The knowledge that Owens’ alibi was false provided sufficient intervening cause, if any were necessary.
A final argument is that there is no proof the theft of twenty dollars was accomplished according to the statute defining aggravated robbery, Ark. Stat. Ann. § 41-2102 (Supp. 1983):
(1) A person commits aggravated robbery if [with the purpose of committing a theft or resisting apprehension immediately thereafter, he employs or threatens to immediately employ physical force upon another person, Ark. Stat. Ann. § 41-2103 (Repl. 1977)], and he:
(b) inflicts or attempts to inflict death or serious physical injury upon another person,
Owens submits the lapse of time between the death of Ms. Moore and the time she received the money from Mrs. Howard, some four hours, supports the assumption that she may have disposed of the money herself. Of course, Owens’ confession admits to taking the money, but this, he argues, may have been an afterthought.
Owens cannot be sentenced for capital murder and aggravated robbery, but he can be convicted of both. Hill v. State, 275 Ark. 71, 628 S.W.2d 285 (1982). We need not attempt to fathom Owens’ mind to determine whether theft came to him as forethought or an afterthought to his attack on Ms. Moore. He admitted having only a few coins when he entered Ms. Moore’s home and then going promptly to purchase and consume drugs. The proof clearly permitted a finding that Owens took the money, and whether his primary purpose was other than obtaining money, it is enough under the circumstances that the murder and the theft occurred during the same brief interval. The jury could have inferred that theft was a purpose behind his assault, it need not have been the only purpose. The case is comparable to Johnson & Carroll v. State, 276 Ark. 56, 632 S.W.2d 416 (1982), where we said:
There is no merit to this argument. Intent or purpose to commit a crime is a state of mind which is not ordinarily capable of proof by direct evidence, so it must be inferred from circumstances, (citation omitted) The jury is allowed to draw upon their common knowledge and experience in reaching a verdict from the facts directly proved.
We have examined all other objections made during the trial pursuant to Rule 11(f), Rules of the Supreme Court, Ark. Stat. Ann. Vol. 3A (Repl. 1977) and find no error. See Earl v. State, 272 Ark. 5, 612 S.W.2d 98 (1981).
Affirmed. | [
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John I. Purtle, Justice.
This is an appeal from an adverse ruling by the trial court on appellant’s petition for Rule 37 relief based upon ineffective assistance of counsel. The appellant argues the trial court should be reversed because it erred in failing to find ineffective assistance of counsel and that it was prejudicial error to allow the trial attorney to sit in court during the hearing on the Rule 37 claim. We do not find that prejudice resulted from the errors committed by the trial court and therefore affirm the decision.
The facts of this case reveal that appellant, then 16 years of age, was arrested and charged with burglary and rape on September 1, 1980. During the investigation by the local police department, appellant was taken to the hospital where he was identified by the victim who was there as a result of the crime. Also, the police took the appellant to the scene of the crime and had him run across the yard of the witness who lived next door to the victim. He was forced to wear the same clothing and repeat the trip across the neighbor’s yard at different speeds. The retained trial attorney was able to suppress these out-of-court identifications as being impermissible under the law. The case was tried on January 30, 1981. Appellant was convicted of rape and sentenced to a term of 10 years. His appeal was dismissed by his trial attorney before it was lodged in the appellate court. A hearing on his Rule 37 petition was held on August 29, 1983, and denied. It is from this order that the present appeal is taken.
We have had a multitude of cases recently which alleges ineffective assistance of counsel. For the most part these petitions are usually based upon hope and speculation rather than facts and the law. The present case is supported by the facts and the law at least to the extent that it could not be characterized as frivolous. Appellant’s brief acurately states the proper standards for determining ineffective assistance of counsel. Blackmon v. State, 274 Ark. 202, 623 S.W.2d 184 (1981); Strickland v. Washington, _ U.S. _, 104 S.Ct. 2052 (1984). To be successful on a claim of ineffective assistance of counsel a petitioner must first show that trial counsel’s performance was deficient. He must also show that the deficiency resulted in such prej udice to his defense that he was deprived of a fair trial; that is, a trial the results of which are reliable. We must now examine the facts and proceeding in the present case to determine whether the foregoing standards of ineffectiveness have been met.
