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WH. “Dub” Arnold, Chief Justice.
On August 20, 2002, respondent Faulkner County Circuit Judge Linda P. Collier held a termination hearing regarding petitioner Alicia Bennett’s son, Justin. Although Ms. Bennett’s counsel was present, Ms. Bennett was not. Judge Collier entered an order on August 26, 2002, terminating the parental rights of the parents in Justin. That same day at the termination hearing, Judge Collier issued a pick-up order for Ms. Bennett, claiming to possess jurisdiction of the parties. Based upon testimony at the termination hearing that Ms. Bennett was pregnant and using illegal drugs, Judge Collier found that there was probable cause to believe Ms. Bennett was placing an unborn child at risk of imminent harm due to her drug use. The pick-up order also contained language that the court had terminated the parental rights of the parents in Justin that same day. Ms. Bennett was subsequently picked up and detained in the Faulkner County Detention Center.
On August 29, 2002, Judge Collier conducted a hearing in which it held Ms. Bennett, who was present at the hearing but unrepresented, in criminal contempt of court because of her use of drugs in violation of the court’s previous orders requiring her to remain drug-free. The judge ordered her committed to the Faulkner County Detention Center until the birth of the child she was carrying. The judge said: “. . . I’m holding this lady in contempt of Court . . . and she will remain in the custody of the Faulkner County Sheriff, in the Detention Center, until she goes into labor. She’ll be taken immediately to the hospital. The baby will be delivered either dead or alive, and she will be released. ...”
After finding that the unborn fetus “ [was] in imminent danger of severe maltreatment and is dependent/neglected as defined by the Arkansas Juvenile Code[,]” Judge Collier placed the fetus in the custody of the Department of Human Services (DHS) and ordered DHS to provide services to Ms. Bennett and the fetus she was carrying. Judge Collier said as part of her ruling:
“But I can’t stop her [Ms. Bennett] from using drugs, but I can keep her off of them until she has this child and by keeping her locked up. And the child is not to leave the hospital with her. But I want her to have an ultrasound, and the Department — this is not going to be billed to the Faulkner County Jail. I want everybody to know that. This is a Department case and I want the Department taking full responsibility for it. She’s going to have an ultrasound and other prenatal tests, and I want to know if the baby has any overt signs of malformation. And then I want her to remain in the jail until she goes into labor, and then she’s going to be taken directly out to the hospital for delivery.”
On August 30, 2002, Judge Collier entered the following order:
6. Based on the testimony of the mother, the case worker, and the drug test results which showed drug use during pregnancy, the Court holds Alicia Bennett in contempt of Court for violating previous orders that she remain drug free.
7. The mother shall remain in the custody of the Faulkner County Sherriff until such time as she gives birth to the child.
8. The Court finds that the unborn child is in imminent dangér of severe maltreatment and is dependent/neglected as defined by the Arkansas Juvenile Code. The Court places the unborn child in the custody of the Department. The Arkansas Department of Fiuman Services shall ensure the mother receives adequate prenatal care and that the mother is examined by a doctor as soon as possible. The Department shall bear the expense of the mother’s prenatal care.
Ms. Bennett remained in the detention center. On December 10, 2002, she moved for a belated appeal, or, alternatively, for a writ of habeas corpus, on the basis that she was being unlawfully detained. This court temporarily stayed the judge’s contempt order and granted her motion for immediate release on December 11, 2002. Now pending before this court for decision is Ms. Bennett’s motion for belated appeal, or alternatively, her petition for a writ of habeas corpus.
Ms. Bennett raises four points of error in support of her motion/petition: (1) that she was denied counsel in a proceeding where she was entitled to counsel; (2) that she was denied due process when she was “picked up” without notice or an opportunity to defend; (3) that the trial court had no jurisdiction to hold Ms. Bennett in contempt of court; and (4) that the trial court violated her constitutional rights to privacy and bodily integrity. Judge Collier responds that none of Ms. Bennett’s arguments needs to be resolved prior to our decision in Arkansas Dep’t of Human Servs. v. Collier, No. 02-1021, where DHS has petitioned for a writ of prohibition, or, alternatively, for a writ of certiorari, on the basis that a fetus is not a juvenile under the Juvenile Code. In fact, Judge Collier asserts that Ms. Bennett’s jurisdictional argument can be decided by the disposition of DHS’s pending petition in the related case, No. 02-1021. We conclude, nonetheless, that Judge Collier lost jurisdiction over Ms. Bennett to hold her in contempt of court for not remaining drug-free once her rights as a parent to Justin were terminated.
We begin by noting that the incarceration of Ms. Bennett involves two distinct cases. The first case involves Ms. Bennett solely and the judge’s placing her in contempt of court for violating her orders to remain drug-free and as mother of the fetus taken into custody. That is the subject matter of the petition in this case, No. 02-1327. The second case is related, Arkansas Dept. of Human Servs. v. Collier, No. 02-1021, also decided this date. That case concerns whether Judge Collier acted beyond her authority in finding an unborn fetus to be a juvenile and by placing that fetus in the custody of DHS. There is also the point, which Judge Collier emphasizes in her brief, that Ms. Bennett has been released from jail due to this court’s temporary stay of Judge Collier’s order. According to Judge Collier, the issue of Bennett’s incarceration is now moot. Nevertheless, we address Ms. Bennett’s petition in the instant case even though she has been released from jail due to our uncertainty over whether Judge Collier intends to punish Ms. Bennett further for disobeying her orders in the Justin matter.
With respect to jurisdiction, we conclude that Judge Collier lost jurisdiction over Ms. Bennett to enforce her orders that Ms. Bennett remain drug-free in the Justin case when it ter minated her parental rights. The judge’s termination order was entered August 26, 2002. At that time, Judge Collier also changed the style of the case by deleting Ms. Bennett and Mr. Harper as respondents and noting that the style of the case shall now read: “In Re: Justin Bennett.” Our appellate rules provide that an order terminating parental rights is a final, appealable order in juvenile cases where an out-of-home placement has been ordered. See Ark. R. App. P. — Civ. 2(c)(3)(C). See also Arkansas Dep’t of Human Servs. v. Huff, 347 Ark. 553, 65 S.W.3d 880 (2002). A final order is one which dismisses the parties from the court’s jurisdiction, discharges them from the action, and concludes their rights in the subject matter in controversy. See Arkansas Dep’t of Human Servs. v. Farris, 309 Ark. 575, 832 S.W.2d 482 (1992). Because the termination order was a final order that concluded Ms. Bennett’s parental rights in her child, Justin, she was no longer subject to the court’s jurisdiction after the termination proceedings ended. Thus, Judge Collier had no jurisdiction to hold Ms. Bennett in contempt of court for violating the court’s orders that she remain drug free for purposes of protecting Justin.
Because Judge Collier had no jurisdiction over Ms. Bennett to hold her in contempt of court, this court’s stay of her order was entirely appropriate and a writ of habeas corpus should issue. Our review of the record reveals no notice of appeal from the August 30, 2002, order, and there is no basis for a belated appeal in this case. For that reason, her motion for a belated appeal is denied.
Motion for belated appeal denied. Petition for writ of habeas corpus granted.
The court terminated the parental rights ofjeff Harper, the child’s putative father, as well as Alicia Bennett’s.
The court’s orders mandating that Ms. Bennett remain drug-free in the termination case respecting Justin were not made part of the record in this case.
We emphasize that only Ms. Bennett’s rights are at issue in this petition. The court’s jurisdiction over her unborn fetus is the subject of a currently pending petition for an extraordinary writ filed by DHS. See Arkansas Dep’t of Human Servs. v. Collier, No. 02-1021. DHS has also filed a brief in the instant case asserting that the trial court was without subject-matter jurisdiction, or exceeded its jurisdiction, when it adjudicated an unborn fetus to be a dependent/neglected juvenile and ordered the unborn fetus into DHS’s custody. Because this is the same assertion made in its petition for writ of prohibition, or in the alternative, writ of certiorari in case No. 02-1021, there is no need to address the merits of DHS’s argument in this case.
Judge Collier also points out that Ms. Bennett’s brief fails to include a copy of the order by which she was held in contempt. She is correct. However, DHS’s brief filed in this matter does contain the contempt order for this court to review.
We have held this same day in Arkansas Dep't of Human Servs. v. Collier, No. 02-1021, that an unborn fetus does not fall within the definition of “juvenile” in the Juvenile Code and that, accordingly, an unborn fetus could not be adjudicated dependent-neglected or placed in the custody of DHS. | [
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Harrison, J.:
This was an action brought by Alexander Miller against J. C. McAfee for rent of land, in which at the commencement an attachment was sued out to enforce a landlord’s lien, and levied on a portion of the crop.
The defendant filed an answer to the complaint and denied the renting of the land and every material allegation; and he also filed' a motion and affidavit to discharge the attachment.
The defendant afterwards dying the cause was revived against A. W. Jones, his administrator.
The case was tried by a jury which found a verdict for the defendant. The plaintiff moved for a new trial, which was refused.
The defendant’s damages in the attachment were then by agreement settled at $359, and judgment was rendered against plaintiff and his surety in the attachment bond therefor.
The plaintiff appealed.
The plaintiff testified that McAfee occupied the land mentioned in the complaint during the year 1874; that there was sixty-five acres of cleared land on the place, which was worth $6 an acre rent, and that he was -promised the crop that was raised on it that year; but he had not been paid the rent. He further stated that the contract between McAfee and himself, in relation to the renting of the place, was in writing, and he produced and offered to read to the jury the following instrument, to-wit:
“A contract between A. Miller of the first, J. C. McAfee, of the second part: I have this day rented the place he now lives on for the year 1874, for six dollars per acre, and he is to make 2000 rails and put on the fence at $1.75. Fence corners clean out on inside. I am to give twenty-five dollars 'towards the building a house. Alex. Miller,
Witness: J. C. Baetles. J. C. McAfee.
Rents to be settled first, except 2 bales to pay hired hands.”
The defendant objected to its admission as evidence, the bill of exceptions says, because it was unintelligible and void, and the court excluded it.
The meaning of the instrument is certainly obscure; but it is, we think, capable of an intelligible construction.
The obvious intention of the parties was a lease, but the difficulty is to determine which of the parties was the lessor and which the lessee, or in other words, to which do the pronouns I and he respectively refer.
But when it is borne in mind that in indentures, which this instrument has something of the form of, the grantor is commonly named the party of the first part, and that a lease which simply conveys the term and states the conditions upon which it is made, is usually a deed poll, or signed by the lessor only, the conclusion can be reasonably arrived at without proof of collateral facts, that Miller, of the first part, was the lessor. This appearing, there was not a patent ambiguity, and if its execution had been proven, it should have .been read to the jury. But Bartles, the subscribing witness, though present and a wit ness for the defendant, was not called to prove its execution, and although when testifying for the defendant its execution was proven by him, it was not afterwards again offered in evidence.
The plaintiff also offered to prove by his own testimony, that the account exhibited with his complaint was correct, but upon objection by the defendant, was not permitted to do so. The ancount referred to does not appear in the record, and we are not informed as to its nature or contents, except by the complaint, which refers to it as containing a more particular statement of the plaintiff’s demand; and the ground of the objection is not shown. We are therefore unable to say whether it was well taken or not, but must presume the court decided correctly. Most likely, however, it was because of his incompetency to testify as to transactions between himself and the defendant’s intestate. If the account stated, or was founded on such a transaction, there can be no question as to the validity of the objection.
The plaintiff then introduced the following witnesses :
J. A. North,'who testified, that he rented land from McAfee in 1874, and paid $6 an acre. That he complained to McAfee that the rent was too high, and McAfee said, that Miller was threatening to put him off the land, and if he succeeded in jhis suit, he would have to pay the same rent to him. He also heard him say, that Miller would not allow him but $25 for a cabin he built.
Green North testified substantially the same, and William North, that he heard McAfee say, that Miller would not allow him more than $25 for the cabin.
R. W. Martin testified: that McAfee told him in the spring of 1874, that his contract with Miller for the purchase of the land had been cancelled, and he had nothing more to do with it, and Miller would have to pay the taxes of 1873. He said he was going to move to Texas or to North Arkansas, but should keep possession that year.
And W. J. Ramsey testified: that in November, 1873, Miller attached some cotton McAfee had at his gin, for rent. That the matter was compromised and McAfee let him have several bales. The weight of the bales was an average of 500 pounds each; and for which Miller allowed him fifteen cents per pound.
The following witnesses were then called by the defendant.
James Felker, who testified, that McAfee purchased the land from Miller in 1866; that he was present and was called upon by them to witness the trade, McAfee was to pay $3000 for the land, $1000 at Christmas, 1866, $1000 at Christmas, 1867, and the other $1000 at Christmas, 1868. That no notes were given by McAfee, and he took no bond for title; but went into possession under his purchase and continued in possession until his death.
- Nelson, testified: that he lived -with Miller in the spring of 1873, and he heard him say about the first of March, that, if McAfee could make the last payment on the land, he could then make him a deed to it; that he had not before been able to do it. This remark was made by Miller soon after he had returned from Augusta, where he had been attending court. That Mi-ller in April that year got some mules from McAfee, which he told witness he took at $225, and witness said to him in the conversation about the mules, that he supposed McAfee was getting along very well towards making the last payment on the land, to which Miller replied: “No; I am only trying to -get interest on what he owes me, when that is done I will dispossess him.” The land McAfee purchased, Miller purchased from Fugate, and he from King.
James Bartles testified that Miller told him, in December, 1873, that McAfee had paid $2400 on the land, and had also let him have several bales of cotton. He also testified that in ihe spring of 1874, he witnessed for the parties a contract between Miller and McAfee, for the rent of the land that year,, which was the same the plaintiff offered to read to the jury and that they gave it to him to keep, and that he retained possession of it until some time in the summer, when, upon urgent request of Miller, he gave it up to him.
Mrs.-■ McAfee testified, that Miller told her that McAfee had paid $2400 on the land, besides the seven bales of cotton he got at Raney’s gin, and some money that he had paid to Mrs. King.
The defendant then having proven the same to the satisfaction of the court, read the following instrument of writing and papers to the jury, to-wit:
“ $750. One day after date, I promise to pay Alex. Miller the sum of seven hundred and fifty dollars, for value received of' him, this February .28, 1873, with ten per cent, interest from January, 1873. J. C. McAfee.”
“ February 28th, 1873.
“ I, Alex. Miller, am now ready to make the deed to J. C. McAfee, when the payments are made. Alex. Miller.”
“February 28th, 1873.
“ I have this day let J. C. McAfee hold the place for the present year. If he does not pay up for the land known as the King land, he is to give up the land. I agree to give six dollars per acre, and in case the land falls back, A. Miller agrees to pay for improvements that máy be necessary to make. J. C. McAfee.”
“ Received of J. C. McAfee :
1 colt, at $50...............................................$ 50-
1 pony, $90.................................................. 90'
110 bushels corn, at $1................................... 110-
To cash....,................................................. 50
2 mules.................... 225
1 bale cotton.......................................... 33
-$528:
“ June 15th, 1873.
Alex. Miller.”
“April the 8th, 1869.
“Received of J. C. McAfee, ($1200) twelve hundred dollars, in payment for land. Alex. Miller.”
The genuineness of these papers were proven by J. M. Bonner, who swore he was well acquainted with the handwriting of the plaintiff, and had often seen him write.
The body of the first and third, he said, was in the plaintiff’s handwriting, and the signatures in McAfee’s.
The plaintiff then called R. W. Martin, who swore that he was familiar with the plaintiff’s handwriting, having had dealings with him for several years, and had often seen him write, and that he did not believe the signatures were Miller’s, nor that the body of the first (the note,) and third papers wrere in his handwriting. That the signature to the note was McAfee’s, and he believed he wrote the body of the second paper.
The following receipt was then handed him by the defendant:
“Received of J. C. McAfee, two hundred and sixty-seven dollars and twenty-six cents, this 20 Novembei', 1873.
Alex. Miller.”
Which he said was in the handwriting of the plaintiff, and it was read to the jury.
The defendant also handed him an account, with a receipt attached, signed Miller & Co. By Alex. Miller, the signature to which he said was the plaintiff’s.
The plaintiff was recalled, and he denied that he had ever had any conversation with Bartles about McAfee’s indebtedness to him, and that he told him, or Mrs. McAfee, that McAfee had paid $2400 on the land.
The defendant having proven by Ed. T. Jones, that he saw • the plaintiff write the signature to the receipt attached to the account before shown the witness Martin, he was then permitted, against the objections of the plaintiff, to exhibit to the jury the signatures to the receipt, and the contract, the execution of which was proven by Parties, but had been excluded from the jury, and to hand them the papers read in evidence, together with the plaintiff’s bond and affidavit for the attachment, containing his genuine signatures, in order that they might compare the handwriting of the same.
It is said by Mr. Greenleaf, that proof of handwriting may be made by a comparison of the writing to be proven, with other writings, admitted to be genuine, already in the case. “ The reason assigned for this is,” he says, “ that as the jury are entitled to look at such writings for one purpose, it is better to permit them, under the advice and direction of the court, to examine them for all purposes, than to embarrass them with impractical distinctions to' the peril of the cause.” 1 Green. Ev., see. 578.
Put a comparison with writings riot already in the case but which are proven for the purpose of such comparison is not admissible. Van Wyck v. McIntosh, 4 Kernan, 439; Jacksons v. Phillips, 9 Cow., 94 ; Doe v. Newton, 5 Adol. & El., 514; Bromage v. Rice, 7 Carr. & P., 548; Waddington v. Cousins, Ib., 595.
It'was error therefore to allow the papers not in the case to be handed to the jury for a comparison with those read in evidence.
The court refused to give the jury the two following instructions asked by the plaintiff:
“If you find from the evidence that the trade in regard to the purchase of the land, had been rescinded and McAfee occupied-the land in 1874, you will find for the plaintiff the value of the rent for that year, unless you also find that McAfee was to remain on the land that year free of rent by contract with the plaintiff.
“A verbal or parol contract for the sale of land is void under the Statute of Frauds, unless it appears that the party took possession of the same solely and exclusively under the contract of purchase.”
It gave five for the defendant to all of which the plaintiff excepted, and it gave the following, also excepted to by the plaintiff, on its own motion.
“If you find from the evidence that McAfee was the tenant of plaintiff under a contract for the year 1874, you will find for the plaintiff the value of the rent as proven, but if you find that the defendant went into possession of the land under a purchase from plaintiff and occupied it. in 1874, only by virtue of his purchase; you will find for the defendant.
“If you find that the trade in regard to the land had been rescinded and McAfee occupied-the land in 1874, you will find for the plaintiff the value of the rent for that year.”
The last instruction given by the court on its own motion was more favorable for the plaintiff than the first of those refused, and he has no cause to complain of its rejection.
The jury, it appears from the bill of exceptions, had already been instructed for him, that if they believed from the evidence that the plaintiff rented McAfee the land in 1874, or that McAfee agreed to pay him rent for it that year, to find for the plaintiff the value of the rent, although McAfee might have previously purchased the land from him.
The other was inapplicable to the evidence and was properly refused. The evidence plainly shows that McAfee obtained possession under the purchase, and there was no evidence whatever to the contrary, or which tended in the least to prove that the possession was not solely and entirely so obtained.
This court has several times declared that it will not review instructions excepted to, as those given for the defendant were, without specification and in gross. ¥e have, however, examined these and find them unobjectionable, but shall not undertake the unnecessary labor of remarking upon each.
No objection can be seen to the instruction given by the court-on its own motion, and the appellant’s counsel has not attempted to point out any.
Permitting the jury to compare the handwriting of the several papers read in evidence with the plaintiff’s signatures to other papers not in the case, we have seen was an error, yet we think not such as could have affected the verdict or should cause it to be disturbed. The plaintiff, who knew whether the writings were genuine or not, was a witness in his own behalf, and was, after they were read to the jury, recalled and again testified,, but he did not deny their genuineness. This was a circumstance so significant and pregnant as to allow no doubt that they were genuine.
The non-production of evidence clearly within the power of a party, creates a strong presumption that, if produced, it would be against him. 1 Green. Ev., sec. 37.
The error in permitting improper testimony to be given to the-jury when it could not have prejudiced the party is no cause of' reversal, as when the same facts were abundantly proven by other-witnesses. Clinton v. Estes, 20 Ark., 216.
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Annabelle Clinton Imber, Justice.
The sole issue on appeal is whether Sean Alexander is a pretermitted child under the will of his late grandfather, Ray Edward Alexander, pursuant to Ark. Code. Ann. § 28-39-407(b) (1987). The facts in this case are undisputed. Sean is the issue of the testator’s deceased son, James Edward Alexander. The will did not specifically mention or provide for Sean. Nonetheless, the circuit court held that a reference in a rule-against-perpetuities clause to “the last survivor of my issue on the date of my death” was sufficient mention of Sean as a member of a class to remove him from the status of a pretermitted child under section 28-39-407(b). We disagree and reverse and remand.
Ray Edward Alexander executed his last will and testament on June 19, 1997. He died on September 12, 2000. At the time of his death, Ray had no surviving spouse but left as his heirs-at-law two children, Charles Frederick Alexander and Judy Rae Currie, and one grandchild, Sean Alexander, the child of a deceased son, James Edward Alexander. Appellee Charles Frederick Alexander, who was named as executor in his father’s will, promptly filed a petition for probate of the will. The will was duly admitted to probate on September 19, 2000, and Charles was appointed executor of the estate. The court’s order also listed Sean as an heir.
The decedent’s will left the entire estate to Charles, but if he did not survive, the estate would devolve to his issue per stirpes. If none of these survived, the will provided that the estate would then vest in Judy Rae Currie; but, if she failed to survive, her issue would inherit the estate per stirpes. A specific provision of the will mentioned Ray’s former spouse and excluded her as a beneficiary. However, the will did not specifically mention either James Edward Alexander, Ray’s other child who was deceased at the time of the will’s execution, or Sean Alexander, James’s son and Ray’s grandson.
On June 4, 2001, Appellant Charmaine Alexander, as guardian of Sean Alexander, petitioned the probate court for a determination of Sean’s heirship as a pretermitted child pursuant to Ark. Code Ann. § 28-39-407 (b). In his reply to the petition, Charles denied Sean’s status as a pretermitted child. Both parties then filed motions for summary judgment on the matter. Charmaine asserted that the decedent’s last will and testament made no mention of either James or Sean. In contending to the contrary, Charles argued that Sean was sufficiently mentioned by class in the will.
The probate division of circuit court entered a detailed order on March 25, 2002, finding that the record showed there was no genuine issue as to any material fact and that Sean Alexander was not a pretermitted child. In its order, the court held the following language in the will to be dispositive:
Notwithstanding anything herein to the contrary, any gift, devise or bequest hereunder shall vest not later than (21) years after the death of the last survivor of my issue living on the date of my death.
The lower court ruled that “the mention of [Sean] as a part of the class of lawful issue living at the date of the testator[’s death] is sufficient under the law to avoid pretermitted status.” Charmaine then moved for the court to amend its findings pursuant to Ark. R. Civ. P. 52, or in the alternative, to order a new trial pursuant to Ark. R. Civ. P. 59. Her motions were denied, and Charmaine now appeals from the circuit court’s summary judgment ruling on Sean’s status as a pretermitted child.
Probate cases are reviewed de novo on appeal. Witt v. Rosen, 298 Ark. 187, 765 S.W.2d 956 (1989). Also, in an appeal from the granting of summary judgment, all of the facts and circumstances are viewed in a light most favorable to the party against whom the motion is directed. Mangum v. Fuller, 303 Ark. 411, 797 S.W.2d 452 (1990). In this case, all of the material facts have been stipulated by the parties. Thus, there only remains the question of whether the moving party here is entitled to judgment as a matter of law. Wallace v. Broyles, 322 Ark 189, 961 S.W.2d 712 (1998).
Charmaine’s primary contention is that because neither Sean nor his deceased father was mentioned in the will, Sean is a pretermitted child as contemplated by Ark. Code. Ann. § 28-39-407(b) (1987). The crux of her appeal is that the language cited by the circuit court is technical, and not sufficient to mention Sean for purposes of section 28-39-407(b). Charles, on the other hand, argues that the mention of Sean as a member of a one-person class was sufficient under the statute to avoid pretermitted status. Charles adds that the circuit court’s order should be affirmed because it carries out the clearly expressed intention of the testator.
The law in Arkansas as to pretermitted heirs is well-established. The statute reads as follows:
Pretermitted Children. If, at the time of the execution of a will, there is a living child or issue of a deceased child of the testator, whom the testator shall omit to mention or provide for, either specifically or as a member of a class, the testator shall be deemed to have died intestate with respect to the child or issue. The child or issue shall be entitled to recover from the devisees in proportion to the amounts of their respective shares, that portion of the estate which he or they would have inherited had there been no will.
Ark. Code Ann. § 28-39-407(b). The pretermitted-child statute applies to both omitted children of the testator and omitted issue of a deceased child of the testator. Mangum v. Fuller, 303 Ark. 411, 797 S.W.2d 452 (1990); Holland v. Willis, 293 Ark. 518, 739 S.W.2d 529 (1987). Extrinsic evidence is not admissible to show that a testator intended to disinherit a pretermitted child. Mangum v. Fuller, supra; Holland v. Willis, supra. The purpose of the pretermitted-child statute is to avoid the inadvertent or unintentional omission of children or issue of deceased children unless an intent to disinherit is expressed in the will. Holland v. Willis, supra; Robinson v. Mays, 271 Ark. 818, 610 S.W.2d 885 (1981). In Arkansas, there is a strong presumption against disherison. Robinson v. Mays, supra. When a will fails to mention a child or the issue of a deceased child, that omission operates in favor of the pretermitted child without regard to the real intention of the testator. Armstrong v. Butler, 262 Ark. 31, 553 S.W.2d 453 (1977). Furthermore, this court has stated that the object of the statute is “to prevent injustice to a child or descendant from occurring by reason of the forgetfulness of a testator who might, at the time of making his will, overlook the fact that he had such child or descendant.” Petty v. Chaney, 281 Ark. 72, 73 661 S.W.2d 373, 374 (1983) (quoting Culp v. Culp, 206 Ark. 875, 178 S.W.2d 52 (1944)).
As a general rule, the testator’s mention of children, or issue of predeceased children, as a class is sufficient to preclude the application of the pretermitted-child statute. Ark. Code Ann. § 28-39-407(b); Cisco v. Cisco, 288 Ark. 552, 707 S.W.2d 769 (1986). In Dykes v. Dykes 294 Ark. 158, 741 S.W.2d 256 (1986), this court held that the testator clearly mentioned his children by class by stating in his will that, “ [m]y children know that my wife and I love them dearly.” Id. at 159, 741 S.W.2d at 256. However, words used in a technical, legal sense are not sufficient to avoid the pretermitted status of a child or issue of a predeceased child. Robinson v. Mays, 271 Ark. 818, 610 S.W.2d 885 (1981).
In Robinson v. Mays, 271 Ark. 818, 610 S.W.2d 885 (1981), the will made no mention of the decedent’s children by a first marriage; it left the entire estate to the child of a second marriage, but if that child failed to survive, then the estate would go to her husband and their two sons in equal parts. If none of these survived, paragraph 4(c) of the will provided that the estate would “devolve to those persons who would be entitled to share in the distribution of the estate in accordance with the laws of descent and distribution of the State of Missouri.” 271 Ark. at 820, 610 S.W.2d at 886. This court held that the quoted language was technical and not sufficient to overcome Arkansas’s strong presumption against disherison. 271 Ark. 818, 610 S.W.2d 885. In so holding, we reiterated that the purpose of the pretermittedchild statute is not to interfere with the testator’s right to dispose of property, but to avoid the inadvertent or unintentional omission of a child unless the will expresses an intent to disinherit. Id. We also declined to further extend the reasoning of our decisions in Taylor v. Cammack 209 Ark. 983, 193 S.W.2d 323 (1946), and Powell v. Hayes, 176 Ark. 660, 3 S.W.2d 974 (1928), where we held that each testator contemplated his children by use of the term “heirs” in the will. Robinson v. Mays, supra.
In contrast, where the complaining child conceded that she was entitled to assistance from a trust created by the will, we held that the provision directing the trustee to distribute income and principal to “my wife and my descendants” was sufficient language to avoid pretermitted status. Petty v. Chaney, 281 Ark. 72, 73, 661 S.W.2d 373, 374 (1983). Based upon the precedent established in Taylor and Powell, this court subsequently held in Young v. Young, 288 Ark. 199, 200, 703 S.W.2d 457, 458 (1986), that language in the will stating, “I am mindful of the fact that I have willingly and intentionally omitted to provide for all my heirs or other relatives not specifically mentioned herein” was sufficient to mention the testator’s children. Likewise, in Leatherwood v. Meisch, 297 Ark. 91, 759 S.W.2d 559 (1988), we held that the word “heirs” was sufficient where used by the testator in a “colloquial” sense to refer to children, of descendants.
The testator’s will in this case uses the term “issue” in three separate provisions. The term first appears in Item IV where it refers to the issue of (a) the son Charles Frederick Alexander and (b) the daughter Judy Rae Currie. Clearly, this reference does not include Sean, the issue of the deceased son, James Edward Alexander. Item X of the will also uses the term “issue” and states:
For purpose of this will, “children” means the lawful blood descendant of the first degree of ancestor designated, provided, however, that if a person has been adopted, that person shall be considered a child of such adopting parent and such adopted child and his issue shall be considered as issue of the adopting parent or parents and of anyone who is by blood or adoption an ancestor of the adopting parent or either of the adopting parents. “Issue” means that lawful blood descendant of any greater degree of the ancestor designated; provided, however, that if a person has been adopted, that person shall be considered issue of such adopting parent and such adopted child and his issue shall be considered as issue of the adopting parent or parents and of anyone who is by blood or adoption an ancestor of the adopting parent or either of the adopting parents. The terms “child”, “children” and “issue” , or those terms preceded or followed by the terms “surviving,” “living” or “then living” shall include the lawful blood descendants in the first degree of the parent designated even though such descendant is born after the death of such parent.
Sean is the issue of the testator’s predeceased child. Nonetheless, as the circuit court correctly concluded, this provision does not sufficiently mention Sean for purposes of Ark. Code Ann. § 28-39-407(b). Clearly, the language in Item X is used to define terms in the will and as a general reference to undesignated persons. See Petty v. Chaney, supra.
The third and final provision in the will that mentions the term “issue” is Item VIII, which states:
Notwithstanding anything herein to the contrary, any gift, devise of bequest hereunder shall vest not later than twenty-one (21) years after the death of the last survivor of my issue living on the date of my death.
The inclusion of this provision in the will was an obvious effort to avoid application of the rule against perpetuities. Similar to Item X, Item VIII uses a general reference to undesignated persons and does not show that the testator had his grandson in mind. See Petty v. Chaney, supra. As such, we hold that it is technical language and insufficient to overcome Arkansas’s strong presumption against disherison. See Robinson v. Mays, supra.
This language clearly fits our description of technical language as “terminology of the technician, the cant of the legal profession . . . .” Leatherwood v. Meisch, 297 Ark. at 94, 759 S.W.2d at 561 (1988). As in Robinson v. Mays, supra, we are unable to say that Sean Alexander, the issue of a predeceased child, was contemplated by the insertion of a rule-against-perpetuities clause in the testator’s will; that is, we cannot with confidence arrive at the conclusion that Ray Edward Alexander had his grandson so clearly in mind as to have met the requirements of the statute. See Robinson v. Mays, supra. Additionally, as we stated in Armstrong v. Butler, supra., our statute “operates in favor of the pretermitted child without regard to the real intention of the testator in regard to the omission.” 262 Ark. at 39, 553 S.W.2d at 459.
Reversed and remanded.
A provision for the incorporation of any directions delivered to the executor regarding the division of tangible personal property, pursuant to Ark. Code Ann. § 28-25-107 (1987), is not at issue.
By virtue of Amendment 80 to the Arkansas Constitution, which became effective on July 1, 2001, our state courts are no longer “probate courts” and “circuit courts”. These courts have merged and now carry the designation of “circuit court.” | [
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English, Ch. J.:
On the 28th of January, 1874, and at the time the Circuit Courts were exercising probate jurisdiction, Mary S. Arrington presented a petition to the Circuit Court of Drew County, stating in substance that her son, West A. Arrington, was entitled to one-fifth interest in the estate of his father, West Arrington, deceased, which interest was of the value of $1000. That said property was situated in the counties of Drew, Lincoln, and Desha, and that petitioner, as well as West A. Arrington, was a resident of Drew County.
That said West A. Arrington was of unsound mind, and incompetent to transact his own business, and had been for the last four years past, and was squandering his property; and praying for an order causing him to be brought before the court, that the statements of the petitioner be inquired into by a jury, and for such further proceeding as to.the court should seem proper in the premises. '
On the filing of the petition, the court, without causing West A. Arrington to be brought before it, as required by the statute (Gantt’s Digest, sec. 3489), after hearing the evidence adduced in support of the petition, declared him to be non compos mentis, and made an order appointing Mary S. Arrington his guardian, and requiring her to enter into bond in the sum of $1000, etc. Whereupon the bond was filed, approved by the court, and letters of guardianship issued to her.
On the 1st of October, 1874, the securities of Mrs. Arrington made application to the court to be released from her bond, and •on the next day the motion was heard and continued, and an order was made that she be notified to file a new bond at or before the next term of the court, and also an account current of her guardianship.
Here, it appears from the transcript returned upon the writ of ■error, the proceedings in the Circuit Court terminated. But the clerk of the Circuit Court has copied into the transcript subsequent proceedings in the matter, which occurred in the Probate Court of Drew County, after the adoption of the present Constitution, and the restoration of probate jurisdiction to the Probate Courts.
It seems that the securities of Mrs. Arrington renewed their .application to be released from her bond in the Probate Court, on the ground that she was wasting the estate of her ward, and ■on the 27th of July, 1875, the court ordered her to file a new bond in fifteen days, or her letters would be revoked. On the 26th day of April, 1876, the court revoked her letters because of her failure to comply with this order, and appointed James P. Stanley guardian of West A. Arrington, who thereupon entered into bond, and letters were issued to him.
It also appears that on the 23d of February, 1876, John E. Strong recovered a judgment, in the Drew Circuit Court, against Mrs. Arrington, as guardian of West A. Arrington, and at the April Term, 1876, of the Probate Court, applied for an order to sell lands alleged to belong to West A. Arrington, to pay the judgment and claims of other creditors. ‘
On the 5th of December, 1876, and while this application for an order to sell the lands was pending in the Probate Court,. West A. Arrington sued out the writ of error in this case, in which Mrs. Arrington and Stanley were made defendants.
The writ of error does not bring before us for review the proceedings in the Probate Court, appointing Stanley, guardian, etc., and they were improperly copied into the transcript. It is the-province of the Circuit Court to review them, on proper application, before they can be brought here, and the writ of error-must be dismissed as to Stanley, who was erroneously joined with, Mrs. Arrington as a defendant.
The writ of error brings before us for review the judgment of the Circuit Court declaring the plaintiff in error to be insane,, and appointing Mrs. Arrington his guardian.
At the time the judgment was rendered, the Circuit Court had jurisdiction of the subject matter. Gantt’s Dig., sec. 3488.
But it does not appear that the plaintiff in error had any notice of the application to have him declared non compos mentisy or that he was brought before the court, or that there was any-inquest by a jury. Ib., sec. 3489.
The judgment of the Circuit Court declaring him insane, and-appointing Mrs. Arrington guardian must therefore be reversed, annulled, set aside, and held for naught, and the judgment of this court certified to the court below. | [
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Per Curiam.
Petitioner, Terry Jackson, by his attorney, Greg Robinson, has filed a motion for rule on the clerk. His attorney admits that the record was tendered late due to a mistake on his part.
We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See Terry v. State, 272 Ark. 243, 613 S.W.2d 90 (1981); In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).
A copy of this per curiam will be forwarded to the Committee on Professional Conduct. In Re: Belated Appeals in Criminal Cases, 265 Ark. 964. | [
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Robert L. Brown, Justice.
Appellant Calvin Morris was convicted of first-degree murder and sentenced to forty years in prison. He appeals on the basis that the circuit court erroneously refused to instruct the jury on second-degree murder and manslaughter. We agree that the circuit court erred in not giving an instruction on second-degree murder, but we affirm the court’s refusal to instruct on manslaughter.
During the evening hours of November 26, 1999, Morris and a friend, Daniel Fells, were leaving a nightclub in Little Rock called Elevations and walking towards Morris’s car when a second car driven by Chris Sharp entered the parking lot. In the car driven by Sharp were his wife, Sonya, and Leonard Jackson and Johnny Jackson. According to Morris’s testimony, the Sharp car approached him “real fast,” and he had to jump away to avoid being hit.
An argument ensued between the occupants of the Sharp vehicle and Morris. The Sharp vehicle drove up a hill, turned around, and came down the hill where there was a second encounter between the occupants of the Sharp vehicle and Morris and Daniel Fells, who were now in a car which was also occupied by Courtney Grandy and Kevin Brown. Insults were exchanged, and Kevin Brown fired his pistol.
The Sharp vehicle left the parking lot and proceeded down Asher Avenue. At the intersection of Asher and University Avenues, Morris’s car pulled up beside the Sharp car. There was another vehicular accident at the intersection involving other people, which police officers were investigating. When the light turned green, Morris testified that the window in the back seat of Sharp’s car was halfway down, and he thought he saw a gun.
He further testified that he was scared and panicked. According to witnesses, he fired two or three shots at the Sharp vehicle. One shot passed through the backseat window and struck Chris Sharp in the back of the head, killing him.
Morris was charged with first-degree murder and committing a terroristic act and was tried before a jury. His defense attorney offered instructions on second-degree murder and man slaughter as lesser included offenses, but the circuit court refused to give them. The jury was instructed on justification as a defense. The jury found Morris guilty of first-degree murder and committing a terroristic act but was unable to arrive at a sentence. The circuit court sentenced Morris to forty years on each offense, with the sentences to be served concurrently.
Morris appealed his first-degree murder conviction to the court of appeals on grounds that it was error for the circuit court not to instruct on the lesser included offenses of second-degree murder and manslaughter. The court of appeals agreed that it was error not to give these instructions and, in an unpublished opinion, reversed the murder conviction and remanded for further proceedings. Morris v. State, CA CR.01-1056 (June 5, 2002). The State petitioned this court for a review of the court of appeals decision, and we granted review. When we grant review, we consider the matter as if the appeal had been originally filed in this court. Flores v. State, 348 Ark. 28, 69 S.W.3d 864 (2000).
I: Second-Degree Murder
Morris first contends that it was error for the circuit court not to instruct on second-degree murder. We agree.
Morris’s counsel proffered the following instructions, relating to second-degree murder, which are based on Ark. Code Ann. § 5-10-103(a)(l) and § 5-2-202(2) (Repl. 1997), after the circuit court refused to give them:
AMCI 2d 1003
SECOND DEGREE MURDER
Calvin Morris is charged with the offense of murder in the second degree. To sustain this charge, the State must prove beyond a reasonable doubt that:
Calvin Morris knowingly caused the death of Christopher Sharp under circumstances manifesting extreme indifference to the value of human life.
DEFINITIONS
“Knowingly” — A person acts knowingly (or with knowledge) with respect to his conduct or the circumstances that exist at the time of his act when he is aware that his conduct is of the nature or that such circumstances exist. A person acts knowingly with respect to a result of his conduct when he is aware that it is practically certain that his conduct will cause such a result.
This court has frequently stated that it is reversible error to refuse to instruct on a lesser-included offense when there is the slightest evidence to support the instruction. See, e.g., Ellis v. State, 345 Ark. 415, 47 S.W.3d 259 (2001); Harshaw v. State, 344 Ark. 129, 39 S.W.3d 753 (2001). We have further made it clear that we will affirm a trial court’s decision not to give an instruction on a lesser-included offense if there is no rational basis for giving the instruction. See Ellis v. State, supra; Harshaw v. State, supra.
The question before us, then, is, whether a rational basis exists for giving the second-degree murder instruction. Stated differently, was there evidence, however slight, that supported giving the instruction. We believe that there was.
We have recently said that for a defendant to be entitled to an instruction for the lesser-included offense of second-degree murder, he “must be able to point to evidence in the record that supports a finding that he acted with a ‘knowing’ mental state rather than a ‘purposeful’ mental state.” Britt v. State, 344 Ark. 13, 23, 38 S.W.3d 363, 370 (2001). In the case before us, it is beyond dispute that Morris shot his pistol. On direct examination, he testified:
Defense Counsel: Is your window down?
Morris: Yes, sir.
Defense Counsel: Is his [Kenneth Jackson’s] window down
all the way?
Morris: No, sir. It’s like halfway.
Defense Counsel: Okay.
Morris: And so I believed the light turned green because it had to turn green for us to continue on. And right when the light had turned green, I thought I seen — I thought I seen him reach for a gun and I was scared. I freaked out and I shot. I didn’t aim or nothing, I just reacted to the situation.
Based on the fact that Morris testified that he knowingly shot at the Sharp vehicle without aiming at Chris Sharp, the victim, the jury could have believed that there was evidence to support a knowing mental state as opposed to a purposeful mental state to kill Chris Sharp. See Britt v. State, supra. Moreover, he testified that it was Kenneth Jackson that he believed had a gun, not Chris Sharp.
The circuit court erred in refusing to give the second-degree murder instruction.
II: Manslaughter
We turn next to Morris’s contention that he was entitled to an instruction on the lesser-included offense of manslaughter, and, specifically, an instruction on reckless manslaughter. The circuit court refused to so instruct, and Morris’s counsel proffered the following instructions based on Ark. Code Ann. § 5-10-104(a) and 5-2-202(3) (Repl. 1997):
AMCI 2d 1004 MANSLAUGHTER
Calvin Morris is charged with the offense of manslaughter. To sustain this charge, the State must prove beyond a reasonable doubt that:
(A) Calvin Morris caused the death of Christopher Sharp under circumstances that would be murder, except that he caused the death under the influence of extreme emotional disturbance for which there was a reasonable excuse. You should determine the reasonableness of the excuse from the viewpoint of a person in Calvin Morris’s situation under the circumstances as he believed them to be: or
(B) Calvin Morris recklessly caused the death of Christopher Sharp.
DEFINITIONS
“Recklessly.” — A person acts recklessly with respect to the results of her conduct when she 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.
Again, the test for whether an instruction should be given is whether there is the slightest evidence to support the instruction and whether there is no rational basis for giving the instruction. See Ellis v. State, supra; Harshaw v. State, supra. In reviewing whether slight evidence or a rational basis exists for giving the manslaughter instruction, we first consider what evidence Morris could conceivably have relied on for recklessly forming a belief that he needed to use deadly force against the Sharp vehicle. We come up with the following:
• In an earlier incident in a nightclub parking lot, the Sharp car almost hit Morris.
• Occupants in the Sharp car and Morris’s car began arguing after that.
• Later in the evening while Morris’s car and Sharp’s car were side-by-side at a stop light, an occupant in the victim’s car either started to roll down his window or had partially done so already. Morris thought he saw a gun, panicked, and shot Chris Sharp.
• Only one person, Daniel Fells, other than Morris testified that threats came from Sharp’s car, but Fells admitted on cross-examination that he probably had told the police officers following the shooting that no threats were made.
Morris relies on the case of Harshaw v. State, supra, as precedent for reversing the circuit court. But in Harshaw, there was evidence to the effect that the victim had a gun and intended to use it. We wrote in Harshaw:
According to Mr. Harshaw’s testimony and that of other eyewitnesses, Mr. Cunningham then made several statements insinuating that if there was a problem, he would settle it with a gun:
• “Oh, that’s all right. I’ll just go get my gun and shoot it up.”
• “It’ll be some pistol play out here.”
• “1’11-get my nine and shoot this MF up.”
• “If there was a problem, I’d have a gun.”
• “Well, you know, if it was a problem, I’d have my gun and I’d shoot — be shooting it up out here, you know.”
• “K-3 [Casey Cunningham] ain’t no punk. If I got a problem, I just boom boom boom like that.”
Thereafter, Mr. Harshaw testified that he and Mr. Cunningham both turned and went to their respective cars. Several eyewitnesses stated that Mr. Cunningham reached into his car through the window on the driver’s side of the car. At the same time, Mr. Harshaw went to the trunk of his car, opened it, and retrieved a shotgun. As Mr. Cunningham came back up from reaching into the car, Mr. Harshaw shot him in the chest. Mr. Harshaw testified that he was afraid Mr. Cunningham was about to pull a pistol from his car and shoot him. As it turned out, Mr. Cunningham did not have a gun.
Harshaw, 344 Ark. at 131, 39 S.W.3d at 754-55.
We held in Harshaw that there was some evidence to support a finding that he recklessly formed the belief that Cunningham was about to shoot him, and that the circuit court erred in not giving the instruction. The Harshaw case with its references to a weapon stands in marked contrast to this case where there is no proof, and not even an indication, that the occupants of Sharp’s car had weapons. Furthermore, the only indications that “threats” were made was Morris’s self-serving testimony and Fells’s contradictory testimony. What those “threats” were was never set out in testimony. The circuit court correctly concluded that this did not rise to the level of a rational basis to warrant giving the instruction.