At the Rule 37 hearing testimony was produced that a hearing was held on appellant’s motion to suppress the out-of-court identification of appellant. The motion was granted and over the objection of the appellant the in-court identification was permitted at the trial of the case on its merits. The neighbor did not identify the appellant at the trial. The victim stated she did not know the appellant personally but she had seen him walking up and down the street in front of her house several times a day for at least two weeks before she was raped. She also observed him in the alley near her house on the morning of the attack. She further stated, “I know it’s the same boy. ... no doubt. Those eyes, I would never forget.” There was no reference to the tainted out-of-court identifications. The appellant is absolutely correct in his argument about impermissibly suggestive procedures. In Perry v. State, 277 Ark. 357, 642 S.W.2d 865 (1982), we held, “We agree with appellant’s argument that the state may not use in-court testimony and identification by witnesses whose testimony had been tainted by unconstitutionally conducted . . . procedures.” This court looks to the totality of the circumstances in cases to determine if there is a likelihood of misidentification. Perry v. State, supra; James & Elliott v. State, 270 Ark. 596, 605 S.W.2d 448 (1980). The facts in Perry were strikingly similar to the facts in this case at least as to the testimony of one witness. In Perry we held that it did not appear that the improper lineup was used to crystallize the witness’s memory in order for him to later make an in-court identification. We do not retreat from our previous position that when a lineup or showup is conducted for the purpose of crystallizing a witness’s later in-court identification it is the duty of the state to prove by clear and convincing evidence that the subsequent courtroom identification is based upon independent observation rather than upon the constitutionally defective procedure. U.S. v. Wade, 388 U.S. 218 (1967); Perry v. State, supra; and Montgomery v. State, 251 Ark. 645, 473 S.W.2d 885 (1971). An in-court identification can be held inadmissible as a matter of law only if, after viewing the totality of the circumstances, it can be assumed that the identification was patently unreliable. McCroskey v. State, 271 Ark. 207, 608 S.W.2d 7 (1980). After viewing the totality of the circumstances of the present case we cannot say that the victim’s testimony was unreliable. Neal v. State, 270 Ark. 442, 605 S.W.2d 421 (1980). In any event, identification testimony at the trial is not a proper issue to bring before the court in a Rule 37 petition.
We next discuss the error by the court in allowing the trial counsel to remain in the courtroom during the Rule 37 proceedings. In an ineffective assistance claim the trial attorney does not become a party to the action. He should have been excluded from the courtroom during the testimony pursuant to the Rule 37 petition. We specifically ruled upon this issue as early as the case of Chambers v. State, 264 Ark. 279, 571 S.W.2d 79 (1978). We have generally held that such illegal procedure goes only to the credibility of the witness. Allen v. State, 277 Ark. 380, 641 S.W.2d 710 (1982). Although it was clearly erroneous for the court to fail to exclude the trial counsel from the hearing the matter was heard before the court without a j ury. As a practical matter a retrial would be a useless gesture in this case. Therefore, we hold that under the particular circumstances of this case the error was not prejudicial.
Affirmed.
Hays, J., concurs. | [
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P. A. Hollingsworth, Justice.
The appellant was convicted for a murder committed on December 31,1968 and sentenced to life in prison. On October 30, 1978, the appellant escaped from prison, for which he was subse quently convicted and sentenced to an additional three years. The three year term was ordered to run consecutively to the life sentence already being served by the appellant. This appeal is before us under Sup. Ct. R. 29(1 )(c) as it presents the interpretation of an act of the General Assembly.