The catalyst for the shooting, according to Morris, was (1) that a window was rolled down, (2) that there had previously been an argument at the nightclub parking lot, and (3) that he thought h¿ saw a gun. The State makes a valid point in emphasiz ing that what Morris is arguing is that his fear of being shot, standing alone without other supporting evidence, is enough for the formation of a reckless belief that a lethal threat existed. Subjective fear of being shot, without some basis for that fear, should not be the determinant. In short, we would go too far were we to reverse the circuit court’s decision and hold that a defendant’s testimony that he was “scared” and “freaked out,” without some supporting evidence that the victim had a weapon, was enough to entitle him to a manslaughter instruction. In Harshaw, we pointed to the fact that there was some evidence supporting the appellant’s recklessly formed belief because the victim had “made comments about using a gun if there was a problem” and then went to his car and “reached inside the driver’s window.” Harshaw, 344 Ark. at 132, 39 S.W.3d at 756. Here, there was no such supporting evidence.
We underscore the point that it first falls to the circuit court to determine whether there is a rational basis -for giving of a jury instruction. Here, the circuit court concluded that there was none. In Harshaw, this court pointed to a footnote in the Original Commentary to Ark. Code Ann. § 5-2-614 (Repl. 1977), which deals with the formation of a recldess belief that the use of force is necessary in the context of justified homicide. The quoted commentary reads in part:
“We do not believe a person ought to be convicted for a crime of intention when he has labored under a mistake such that, had the facts been as he supposed, he would have been free from guilt. The unreasonableness of an alleged belief may be evidenced [sic] that it was not in fact held, but if the tribunal was satisfied that the belief was held, the defendant in a prosecution for a crime founded on wrongful purpose should be entitled to the judgment on the assumption that his belief was true.”
Harshaw, 344 Ark. at 134 fn.1, 39 S.W.3d at 757 fn.1. In short, the Commentary looks to the tribunal, which in common parlance is the court, as the first determiner of whether a rational basis supports the reckless formation of a belief and whether a jury question, accordingly, exists. In the case before us, the circuit court found that there was no rational basis to support the reckless formation of a belief that lethal force was about to be used and denied the instruction.
Morris challenges the circuit court’s decision that the evidence did not support the giving of the manslaughter instruction and urges that the court erred. In our judgment, the circuit court properly could discount the self-serving testimony of Morris that threats were made and the contradictory testimony of Daniel Fells, who first told police officers at the crime scene that no threats came from the Sharp vehicle and then testified to just the opposite at trial. We decline to hold that the circuit court committed reversible error in this regard.
Affirmed in part. Reversed and remanded in part.
Imber, J., concurs in part and dissents in part. | [
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WH. “Dub” Arnold, Chiefjustice.
Appellant, Phillip Dewayne Williams, was charged with one count of capital-felony murder, two counts of aggravated robbery, and one count of misdemeanor theft of property. A Pulaski County jury convicted him on all counts, and the trial court sentenced him to life imprisonment without parole for capital murder, and twenty-year terms of imprisonment on each of the aggravated robbery convictions. His sentence for misdemeanor theft of property merged into his felony conviction sentences pursuant to Ark. Code Ann. § 5-4-404(c)(l) (Supp. 2001).
On appeal, appellant contends that the trial court erred by denying his motions for directed verdict, challenging the court’s finding of substantial evidence to support the judgment on each count. Additionally, appellant challenges the constitutionality of Arkansas’s substantial-evidence standard of review and the constitutionality of Rule 5-2 (d) of the Rules of the Supreme Court, which denies him the opportunity to cite favorable precedent from unpublished decisions of the Arkansas Court of Appeals. We affirm.
I. Motions for Directed Verdict
A motion for directed verdict is a challenge to the sufficiency of the evidence. See, e.g., Tester v. State, 342 Ark. 549, 30 S.W.3d 99 (2000). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Id. Substantial evidence is evidence that is of sufficient certainty and precision to compel a conclusion. Id. Circumstantial evidence is substantial when it excludes every reasonable hypothesis consistent with innocence, and whether it does is a question for the jury. See Gregory v. State, 341 Ark. 243, 15 S.W.3d 690 (2000). In a challenge to the sufficiency of the evidence, the appellate court reviews the evidence in the light most favorable to the State. Id.
Appellant contends that the trial court erred by denying his motions for directed verdict, challenging the court’s finding of substantial evidence to support the judgment on each count. We disagree. The facts adduced at trial are as follows: on August 2, 2000, LaShun Henderson was on the porch of his home at 3214 Martin Luther King Drive in Little Rock. He was talking with Kevin Williams, his brother Derrick, and his first cousin, Eldrick Williams. As Eldrick left to wash dishes and the others started to go inside, a car pulled up in the alley beside the house. LaShun Henderson testified that, shortly thereafter, two men came into the house “yelling and shouting” and “pointing their guns in our face[s].” According to Henderson, the men ordered him to take off his clothes and lie on the floor, and one of them demanded money. One of the men, who was wearing a blue shirt, took money that Derrick had lying on a dresser. After taking the money, the men began to leave the house.
The men ran into Eldrick on the porch as they were leaving, and, at that point, Mr. Henderson heard gunshots. The appellant, who was wearing red and black, shot Eldrick. There were, according to testimony, “numerous gunshots,” including one fired by the appellant’s accomplice back into the room. According to Mr. Henderson, Eldrick did not have a gun.
Barbara Henderson, Eldrick Williams’s aunt, also testified. She stated that she was upstairs in the house on August 2, 2000, when her nephew came and told her that there were two men downstairs with guns. Ms. Henderson testified that she heard a gunshot as she made her way down the stairs, and when she could see the porch, she saw two men with Eldrick. She stated that Eldrick “couldn’t control [himjself’; he was “falling down,” and she saw one of the men — the one who was wearing red — standing over him and shooting at him three or four times. Ms. Henderson also testified that Eldrick did not have a gun.
The appellant’s accomplice, Kareem Holloway, also testified for the State. Mr. Holloway stated that, on August 2, 2000, he was sleeping at his girlfriend’s house when the appellant arrived. They decided to go buy a sack of marijuana, and the appellant drove Mr. Holloway and two other friends to the house on Martin Luther King Drive in Little Rock. When they arrived at the house, the appellant got out of the car and began talking to three or four young men. Soon afterward, Mr. Holloway decided that he wanted to buy his own sack of marijuana and approached the house. He began talking to Kevin Williams in the doorway, while the appellant talked with Derrick Williams beside a bed in the interior of the house. Mr. Holloway subsequently followed Kevin into the house, where he saw $500.00 on a dresser. After putting the money in his pocket and turning back around, Mr. Holloway saw LaShun Henderson waving a gun, whereupon he, the appellant, and Derrick Williams all drew their weapons.
After drawing their weapons, Mr. Holloway and the appellant began to walk backwards out of the house. As they were leaving, Eldrick Williams ran in the house through the back door, ran out, and then ran back into the house, whereupon the appellant “turned around and shot him.” According to Mr. Holloway, the appellant, rather than walking around Eldrick after he shot him, “turned around and grabbed him in a headlock and . . . started shooting him in the head.” He estimated that the appellant shot Eldrick “about seven times.” Mr. Holloway testified that he and the appellant were armed with a .38 revolver and a 9-millime-ter handgun, respectively, but that Eldrick did not have a gun. After the shooting, Mr. Holloway and the appellant left the house on Martin Luther King Drive, separated briefly, and then met in North Little Rock, where they exchanged the money and marijuana that they had taken from the house.
Scientific testimony indicated that Eldrick died as a result of several gunshot wounds fired at close range. James Looney, an expert in tool marks and firearms from the Arkansas State Crime Laboratory, testified that several projectiles recovered from the scene, including one that was recovered from Eldrick’s body, were all fired from the same 9-millimeter weapon. Jeff Taylor, a trace-evidence expert from the laboratory, added that gunpowder residue on Eldrick’s clothing and on the hair surrounding his head wound indicated that he was shot at close range. Dr. Stephen Erickson, the forensic pathologist who performed the autopsy, testified that Eldrick sustained six gunshot wounds of varying kinds and severity. One of the bullets entered his left hip and broke his femur, which could have caused him to collapse to his knees. Other bullets caused wounds to his left bicep, the top of his left shoulder, and his left thumb, while two wounds, one to his head and one at the base of his neck, could have been fatal. According to Dr. Erickson, the head wound could have occurred while Eldrick was held in a headlock and shot at close range.
The appellant also testified on his own behalf at trial. He stated that he went to the house on Martin Luther King Drive to buy marijuana. He entered the house with Derrick Williams, Kevin Williams, and LaShun Henderson. Mr. Holloway unexpectedly followed them into the house and, as the appellant examined bags of marijuana, he heard shouting that caused him to turn around. He saw Mr. Holloway standing with his gun and money in his hands. LaShun Henderson then pulled a gun out from underneath a bed, provoking the appellant to pull his gun out of the waistband of his pants. The appellant testified that he was trying to back out of the house when Eldrick entered the room, looked at the men holding guns, and ran back out. By that time, Derrick was also pointing a gun. As the appellant continued to attempt to back out of the room, he ran into Eldrick, who was hollering and rushing toward him. The appellant testified that he believed that Eldrick had run to get a gun, and, with Derrick also shooting at him by that time, shot the floor near Eldrick and told him to stop. When Eldrick did not stop, he shot at him a second time from a distance of about five or six feet. According to the appellant, he did not know of any plan to take money, and he only shot at Eldrick because he believed that he had a gun, and, as a result, feared for his own life.
Appellant first contends that the trial court erred by denying his motion for a directed verdict on the charge of capital murder because there was insufficient evidence that he was an accomplice to either of the aggravated robberies and, because he shot Eldrick only in self-defense, that there was insufficient evidence that he acted with extreme indifference to the value of human life. He also appears to assert that the capital 'murder charge must fail because there is no conclusive evidence that his gun fired the fatal bullets. Furthermore, regarding the aggravated robbery of LaShun Henderson, the appellant contends that insufficient evidence supports that conviction because there was no proof that anything was taken from him. Regarding the aggravated robbery of Derrick Williams, he argues that there was no evidence that he knew of Mr. Holloway’s plan to take the money belonging to Mr. Williams, and that Mr. Holloway’s claim that they split the proceeds afterwards is uncorroborated accomplice testimony. He also contends that LaShun Henderson’s testimony, which independently establishes the elements of aggravated robbery, should be disregarded on review because it is largely uncorroborated and, therefore, “clearly unbelievable.”
As an initial matter, this Court will not dismiss LaShun Henderson’s testimony as “clearly unbelievable.” The weighing of evidence lies within the province of the jury, and this Court is bound by its determination regarding the credibility of witnesses. See, e.g. Harmon v. State, 340 Ark. 18, 8 S.W.3d 472 (2000). The jury is free to believe all or part of a witness’s testi mony, and inconsistent testimony does not render proof insufficient as a matter of law. Id. Indeed, after a jury has given credence to a witness’s testimony, this Court does not disregard it unless it was “so inherently improbable, physically impossible, or so clearly unbelievable that reasonable minds could not differ thereon.” Kitchen v. State, 271 Ark. 1, 607 S.W.2d 345 (1980). One eyewitness’s testimony, moreover, is sufficient to sustain a conviction, e.g., Harmon, 340 Ark. at 25, 8 S.W.3d at 476, and his testimony is not “clearly unbelievable” simply because it is uncorroborated or because it has been impeached. See Kitchen, 271 Ark. at 19, 607 S.W.2d at 356. Thus, because the appellant only argues that Mr. Henderson’s testimony is unbelievable because it is uncorroborated and inconsistent with Kareem Holloway’s testimony, we decline his invitation to disregard it with respect to the convictions at issue.
A. Capital Murder
Appellant claims the trial court erred by denying his motion for a directed verdict on the charge of capital-felony murder. Appellant maintains that the State failed to produce sufficient evidence to support either charge of aggravated robbery levied against him and that, therefore, the capital-murder charge must fail. Appellant further claims that he did not act with extreme indifference to the value of human life because his actions were in self-defense and that, therefore, the mens rea necessary to sustain a capital-felony murder conviction was not present and was not proved by the State. Appellant’s argument fails for several reasons.
First, there was sufficient evidence that appellant was an accomplice to the underlying felony of aggravated robbery. Arkansas Code Annotated § 5-10-101 (a)(1) (Repl. 1997) provides that “a person commits capital murder if, acting alone or with one or more other persons, he commits or attempts to commit . . . robbery . . . and in the course of and in furtherance of the felony, or in immediate flight therefrom, he or an accomplice causes the death of any person under circumstances manifesting extreme indifference to the value of human life.” Additionally, a person is an accomplice of another in the commission of an offense if, “with the purpose of promoting or facilitating the commission of the offense, he aids, agrees to aid, or attempts to aid the other person in committing it.” Ark. Code Ann. § 5-2-403(a)(2) (Repl. 1997).
This Court has held that factors that connect an accomplice with a crime include presence in the proximity of a crime, opportunity, and association with a person involved in the crime in a manner suggestive of joint participation. See, e.g., Misskelley v. State, 323 Ark. 449, 915 S.W.2d 702 (1996), cert. denied, 519 U.S. 898 (1996). In accordance with these standards, the evidence established that the appellant was an accomplice to aggravated robbery. LaShun Henderson testified that the appellant and another man came into a room where he and Derrick Williams were standing, pointed their guns, ordered him to strip and lie on the floor, and demanded money. The appellant also shot Eldrick Williams in an apparent effort to facilitate their escape. Because the forgoing evidence demonstrates that appellant actively participated in the aggravated robberies, we affirm on this point.
Moreover, the State introduced sufficient evidence that the appellant acted with extreme indifference to the value of human life and that his gun fired the fatal shots. The requirement of extreme indifference involves actions that evidence a mental state on the part of the accused to engage in some life-threatening activity against the victim. McCoy v. State, 347 Ark. 913, 69 S.W.3d 430 (2002). Eldrick Williams was unarmed; everyone who testified agreed that he was unarmed, including appellant’s accomplice, Kareem Holloway. Ms. Henderson testified that she saw the appellant stand over Eldrick’s fallen body and shoot three or four times, and Kareem Holloway testified that the appellant held Eldrick in a headlock and shot him in the head. The scientific evidence, indicating that the head wound was inflicted at close range, corroborates that testimony. Additionally, testimony was adduced that the appellant fired a 9-miflimeter handgun, and a 9-millimeter projectile was recovered from Eldrick’s body. Thus, because the foregoing evidence demonstrates that the appellant acted with extreme indifference to the value of Eldrick Williams’s life and that appellant’s gun fired the fatal shots, we affirm the trial court’s denial of appellant’s motion for directed verdict in regard to the charge of capital murder.
B. Aggravated Robbery of LaShun Henderson
Additionally, the trial court did not err by denying the motion for directed verdict on the aggravated robbery charge regarding LaShun Henderson. Arkansas Code Annotated § 5-12-102(a) (Repl. 1997) states that “[a] person commits robbery if, with the purpose of committing a felony or misdemeanor theft or resisting apprehension immediately thereafter, he employs or threatens to immediately employ physical force upon another.” Arkansas Code Annotated § 5-12-103(a)(1) (Repl. 1997) states that “[a] person commits aggravated robbery when he is armed with a deadly weapon, or he represents by word or conduct that he is so armed.” It is well settled, and consistent with this statutory language, that no transfer of property needs to take place to complete the offense. See Robinson v. State, 303 Ark. 351, 797 S.W.2d 425 (1990). Rather, the focus of aggravated robbery is the threat of harm to the victim; and, consequently, the offense is complete when physical force is threatened. Id. LaShun Henderson testified that the appellant and another man came into his house, pointed their guns, ordered him to strip and lie on the floor, and demanded money. We, therefore, hold that the foregoing constitutes substantial evidence of aggravated robbery, regardless of whether property belonging to Mr. Henderson was taken.
C. Aggravated Robbery of Derrick Williams
Likewise, substantial evidence supports the appellant’s conviction for the aggravated robbery of Derrick Williams. Appellant’s accomplice, Kareem Holloway, testified that he and appellant divided the proceeds of the robberies upon meeting back up after the robberies/murder. Appellant argues that the testimony of his accomplice, alone, is insufficient to sustain a conviction for this charge and that it requires corroboration. By arguing that Kareem Holloway’s testimony about the division of proceeds requires corroboration, the appellant once again overlooks that, for aggravated robbery, a transfer of property does not need to take place, and the offense is complete when physical force is threatened. See Robinson v. State, supra. Therefore, the State did not need to corroborate Mr. Holloway’s testimony about the divi sion of proceeds to prove the aggravated-robbery charge involving Derrick Williams. Rather, the State proved the appellant’s guilt with LaShun Henderson’s testimony, which established that the appellant and another man came into the room where he and Derrick Williams were standing, pointed guns and demanded money, and that Mr. Williams, who was standing by the dresser where the money was laying, “did what he was told.” Based on the foregoing, we affirm the trial court on this point, as well.
D. Misdemeanor Theft of Property Conviction
The appellant next contends that, because Kareem Holloway’s testimony about the division of proceeds is uncorroborated, the State failed to prove the charge of misdemeanor theft of property. We disagree.
A person commits theft of property when he knowingly obtains the property of another person, by deception or by threat, with the purpose of depriving the owner thereof. Ark. Code Ann. § 5-36-103(a)(2) (Repl. 1997). Theft of property is a misdemeanor if the property is valued at less than $500.00. Ark. Code Ann. § 5-36-103(b)(3) (Repl. 1997). Moreover, corroboration of the testimony of an accomplice is not required for a misdemeanor conviction. See Ark. Code Ann. § 16-89-lll(e)(l) (1987); see also Sanders v. State, 259 Ark. 329, 532 S.W.2d 752 (1976) (any error in failing to instruct the jury as to accomplice liability would be harmless because appellant was ultimately convicted of a misdemeanor). In this case, LaShun Henderson’s testimony established that the appellant participated in the aggravated robbery of Derrick Williams; and Kareem Holloway testified that, after the robbery, he gave the appellant some of the money that was taken. Mr. Holloway’s uncorroborated testimony is sufficient to sustain the appellant’s conviction for misdemeanor theft of property.
II. Constitutionality of Substantial-Evidence Standard of Review
The appellant next appears to contend that the oft-repeated standard of appellate review for sufficiency of the evidence, the substantial-evidence standard, is unconstitutional under fackson v. Virginia, 443 U.S. 307 (1979). While his argument is not entirely clear, he seems to assert that this Court erroneously concluded in Jones v. State, 269 Ark. 119, 598 S.W.2d 748 (1980), that the substantial-evidence standard is consistent with the “rational fact-finder” standard enunciated in Jackson, and that his case, if affirmed on the allegedly scant evidence in the record, illustrates that the substantial-evidence standard does not adequately insure that the jury found he was guilty beyond a reasonable doubt. We must assume, then, that appellant is urging this Court to overrule Jones and explicitly adopt the rational fact-finder standard and that, under that purportedly more demanding standard of review, to hold that insufficient evidence supports his convictions for aggravated robbery. For the following reasons, we decline appellant’s apparent invitation to overrule Jones, and we affirm appellant’s conviction.
This Court actually held in Jones that the substantial-evidence standard is consistent with the rational fact-finder standard enunciated in Jackson. In Jackson, the United States Supreme Court rejected a standard of review that required only an examination of whether there was any evidence to support a conviction in favor of a standard which, instead, insured that the fact-finder rationally applied the standard of “guilt beyond a reasonable doubt,” or, in other words, that the evidence of guilt was convincing to a point that “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. at 317, 318-19. The substantial-evidence standard, while not explicitly reciting the standard from Jackson word for word, requires that evidence supporting a conviction must compel reasonable minds to a conclusion, see, e.g. Rutledge v. State, 345 Ark. 243, 45 S.W.3d 825 (2001), and force or induce the mind to pass beyond suspicion or conjecture, see Jones, 269 Ark. at 120, 598 S.W.2d at 749, and, thereby, ensures that the evidence was convincing to a point that any rational fact-finder could have found guilt beyond a reasonable doubt.
This Court recently reaffirmed Jones, and, moreover, again declined to explicitly adopt the rational fact-finder test. See Hale v. State, 343 Ark. 62, 31 S.W.3d 850 (2000). In short, because the Court’s standard of review is correct, and, because substantial evidence supports the appellant’s convictions, we affirm.
III. Constitutionality of Ark. Sup. Ct. R. 5-2(d) (2002)
The appellant next contends that Arkansas Supreme Court Rule 5-2(d) (2002), which provides that unpublished opinions by the Arkansas Court of Appeals shall not be cited in any argument in any court, is unconstitutional. Specifically, he relies upon Anastasoff v. United States, 223 F.3d 898 (8th Cir. 2000), vacated as moot, 235 F.3d 1054 (2000), and apparently asserts that the rule, like its federal analogue that was invalidated in Anastasoff, allows this Court to ignore its own precedent, and therefore, exceed its judicial power. The State contends that because the appellant does not suffer any injury as a result of his inability to rely on unpublished Court of Appeal’s opinions here, he lacks standing to challenge the constitutionality of Rule 5-2(d) and that this Court should, therefore, affirm. We agree.
A litigant has standing to challenge the constitutionality of a court rule if the rule is unconstitutional as applied to that particular litigant. See, e.g., Ross v. State, 347 Ark. 334, 64 S.W.3d 272 (2002). The general rule is that one must have suffered injury or belong to a class that is prejudiced in order to have standing to challenge the validity of a rule. Id. Stated differently, litigants must show that the questioned rule has a prejudicial impact on them. Id. Under these standards, the appellant in this case lacks standing to challenge the constitutionality of Rule 5-2(d).
In Anastasoff, the Eighth Circuit held that its rule regarding the precedential value of unpublished opinions was unconstitutional because it allowed that court to ignore its own precedent, and therefore, exceed the judicial power that it had been granted under Article III of the United States Constitution. See Anastasoff, 223 F.3d at 903, 905. In contrast to the appellant in Anastasoff, however, the appellant here does not seek to rely on an unpublished decision of this Court, which, if published, would bind the Court and control the outcome of the appeal. Rather, he wants to rely on opinions of the Arkansas Court of Appeals, which, even if published, do not have any binding effect on this Court. Cf. Amendment 80 § 5 (providing that Court of Appeals is subject to the general superintending control of the Supreme Court); cf. also, Box v. State, 348 Ark. 116, 71 S.W.3d 552 (2002) (noting that Court of Appeals lacks authority to overrule Supreme Court precedents). Therefore, as appellant does not belong to the class of persons who wish to rely on decisions that would otherwise be binding and that would be injured by the application of Rule 5-2(d), we hold that he does not have standing to challenge the constitutionality of this Rule.
IV. Rule 4-3 (h) Compliance
The record has been reviewed for prejudicial error pursuant to Ark. Sup. Ct. R. 4-3(h), and no reversible errors were found.
Affirmed.
The constitutionality of Rule 5-2(d) is currently the subject of separate litigation in Weatherford v. State, CACR 02-415. | [
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Per Curiam.
In 2000, Shiwona Pace filed a civil complaint contending that Erik Bullock had caused physical and mental harm to her and caused the death of her unborn child. On June 19, 2002, judgment was entered reflecting that a jury had returned a verdict for Pace in the amount of $1,500,000 in compensatory damages and $3,000,000 in punitive damages.
Bullock filed a pro se notice of appeal from the judgment and a motion to proceed in forma pauperis on appeal. The court denied Bullock’s motion to proceed as an indigent. Bullock tendered a partial record on appeal to this court and now before us is petitioner Bullock’s pro se motion to be permitted to proceed as a pauper on appeal from the judgment.
The motion is denied inasmuch as there is no provision in the prevailing rules of procedure to permit a defendant in a civil action to proceed at public expense. Rule 72 of the Rules of Civil Procedure provides that an indigent person may prosecute his or her cause of action informa pauperis under certain circumstances. Petitioner Bullock was the defendant in the cause filed by Ms. Pace. As such, he is not entitled to proceed as an indigent from the adverse judgment. If petitioner desires to lodge the appeal, he is responsible therefore for tendering both the record on appeal and the required filing fee at his expense.
Motion denied. | [
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Jim Hannah, Justice.
This is an action pursuant to Article 16, Section 13, of the Arkansas Constitution to protect the inhabitants of Benton County, the City of Rogers, Rogers School District No. 30, Bentonville School District No. 6, and Siloam Springs School District No. 21 from the enforcement of an illegal exaction. Appellants Clarence J. Worth, et ah, appeal an order of class certification under Ark. R. App. P. — Civ. 2(a)(9). Appellants allege that the trial court erred in permitting citizens to opt out from the class, that the trial court erred in failing to prohibit communication and solicitation of the class, and that the trial court erred in denying a motion for recusal. The Appellees agree that the opt-out provisions of Rule 23 are not applicable to the injunctive relief Appellants seek, which is the “roll back” of millage rates for ad valorem tax. The Appellees allege that the relief sought by Appellants requesting a refund of ad valorem taxes to taxpayers in the amount overcharged by the noted taxing units should be subject to opt out allowed under Rule 23. Appellees cross-appeal, asserting the trial court erred in restricting attorneys from making public statements about opting out of the class.
We hold that, under the terms of Article 16, Section 13, of the Arkansas Constitution, the parties to an illegal-exaction suit include all citizens of the county, city, or town affected by the illegal exaction. Because all citizens are parties to the constitutionally created class, the right to opt out as developed under Ark. R. Civ. P. 23, is not applicable in an illegal-exaction suit. We further hold that communication with the affected citizens must be unfettered to determine whether any alleged illegal exaction may have been voluntarily paid, and therefore, not subject to suit under Article 16, Section 13.
Appellants also attempt to appeal the denial of their motion to recuse. The appeal before us is an interlocutory appeal from an order granting a motion to certify a class as allowed under Ark. R. App. P. — Civ. 2(a)(9). The issue of the denial of the motion to recuse may not be heard on this interlocutory appeal. In any event, the issue is moot here because the issue of recusal is the subject of a Petition for Writ of Mandamus, or in the alternative, for Writ of Prohibition, which is presently pending before this court.
Facts
On April 25, 1997, Appellants filed a lawsuit in Benton County alleging that taxing units, including Benton County, City of Rogers, Rogers School District No. 30, Siloam School District No. 21, and Bentonville School District No. 6, were required to make calculations for “roll back” of millage rates for ad valorem taxes under Amendment 59 of the Arkansas Constitution, and that they had not done so. On May 2, 1997, Appellants filed a separate action alleging that the noted taxing units had not “rolled back” the millage rates for ad valorem taxes required after a countywide reappraisal. These two suits were consolidated by an order dated January 23, 1998. Appellees filed a motion to dismiss the consolidated action, which was treated as a motion for summary judgment. The motion was granted. This court reversed that decision and remanded the case for further proceedings in Worth v. City of Rogers, 341 Ark. 12, 14 S.W.3d 471 (2000) (Worth I). Thereafter, on May 2, 2001, the case of Larry Timmons v. Benton County, Benton County Case No. CIV-97-361-2 was also consolidated with the two above noted cases.
Appellants below are requesting that the trial court determine if a “roll back” is required, and if so, the Appellants are requesting that the trial court order a refund of ad valorem taxes to taxpayers in the amount overcharged by the noted taxing units, less cost, expenses, and a reasonable and adequate attorney’s fee as determined by the trial court.
On June 22, 2001, the trial court entered a class certification order. It provides an opt-out choice to the class members, as set out in a Notice attached to the certification order. It also prohibits counsel for the Appellees from contacting class members or making public statements about opting out and not opting out.
Standard of Review
This court reviews class certification under an abuse-of-discretion standard. Cheqnet v. Montgomery, 322 Ark. 742, 911 S.W.2d 956 (1995). An abuse of discretion can be shown by proving bias or prejudice. Massongill v. County of Scott, 337 Ark. 281, 991 S.W.2d 105 (1999); Echols v. State, 326 Ark. 917, 936 S.W.2d 509 (1996).
Opt Outs
Appellants allege that the trial court erred in allowing opt outs. We hold that in an illegal-exaction case, taxpayers may not opt out of the suit. The right of opt out as developed under Rule 23 does not apply to illegal-exaction suits. Under Ark. R. Civ. P. 23, class members may opt out of a class action if they are not satisfied with the complaint or remedies asserted. USA Check Cashers of Little Rock, Inc. v. Island, 349 Ark. 71, 76 S.W.3d 243 (2002). USA Check Cashers involved a class action created under Ark. R. Civ. P. 23. In a class action established under Rule 23 of the Federal Rules of Civil Procedure, class members have an absolute right to be excluded from the case if they exercise that right within the time allowed under Rule 23(c)(2). Sarasota Oil Co. v. Greyhound Leasing and Fin. Corp., 483 F.2d 450 (10th Cir. 1973). If, in a class action created under Rule 23, a forum state wishes to bind the rights of an absent plaintiff concerning a claim for money damages or similar relief at law, the State must provide minimal procedural due process, which includes, at the least, that an absent plaintiff be provided an opportunity to remove himself or herself from the class by executing and returning an “opt out” or “request for exclusion” form to the court. Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985).
Rule 23 creates a suit involving a class that is comprised of many claims, often small claims, and the class-action suit is created to avoid the problems such claims typically present, such as procedural complexities involving numerous joinders, wholesale intervention, and large numbers of lawsuits which would be inefficient and unmanageable. BNL Equity Corp. v. Pearson, 340 Ark. 351, 10 S.W.3d 838 (2000). This court further noted in BNL Equity that without a class action, “numerous meritorious claims . . . might go unaddressed” because alone they are too small to prosecute. See BNL Equity, 340 Ark. at 361. The rationale of the class action is to manage litigation involving numerous class members who would otherwise all have access to court via individual lawsuits. Croyden Assoc. v. Alleco, Inc., 969 F.2d 675 (8th Cir. 1992). To bring a class action under Rule 23, it must be found to be a superior means as opposed to pursuing individual remedies. Drew v. 1st Fed. Sav. & Loan Ass’n. of Ft. Smith, 271 Ark. 667, 610 S.W.2d 876 (1981). A class action under Ark. R. Civ. P. 23 binds together for litigation a number of claims of individuals because they are similarly situated, and because their claims can best be litigated under a class action established under Rule 23. BNL Equity, supra.
However, although an illegal-exaction case is a class action, it is not a class action established under Rule 23. It is created by our Constitution. Article 16, Section 13, of the Arkansas Constitution provides:
Any citizen of any county, city or town may institute suit in behalf of himself and all others interested, to protect the inhabitants thereof against the enforcement of any illegal exactions whatever.
Ark. Const. Art. 16, § 13. Our common law makes an illegal-exaction suit under Article 16, Section 13, of the Arkansas Constitution a class action as a matter of law. Frank v. Barker, 341 Ark. 577, 20 S.W.3d 293 (2000); City of Little Rock v. Cash, 277 Ark. 494, 644 S.W.2d 229 (1982). An illegal-exaction claim is by its nature in the form of a class action. Hamilton v. Villines, 323 Ark. 492, 915 S.W.2d 271 (1996). An illegal-exaction suit is a constitutionally created class of taxpayers, and suit is brought for the benefit of all taxpayers.
Unlike a class action created under Rule 23, an illegal-exaction suit does not bind together the claims of a number of persons in order to more effectively litigate the claims. Because individual claims that might be compromised are not at issue, the concerns about allowing opt outs are not present. A taxpayer either participates in the illegal-exaction suit already filed, dr in no lawsuit on the illegal exaction. By the terms of the Arkansas Constitution, Article 16, Section 13, every inhabitant of the area affected by the alleged illegal exaction is a member of the class. Every citizen who is an inhabitant of the affected area is regarded as a party to the illegal-exaction lawsuit and is bound by the judgment. Cash, supra; Rigsby v. Ruraldale Consol. Sch. Dist. No. 64, 180 Ark. 122, 20 S.W.2d 624 (1929). As this court stated in McCarroll v. Farrar, 199 Ark. 320, 134 S.W.2d 561 (1939), if an illegal-exaction suit were not a bar to another suit, one citizen after another might institute suit for himself or herself, and this could continue until every citizen in the state had sued. The doctrine of res judicata applies. McCarroll, supra.
An opt out pursuant to Rule 23 is not possible in an illegal-exaction lawsuit. The Arkansas Constitution makes each taxpayer a party. What is at issue in an illegal-exaction case is whether the governmental entity violated Article 16, Section 13. On the other hand, what is at issue in a typical class-action case, such as a tort class action, is the rights of the various members of the class against the defendant. Under an illegal-exaction lawsuit, the reasons for allowing Rule 23 opt outs are not present. All taxpayers are parties as a matter of law. Whatever illegal exaction has occurred and whatever amount of money may be at issue will be unaffected by a decision of a citizen to participate or not to participate in the illegal-exaction suit. The exaction is either illegal, or it is not. Thus, while desire not to participate in the typical tort class action will except a class member from such a suit, it will not except one from a suit based upon illegal exaction. Nor will the desire to retain separate counsel to obtain a better outcome allow for an opt out. If citizens were able to opt out, they would not be able to prosecute their suits individually because, as discussed above, they would be precluded by res judicata.
A suit in illegal exaction long predates Rule 23. An illegal-exaction suit is one brought “necessarily for the benefit of all taxpayers . . . and might as well be prosecuted in the name of one [taxpayer] as of another.” Laman v. Moore, 193 Ark. 446, 100 S.W.2d 971 (1937). In Laman, Laman was granted permission to intervene and be added as a plaintiff. Laman, supra. The original plaintiff objected, arguing that the only proper proceeding for Laman was for him to bring a separate and independent action. Id. This court stated:
The objection was and should have been overruled. The suit was brought by a resident taxpayer to prevent the alleged unlawful expenditure of funds belonging to the city, and, by including another resident and taxpayer of the city as a party plaintiff, did not change the nature or purpose of the suit. The suit as originally brought was necessarily for the benefit of all taxpayers of the city. . .
Laman, 193 Ark. at 447-48.
Any judgment entered will be entered for the benefit of all taxpayers. As noted previously, a person who opted out in an illegal-exaction suit would have no right to proceed alone because he or she would be foreclosed by res judicata. What is at issue is whether an illegal exaction occurred, not whether a given citizen has been wronged. What is sought in an illegal-exaction case is return of taxes wrongfully collected. Relief may be an order that the taxes be refunded. Cash, supra. A personal judgment is not entered. Id.; see also, Laman, supra. While there is no right to opt out in an illegal-exaction lawsuit, it is well settled that voluntary payment of taxes cannot be recovered in an illegal- exaction suit. Elzea v. Perry, 340 Ark. 588, 12 S.W.3d 213 (2000).
Article 16, Section 13, of our Constitution is self-executing and requires no enabling act or supplemental legislation to make its provisions effective. Chapman v. Bevilacqua, 344 Ark. 262, 42 S.W.3d 378 (2001); Samples v. Grady, 207 Ark. 724, 182 S.W.2d 875 (1944). Even though Article 16, Section 13 is self-executing, this court has stated that the legislature may regulate the procedure in illegal-exaction cases so long as the constitutional guarantees set out in Article 16, Section 13, are not abridged. Carson v. Weiss, 333 Ark. 561, 972 S.W.2d 933 (1998); Cash, supra. With regard to procedure in illegal-exaction cases, this court has stated that Ark. R. Civ. P. 23 may serve as a procedural guide. Carson, supra. However, an illegal-exaction case is not governed by Ark. R. Civ. P. 23. Frank, supra. Rather, Rule 23 contains provisions that may be helpful in guiding a trial court in managing illegal-exaction cases.
Rule 23 may act as a procedural guide in illegal-exaction cases as to notice. Notice is required in an illegal-exaction suit. In an illegal-exaction suit, what is first at issue is whether an illegal exaction has occurred. If an illegal exaction is found, the trial court must then determine whether the taxes were collected under protest or whether they were voluntarily paid. It is settled law that voluntarily paid taxes are not subject to an illegal-exaction suit. Holye v. Faucher, 334 Ark. 529, 975 S.W.2d 843 (1998). We have always followed the common-law rule prohibiting recovery of voluntarily paid taxes. Elzea, supra; Cash, supra; Thompson v. Continental So. Lines, 222 Ark. 108, 257 S.W.2d 375 (1953).
Taxes paid afer the filing of a complaint in illegal exaction are considered to be paid under protest. Elzea, supra. Because we follow the common-law rule prohibiting the recovery of voluntarily paid taxes, nothing prohibits a taxpayer from declaring that he or she voluntarily paid the taxes even after the filing of the complaint. This arguably has the same effect as opting out, except one who voluntarily pays the tax may not later bring the same illegal-exaction suit. Taxes paid voluntarily are not subject to an illegal-exaction suit. The taxpayers should be provided with a notice that is the best practicable, that is reasonably calculated under all the circumstances to apprise the taxpayers of the pendency of the suit, and that describes the suit and affords the taxpayers the necessary notice so that the parties may determine whether the taxes were voluntarily paid. The notice must also apprise taxpayers of the suit in the event they wish to be made a named party to have a more direct say in the remedy, whether it might be a refund or a roll-back. A declaration of voluntary payment might stop some portion of a refund, but it would not affect a roll-back, which by its nature affects all taxpayers. Further, taxpayers should be apprised of the suit in the event they may wish to become a named party because of concerns they may have that the suit is collusive between the existing parties. See Samples, supra.
Communication
Both the Appellants and the Appellees assert error in the trial court’s decision regarding contact with the class members. As already noted, while an illegal-exaction lawsuit has some attributes that make Rule 23 type procedure helpful in managing the case, it is not a typical class action. Because there is no right to opt out, the concerns about communication are not present. Communication. in an illegal-exaction case will not affect numerosity, superiority, typicality , or adequacy, because the issue is not whether individual claims are similar, and as such, they may be considered together. There is but one claim, which is whether the tax constitutes an illegal exaction. Because we follow the common-law rule prohibiting the recovery of voluntarily paid taxes, contact with citizens should occur to determine whether the taxes were paid involuntarily or voluntarily. The concern is whether coercion is being used.
Appellants also attempt to appeal the denial of their motion to recuse. The appeal before us is an interlocutory appeal from an order granting a motion to certify a class as allowed under Ark. R. App. P. — Civ. 2(a)(9). In an appeal from an order granting a motion for certification as a class, the only issues that may be considered on appeal are those issues regarding whether the judge abused his or her discretion in certifying the class under Ark. R. Civ. P. 23. Ark. State Bd. Of Educ. V. Magnolia Sch. Dist. #14, 298 Ark. 603, 769 S.W.2d 419 (1989). The issue of the denial of the motion to recuse may not be heard on this interlocutory appeal.
We reverse and remand the case to the trial court for further action consistent with this opinion on issues of how the class will be handled.
Affirmed in part and reversed in part.
Glaze and Imber, JJ., concurring.
Numerosity, superiority, typicality, and adequacy are not considered in an illegal-exaction suit. Those issues go to the question of whether a class can be certified. In an illegal-exaction suit, the suit is a class action as a matter of law. Frank, supra. | [
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Annabelle Clinton Imber, Justice.
Appellant John Neeve was cited for speeding on January 8, 2002, by a police officer for the City of Caddo Valley. He was scheduled to appear in the City Court of Caddo Valley, but objected to that court’s exercise of jurisdiction. Following the city court’s denial of his motion to dismiss, Neeve sought a writ of prohibition in the Clark County Circuit Court. The circuit court denied the writ, and Neeve now appeals the circuit court’s ruling. We affirm.
As he did before the city court and the circuit court, Neeve raises two points on appeal: (1) Act 944 of 1917 prohibits the City of Caddo Valley from establishing its own court; and (2) Amendment 80 to the Arkansas Constitution bars the establishment of the Caddo Valley City Court. In response, the City of Caddo Valley contends that neither point has merit. First, the city asserts that Act 944 of 1977 did not repeal Ark. Code Ann. § 14-45-106 (Repl. 1998), which authorizes the establishment of city courts by incorporated towns. Second, the city states that Amendment 80 to the Arkansas Constitution does not affect the jurisdiction of the Caddo Valley City Court because that court was established before Amendment 80’s effective date.
Act 944, which is entitled “An Act to Reorganize the Arkadelphia/Clark County Municipal Court,” was enacted by the General Assembly in 1977. Pursuant to Act 944 and local Ordinance 80-2, the City of Caddo Valley, a municipality located in Clark County, placed its docket on the Clark County Municipal Court Agenda on May 8, 1980. Then, on May 17, 2001, the city’s town council passed Ordinance 2001-4 to establish the Caddo Valley City Court. Amendment 80 to the Arkansas Constitution became effective on July 1, 2001. Subsequently, in October, 2001, the mayor appointed a judge to preside over the new city court.
As a starting point, we observe that Neeve appeals the circuit court’s denial of a petition for a writ of prohibition. A writ of prohibition is an extraordinary writ that is appropriate only when the lower court is wholly without jurisdiction. Travelers Ins. Co. v. Smith, 329 Ark. 336, 947 S.W.2d 382 (1997). On appeal, this court’s review is limited to the pleadings. Id.
I. Act 944 of 1977
Determining whether Act 944 of 1977 prohibits the City of Caddo Valley from establishing a city court is a matter of statutory construction. The germane section of the Act states:
All municipalities located in Clark County currently maintaining a docket on the Court Agenda, as of the effective date of this Act, shall be part of the Clark County Municipal Court System without further action on the part of said municipality. Any Clark County Municipality desiring to maintain a docket on the Municipal Court Agenda may do so by filing a resolution or ordinance with the Municipal Court Clerk requesting a docket on the Court Agenda.
1977 Ark. Acts 944 § 3 (not codified).
In his first point on appeal, Neeve essentially argues that once the city exercised its right under Act 944 of 1977 to place its docket on the Clark County Municipal Court’s Agenda, it no longer had the right to create a court under Ark. Code Ann. § 14- 45-106. Specifically, Neeve seizes on the mandatory language in section 3 of the Act, which states in pertinent part that “[a]H municipalities located in Clark County currently maintaining a docket on the Court Agenda, as of the effective date of this Act, shall be part of the Clark County Municipal Court System without further action on the part of said municipality.” 1977 Ark. Acts 944 § 3 (emphasis added). However, Neeve fails to address the discretionary language in section 3 of the Act, which states that “[a]ny Clark County Municipality desiring to maintain a docket on the Municipal Court Agenda may do so by filing a resolution or ordinance with the Municipal Court Clerk requesting a docket on the Court Agenda.” Id. Neeve suggests that the “mandatory language” of Act 944 coupled with the city’s election to maintain its docket on the Clark County Municipal Court Agenda indicates that the city lost its power to withdraw from the Clark County Municipal Court System and create its own court. Neeve recognizes that this case necessarily involves statutory interpretation and, in support of his interpretation, states that Arkansas “has long subscribed to the notion that common sense is a key element in defining statutory construction.” See Keith v. Barrow-Hicks Extensions of Water Improv. Dist. No. 85, 275 Ark. 28, 626 S.W.2d 951 (1982).
In addition to common sense, we have consistently stated that the basic rule of statutory construction is to give effect to the intent of the General Assembly. Nations Bank v. Murray Guard, Inc., 343 Ark. 437, 36 S.W.3d 291 (2001). This court will construe a statute just as it reads, giving the words their ordinary and usually accepted meaning in common language. Id. Furthermore, we will not read into a statute a provision not put there by the General Assembly. State v. Goss, 344 Ark. 523, 42 S.W.3d 440 (2001).
The mandatory language in section 3 of the Act merely provides that if a municipality, such as the City of Caddo Valley, maintained a docket on the court agenda at the time the Act was enacted, it would automatically become part of the Clark County Municipal Court System. At the time Act 944 was passed, the City of Caddo Valley did not maintain a docket on the court agenda. Thus, that provision is not applicable here. According to the discretionary language in the next sentence of the Act, if a municipality desires to maintain a docket on the court agenda, it may file an ordinance with the'court, just as the City of Caddo Valley did in this case. The plain language of the Act does not prohibit the establishment of a city court. Furthermore, Ark. Code Ann. § 14-45-106 authorizes the establishment of a city court.
To construe Act 944 as Neeve suggests would necessarily require this court to conclude that Act 944 impliedly repealed Ark. Code Ann. § 14-45-106. Repeals by implication are strongly disfavored by the law. Shelton v. Fisher, 340 Ark. 89, 8 S.W.2d 557 (2000); Robinson v. Langdon, 333 Ark. 662, 970 S.W.2d 292 (1998). In Arkansas, a statute is only impliedly repealed when there is a repugnance between the two enactments such that both cannot stand together. Thomas v. State, 315 Ark. 518, 868 S.W.2d 85 (1994). Moreover, we will not find a repeal by implication if there is any way to interpret the statutes harmoniously. Waire v. Joseph, 308 Ark. 528, 825 S.W.2d 524 (1992). As neither statute at issue here makes jurisdiction exclusive in either court, which effectively means that both courts may exercise concurrent jurisdiction, we hold that Act 944 does not impliedly repeal Ark. Code Ann. § 14-45-106.