When the appellant’s first crime was committed, Act 50 of 1968, codified at Ark. Stat. Ann. § 43-2807 (Supp. 1971) was in effect. Under that act, appellant contends that he should be considered eligible for parole on the life sentence he is serving after fifteen years. Appellant further asserts that the three year consecutive sentence he is serving for escape cannot add more than three years to the time to serve before being eligible for parole. At the time of the appellant’s escape from prison, Act 93 of 1977, codified at Ark. Stat. Ann. § 43-2828 et. seq. (Repl. 1977) was in effect. Appellee contends that this subsequent crime was committed in 1978 and therefore falls within the purview of Act 93 of 1977 and that the three year sentence received by him is added to his original life sentence and treated as a single commitment for parole eligibility purposes. The appellee asserts that under the 1977 act the appellant is not eligible for release on parole until his life sentence is commuted to a term of years by executive clemency. The appellee applied the 1977 act and refused to consider the appellant for parole. The appellant filed an action in the Jefferson County Circuit Court for declaratory judgment and a writ of mandamus directing the appellees to consider him for parole under the 1968 act. The trial court granted the appellee’s motion for summary judgment and denied the requested relief. On appeal, we reverse.
The appellant contends that the application of the 1977 act is a violation of the ex post facto provisions of the Arkansas and U. S. Constitutions because that act was not in effect at the time his crime was committed. We agree.
We have said that “a parole statute less favorable to one who had been sentenced prior to its passage than the parole law existing at the time of his sentencing would be unconstitutional as an ex post facto law, in violation of Art. 2 § 17 of the Arkansas Constitution.” Davis v. Mabry, Director, 266 Ark. 487, 585 S.W.2d 949 (1979); see also Poe v. Housewright. Comm’ner, 271 Ark. 771, 610 S.W.2d 577 (1981). The same rule applies to this situation. The 1977 parole eligibility act was not in effect when the appellant’s first crime was committed. The fact that he committed a second felony after the passage of the act does not affect his parole eligibility for the first crime. The U.S. Supreme Court addressed this same issue in Weaver v. Graham, 450 U.S. 24 (1981). At issue there was a Florida statute which repealed an earlier statute and reduced the amount of “gain time” for good conduct that was deducted from a convicted prisoner’s sentence. The Supreme Court found that the application of the new statute to the petitioner in that case was unconstitutional. The Court held:
The ex post facto prohibition forbids the Congress and the States to enact any law “which imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed.” (citations omitted) Through this prohibition, the Framers sought to assure that legislative Acts give fair warning of their effect and permit individuals to rely on their meaning until explicitly changed. (Cites omitted). . .
In accord with these purposes, our decisions prescribe that two critical elements must be present for a criminal or penal law to be ex post facto: it must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it. . . . The presence or absence of an affirmative enforceable right is not relevant, however, to the ex post facto prohibition, which forbids the imposition of punishment more severe than the punishment assigned by law when the act to be punished occurred. Critical to relief under the Ex Post Facto Clause is not an individual’s right to less punishment, but the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated. Thus, eyen if a statute merely alters penal provisions accorded by the grace of the legislature, it violates the Clause if it is both retrospective and more onerous than the law in effect on the date of the offense.
Delivered September 24, 1984
677 S.W.2d 292
. . .[I]t is the effect, not the form, of the law that determines whether it is ex post facto. The critical question is whether the law changes the legal consequences of acts completed before its effective date.
. . . We have previously recognized that a prisoner’s eligibility for reduced imprisonment is a significant factor entering into both the defendant’s decision to plea bargain and the judge’s calculation of the sentence to be imposed. . .Second, we have held that a statute may be retrospective even it if alters punitive conditions outside the sentence.
For the reasons enunciated in Weaver, we hold that it was unconstitutional to apply the 1977 act retroactively to the appellant’s first conviction. By this decision, we are not making a determination that the appellant is entitled to be paroled. What we are saying is that the appellant’s parole eligibility for the first crime he committed must be determined by Act 50 of 1968, the law in effect at the time he was sentenced.
We reverse and direct the trial court to issue a writ of mandamus consistent with this opinion.
Reversed.
Dudley, J., not participating. | [
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John I. Purtle, Justice.
Appellant, an inmate at the Arkansas Department of Correction (ADC), was tried and convicted in the Jefferson County Circuit Court of escape in the first degree, kidnapping, and two counts of theft of property. His punishment was enhanced because he was found to be an habitual offender. The verdicts were returned on September 27, 1983. The court pronounced sentence but took under advisement the matter of concurrent and consecutive sentencing.