2. Amendment 80
In Neeve’s second point on appeal, he argues that Amendment 80 to the Arkansas Constitution prohibits the city from establishing a city court. While acknowledging that the Town Council of Caddo Valley enacted Ordinance 2001-4 prior to the effective date of Amendment 80, Neeve claims that a court did not exist until the mayor appointed a judge. As support for this claim, he points to the following language in the ordinance: “The Mayor of the Town of Caddo Valley, Arkansas, shall delegate the power, duties, and responsibilities given to him by Section 14-45-106 (1999 Replacement) of the Arkansas Code Annotated, to any person qualified under the laws of the State of Arkansas to assume those powers, duties, and responsibilities.” City of Caddo Valley, Ar., Ordinance 2001-4 (2001). According to Neeve, because the ordinance requires the mayor to delegate the judicial duties given to him by Ark. Code Ann. § 14-45-106, the city court was not established until the mayor in fact appointed a judge. We disagree.
The ordinance enacted by the Town Council of Caddo Valley on May 17, 2001, provides in pertinent part:
SECTION ONE: There is hereby created the City Court of Caddo Valley, Arkansas, and such City Court is hereby granted such power and jurisdiction as is allowed by the provisions of Section 14-45-106 (Replacement 1999) of the Arkansas Code Annotated.
City of Caddo Valley, Ar., Ordinance 2001-4, § 1 (2001). The word “hereby” clearly indicates that the city court was established immediately, and not upon the appointment of a judge. A better characterization of the situation would be that the city court existed as of May 17, 2001, but a vacancy existed on the bench.
It is a basic tenet of statutory construction that the court will give meaning to each word and not interpret a statute to an effect that will render some words superfluous. Nations Bank v. Murray Guard, Inc., 343 Ark. 437, 36 S.W.3d 291 (2001). We will not ignore the plain language in the ordinance that provides for the creation of the city court immediately. Therefore, we hold that the City Court of Caddo Valley was established before July 1, 2001, the effective date of Amendment 80. Thus, the issue of whether Amendment 80 prohibits the establishment of new city courts need not be addressed. Accordingly, the lower court was not wholly without jurisdiction and the trial court properly denied the writ.
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Per Curiam.
Appellant Edward Henry Buie, by and through his attorney John C. Goodson, has filed this motion for rule on the clerk. We deny the motion.
Appellant was convicted in the District Court of Hot Springs, Garland County, Arkansas, of driving while intoxicated^ — first offense, improper lane change, and refusing a chemical test. He timely appealed each of these convictions to the Garland County Circuit Court. A jury trial was scheduled for June 26, 2002, with a readiness hearing scheduled for June 18, 2002. Appellant failed to appear at the readiness hearing, and the trial court subsequently dismissed his appeal on June 20, 2002. On July 3, 2002, Appellant filed a motion for new trial. This motion was denied by the trial court on July 7, 2002.
Appellant attempted to lodge a notice of appeal from the trial court’s order denying the new trial by sending a facsimile of the notice to the Garland County Clerk’s office on August 8, 2002. According to Appellant’s counsel, the clerk’s office contacted him the following day requesting verification of the facsimile sent on August 7. The clerk’s office did not receive the notice of appeal on August 7, because their facsimile number had changed; thus, the notice was not received until August 8, the thirty-first day following the entry of the trial court’s order. Thereafter, the clerk of this court refused to lodge the transcript of this matter, because the notice of appeal had not been timely filed.
This court has held that we will grant a motion for rule on the clerk, which we will treat as a motion for belated appeal, when the attorney admits that the notice of appeal was not timely filed due to an error on his part. See, e.g., Brazil v. State, 332 Ark. 74, 959 S.W.2d 55 (1998) (per curiam); Tarry v. State, 288 Ark. 172, 702 S.W.2d 804 (1986) (per curiam). In the instant matter, however, the attorney does not admit fault that the notice of appeal was not timely filed due to an error on his part. It is well settled that a statement that it was someone else’s fault or no one’s fault will not suffice. Jones v. State, 334 Ark. 236, 973 S.W.2d 483 (1998) (per curiam); Brazil, 332 Ark. 74, 959 S.W.2d 55. Accordingly, we must deny Appellant’s motion.
We order Appellant’s attorney to file within thirty days from the date of this per curiam order a motion and affidavit accepting full responsibility for not timely filing the notice of appeal, and upon filing same, the motion for belated appeal will be granted and a copy of this opinion will be forwarded to this court’s Committee on Professional Conduct. See Brazil, 332 Ark. 74, 959 S.W.2d 55.
Motion denied. | [
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Robert L. Brown, Justice.
The Arkansas Department of Human Services (DHS) petitions this court for a writ of prohibition or, in the alternative, for a writ of certiorari, vacating Faulkner County Circuit Judge Linda R Collier’s order in which she declared an unborn fetus to be dependent-neglected and placed the fetus in DHS’s custody. The court further mandated that DHS pay the cost of the mother’s prenatal care. The sole ground for DHS’s petition is that the circuit court was without subject-matter jurisdiction to enter its order or, alternatively, that Judge Collier exceeded her jurisdiction when she entered the custody order. We deny the petition for a writ of prohibition, but we grant the petition for a writ of certiorari.
On August 26, 2002, the circuit court entered an order terminating the parental rights of both Jeff Harper and Alicia Bennett with respect to their 13-month-old son, Justin. In its termination order, the court stated that it was retaining jurisdiction over the case for later review. The next day, the circuit court entered a pick-up order for Ms. Bennett, citing as probable cause the fact that she was placing her unborn child “at imminent and substantial risk of serious physical harm or death.” The court based its finding on the testimony of Diana Rivers, the court-appointed special advocate, and Shelly Lamb, the maternal grandmother. Their testimony revealed that Ms. Bennett was again pregnant, that she had not received prenatal care, that she was abusing illegal drugs, and that she had illegal drugs in the home where she was living. The court further noted that in recent drug tests, prior to the petition to terminate parental rights, Ms. Bennett had tested positive for methamphetamine. For these reasons, the court ordered police officers to locate Ms. Bennett and detain her in the Faulkner County Detention Center. The court further ordered that drug tests be performed on her with the results to be provided to the court and that prenatal care be administered. The court also ordered DHS to place the matter on its docket for a hearing after the mother’s detention.
On August 29, 2002, the circuit court held an emergency hearing and a contempt hearing on its own motion. The court questioned Ms. Bennett as to whether she was pregnant, which she admitted. At the hearing, the court also confirmed from DHS that Ms. Bennett had tested positive for methamphetamine on August 27, 2002, when she was taken into custody. The court then held Ms. Bennett in contempt and ordered her to remain in the custody of the Faulkner County Detention Center until she went into labor. The court added that upon delivery of her baby, Ms. Bennett was to be discharged from the hospital but that the baby would “stay in [the] State’s custody.”
DHS next presented testimony from Ms. Bennett’s case worker, Terri Berger, who testified that Ms. Bennett did not want to participate in any drug treatment and that her sole comment upon discussing drug treatment was: “How long am I gonna have to stay clean to get my baby back?”
At the conclusion of the hearing, the circuit court ruled:
AH right. I want her returned back to the Detention Center, and I want the prenatal care initiated, especiaHy with ultrasound and prenatal testing.
Yeah, I think that the way it works, the Department — because I put this unborn child in your care, and I’ve done that this morning, that actually that unborn child is your client. And then, when — the way that payment works, Medicaid will take over if they get her to the hospital as she goes into labor. And then Medicaid wiU cover the hospital stay, and then she can be discharged any time she wants to leave after the baby’s born.
Now, if you find out through your prenatal testing, ultrasounds and other things, that this baby is malformed and has problems such as limbs missing, if there’s deformed heart valves, anything that looks truly, truly dire and that the baby might not live at birth, then get back in here and let’s discuss the situation. And I might want whatever doctor you take her to to come in and discuss it, as weU.
The court noted that the attorney ad litem would continue to serve in this case, as would Ms. Bennett’s appointed counsel.
On August 30, 2002, the circuit court entered its order holding Ms. Bennett in contempt of court for violating previous court orders that she remain drug-free. The court further found in its order that Ms. Bennett’s unborn child was in imminent danger of severe maltreatment and was dependent-neglected, as defined by the Arkansas Juvenile Code. The court ordered that the child be placed in the custody of DHS and further ordered DHS to ensure that Ms. Bennett receive adequate prenatal care and that she be examined by a doctor as soon as possible.
On September 3, 2002, DHS moved to set aside the court’s order. DHS asserted that because the fetus had not been born, it was not a juvenile, as defined by the Juvenile Code, and the court lacked jurisdiction to order the fetus into DHS custody as dependent-neglected. In addition, DHS argued that the court lacked jurisdiction to order it to pay for prenatal care. According to DHS, it was Faulkner County that was legally obligated to provide the necessary medical care for the mother because she was incarcerated in the detention center. DHS contended that the Juvenile Code only permits DHS to pay for, or provide services to, a family for the purpose of either reuniting the family or to prevent removal of the child from the home. Because there was no juvenile, as defined by the Juvenile Code, DHS concluded that the court lacked jurisdiction to order DHS to provide services in this case. Finally, DHS maintained that the General Assembly was clear in its statutory definition of “juvenile” and that the circuit court could not change the plain meaning of the statute because that would violate the separation-of-powers doctrine.
On September 10, 2002, the circuit court held a hearing on DHS’s motion to set aside the court’s order. DHS repeated its arguments and informed the court that Ms. Bennett’s unborn fetus was, at that time, between five-and-a-half to six months old. After hearing the arguments of counsel for DHS, counsel for Ms. Bennett, and from Diana Rivers, the child advocate representative, the court made the following ruling:
Well, I’m going to the let the Supreme Court tell us what to do because this is about the third case I’ve had just like this in the last year. And, if I’m seeing this many cases, other juvenile judges across the state have got to be seeing just as many, if not more. And I’m finding at this time that the statute which has been cited by the Department, 9-27-303(29) in the Code which gives us the definition of a juvenile is too narrow under these circumstances and, in this Court’s opinion, should read “. . . from viability to age of 18.” And I’d be really interested to see what the Arkansas Supreme Court would tell us in a case such as this.
An order was entered denying DHS’s motion to set aside, and DHS petitioned this court for a writ of prohibition, or, in the alternative, for a writ of certiorari.
DHS reiterates the same arguments in support of its petition. It first argues that the circuit court has exclusive jurisdiction over proceedings in which a juvenile, as defined by Ark. Code Ann. § 9-27-303 (Repl. 2002), is alleged to be delinquent or dependent-neglected. DHS adds, however, that this jurisdiction is limited by the Juvenile Code to those instances where a juvenile, who is defined as an individual from birth to age eighteen, is involved and contends that the Code does not give- the circuit court any power over a fetus prior to birth. DHS further claims that because an unborn fetus does not meet the definition of a juvenile, it follows that a fetus can not be a dependent-neglected juvenile. DHS also distinguishes the instant case from that of Aka v. Jefferson Hosp. Ass’n., Inc., 344 Ark. 627, 42 S.W.3d 508 (2001), in that for purposes of a wrongful-death action, the General Assembly has authorized an action for the death of a viable fetus. See Ark. Code Ann. § 16-62-102 (Supp. 2001). Finally, DHS urges that at the time the circuit court made its rulings, there was no pending DHS petition for a dependent-neglected case, and the circuit court acted sua sponte in a separate case after it had already finalized a parental-termination order in the case of Justin.
The State, on behalf of the circuit court and Judge Collier, responds that the petition for either extraordinary writ should be denied. First, it argues that the circuit court clearly had subject-matter jurisdiction over dependent-neglected proceedings; thus, the court should deny DHS’s petition for writ of prohibition. Secondly, it contends that DHS’s petition for writ of certiorari should be denied as DHS seeks to use that writ as a substitute for appeal, which it cannot do. Moreover, the State claims that DHS advances no interest that would require this court to decide the matter by extraordinary writ. Alternatively, the State urges that a writ of certiorari should be denied because Judge Collier had the authority to declare the fetus dependent-neglected. According to the State, the fetus was an individual under the Juvenile Code and was adjudicated dependent-neglected before reaching 18.
Finally, the State argues that DHS ignores Amendment 68 of the Arkansas Constitution and Arkansas’ clearly enunciated interest in the well-being of the fetus. The State maintains that as to Ms. Bennett’s privacy rights, they are “fairly and constitutionally circumscribed to permit the State to declare the child she intends to carry to term dependent-neglected due to her illegal drug use.” The State concludes that given Arkansas’ clear policy under Amendment 68 to protect the life of every unborn child, this court should conclude that the State’s interest in protecting Ms. Bennett’s fetus from illegal drug use is paramount to any privacy rights vested in Ms. Bennett.
a. Writ of prohibition
This court recently described the blackletter law in this state relating to a writ of prohibition:
A writ of prohibition is an extraordinary writ that is only appropriate when the court is wholly without jurisdiction. Ibsen v. Plegge, 341 Ark. 225, 15 S.W.3d 686 (2000). The writ will not be granted unless it is clearly warranted. Id. Prohibition is never issued to prohibit a trial court from erroneously exercising its jurisdiction. Id. A writ of prohibition cannot be invoked to correct an order already entered. Arkansas Public Defender Comm. v. Burnett, 340 Ark. 233, 12 S.W.3d 191 (2000). A writ of prohibition is not directed to the jurisdiction of the individual judge but to the court itself. Lee v. McNeil, 308 Ark. 114, 823 S.W.2d 837 (1992).
Wynne v. State, 345 Ark. 536, 540, 49 S.W.3d 100, 102 (2001). See also Travelers Ins. Co. v. Smith, 329 Ark. 336, 947 S.W.2d 382 (1997).
In the case at hand, the circuit court clearly had subject-matter jurisdiction because a circuit court has exclusive jurisdiction over proceedings in which a juvenile is alleged to be dependent-neglected and in which custody of a juvenile is transferred to DHS. See Ark. Code Ann. § 9-27-306 (Repl. 2002). Furthermore, in the instant case, the circuit court in its parental termination order expressly retained jurisdiction over the case and called for a review hearing on November 19, 2002. Moreover, the circuit court had already entered its order finding the fetus to be dependent-neglected, transferring custody of the unborn fetus to DHS, and directing DHS to provide prenatal services to the mother on August 30, 2002, prior to the filing of the prohibition petition. Accordingly, a writ of prohibition would be inappropriate in this case, because the circuit court was not wholly without subject-matter jurisdiction and because the circuit court had already taken the action sought to be prohibited. We deny the petition for a writ of prohibition.
b. Writ of certiorari
As to a writ of certiorari, this court has said the following:
A writ of certiorari is extraordinary relief, and we will grant it only when there is a lack of jurisdiction, an act in excess of jurisdiction on the face of the record, or the proceedings are erroneous on the face of the record. Cooper Communities, Inc. v. Benton County Circuit Court, 336 Ark. 136, 984 S.W.2d 429 (1999). Unlike a writ of prohibition, the writ of certiorari can address actions already taken by the lower court. Oliver v. Arkansas Professional Bail Bonds, 340 Ark. 681, 13 S.W.3d 156 (2000). In determining its application we will not look beyond the face of the record to ascertain the actual merits of a controversy, or to control discretion, or to review a finding of facts, or to reverse a trial court’s discretionary authority. Juvenile H. v. Crabtree, 310 Ark. 208, 833 S.W.2d 766 (1992). A writ of certiorari lies only where it is apparent on the face of the record that there has been a plain, manifest, clear, and gross abuse of discretion, and there is no other adequate remedy. Hanley v. Arkansas State Claims Comm’n, 333 Ark. 159, 970 S.W.2d 198 (1998). These principles apply when a petitioner claims that the lower court did not have jurisdiction to hear a claim or to issue a particular type of remedy. Id.
Kraemer v. Patterson, 342 Ark. 481, 485, 29 S.W.3d 684, 686 (2000). See also Arkansas Democrat — Gazette v. Zimmerman, 341 Ark. 771, 20 S.W.3d 301 (2000).
The question, then, is whether Judge Collier erred and exceeded her authority and committed a plain, manifest, clear, and gross abuse of her discretion by declaring Ms. Bennett’s unborn fetus to be dependent-neglected, by placing custody of the fetus in DHS, and by assessing the costs of prenatal care against that department. We conclude that she did.
Arkansas Code Annotated § 9-27-303(16) (Repl. 2002) provides several definitions of what constitutes a “dependent-neglected juvenile.” However, it is Ark. Code Ann. § 9-27-303(29) (Repl. 2002), that specifically defines the term “juvenile:”
(29) “Juvenile” means an individual who:
(A) Is from birth to the age of eighteen (18) years, whether married or single;
(B) (i) Is under the age of twenty-one (21) years, whether married or single, who is adjudicated delinquent for an act committed prior to the age of eighteen (18) years, and for whom the court retains jurisdiction.
(ii) In no event shall this person remain within the court’s jurisdiction past the age of twenty-one (21) years; or
(C) (i) Is adjudicated dependent-neglected before reaching the age of eighteen (18) years.
(ii) The juvenile may ask the court to retain jurisdiction past his or her eighteenth birthday.
(iii) The court shall grant the request only if the juvenile is engaged in a course of instruction or treatments.
(iv) The court shall retain jurisdiction only if the juvenile remains in instruction or treatment.
(v) The court shall dismiss jurisdiction upon request of the juvenile or when the juvenile completes, leaves, or is dismissed from instruction or treatment.
(vi) In no event shall this person remain within the court’s jurisdiction past the age of twenty-one (21) years [.]
Ark. Code Ann. § 9-27-303(29) (Repl. 2002).
This court recently set forth its standard of review for statutory construction:
When reviewing issues of statutory interpretation, we are mindful that the first rule in considering the meaning and effect of a statute is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Yamaha Motor Corp. v. Richard’s Honda Yamaha, 344 Ark. 44, 38 S.W.3d 356 (2001); Dunklin v. Ramsay, 328 Ark. 263, 944 S.W.2d 76 (1997). When the language of a statute is plain and unambiguous, there is no need to resort to rules of statutory con struction. Burcham v. City of Van Buren, 330 Ark. 451, 954 S.W.2d 266 (1997). A statute is ambiguous only where it is open to two or more constructions, or where it is of such obscure or doubtful meaning that reasonable minds might disagree or be uncertain as to its meaning. ACW, Inc. v. Weiss, 329 Ark. 302, 947 S.W.2d 770 (1997). When a statute is clear, however, it is given its plain meaning, and this court will not search for legislative intent; rather, that intent must be gathered from the plain meaning of the language used. Ford v. Keith, 338 Ark. 487, 996 S.W.2d 20 (1999); State v. McLeod, 318 Ark. 781, 888 S.W.2d 639 (1994). This court is very hesitant to interpret a legislative act in a manner contrary to its express language, unless it is clear that a drafting error or omission has circumvented legislative intent. Id.
Cave City Nursing Home, Inc. v. Arkansas Dep’t of Human Servs., 351 Ark. 13, 21-22, 89 S.W.3d 884 (2002).
In our judgment, the language of § 9-27-303(29)(A) is plain and unambiguous, and it clearly defines “juvenile” as an individual from “birth to age eighteen.” An unborn fetus obviously does not fall within this definition as by it very nature, there has been no birth. Subsection (B) is equally inapplicable, contrary to the State’s position, as it deals with an individual who has been adjudicated delinquent, and the unborn fetus at issue here has never been adjudicated delinquent. Finally, subsection (C) refers to an individual who has been adjudicated dependent-neglected before reaching the age of eighteen. The paragraphs under subsection (C) specifically refer to “the juvenile,” which necessarily takes us back to the definition of individual “from birth to the age of eighteen.” Nowhere has the General Assembly suggested that the term “juvenile” encompasses an unborn fetus.
Our conclusion is emphasized by Ark. Code Ann. § 9-27-302 (Repl. 2002), which sets forth the purposes of the Juvenile Code relating to protection and custody of juveniles:
This subchapter shall be liberally construed to the end that its purposes may be carried out:
(1) To assure that all juveniles brought to the attention of the courts receive the guidance, care, and control, preferably in each juvenile’s own home when the juvenile’s health and safety are not at risk, which will best serve the emotional, mental, and physical welfare of the juvenile and the best interest of the state;
(2) (A) To preserve and strengthen the juvenile’s family ties when it is in the best interest of the juvenile;
(B) To protect a juvenile by considering the juvenile’s health and safety as the paramount concerns in determining whether or not to remove the juvenile from the custody of his or her parents or custodians, removing the juvenile only when the safety and protection of the public cannot adequately be safeguarded without such removal;
(C) When a juvenile is removed from his or her own family, to secure for him or her custody, care, and discipline as nearly as possible equivalent to that which should have been given by his or her parents, with primary emphasis on ensuring the health and safety of the juvenile while in the out-of-home placement; and
(D) To assure, in all cases in which a juvenile must be permanendy removed from the custody of his or her parents, that the juvenile be placed in an approved family home and be made a member of the family by adoption;
(3) To protect society more effectively by substituting for retributive punishment, whenever possible, methods of offender rehabilitation and rehabilitative restitution, recognizing that the application of sanctions which are consistent with the seriousness of the offense is appropriate in all cases; and
(4) To provide means through which the provisions of this subchapter are executed and enforced and in which the parties are assured a fair hearing and their constitutional and other legal rights recognized and enforced.
Although § 9-27-302 dictates that the subchapter shall be “liberally construed,” the purpose of the Juvenile Code is made crystal clear: to protect juveniles, preferably in each juvenile’s home, to protect and strengthen familial ties, to protect a juvenile’s health and safety when determining whether to remove the juvenile from the custody of his parents or custodian, and to secure worthwhile care upon removal from custody. Again, nowhere in § 9-27-302 is it suggested, or even implied, that its provisions are applicable to an unborn fetus still in its mother’s womb.
Our conclusion in the instant case dovetails with a similar conclusion reached by the Supreme Court of Wisconsin in the case of State ex rel. Angela M. W. v. Kruzicki, 209 Wis. 2d 112, 561 N.W.2d 729 (1997). Angela M.W. was carrying a viable fetus due on October 4, 1995, and blood tests had confirmed that she was using drugs. On September 5, 1995, the county Department of Health and Human Services moved to have the unborn child taken into custody. The motion requested an order to remove the unborn child from his present custody and to place it in protective custody. On September 6, 1995, an order was issued by the juvenile court to detain the unborn child and transport it to the local hospital for inpatient treatment and protection. The order further noted that “[s]uch detention will by necessity result in the detention of the unborn child’s mother. . . .” Angela M.W., 209 Wis. 2d at 118, 561 N.W.2d at 732. That same day, the county filed a CHIPS (child alleged to be in need of protection or services) petition, alleging that the unborn fetus was in need of protection due to exposure from its mother’s prenatal drug use. Detention hearings were held, and a plea hearing was scheduled on the CHIPS petition for September 13, 1995. On that date, Angela M.W. filed an original action in the Wisconsin Court of Appeals seeking a writ of habeas corpus, or, in the alternative, a supervisory writ. The court of appeals denied the writs, and Angela M.W. was permitted review by the Wisconsin Supreme Court.
In the resulting decision, the supreme court noted that the case was not about the propriety or morality of the mother’s conduct; nor was the case about the mother’s reproductive rights. Rather, the supreme court concluded that the case was one of statutory construction, and specifically concerned whether a viable fetus was included within the definition of “child” under Wisconsin statutory law. The court first discussed the fact that different courts had given different meanings to the terms “person” and “child.” Observing that it had previously held that a viable fetus was a “person” for purposes of the Wisconsin wrongful-death statute, the supreme court alluded to the fact that the United States Supreme Court had held that a fetus was not a person under the Fourteenth Amendment of the United States Constitution. The Wisconsin statute defined “child” as “a person who is. less than 18 years of age,” but the court emphasized that courts in other states had arrived at different interpretations of similar statutory language:
Perhaps most compelling, courts in other states have arrived at different interpretations of statutory language nearly identical to that in § 48.02(2). Compare State v. Gray, 62 Ohio St. 3d 514, 584 N.E.2d 710, 713 (1992) (holding that a third trimester fetus is not “a child under eighteen years of age,” as provided in Ohio’s child endangerment statute), with Whitner v. State, No. 24468, 1996 WL 393164, at *3, — S.C. -, -, — S.E.2d — (S.C. July 15, 1996) (concluding that a viable fetus is a “person under the age of eighteen,” pursuant to South Carolina’s child abuse and endangerment statute).
Id. at 123, 561 N.W.2d at 734.
The Wisconsin Supreme Court concluded that the term “child,” as defined by the statute, was ambiguous. After reviewing the legislative history of the Wisconsin statute and considering the context of the statute in conjimction with other relevant sections of the Wisconsin code, the supreme court observed that those sections would be rendered absurd if “child” were interpreted to include a viable fetus. The court’s reasoning included the following: (1) the court had been historically wary of expanding the scope of the Children’s Code by reading into it language not expressly included within the statutory text; (2) while the chapter was to be liberally construed, the court would not read into statutes legislative intent that was not evident and expand the definition of child to the moment after conception; and (3) the court’s prior decisions placing limited legal duties upon a third person, such as wrongful-death decisions, should not be read to “confer full legal status upon a fetus.” Id. at 130, 561 N.W.2d at 737. The Wisconsin Supreme Court ultimately held that the Wisconsin legislature did not intend to include a fetus within the Children’s Code definition of “child” and reversed the court of appeal’s denial of a writ of habeas corpus.
In her brief, Judge Collier relies on the case of Whitner v. State, 328 S.C. 1, 492 S.E.2d 777 (1997), in support of her argument that “it would be absurd to recognize the viable fetus as a person for purposes of homicide laws and wrongful-death statutes but not for purposes of statutes proscribing child abuse.” In Whitney, the South Carolina Supreme Court held that a viable fetus was a “child.” However, South Carolina’s definition of child was different from Arkansas’ statutory definition of “juvenile.” The South Carolina statute provided that a “child” is a “person under the age of eighteen.” Id. at 6, 492 S.E.2d at 779 (quoting S.C. Code Ann. § 20-7-30(1) (1985)). On the other hand, the Arkansas Juvenile Code, as already stated, defines “juvenile” as an individual “from birth to the age of eighteen[,]” regardless of which subsection of the definition is used. Even using subsection (C) of § 9-27-303(29), as urged by Judge Collier, eventually brings us back to the definition of “juvenile.” We must construe all parts of the statute together, and that requires us to use the definition under subsection (A), which clearly and unambiguously says “birth.” In short, Whitner v. State, supra, is not persuasive authority for interpreting our statute.
We conclude, as did the Wisconsin Supreme Court in State ex rel. Angela M.W. v. Kruzicki, supra, that this is a case of statutory construction, and merely because (1) this court has recognized a viable fetus to be a “person” within the meaning of the Arkansas wrongful-death statute, see Aka v. Jefferson Hosp. Ass’n., Inc., supra, and (2) the General Assembly has seen fit to include the death of a fetus within the definition of victims of a homicide in the Criminal Code, see Ark. Code Ann. § 5-1-102(13)(B)(i) (Supp. 2001), this does not mandate that the definition of the term “juvenile” in our Juvenile Code be changed to include an unborn fetus. Viable or not, the plain meaning of our term “juvenile” does not include an unborn child, but rather an individual “from birth to the age of eighteen.” Nor does the purpose section of the Juvenile Code, as set forth by our General Assembly in § 9-27-302, either expressly or by implication, suggest that the term “juvenile” embraces an unborn fetus. Indeed, had the General Assembly intended to include an unborn child in its definition of “juvenile,” it could have done so as it did in the definition of “person” in our Criminal Code in § 5 — 1—102(13)(B) (i). It did not.
Finally, we disagree with the State that Amendment 68 to the Arkansas Constitution, which establishes a public policy to protect the life of every unborn child, requires an amendment to the legislature’s statutory definition of juvenile and conveys authority to state agencies to take custody of fetuses. Nor do we agree with the State that the extraordinary writ of certiorari is being used in this case as a substitute for appeal. It is obvious to this court that before an appeal of this issue could have been resolved, the fetus would have been born. We view certiorari as the appropriate vehicle for bringing the matter to this court for resolution.
We conclude that Judge Collier clearly exceeded her statutory authority and that, as a consequence, her order placing the fetus in the custody of DHS and requiring that department to render prenatal care constituted a plain, manifest, clear, and gross abuse of discretion. Accordingly, the writ of certiorari should issue.
Writ of prohibition denied. Writ of certiorari granted.
A writ of prohibition lies against the circuit court and not against an individual judge. See Ford v. Wilson, 327 Ark. 243, 939 S.W.2d 258 (1997). We will treat the prohibition petition as if it were filed against the Faulkner County Circuit Court.
In a related case, submitted for decision by this court on January 9, 2003, Bennett v. Collier, No. 02-1327, Ms. Bennett asserted in a petition for a writ of habeas corpus that Judge Collier exceeded her authority in ordering her jailed until the birth of her child. This court temporarily stayed that order on December 11, 2002, and Ms. Bennett was released from the custody of the Faulkner County Detention Center.
This court recognizes that the child may have been born as of this writing, thereby rendering this case moot, although there is nothing in the record before this court to suggest that this is the case. Nevertheless, placing a viable fetus in the custody of DHS is a matter likely to be repeated in other cases, and we will address the issue. See Nathaniel v. Forrest City Sch. Dist. No. 7, 300 Ark. 513, 780 S.W.2d 539 (1989).
DHS also filed a notice of appeal from the August 30, 2002 order. The record received by the Clerk of the Supreme Court on December 12, 2002, was a copy of the record in the instant case. The appeal was docketed as No. CA 02-1342.
It is unclear whether the trial court actually intended to retain jurisdiction over Ms. Bennett after entry of the termination order, but that is of no moment. Although there was no formal petition filed leading to the pick-up order, a trial court is permitted by statute to take a juvenile into custody without a warrant and prior to service upon him or her of a petition and notice of a hearing under limited circumstances. See Ark. Code Ann. § 9-27-313 (Repl. 2002). This is appropriate where there are clear and reasonable grounds to conclude that the juvenile is in immediate danger, where removal is necessary to prevent serious harm from the juvenile’s surroundings, where the parents have not taken action necessary to protect the juvenile from the danger, and where there is no time to petition and obtain a court order prior to taking the juvenile into custody. See Ark. Code Ann. § 9-27-315(a)(1)(C) (Repl. 2002). Clearly, the court believed that to be the situation in the instant case for the unborn fetus. The circuit court could not separate Ms. Bennett’s unborn fetus, which the court found to be in imminent danger of harm, from Ms. Bennett herself. Accordingly, to take the fetus into custody, the court necessarily had to detain Ms. Bennett as well. Whether the court exceeded its authority m taking Ms. Bennett’s unborn fetus into DHS’s custody is the very issue presented to this court in the instant case. Ms. Bennett’s individual rights as the mother of the unborn fetus and as the subject of incarceration for criminal contempt are at issue in Bennett u. Collier, No. 02-1327. | [
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Jim Hannah, Justice.
Appellant Picky Gamble appeals his conviction for the class C felony of theft of property having a value of less than two thousand five hundred dollars but more than five hundred dollars. Gamble asserts that his conviction must be reversed due to a lack of substantial evidence. He also asserts that the trial court erred in admitting testimony about the contents of his statement when the actual audio tape of his statement was the best evidence.
This appeal was filed in the court of appeals. On October 31, 2002, the State filed a motion in the court of appeals asking that the case be certified to the supreme court because Gamble was relying in part on a 1917 criminal case of the supreme court, which the State alleges has been overruled by implication. That motion was granted on November 12, 2002. Jurisdiction is proper in the supreme court under Ark. Sup. Ct. R. l-2(b). We hold there was no error and affirm.
Facts
Dr. Michael Young testified that he was staying at the Capitol Hotel on July 19, 2001. Dr. Young also testified that while he was staying at the Hotel, he returned to his room and found two pistols were missing. An investigation was undertaken on July 19, 2001.
Lorene Davis testified that on July 19, 2001, she was employed at the Capitol Hotel as a room attendant. She identified Gamble as a fellow employee whose duties included pulling linens and removing trash, but whose duties did not include entry into rented rooms. She testified that she nonetheless saw Gamble enter rented rooms 302, 322 and 330 on July 19, 2001.
Denise Johnson testified that she was employed in housekeeping at the Capitol Hotel on July 19, 2001, and she identified Gamble as a fellow employee whose typical duties were to pull linens and “stuff” from vacant rooms. Johnson testified that on July 19th, she cleaned room 322, a rented room, and later saw Gamble leaving room 322. She further testified that Gamble had no business in the room because it was rented and because she had just cleaned it. She also testified that fifteen minutes later she saw Gamble enter room 322 again, but this time in company of another person. Johnson testified that she did not see either Gamble or the other person leave the room with anything.
Detective Darrell Casteel of the Little Rock Police Department testified that he was called to investigate the theft of the pistols at the Capitol Hotel on July 19, 2001. He further testified that he interviewed Gamble as a part of that investigation. Detective Casteel then testified that Gamble waived his rights and gave a statement including an admission that he entered a hotel room at the Capitol Hotel and stole two guns. Detective Casteel testified that Gamble told him where one pistol was hidden and that the other pistol was sold to a person on the streets in North Little Rock. According to Detective Casteel’s further testimony, the hidden pistol was recovered and returned to Dr. Young.
Directed Verdict
Gamble first challenges the sufficiency of the evidence. He argues that evidence obtained through his confession to Detective Casteel was inadmissible because the tape of the confession was the best evidence. As discussed later in this opinion, Detective Casteel’s testimony about the statement was properly admitted in this case.
The right against double jeopardy requires that we consider the challenge to the sufficiency of the evidence before we consider alleged trial error even where the issue was not presented as the first issue on appeal. Price v. State, 347 Ark. 708, 66 S.W.3d 653 (2002); King v. State, 323 Ark. 671, 916 S.W.2d 732 (1996). It is well settled that a motion for a directed verdict is a challenge to the sufficiency of the evidence. Atkinson v. State, 347 Ark. 336, 64 S.W.3d 259 (2002). See also, Smith v. State, 346 Ark. 48, 55 S.W.3d 251 (2001). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Smith, supra. Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Atkinson, supra. When a defendant challenges the sufficiency of the evidence convicting him, the evidence is viewed in the light most favorable to the State. Id. Only evidence supporting the verdict will be considered. Id.
The State relied entirely upon circumstantial evidence. The State provided no witness who testified he or she saw Gamble steal or exercise unauthorized control over the pistols. Direct evidence is evidence that proves a fact without resort to inference, when for example, it is proved by witnesses who testify to what they saw, heard or experienced. “Direct evidence is evidence which, if believed, resolves the issue. . . .For example, a witness who testifies that he saw A stab B with a knife is direct evidence of whether A did in fact stab B.” John W. Strong, McCormick on Evidence §185, at 641-642 (5th ed. 1999).
Guilt, however, can be established without eyewitness testimony, and evidence of guilt is not less because it is circumstantial. Gregory v. State, 341 Ark. 243, 15 S.W.3d 690 (2000); Trimble v. State, 316 Ark. 161, 871 S.W.2d 562 (1994). Whether evidence is direct or circumstantial, it must meet the requirements of substantiality. Gregory, supra. It must force the fact-finder to reach a conclusion one way or the other without resort to speculation or conjecture. Chism v. State, 312 Ark. 559, 853 S.W.2d 255 [853 S.W.2d 555] (1993). Where circumstantial evidence alone is relied upon, it must exclude every other reasonable hypothesis than that of guilt of the accused or it does not rise to the required substantial evidence. Gregory, supra.
Gamble was accused of exercising unauthorized control over two pistols belonging to Dr. Young in violation of Ark. Code Ann. § 5-36-103 (Supp. 2001). In the felony information, it was asserted that the value of the property was less than $2500.00 but more than $500.00.
Gamble argues:
[A]lthough Appellant Gamble told Little Rock Police Detective that he stole some guns from the Capitol Hotel and although Appellant Gamble knew the location of one of Mr. Young’s missing pistols, Detective Casteel did not testify that Appellant Gam ble specifically told him that he stole two pistols from Michael Young’s room in the Capitol Hotel on July 19, 2001.
Gamble asserts that his knowledge of the location of one of the stolen pistols does not prove he stole it.
At trial, Dr. Young testified that two pistols were stolen from his room at the Capitol Hotel. He also testified that their value was in the range asserted by the State in the felony information. Testimony of hotel employees Davis and Johnson was admitted that showed Gamble was a hotel employee who was present during Dr. Young’s stay, and an employee who had access to rented rooms such as Dr. Young’s room. Further, Davis’s and Johnson’s testimony established that Gamble was entering rented rooms even though his job duties did not require him to do so, and even though he was not supposed to enter rented rooms. Detective Casteel then testified that he investigated the theft of Dr. Young’s pistols and recovered one of the pistols from where Gamble told him he had hidden it. Detective Casteel returned the recovered pistol to Dr. Young. This constitutes substantial circumstantial evidence.
In addition, Gamble confessed to Detective Casteel that he took the pistols, and that the second pistol was sold on the street in North Little Rock. The evidence with or without the confession constitutes substantial evidence that Gamble exercised unauthorized control of Dr. Young’s pistols in violation of Ark. Code Ann. § 5-36-103.
Contemporaneous Objection
The State makes the argument that this court may not hear any issue regarding testimony about the contents of Gamble’s statement because Detective Casteel responded to a question about the contents of the statement before Gamble objected to the question. There is no merit to the issue. The testimony at issue is:
Q: Did he give you a statement?
A: Yes.
Q: During the course of the statement you took from him, did he admit to entering into a hotel room at the Capitol Hotel and stealing two guns?
A: Yes, he did.
Ms. Cordi: Your honor I’ll object. The basis of my objection is this apparently, I believe, was a taped statement that was taken from Mr. Gamble and that would be the best evidence in this case, so I’ll object to any statements by Detective Casteel regarding this conversation with Ricky since there is a taped conversation.
We first note that what was objected to was the admission of testimony about the Contents of the statement, not the fact that a statement had been taken. Thus, what occurred at trial was the posing of a leading question about the contents of the statement that invited a simple “yes” as a response. Gamble’s counsel objected, but not before Detective Casteel said, “Yes, he did.” It appears the State’s argument is reduced to an assertion that counsel must manage to insert the objection between the question and answer so as to preclude a response or the objection is waived. The law is not so narrow as that.
In Robinson v. State, 348 Ark. 280, 72 S.W.3d 827 (2002), this court stated that the purpose of the contemporaneous-objection rule is to give the trial court a fair opportunity to consider an allegation of error and to correct it, if the allegation is meritorious. See Brooks v. State, 256 Ark. 1059, 511 S.W.2d 654 (1974); Western Union Tel. Co. v. Freeman, 121 Ark. 124, 180 S.W. 743 (1915); Jones v. Seymour, 95 Ark. 593, 130 S.W. 560 (1910). Robinson, 348 Ark. at 294-295. We also note that this was a bench trial. In Stewart v. State, 332 Ark. 138, 143, 964 S.W.2d 793 (1998) this court stated:
If a contemporaneous objection is not made at the time the evidence is offered during a jury trial, the proverbial bell will have been rung and the jury prejudiced. However, when the contested evidence is mentioned during a bench trial, there is no risk of prejudice because a trial judge is able to consider evidence only for its proper purpose.
Stewart, 332 Ark. at 143. To preserve a point for appeal, a proper objection must be asserted at the first opportunity after the matter to which objection has been made occurs. Smith v. State, 330 Ark. 50, 953 S.W.2d 870 (1997); Asher v. State, 303 Ark. 202, 795 S.W.2d 350 (1990), cert. denied, 498 U.S. 1048 (1991). This was done in the present case. There is no merit to the State’s argument that the issue was not preserved.
The Statement
Gamble argues that his confession may not be considered because where a confession has been recorded, the recording must be produced at trial if the State wants to put on evidence of the confession. In support, Gamble asserts that Finn v. State, 127 Ark. 204, 191 S.W. 899 (1917) requires that where a confession has been reduced to writing, the State may not prove the contents of the confession by oral testimony of a witness who heard the confession. The holding in Finn is not so broad as Gamble alleges.
In Finn, the court cited 2 Encyclopedia of Evidence, 281 stating that the best evidence of the content of a writing is the writing itself. Finn, 127 Ark. at 210. That remains the law. Ark. R. Evid. 1002. In Finn, the issue was the admission of oral testimony regarding the contents of a written confession. Finn, 127 Ark. at 210. Finn stands for the proposition that where the contents of a written confession are at issue, the best evidence of the written confession is the writing. That holding is consistent with subsequent case law.
In Sumlin v. State, 266 Ark. 709, 587 S.W.2d 571 (1979), appellant argued that the trial court erred in admitting a tape of the confession where only a transcript was available at the Denno hearing. In Sumlin, citing Ark. R. Evid. 1002, this court stated, “The judge was right, the tape was the best evidence of the confession.” Sumlin, 266 Ark. at 718. The contents of the taped confession were at issue in Sumlin. In Williamson v. State, 263 Ark. 401, 565 S.W.2d 415 (1978), the State had a taped statement and transcription of the statement, neither of which were provided to the criminal defendant even though a request had been made under Ark. R. Crim. P. 17.1. This court stated that the criminal defendant was entitled to not only the statement, but also the tape because the tape was the best evidence and would be needed to determine if the transcription was a correct reproduction of the tape. Williamson, 263 Ark. at 405.
In Hamm v. State, 296 Ark. 385, 757 S.W.2d 932 (1988), the appellant’s statement was taped, but the tape was erased when it was reused. At trial, the appellant moved to suppress the statement because the State introduced a transcription of the tape. The trial court allowed the transcription to be introduced into evidence. This court held that admission of the transcription was in error, that the appellant was prejudiced in that the recording was the best evidence and without it the appellant had no way to determine whether the transcription was accurate.
In Mitchell v. State, 295 Ark. 341, 750 S.W.2d 936 (1988) (overruled on other grounds in MacKintrush v. State, 334 Ark. 390, 978 S.W.2d 293 (1998)), this court was also faced with an attempt to introduce a transcription of a taped statement where the tape had been reused and was no longer available. The State asserted unavailability, which this court rejected. This court stated that where a statement was taped, the tape needed to be kept for a reasonable period of time if the State wished to admit the transcription. Mitchell, 295 Ark. at 354. The court went on to state that if the State could simply argue unavailability, “[t]he authorities could, with impunity, simply destroy the best evidence of what was said by the accused, and then assert its unavailability in every case.” Id.
At issue in Finn and the other noted cases was the admission of evidence of the content of a writing or recording. Therefore, the best evidence rule was applicable. However, in the case before us, there is no best evidence issue. The content of the tape was not at issue. The best evidence rule applies only to writings, photographs and recordings. Redman v. State, 265 Ark. 774, 580 S.W.2d 945 (1979). Further, it is only when the writing itself must be proved that the writing must be produced. Canady v. Canady, 285 Ark. 378, 687 S.W.2d 833 (1985). The best evidence rule deals with writings alone. Meyer v. State, 218 Ark. 440, 236 S.W.2d 996 (1951).
What was at issue in this case was what Gamble told Detective Casteel. In Hamm, supra, the tape of the statement was erased and the case was reversed where the State had obtained admission of the transcription of the tape. The transcription was not admissible because of the best evidence rule. The court went on to say, however:
In summation, the trial court erred in allowing the transcription of the appellant’s confession to be read into evidence. This does not mean, however, that upon retrial the trial court cannot allow oral testimony about the confession into evidence. It is the transcription itself which was admitted in violation of the rules of criminal procedure
Hamm, 296 Ark. at 389. (emphasis added).
No writing was at issue in this case. The State did not attempt to introduce a transcript of the confession. Testimony of Detective Casteel about what Gamble told him was at issue. The best evidence rule was not applicable under these facts. No other objection was made. The testimony was properly admitted in this case.
Affirmed.
See also Stout v. State, 244 Ark. 676, 426 S.W.2d 800 (1968), where the State used a written statement to impress upon the jury the prosecution’s contentions about inconsistencies between the written statement and testimony of the accused. This court in Stout cited Finn in stating that it was not error to permit the sheriff to testify to other oral statements made to him by the accused. The written statement at issue in the case had been given to the prosecutor, and the sheriff was not testifying about the contents of the written statement. Stout, 244 Ark. at 680. In Norton v. State, 237 Ark. 783, 376 S.W.2d 267 (1964), this court again noted Finn and stated that even where a confession had been reduced to writing, oral evidence of other statements by the accused were admissible. | [
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Jim Hannah, Justice.
Petitioners seek a writ of mandamus, or alternatively a writ of prohibition, to prevent the circuit judge from sitting in this case. This case was previously submitted on June 27, 2002, however, we issued a per curiam on July 5, 2002, ordering the parties to brief five additional issues. Worth v. Keith, 349 Ark. 731, 79 S.W.3d 387 (2002) (Worth IT). This case is now resubmitted with the additional briefing.