On September 29, 1983, the court entered a judgment and commitment on the jury verdicts which stated that the appellant was to receive 20 years for escape in the first degree, 20 years each on two counts of theft of property, and a life term for kidnapping. The judgment stated that one of the 20 year sentences for theft of property would be served concurrently with the other theft sentence, and the other sentences would be served consecutively. Notice of appeal was filed on October 26, 1983. On October 17, 1983, appellant, who was confined to the maximum security unit at Tucker, wrote the judge to inquire whether the sentences would be concurrent with the sentences he was already serving. On January 9, 1984, the court entered an “order amending judgment and commitment,” in which it found that a clerical error had been made and that the record should be corrected to show that the sentences received by appellant were to be consecutive with any sentences which the defendant was presently serving.
The only assignment of error is that the trial court was without jurisdiction to amend its judgment and commitment. We hold that trial court was without jurisdiction to modify the sentences after appellant commenced to serve the sentences.
This same question was considered in the case of State v. Manees, 264 Ark. 190, 569 S.W.2d 665 (1978). Manees moved the trial court to vacate or modify his sentences which had been pronounced 2 years earlier. The trial court granted appellant’s motion and modified the sentences to run concurrently instead of consecutively, as originally pronounced. The state opposed the motion to modify the sentences. This court upheld the state’s contention that the sentence could not be modified when we stated: “Once a defendant is placed in the custody of the [ADC] to the end that he may commence serving his sentence under a valid judgment of conviction, the [ADC] has exclusive jurisdiction for the care, control and supervision of the individual and the trial court has no authority to intervene. . .” This court considered asomewhat similar case in Williams, Strandridge & Deaton v. State, 229 Ark. 42, 313 S.W.2d 242 (1958). In the last cited case the clerk made out commitments in conformity with the docket entries and the petitioners were returned to the penitentiary where they were serving prior sentences. The inmates had entered guilty pleas. Two weeks later the court discovered that the commitments were silent as to whether the sentences were to be consecutive or concurrent with the sentences then being served. The court issued new commitments providing that the sentences would be served consecutively. On appeal the state admitted that the court would normally be without jurisdiction to amend a judgment and commitment but argued that the trial court was merely correcting a clerical error. This court agreed that a trial court could correct its j udgment to make it speak the truth in aid of the jurisdiction of the appellate court when it otherwise had no power to amend. In reversing the trial court in Williams this court quoted McPherson v. State, 187 Ark. 872, 63 S.W.2d 282 (1933) and stated: “It is uniformly held that a court of record may correct mistakes in its record which did not arise from, the judicial acts of the court but from the mistakes of its recording officers.” The court held there was no clerical error and reversed the trial court’s order changing the sentences to run consecutively.
This court has held that after a valid sentence has been put into execution the trial court has no power or jurisdiction to modify, amend or revise it. Shipman v. State, 261 Ark. 559, 550 S.W.2d 424 (1977). In the absence of an order to the contrary, sentences are to be served concurrently. Arkansas Stat. Ann. § 41-903(2) (Repl. 1977). Therefore, when the appellant was delivered to the ADC he commenced serving the sentences which were pronounced on September 29, 1983. The judgment and commitment were silent as to whether the sentences were consecutive or concurrent. The action by the court in attempting to modify the sentences was obviously not the correction of a clerical mistake but rather a judicial act.
The appellant contends that notice of appeal and designation of the record terminated the jurisdiction of the trial court. Except for appointment of defense counsel, the trial court’s jurisdiction is not terminated until the record is lodged in this court or the sentence has been put into execution. Fletcher v. State, 198 Ark. 376, 128 S.W.2d 997 (1939).
The order, of January 9, 1984, is set aside and the judgment entered on September 29, 1983, is reinstated.
Affirmed as modified.
Hickman, J., concurs. | [
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Webb Hubbell, Chief Justice.
Appellant Billy Ray Jackson was convicted of possession of marijuana with intent to deliver, possession of valium, and possession of drug paraphernalia with intent to use. As an habitual offender he was sentenced to consecutive terms of twenty years, six months, and twenty years for the respective offenses. Appellant seeks reversal because the trial court refused to quash a search warrant, suppress evidence seized pursuant to the warrant, and compel disclosure of a confidential informant. We affirm the convictions.