Petitioners allege the circuit judge must recuse where he or his family may be beneficiaries of any tax refund or “rollback.” We hold that the trial judge, as a property owner and relative of other property owners affected by the action, does not have an interest of the type that disqualifies a judge. Where a judge has no interest in an action beyond that of the general interest which any other taxpayer or property owner has, he or she does not have a personal or pecuniary interest of the type that disqualifies a judge. The trial judge did not abuse his discretion in refusing to recuse.
Facts
We have before us a consolidated case comprised of three lawsuits that were filed in 1997. Respondents filed a motion to dismiss, which was considered as a motion for summary judgment and granted. This court reversed the trial court in Worth v. City of Rogers, 341 Ark. 12, 14 S.W.3d 471 (2000) (Worth I). Then, on May 31, 2001, the petitioners filed a motion to recuse.
The Petitioners filed a motion for recusal, asserting that at the class-certification hearing on February 22, 2001, the trial judge disclosed that he owned real and personal property subject to taxation by taxing units named in the suit, and that this meant he would be a member of the class. They also asserted that the trial judge had family members who might benefit, depending on the outcome of the case. The judge stated that he would opt out. However, the Petitioners argued that the judge and his family would still benefit from any “roll back” that might be ordered. The motion for recusal also included the assertion that the judge’s appearance of impartiality would be affected, that he was a party litigant in this matter, and that he had a pecuniary interest in the outcome of the suit that disqualified him to sit as judge. The trial court denied the motion. This petition for a writ of mandamus, or in the alternative, for a writ of prohibition, followed.
Standard of Review
The decision to disqualify is within the trial court’s discretion, and we will not reverse the exercise of that discretion without a showing of abuse. Massongill v. County of Scott, 337 Ark. 281, 991 S.W.2d 105 (1999). An abuse of discretion can be shown by proving bias or prejudice. Massongill, supra; Echols v. State, 326 Ark. 917, 936 S.W.2d 509 (1996).
Recusal
In the motion to recuse before the trial court, the Petitioners argued that the trial judge had an interest in the suit as a person owning affected real estate, and that therefore he was a member of the class, and a party litigant, and could not sit as judge. Petitioners further argued the trial judge’s offer to opt out would be of no import because he would benefit from any roll back that might be ordered, regardless of whether he opted out. The Petitioners also argued that the trial judge had a pecuniary interest in the outcome of the lawsuit and, therefore, he could not sit on the case. The Petitioners then asserted the trial judge’s impartiality was called into question because of his interest in the case, and therefore, he could not sit on the case. The Petitioners also asserted that the trial judge’s impartiality might be called into question because of benefits that might be received by the trial judge’s relatives who owned property. Petitioners finally argued that the benefit received by the judge and his family could be substantial. In Worth II, we asked the parties to address the following additional issues:
1. Whether petitioners waived any alleged disqualification based upon the passage of time;
2. Whether petitioners waived any alleged disqualification based upon acquiescing in allowing the allegedly disqualified judge to preside over the case, including hearings, motions, and so on, without moving for recusal until an adverse ruling was made;
3. Whether the trial judge, having a general interest as a property owner and relative of other property owners possibly affected by the case, had a personal or pecuniary interest of the type that disqualifies a judge;
4. Whether the fact that petitioners complain of bias in their favor as the basis for recusal plays a role in analysis; and
5. Whether the trial judge’s offer to opt out of the class plays any role in this analysis.
Worth, 349 Ark. at 732.
Waiver
The disqualification of a judge may be waived. Miles v. State, 277 Ark. 470, 644 S.W.2d 240 (1982). Waiver will be found by a failure to seasonably object. Nowlin v. Kreis, 213 Ark. 1027, 214 S.W.2d 221 (1948). Further, a failure to bring the matter to the judge’s attention may constitute a waiver. Morrow v. Watts, 80 Ark. 57, 95 S.W. 988 (1906), see also Washington Fire Ins. Co. v. Hogan, 139 Ark. 130, 213 S.W. 7 (1919); Pettigrew v. Washington County, 43 Ark. 33 (1884). In Neal v. Wilson, 321 Ark. 70, 900 S.W.2d 177 (1995), this court stated: “Nonetheless, respondent waited three months before requesting Judge Lineberger to recuse, and when respondent’s request was denied, he never petitioned this court that Judge Lineberger’s assignment was improper and lacked jurisdiction.” Wilson, 321 Ark. at 74. Thus, disqualification of a judge may be waived.
It has long been the law in Arkansas that a party may not speculate on the outcome and thereafter take advantage of a fact supporting disqualification known but not raised by him until after an adverse decision is rendered. Nowlin, supra; Byler v.State, 210 Ark. 790, 197 S.W.2d 748 (1946); Ingram v. Raiford, 174 Ark. 1127, 298 S.W. 507 (1927); Morrow v. Watts, 80 Ark. 57, 95 S.W. 988 (1906); Pettigrew, supra. Petitioners knew of or should have known the facts giving rise to the alleged disqualification on the day the complaint was filed. It would be a poor use of judicial resources to allow a party to wait four years and then complain. Petitioners did not object to the trial judge hearing the motion for summary judgment wherein he ruled against them, and they may not complain now.
The facts before us show waiver. We must note the passage of over four years coupled with a motion for recusal only after an adverse ruling on a motion for summary judgment. Here, the parties were obviously aware they were prosecuting a case in the county where the alleged illegal exaction occurred, and that the judge sitting in that county, as well as his family members, were most likely inhabitants of that county protected against illegal exaction by Article 16, Section 13, of the Arkansas Constitution. Any alleged right to disqualification was waived.
Impartiality
As Petitioners argue, this court has stated that the issue of the appearance of impropriety is a basic issue that must be addressed first. Huffman v. Judicial Discipline, 344 Ark. 274, 42 S.W.3d 386 (2001). In Huffman, supra, we discussed the Canons of the Arkansas Code of Judicial Conduct. Canon 2A states:
Canon 2. A judge shall avoid impropriety and the appearance of impropriety in all of the judge’s activities.
A. A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.
Canon 3E(1) states as follows:
Canon 3. A judge shall perform the duties of judicial office impartially and diligently.
E. Disqualification
(1) A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned. ...
As we stated in Huffman, both Canons 2A and 3E(1) require a judge to protect the integrity and impartiality of the judiciary. Under Canon 2A, a judge must consider whether any action he or she takes promotes public confidence in the integrity and impartiality of the judiciary. Similarly, Canon 3E(1) requires a judge to recuse when his or her impartiality might reasonably be questioned. As we also stated in Huffman, an independent judiciary is essential for our society.
Against these concerns must be balanced the judge’s duty to hear the cases that come before him or her. There is a duty not to recuse where no prejudice exists. Massongill, supra. If there is no valid reason for the judge to disqualify himself or herself, he or she has a duty to remain in a case. U.S. Term Limits v. Hill, 315 Ark. 685, 870 S.W.2d 383 (1994). There is a presumption of impartiality, and the party seeking disqualification bears the burden of proving otherwise. Sturgis v. Skokos, 335 Ark. 41, 977 S.W.2d 217 (1998). The Petitioners have failed to show the appearance of impropriety.
Personal or Pecuniary Interest
A personal proprietary or pecuniary interest, or one affecting the individual rights of the judge, is an interest which will disqualify a judge; however, to be a disqualifying interest, the prospective liability, gain, or relief to the judge must turn on the outcome of the suit. Sturgis, supra. Here, the allegation is that the judge stands to gain the refund of taxes that would occur, as well as any roll back that might result. The amount the trial judge would receive is not quantified by Petitioners. The trial judge, as weE as his father, his wife, and his son, also own property in Benton County. The trial judge characterized his son’s property holdings as “substantial.”
The argument is made that the trial judge is disqualified in that he is presiding over a case in which he is related to a party within the fourth degree of consanguinity or affinity. In fact, Petitioners argue that he is a party to the litigation. Article 7, Section 20, of the Arkansas Constitution, provides that “[n]o judge or justice shall preside in the trial of any cause in the event of which he may be interested, or where either of the parties shall be connected with him by consanguinity or affinity, within such degree as may be described by law. . . .” Ark. Code Ann. § 16-13-214 (Repl. 1999). Further, Canon 3E(l)(c) of the Code of Judicial Conduct provides that a judge “shall disqualify himself” when he knows that he or his spouse, parent, or child “has an economic interest in the subject matter in controversy.”
What must be determined is whether the interests noted above rise to the level that requires disqualification. We note that the case cited by Petitioners did not involve illegal exaction. We also may not ignore that the Canons “suggest that a judge disqualify when his impartiality may be reasonably questioned.” Carton v. Missouri R.R., 315 Ark. 5, 10, 865 S.W.2d 635 (1993). The question becomes whether under the facts in the present case, the impartiality of the trial judge may be reasonably questioned. It may not.
More specifically, the issue before us is whether a trial judge is disqualified from hearing an illegal exaction case where he will receive whatever other taxpayers will receive if the suit were to prevail. That clearly is not the situation where a judge has a personal interest in the outcome of the case as in Byler, supra, where the trial judge presided over a murder case in which the victim was the judge’s wife’s cousin.
We deal in this case with taxes that affect each taxpayer in Benton County and the noted school districts. The judge and three members of his family are such taxpayers. This is not a case where the judge is a party in the typical sense. Before a judge is disqualified, the interest must be more than that of an ordinary citizen or taxpayer. Nowlin, supra. This is restated in 1996 in Noland v. Noland, 326 Ark. 617, 932 S.W.2d 341 (1996), where this court stated that a judge must disqualify himself where he has a personal, proprietary, or pecuniary interest or one affecting his personal rights. An action based upon public issues of annexation, for example, including how that annexation might affect a judge’s taxes, is not a suit of a personal nature, but rather one of a general interest in a public proceeding “which a judge feels in common with a mass of citizens.” Foreman v. City of Mariana, 43 Ark. 324, 329 (1884). This is not the type of interest that disqualifies a judge. Id. Where the judge has no interest in the litigation beyond that of a general interest which any other citizen and property owner has, disqualification is not necessary. Osborne v. Bd. of Improvement, 94 Ark. 563, 128 S.W. 357 (1910).
Petitioners cite to Copeland v. Huff, 222 Ark. 420, 261 S.W.2d 2 (1953), and the later case of Sturgis, supra, arguing that any pecuniary interest, however slight, requires disqualification. Both cases merely mention interests and disqualifying interests. Neither case casts light on the nature of a pecuniary interest. Petitioners argue that Article 7, Section 20, is mandatory, and that therefore Judge Keith had no discretion. In essence, Petitioners argue that Judge Keith, as a taxpayer, is a party to the lawsuit because he is an affected taxpayer. The natural consequence of this analysis will be to quickly find there is no judge to try a case of state wide impact where the matter is of general interest.
In Mears v. Hall, 263 Ark. 827, 569 S.W.2d 91 (1978), this court stated, “The ‘interest’ which is disqualifying under these provisions is a personal proprietary or pecuniary interest or one affecting the individual rights of the judge, and the liability, gain or relief to the judge must turn on the outcome of the suit.” Mears, 263 Ark. at 833-34; see also, Sturgis, supra; Noland, supra. These and the other cases cited in this matter are not illegal exaction cases.
In Nueces County Drainage and Conservation Dist. No. 2 v. Bevly, 519 S.W.2d 938 (Tex. Ct. App. 1975), the Texas appellate court discussed whether two justices were disqualified as a consequence of ownership of land in the district where liability for taxes was at issue. The case involved enlargement of a drainage ditch. The Texas Constitution, provides, “No judge shall sit in any case [in which] he may be interested. . . .” Article 7, Section 20, in our own Constitution provides similarly:
No judge or justice shall preside in the trial of any cause in the event of which he may be interested, or where either of the parties shall be connected with him by consanguinity or affinity, within such degree as may be prescribed by law; or in which he may have been of counsel or have presided in any inferior court.
Ark. Const, art. 7, § 20.
The Texas Court of Appeals, stated that under its Constitution, “[t]he interest of a judge, in order that he would be disqualified, must in general, be a direct pecuniary or property interest in the subject litigation.” Nueces, 519 S.W.2d at 951. The Texas Court of Appeals went on to say that, “[w]here a judge’s pecuniary interest is not specifically affected, a judge is not by reason of being a taxpayer disqualified from sitting in a case although he may have a merely incidental, remote, contingent or possible pecuniary interest in the subject matter of the suit.” Id. The Texas Court of Appeals also stated, “It was recognized early on in Texas jurisprudence that the mere fact that a judge is a taxpayer of a city does not as such work a disqualification of the said judge. It if were otherwise, it would be difficult, if not impossible, to get cases tried.” Id.
The trial judge is simply a taxpayer like any other citizen. On this basis, Petitioners fail to show that the trial judge’s impartiality may reasonably be questioned.
Lack of Prejudice /Judge Shopping
This is quite a curious case. The prejudice alleged is bias in the favor of the Petitioners. That is a somewhat remarkable complaint. There is no duty to recuse where no prejudice is shown. Osborne, supra.
This case is now more than five years old. In a case this old, it is apparent that the trial judge has presided over more than a few matters in this case. We must also note that Petitioners had to be aware when they filed their suit that the trial judge likely was a property owner and that the trial judge likely had family who owned property. Yet no action toward disqualification was undertaken until late in the case and after the trial judge ruled against Petitioners on the motion for summary judgment. The logical conclusion that arises from these facts must be that Petitioners concluded that they would now be better served by another judge. That is not a basis for disqualification.- Rather, it appears to be forum shopping, something this court has not chosen to encourage for obvious reasons. Patterson v. Isom, 338 Ark. 234, 992 S.W.2d 792 (1999).
The discussion of the Eighth Circuit Court of Appeals in Little Rock School District v. Pulaski County School District, 839 F.2d 1296, 1302 (8th Cir. 1988) is helpful:
At the outset, we note the irony that most of the major parties to this litigation have at some point moved for the removal of the judge. Not surprisingly, the parties have generally discovered grounds for disqualification at approximately the same time that the District Court has ruled for their adversaries on the merits. The recusal statute does not provide a vehicle for parties to shop among judges. . . .
It appears that in the case before us, Petitioners are shopping for a new judge. Our recusal statute is not a vehicle for parties to shop among judges. On that basis, this petition must be denied.
We also note that the parties were asked to brief the issue of bias. The Petitioners stated in their brief that they did not complain of bias.
Finally, we asked to be briefed on whether the trial judge’s decision to opt out of the litigation has an impact on disqualification. Petitioners instead argued about the judge’s status as a party, his alleged personal interest, and issues already discussed above.
The petition for a writ of mandamus, or in the alternative, for a writ of prohibition, is denied.
Glaze and Imber, JJ., dissent and would grant.
In the hearing on June 7, 2001, counsel for the City ofRogers raised the issue of waiver in arguing that the case had been pending for four years, that rulings had been made by the trial court, and that the case had been appealed to the supreme court. Further, in argument at this same hearing, counsel for Plaintiffs stated: “So, I don’t think that there’s any waiver or any timing issue.”
In Nowlin, supra, the court stated that, “It would, of course, be better practice for the County Judge not to preside in a case where he had signed the petition as his interest might be more than that of an ordinary citizen or taxpayer, which was the interest discussed in Foreman, et al v. Town of Marianna, 43 Ark. 324 and Osborne v. Board of Improvement, 94 Ark. 563, 128 S.W. 357.” Nowlin, 213 Ark. at 1029. | [
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Per Curiam.
This appeal arises from the trial court’s July 27, 2001 pretrial discovery hearing order. Appellants, Ford Motor Company and North Point Ford, Inc., argue in their interlocutory appeal that we should reverse the trial court’s finding at a pretrial discovery hearing that certain documents were not protected by the attorney-client privilege and the work-product doctrine. Appellees, Reverend Milton Harper, Janice Harper, Upper Room Apostolic Church and Leon Dulemer, respond primarily to the main issue of privilege. We hold that this jurisdictional issue is an important one that we should address, and, therefore, we order the parties to rebrief that issue for our consideration.
Appellees in this product liability action submitted discovery requests to appellant seeking information relating to incidents of fires in Ford Motor Company Vehicles. Appellant produced the pertinent documents it considered to be nonprivileged and a privilege log of documents that were responsive to appellants’ discovery requests but protected by the attorney-client privilege or the work-product doctrine. Appellant submitted the actual privileged documents to the trial court for an in camera review. On July 27, 2001, the trial court issued a pretrial order that declared that some of the documents were protected by neither attorney-client privilege nor work-product doctrine and ordered that those documents be disclosed to appehee. On August 27, 2001, appellants filed a notice of appeal from the trial court’s July 27, 2001 order. Appellees filed a motion to dismiss the appeal and cited Rule 2(a) of the Rules of Appellate Procedure — Civil, arguing that Rule 2(a) prohibits appeals of judgments that are not final. Without requiring briefs on this issue, and without issuing an opinion addressing the jurisdictional question concerning the applicability of Rule 2(a), we denied the motion to dismiss.
On July 15, 2002, appellants filed a motion to supplement the record requesting that we allow the documents at issue to remain under seal. We granted that motion in a per curiam order entered September 12, 2002, that stated that the documents under seal appeared be pertinent to Ford’s appeal and directed that the sealed documents be filed with the clerk of this court. See Ford v. Harper, 350 Ark. 45, 84 S.W.3d 441 (2002) (per curiam).
A threshold issue in this case is whether this court has jurisdiction over this interlocutory appeal of a pretrial discovery issue. Whether a judgment, decree, or order is final is a jurisdictional issue that this court has a duty to raise, even if the parties do not, in order to avoid piecemeal litigation. Ark. Rules App. P. — Civ., Rule 2. We believe that the issue of whether this court has jurisdiction over this interlocutory appeal, in light of Rule 1-2(a)(5) of our rules and Rule 2(a) of the Arkansas Rules of Appellate Procedure — Civil, is an important issue that needs further development for us to fully consider the issue. The parties are ordered to rebrief the issue of whether we should exercise jurisdiction over this interlocutory appeal. Appellants’ brief will be due twenty days from this date, and appellees’ brief shall be filed within ten days from the date appellants’ brief is filed.
Pursuant to our rule, this case will remain under submission until the briefing directed by this order has been accomplished.
Corbin, J., dissents.. | [
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Per Curiam.
Appellant, Harmon Williams, by and through his attorney, David Mark Gunter, has filed a motion for rule on clerk to lodge the record in this appeal. Because the record was tendered later than the seven months from the date of judgment, we treat his motion as one for a belated appeal. See Ark. R. App. P. — Crim. 4; Ark. R. App. P. — Civ. 5. Attorney Gunter states in the motion that he accepts full responsibility for tendering the record beyond the seven-month period for filing. He further admits that he should have filed a partial record and moved for an extension of time before the seven months from date of judgment rah.
We find that such an error, admittedly made by an attorney for a criminal defendant, is good cause to grant the motion. See In Re Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).
The motion is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct. | [
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Per Curiam.
Appellant, an inmate in the Arkansas Department of Correction (ADC), filed this civil rights action against appellees in their official and individual capacities. Appellant’s alleged causes of action all arose out of a 1998 administrative directive concerning inmate cleanliness and grooming. The appellees moved for dismissal pursuant to Ark. R. Civ. P. 12(b)(6). The Lee County Circuit Court subsequendy dismissed the action with prejudice for failure to state a claim. We affirm.
Background
In 1978, inmates of the ADC filed a class action suit against ADC officials, raising First Amendment challenges to ADC grooming and food policies. On October 24, 1979, the parties entered a mediated settlement agreement. As a result of the agreement, the ADC issued a grooming policy stating that “[t]here shall be no standard hair length or style required[,]” of inmates.
In 1998, the ADC issued a new grooming policy. Administrative Directive (A.D.) 98-04 standardized hair length, prohibited beards, set other hygiene and grooming requirements, and authorized disciplinary action for failure to comply. Members of the 1978 class moved for contempt or breach of the settlement agreement. The United States District Court for the Eastern District of Arkansas, however, refused to find the ADC in contempt. In addition, upon the motion of the ADÓ officials, the district court terminated the settlement agreement pursuant to the Prison Litigation Reform Act (PLRA) of 1995. On appeal, the United States Court of Appeals for the Eighth Circuit held that the dis trict court properly terminated the settlement agreement based on the district court’s findings that the settlement agreement failed to meet the standards of the PLRA and that A.D. 98-04 was not unconstitutional. See Jones v. Mabry, No. 99-1396 (8th Cir. 1999) (unpublished). In doing so, the court rejected the class inmates’ argument that the ADC had violated their procedural due process rights by enacting a new grooming policy before seeking to terminate the settlement agreement. Id.
Appellant entered the ADC in 1991. Following the enactment of A.D. 98-04, appellant filed an administrative grievance alleging that application of A.D. 98-04 to him would result in an unconstitutional violation of his religious beliefs. Appellant states that he is a member of the Church of Yahweh, and that his religion requires that his beard and hair not be clipped beyond that allowed within the context of the Bible. Appellant’s grievance was denied by the warden, and his administrative appeal was denied as well. The appellant’s further administrative grievances allegedly went unanswered. Appellant initiated his civil rights action in May 2000, filing pro se a “Request for Declaratory Judgment with Jury Demand.” Two amended petitions for declaratory judgment were later filed. Appellant alleged that following the enactment of A.D. 98-04, he was disciplined on a number of occasions for non-compliance, resulting in harassment and intimidation by ADC personnel, the denial of privileges, loss of good time, loss of class status, loss of opportunity for early release, placement in a maximum security unit, placement in isolation, and retaliatory transfers. Appellant raised five claims in his petitions, and requested declaratory judgment, injunctive relief, and monetary damages. Appellees moved to dismiss the action pursuant to Ark. R. Civ. P. 12(b)(6) for a failure to state facts upon which relief can be granted, raising the defenses of sovereign immunity, statutory immunity, and qualified immunity.
The circuit court dismissed appellant’s action with prejudice for a failure to state a claim. The circuit court also concluded that the dismissal of appellant’s complaint would be considered a strike for purposes of Arkansas Code Annotated § 16-68-607 (Supp. 2001), which 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 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.
Standard of Review
Both parties submitted exhibits with their pleadings, and the circuit court did not exclude them in dismissing appellant’s complaint with prejudice. Pursuant to Ark. R. Civ. P. 12(b) and (c), a motion to dismiss is converted to a motion for summary judgment when matters outside of the pleadings are presented to and not excluded by the court. Nielsen v. Berger-Nielsen, 347 Ark. 996, 1003, 69 S.W.3d 414, 418 (2002). Summary judgment is appropriate when there are no genuine issues of material fact, and the moving party is entitled to judgment as a matter of law. Id. Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Id. On appellate review, this court determines if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion leave a material fact unanswered. Id. This court views the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id. Our review focuses not only on the pleadings, but also on the affidavits and other documents filed by the parties. Id.