Appellant was stopped by police officers who had a search warrant for his home, his personal vehicle, and other vehicles at his residence. The officers found five pounds of marijuana in a grocery sack in the back seat of appellant’s vehicle. Appellant was then taken to his home where the officers searched his house and found drug paraphernalia.
Appellant contends that the affidavit for the search warrant was insufficient and based on an unreliable informant; therefore, the ensuing search and seizure were unreasonable. In the affidavit in question, the affiant stated: 1) a confidential informant had revealed that appellant was selling marijuana at his residence; 2) the informant had proven reliable in the past; 3) the informant on two occasions had purchased marijuana from the appellant; 4) the informant had seen marijuana in appellant’s bedroom and in appellant’s vehicle; and 5) surveillance of appellant’s home had disclosed excessive traffic going in and out, including a known dealer in drugs. Appellant also argues that the affidavit contains invalidating omissions and errors, but the discrepancies essentially consist of dates being one day off.
In Thompson v. State, 280 Ark. 265, 658, S.W.2d 350 (1983), we adopted a new test for review of search warrants; that is, the totality of circumstances test as enunciated in Illinois v. Gates, 103 S. Ct. 2317, 2332, (1983). This affidavit meets the new totality of circumstances test and further passes the even more stringent two-pronged test of Aguilar v. Texas, 378 U.S. 108 (1964). The Aguilar test requires the warrant to state: 1) underlying circumstances from which the informant concluded the items to be seized would be there; 2) underlyingcircumstances showing the informant’s reliability. James v. State, 280 Ark. 359, 658 S.W.2d 382 (1983). The informant had previously produced informa tion resulting in a conviction for burglary, the recovery of stolen property, and the solution of several purse snatchings in Osceola. An informant who has produced information that has resulted in convictions in the past may be considered reliable. State v. Lechner, 262 Ark. 401, 557 S.W.2d 195 (1977); Shackleford v. State, 261 Ark. 721, 551 S.W.2d 205 (1977). After the informant told police that appellant was selling marijuana, the informant participated in two controlled purchases of marijuana from appellant and saw marijuana in appellant’s vehicle and home. The surveillance of appellant’s home also corroborated the informant’s information. The trial court did not err in refusing to suppress the search warrant and the evidence seized.
Appellant also contends the trial court should have ordered disclosure of the confidential informant’s identity. In this case the charges did not include the actual delivery of a controlled substance, only the possession with intent to deliver. In Bennett v. State, 252 Ark. 128, 477 S.W.2d 497 (1972), we required disclosure when the defendant was charged with the sale of drugs and the informant actually participated in the crime. We have not required disclosure where a defendant was charged only with possession and the informant merely supplied information leading to the issuance of the search warrant. Robillard v. State, 263 Ark. 666, 566 S.W.2d 735 (1978); Brothers v. State, 261 Ark. 64, 546 S.W.2d 715 (1977).
Affirmed. | [
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George Rose Smith, Justice.
The circuit court denied the appellant Turney’s motion to vacate its former judgment and grant a new trial for newly discovered evidence. The case comes to us as a second appeal in the same litigation. Rule 29 (1) (j).
For several years Turney was employed by the Alread School District as an uncertified provisional teacher. Finally, before the 1982-83 school year, the school board terminated Turney’s contract because he had failed to achieve full certification and was keeping the district from obtaining an "A” rating. The board’s action was affirmed by the circuit court and by this court. Turney v. Alread Public Schools, 282 Ark. 84, 666 S.W.2d 687 (1984).
Before that appeal was decided, Turney filed the present motion in the circuit court, asking the court to vacate its judgment for newly discovered evidence. It was asserted that the school board had not acted fairly and impartially, thus denying Turney due process of law, in that the board had been “primarily concerned with [Turney’s] alleged relationships with female students.” The motion relied upon the expected testimony of the district’s former superintendent, Charles Faulkner, to prove that “the board had already made up its mind to get rid of [Turney] because of rumors in the community that he had improper relationships with female students in the school district.” No charge of that kind was made when Turney was terminated.
Faulkner, the former superintendent was the only witness to testify at the circuit court hearing on Turney’s motion. Since Turney’s present appeal rests solely on Faulkner’s testimony, we narrate it in some detail.
Faulkner was employed by the district about the first of July, 1982, six weeks before Turney was discharged on August 18. Faulkner testified at the first circuit court hearing that he attended two board meetings during that time. He testified at the second hearing, now on review, that the board members talked about rumors that Turney was shacked up with a woman and that he had had high school girls sit on his knee or his lap in the library. Faulkner could not say which of the five board members made any particular statement, except that when he went to Mr. Goodman’s house to report what he had found out about Turney’s attending school to complete his certification, Goodman said: “I hope we can find some reason to get rid of that bastard.” That remark apparently arose from Turney’s lack of certification, not from Turney’s misconduct. Rather to the contrary, Faulkner testified at the second hearing with respect to those rumors:
I questioned them [the board members] about that and asked if anything was done about it. And they said, well, he’s — we — we had a session and talked with him about it, and he had an attorney there. And I said, where are the — what minutes would that be in? And they were never able to tell me if there were minutes — obviously no minutes were made of that board meeting.
Faulkner conceded that he had twice testified under oath — once before the school board and once in the circuit court — that Turney was fired because he failed to obtain his certification as a teacher, as he had promised to do. Faulkner explained that testimony by saying in effect that as superintendent he wanted the district to get an “A” rating and that Turney’s status stood in the way. Faulker said that after he himself had been fired after only one year’s employment, he decided, “reflecting back,” that Turney’s lack of certification had been used by the board as a ruse for firing him.
Our original statute allowing new trials for newly discovered evidence was concerned primarily with cases tried before a jury; in chancery the remedy was by a bill of review. Hence, since the jury was the trier of the facts, the statute contemplated that the motion would be heard only on affidavits. Mangrum v. Benton, 194 Ark. 1007, 109 S.W. 2d 1250 (1937). In that case, however, as in the present case, the parties seeking the new trial were permitted to elicit the testimony of their witnesses in open court, which led us to remark that "it appears to us that the effect of this proceeding was really such as to give to the appellants a new trial upon this evidence." In the same way, Turney has proffered the testimony of his only witness, ex-superintendent Faulkner, and in effect has been given a new hearing by the circuit court.
We have said with respect to a motion for new trial for newly discovered evidence: "Much discretion is left with the trial court in granting applications of this sort, and great weight should attach to his opinion upon the evidence in a motion of this character.” Freeo Valley R.R. v. Rowland, 164 Ark. 613, 262 S.W. 660 (1924). Tested by that standard, this record does not indicate an abuse of the trial court’s discretion. Faulkner’s testimony is essentially contrary to his sworn statements at two earlier hearings. He admittedly did not attend the meeting at which the board decided to terminate Turney’s employment. He has no first-hand information about the reasons for their actions. It was not until more than a year after that meeting, and after he himself had been fired, that Faulkner reflected back and concluded that Turney had been terminated on a pretext. He says he was new in the superintendent’s job and implies that in those circumstances he recommended that Turney be terminated. At the same time, however, he would have the court believe that during those same early weeks he also cross-examined the board members about their treatment of Turney and in effect demanded that they show him written confirmation of their asserted meeting with Turney and his attorney. The trial judge, who observed Faulkner as he testified under oath on two occasions, apparently attached no persuasive weight to his second version of the matter. We cannot say that the court’s decision was wrong.
Affirmed.
Hickman J., concurs because Turney was a provisional teacher.
Hollingsworth, J., dissents. | [
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Per Curiam.
Appellant, Brian Todd, by his attorney, Donald R. Huffman, has filed a motion for rule on the clerk.
The motion admits that the trial court’s order granting an extension of time was not timely filed and it was no fault of the appellant. His attorney admits that the order was filed late due to a mistake on his part.
We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our Per Curiam opinion dated February 5,1979, In Re: Belated Appeals in Criminal Cases. 265 Ark. 964.
A copy of this opinion will be forwarded to the Committee on Professional Conduct. | [
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