Motion to Dismiss
Appellant claims on appeal that the circuit court erred in dismissing his complaint because appellees were not entitled to immunity in their official or individual capacities. Fie also argues that AD 98-04 was adopted in violation of the notice and publication requirements of the Administrative Procedures Act. And, he submits that, even if dismissal was proper, his case should be remanded for the entry of an order of dismissal without prejudice with the time his case has been pending in the courts tolled for the purpose of the running of the statute of limitations. He finally contends that the dismissal of his complaint should not be considered a “strike” for purposes of § 16-68-607.
Sovereign immunity is jurisdictional immunity from suit. Short v. Westark Community College, 347 Ark. 497, 504, 65 S.W.3d 440, 445 (2002). This defense arises from Article 5, Section 20, of the Arkansas Constitution, which provides: “The State of Arkansas shall never be made a defendant in any of her courts.” Id. As we stated long ago in Pitock v. State, 91 Ark. 527, 535 (1909), “[A] sovereign State cannot be sued except by its own consent; and such consent is expressly withheld by the Constitution of this State.” Id. In Brown v. Arkansas State HVACR Lic. Bd., 336 Ark. 34, 984 S.W.2d 402 (1999), we pointed out that sovereign immunity provides jurisdictional immunity from suit; where the pleadings show the action is one against the State, the trial court acquires no jurisdiction. Id. Unlike subject-matter jurisdiction, however, sovereign immunity can be waived. Id. The doctrine makes no distinction between actions in equity and actions at law. Id.
Appellant does not dispute that appellees are, in their official capacities, immune to suit for damages. He contends, however, that sovereign immunity fails to prevent the award of declaratory or injunctive relief. As such, the first issue to be resolved is whether appellant’s action constitutes a suit against the State. See Grine v. Board of Trustees, 338 Ark. 791, 797, 2 S.W.3d 54,58 (1999).
While appellant’s complaint does not name the State of Arkansas, he sued appellees in their capacities as employees of the State. A suit against a state official in his or her official capacity is not a suit against that person, but rather is a suit against that official’s office. Id. Short, 347 Ark. at 505, 65 S.W.3d at 445. Even where the State is not named as a defendant, if a judgment for the plaintiff will operate to control the action of the state or subject it to liability, we treat the suit as one against the state. See id. at 505, 65 S.W.3d at 446. As appellant’s request for relief, if granted, would control the action of the ADC, a state agency, and subject it to liability, his claims against appellees in their official capacities are barred by Article 5, section 20, of the Arkansas Constitution.
Appellant also asserts that appellees are liable personally, and are not entitled to statutory, or qualified, immunity. A motion for summary judgment based upon qualified immunity is precluded only when the plaintiff has asserted a constitutional violation, demonstrated the constitutional right is clearly established and raised a genuine issue of fact as to whether the official would have known that the conduct violated that clearly established right. Baldridge v. Cordes, 350 Ark. 114, 119, 85 S.W.3d 511, 514-15 (2002). As applied by this court, the doctrine of qualified immunity is akin to its federal counterpart. Id. Thus, an official is immune from suit if his actions did not violate clearly established principles of law of which a reasonable person would have knowledge. Id.; see also, Harlow v. Fitzgerald, 457 U.S. 800 (1982).
This court has recognized that the immunity provided by Ark. Code Ann. § 19-10-305 (Supp. 2001) is similar to that provided by the Supreme Court for federal civil-rights claims. Id. The statute provides state employees with statutory immunity from civil liability for non-malicious acts occurring within the course of their employment. See Grine, supra. In defining malice, this court has stated: Fuqua v. Flowers, 341 Ark. 901, 905-06, 20 S.W.3d 389, 391 (2000).
“It is true that in law malice is not necessarily personal hate. It is rather an intent and disposition to do a wrongful act greatly injurious to another.” Satterfield v. Rebsamen Ford, Inc., 253 Ark. 181, 185, 485 S.W.2d 192, 195 (1972); see also Stine v. Sanders, 66 Ark. App. 49, 987 S.W.2d 289 (1999). Malice is also defined as “the intentional doing of a wrongful act without just cause or excuse, with an intent to inflict an injury or under circumstances that the law will imply an evil intent. ... A conscious violation of the law . . . which operates to the prejudice of another person. A condition of the mind showing a heart . . . fatally bent on mischief.” Black’s Law Dictionary, 956-57 (6th ed. 1990). Although the complaint alleges an evil intent in the acts or omissions of the Department, a bare allegation of willful and wanton conduct will not suffice to prove malice. Beaulieu, 288 Ark. at 399, 705 S.W.2d at 882.
The appellee officials are immune from suit in this action because they did not violate clearly established principles of law of which a reasonable person would have knowledge. In this case, appellees submitted the cases of Jones v. Mabry, No 99-1396 (8th Cir.1999) (unpublished), and Williams v. Norris, No. 00-1877 (8th Cir. 2001) (unpublished), as exhibits to their motion to dismiss. Appellee Norris was a defendant in both those cases, and Appellee Guntharp was a defendant in Williams. As such, both appellees were aware that the United States Court of Appeals for the Eighth Circuit had ruled that the ADC did not violate inmates’ procedural due process rights in enacting AD 98-04, that AD 98-04 was constitutional, that the 1979 mediated settlement agreement was properly terminated by the United States District Court for the Eastern District of Arkansas, and that First Amendment challenges to prison grooming regulations had repeatedly been rejected by the federal court of appeals. In short, no reasonable prison official, based on the official’s knowledge of the above cases litigated in federal court, would have known that they were violating appellant’s clearly established constitutional rights. Appellant’s conclusory allegations that appellees acted with malice to him when they enacted and enforced AD 98-04 fail to entitle him to relief. Ark. R. Civ. P. 8(a)(1) (requiring that a complaint must state facts, not mere conclusions, in order to entitle the pleader to relief). Accordingly, appellees were immune from suit, and we cannot say that the circuit court erred in dismissing appellant’s complaint.
However, we agree with appellant that the circuit court erred in dismissing his complaint with prejudice. We have explained that summary judgment based upon failure to state a claim upon which relief can be granted is different from summary judgment based upon a lack of disputed material facts, which is the failure to have a claim. Bushong v. Garman, 311 Ark. 228, 235, 843 S.W.2d 807, 811-12 (1992). When summary judgment is granted because of failure to state a claim, the dismissal should be without prejudice in order to afford the plaintiff-appellant a chance to plead further. Id. Therefore, the order dismissing appellant’s complaint is modified to be without prejudice.
Finally, we conclude that the circuit court correctly found that the dismissal of appellant’s complaint would constitute a “strike” for purposes of § 16-68-607. An action “that fails to state a claim upon which relief may be granted” is specifically identified, along with frivolous and malicious- suits, as one that counts toward the limited number of civil actions available to incarcerated persons. Ark. Code Ann. § 16-68-607 (Supp. 2001).
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Ray Thornton, Justice.
On May 8, 1997, appellant, Barbara Spears, was driving a car owned by appellant, Jerel Saeler, when a Coyote C-26 front-end loader, which was owned by appellee, the City of Fordyce, and operated by appellee, Joseph Watson, collided with the car. When the accident occurred, Mr. Watson was driving the front-end loader on the highway through a school zone to an area in Fordyce where he intended to “clip shoulders.”
On April 26, 2000, appellants filed a complaint against the City of Fordyce, Joseph Watson, and the Arkansas Public Entities Risk Management Association. The complaint alleged that appellants suffered physical injuries and property damages as a result of the City of Fordyce and Joseph Watson’s negligence.
On May 24, 2000, appellants filed their first amended and substituted complaint. In this complaint, appellants realleged all claims and allegations against the City of Fordyce, Joseph Watson, and the Arkansas Public Entities Risk Management Association. Additionally, appellants claimed that they were entitled to receive benefits from appellee, Southern Farm Bureau Casualty Insurance Company, based on an underinsured motorist policy.
On May 26, 2000, the City of Fordyce, Joseph Watson, and the Arkansas Public Entities Risk Management Association filed a motion for summary judgment. The appellees argued that because the City of Fordyce is a governmental entity, it is entitled to immunity from tort liability. The appehees further contended that Mr. Watson was entitled to immunity because the accident occurred while he was performing his duties as a government employee. Finally, citing Cousins v. Dennis, 298 Ark. 310, 767 S.W.2d 296 (1989), the appeEees argued that the City was not required to carry liability insurance on the front-end loader because it was not a motor vehicle.
On June 29, 2000, appellants filed a second amended and substituted complaint once again re-alleging previous claims. In this complaint, appellants claimed that they were entitled to recover the entire policy limits from an uninsured motorist policy if the trial court determined that the City of Fordyce, Joseph Watson, and the Arkansas Public Entities Risk Management Association were immune from suit.
On August 4, 2000, a hearing was held on the motion for summary judgment. On November 2, 2000, the trial court granted the motion. The trial court, relying on Ark. Code Ann. § 21-9-301 (Repl. 2001), determined that the City of Fordyce was immune from liability except to the extent of coverage by liability insurance. The trial court further found that insurance coverage was not required for the front-end loader because it was “special mobile equipment” pursuant to Ark. Code Ann. 27-14-211 (Repl. 1994), and as such was not subject to registration with the State pursuant to Ark. Code Ann. § 27-14-703 (Repl. 1994). Based on these findings, the trial court concluded that there was no material issue of fact for determination by a jury.
On November 10, 2000, appellee Southern Farm Bureau Casualty Insurance Company filed a motion for summary judgment. Farm Bureau argued that appellants’ claims for benefits from their uninsured motorist policy were improper because the front-end loader was not an “auto” as defined in the policy.
On November 20, 2000, a hearing was held on Farm Bureau’s motion. On November 29, 2000, the trial court entered an order granting Farm Bureau’s motion. The trial court concluded that a front-end loader was special mobile equipment and was not a vehicle that was designed primarily to be used on public roads. Based on this finding, the trial court concluded that appellants could not recover from their uninsured motorist policy.
It is from these orders that appellants appeal. They raise two points for our review. We reverse the trial court’s order, and remand the matter for development of unresolved questions of fact.
In their first point on appeal, appellants contend that the trial court erred when it granted the motion for summary judgment filed by the City of Fordyce, Joseph Watson, and the Arkansas Public Entities Risk Management Association. Summary judgment is to be granted by a trial court only when it is clear that there are no genuine issues of material fact to be litigated, and the party is entided to judgment as a matter of law. Baldridge v. Cordes, 350 Ark. 114, 85 S.W.3d 511 (2002). Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Id. On appellate review, we determine if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion leave a material fact unan swered. Id. We view the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id.
Appellants challenge several of the findings upon which the trial court relied in granting the motion for summary judgment. First, appellants argue that the trial court erred in concluding that the City was entitled to tort immunity. Next, appellants contend that the trial court erred when it determined that the City was not required to maintain insurance on the front-end loader. Finally, appellants argue that the trial court erred when it determined that the front-end loader was not a motor vehicle.
In addressing appellants’ contention, we must start with the basic principle that:
all counties, municipal corporations, school districts, special improvement districts, and all other political subdivisions of the state and any of their boards, commissions, agencies, authorities, or other governing bodies shall be immune from liability and from suit for damages except to the extent that they may be covered by liability insurance. No tort action shall lie against any such political subdivision because of the acts of its agents and employees.
Ark. Code Ann. § 21-9-301. Pursuant to the statute, the City enjoys immunity from liability and from suits for damages except to the extent that it is covered by liability insurance, or acts as a self insured for certain amounts as provided by statute.
With this basic principle in mind, we then look to Ark. Code Ann. § 21-9-303 (Repl. 1996) for guidance on maintaining liability insurance. The statute provides:
(a) All political subdivisions shall carry liability insurance on their motor vehicles or shall become self-insurers, individually or collectively, for their vehicles, or both, in the minimum amounts prescribed in the Motor Vehicle Safety Responsibility Act, § 27-19-101 et seq.
* * *
(c) Any person who suffers injury -or damage to person or property caused by a motor vehicle operated by an employee, agent, or volunteer of a local government covered by this section shall have a direct cause of action against the insurer if insured, or the governmental entity if uninsured, or the trustee or chief administrative officer of any self-insured or self-insurance pool. Any judgment against a trustee or administrator of a self-insurance pool shall be paid from pool assets up to the maximum limit of liability as herein provided.
Ark. Code Ann. § 21-9-303. Pursuant to the statute, the City must carry liability insurance on its motor vehicles, or assume statutory responsibility as a self-insured.
Based on this language, we consider whether the City’s front-end loader, which collided with Mr. Saeler’s car, was a “motor vehicle” as that term is used in the statute. Arkansas Code Annotated § 27-19-206 (Repl. 1994) defines a “motor vehicle” as “every vehicle which is self-propelled and every vehicle which is propelled by electric power obtained from overhead trolley wires but not operated upon rails.” Id. This definition is a broad declaration that every self-propelled vehicle that does not operate on rails is a “motor vehicle.” However, our analysis does not end with this broad definition. In Cousins v. Dennis, 298 Ark. 310, 77 S.W.2d 296 (1989), a case somewhat similar to the one now on review, we articulated a test that accompanies the statutory definition, and which may be used to determine whether the front-end loader is a motor vehicle.
In Cousins, a student was injured by a bush-hog mower being pulled by a tractor. The school district did not maintain liability insurance on the tractor. The injured student argued that the tractor was a motor vehicle and that pursuant to Ark. Code Ann. § 21-9-303 the school was required to carry liability insurance on the tractor. The school district argued:
21-9-303(a) requires insurance on motor vehicles in the minimum amounts prescribed in the Motor Vehicle Safety Responsibility Act, 27-19-101 et seq. By referring to 27-19-101 et seq., the General Assembly obviously intended that the insurance coverage required of political subdivisions under 21-9-303(a) should be subject to all of the provisions of the Motor Vehicle Safety Responsibility Act.
Cousins, supra. We agreed with the school district’s contention, and looked to the Motor Vehicle Responsibility Act for guidance in our determination of whether a tractor was a motor vehicle. We explained:
Ark. Code Ann. 27-19-605 and 27-19-713 (1987) provide the minimum amounts of liability insurance coverage for a security deposit or proof of further financial responsibility required under the Act. As we noted earlier, a school district becomes a self-insurer, if found liable, in an amount not to exceed those minimum amounts. The minimum liability insurance amounts required under these statutory provisions, subject to certain exceptions, apply to the driver and owner of any vehicle of a type subject to registration under the motor vehicle laws of this state, Ark. Code Ann. 27-19-601 (1987), and to persons who have been convicted of or forfeited bail or who have failed to pay judgments upon causes of action arising out of ownership, maintenance, or use of vehicles of a type subject to registration under the laws of this state. Ark. Code Ann. 27-19-702 (1987).
We believe the General Assembly, in requiring political subdivisions to purchase motor vehicle liability insurance, never intended non-registered vehicles to be covered. In passing § 21-9-303, the legislature undoubtedly was aware of how Arkansas’s Motor Vehicle Responsibility Act and vehicle registration laws worked together in requiring security deposits and liability insurance coverage only on those vehicles which are subject to registration.
Cousins, supra, (emphasis supplied)(internal citations omitted).
Relying upon Arkansas’s motor vehicle registration laws, we determined that the tractor, which injured the student, was an “implement of husbandry” and as such was not subject to registration with the State. Id. Because the tractor was not subject to registration, we reasoned that it was not a “motor vehicle” as that term is used in Ark. Code Ann. § 21-9-303. Accordingly, we held that the school district was not required to maintain liability insurance on the tractor. Cousins, supra.
We now consider whether the trial court was correct in concluding that the City’s front-end loader was not a motor vehicle as a matter of law. As we begin our analysis, in accordance with our decision in Cousins, supra, we first consider whether the front-end loader is subject to registration under Arkansas’s motor-vehicle laws. Arkansas Code Annotated § 27-14-703 describes the vehicles that are subject to registration. The statute provides:
Every motor vehicle, trailer, semitrailer, and pole trailer when driven or moved upon a highway and every mobile home shall be subject to the provisions of this chapter except:
(1) Any vehicle driven or moved upon a highway in conformance with the provisions of this chapter relating to manufacturers, transporters, dealers, lienholders, or nonresidents or under a temporary registration permit issued by the office as authorized in 27-14-708;
(2) Any vehicle which is driven or moved upon a highway only for the purpose of crossing such highway from one (1) property to another;
(3) Any implement of husbandry whether of a type otherwise subject to registration under this chapter or not which is only incidentally operated or moved upon a highway;
(4) Any special mobile equipment as defined in 27-14-211;
(5) Any vehicle which is propelled exclusively by electric power obtained from overhead trolley wires, though not operated upon rails;
(6) No certificates of title need be obtained for any vehicle of a type subject to registration owned by the federal government.
Ark. Code Ann. § 27-14-703.
In the case now before us, the trial court determined that the City’s front-end loader was “special mobile equipment” as a matter of law, and as such fit within an exception to the vehicle registration requirement. Arkansas Code Annotated § 27-14-211 defines special mobile equipment. The statute provides:
Special mobile equipment means every vehicle not designed or used primarily for the transportation of persons or property and incidentally operated or moved over the highways, including farm tractors, road construction or maintenance machinery, ditch-digging apparatus,, well-b.oring apparatus, and concrete mixers.
Id.
In their motion for summary judgment, the City of Fordyce, Joseph Watson, and the Arkansas Public Entities Risk Management Association did not present evidence as to whether the front-end loader met the definition of special equipment. The appellees argued instead that “a tractor, such as a front-end loader involved in this case, is not a motor vehicle as that term is used under the statutes, and does not require insurance.” Additionally, the appellees discussed the rules outlined in Cousins, and argued that “for the same reasons expressed in the Cousins case, the separate defendants in the present case are immune from liability. . .[.]”
In their response to the motion for summary judgment, appellants argued that the front-end loader was not excepted from the statutory definition of a motor vehicle because it was “routinely being driven along [the] streets of Fordyce for transportation purposes.” Appellants offered the depositions of Joseph Watson in response to the motion for summary judgment. In his deposition, Mr. Watson stated that the front-end loader was frequently driven on public streets. Fie also explained that the front-end loader was used on numerous jobs around the City. Specifically, Mr. Watson explained that the front-end loader performed many duties such as clipping shoulders, cleaning ditches, loading gravel, back-dragging asphalt, and picking up brush. Appellants also offered the deposition of William Lyon, the Mayor of Fordyce. In his deposition, Mr. Lyon testified that the only way the City could transport the front-end loader was to drive it on public roads.
At the hearing on the motion, the City of Fordyce, Joseph Watson, and the Arkansas Public Entities Risk Management Asso ciation argued that the front-end loader did travel on the public roads, but that the travel was a necessary requirement of its job. In response to this contention, appellants argued that the front-end loader was not “just incidentally driven along the highway” but that “it was being driven as transportation along the highway.”
On this issue, the trial court found:
[T]he front-end loader tractor here was not used primarily for transportation but operated on the public roads incidentally due to its intended purpose in the construction or repair and maintenance of roads.
After reviewing the evidence, we conclude that a genuine issue of material fact remains to be resolved. We conclude that appellants raised a genuine issue of fact as to whether the operation of the front-end loader on public roads was frequent and regular or merely incidental. Until this disputed factual question is resolved, it is impossible to determine whether the front-end loader is excepted from the statutory definition of “motor vehicle.” Accordingly, the trial court erred when it granted the motion for summary judgment filed by the City of Fordyce, Joseph Watson, and the Arkansas Public Entities Risk Management Association, and we remand for resolution of the factual issues.
In their second point on appeal, appellants argue that the trial court erred when it granted Farm Bureau’s motion for summary judgment. We conclude that the motion for summary judgment was premature. Specifically, we conclude that the issue of whether appellants may recover from Farm Bureau is not ripe for consideration until the issue of whether the City was required to carry insurance on the front-end loader is resolved. Because we have determined that this issue is not yet resolved, any consideration by the trial court of a motion for summary judgment in favor of Farm Bureau was premature, and any review by this court of the disposition of such a motion would- also be premature. Accordingly, we decline to consider the merits of appellants’ second point on appeal.
Reversed and remanded.
Glaze, J dissents.
Mr. Watson explained that this is a procedure whereby dirt is removed from the side of the road, and the road is smoothed over before oil and pea gravel are placed on the road. | [
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Per Curiam.
Appellant, City of Dover appeals the decision of the Circuit Court of Pope County granting a motion to dismiss. The trial court found that the City of Dover lacked standing to challenge the City of Russellville’s annexation ordinance and the vote approving that annexation. Although not raised by appellee City of Russellville, we do not reach the merits of City of Dover’s case because of a failure to comply with our abstract and addendum requirements. See Ark. Sup. Ct. R. 4-1 and 4-2. We may raise issues of deficiencies on our own motion. Ark. Sup. Ct. R. 4-2(b)(2). We note that the Addendum contains only a copy of the order appealed from. It does not include photocopies of the complaint, the motion to dismiss, or the notice of appeal. Furthermore, the hearing on the motion that is the subject of this appeal has not been abstracted.
It is a practical impossibility for seven justices to examine a single transcript filed with this court, and we will not do so. Cleveland v. Estate of Stark, 324 Ark. 461, 923 S.W.2d 857 (1996). In the absence of this vital information being properly abstracted, according to the rules of this court, it is impossible for this court to make an informed decision on the merits of this case. Because City of Dover’s brief fails to include an abstract of the hearing on the motion to dismiss and photocopies of pleadings that are essential to an understanding of the case and the court’s jurisdiction on appeal, we find it to be deficient such that we cannot reach the merits of the case. Therefore, appellant City of Dover has fifteen days from the date of this opinion to file a substituted abstract and addendum to conform to Rule 4-2(a)(5) and (7). See In re: Modification of the Abstracting System, 345 Ark. 626 (2001) (per curiam); Ark. Sup. Ct. R. 4-2(b)(3). Mere modifications of the original brief will not be accepted. Id. According to Rule 4-2(b)(3), if appellant City of Dover 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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Robert L. Brown, Justice.
This is an appeal from the final order of the Pulaski County Chancery Court entered May 25, 2001, which concluded that the current school- funding system is unconstitutional under the Education Article (Article 14, § 1) and the Equality provisions (Article 2, §§ 2, 3, and 18) of the Arkansas Constitution. The trial court also awarded counsel for Lake View School District No. 25 and the resulting class total attorneys’ fees in the amount of $9,338,035. We affirm the trial court’s order regarding the unconstitutionality of the public school-funding system but reverse its finding relative to excess debt service as a credit against each school district’s uniform rate of 25 mills. We affirm the grant of attorneys’ fees but modify the amount to an' award of $3,088,050, plus costs in the amount of $309,000.
This case has been in litigation for more than ten years. On August 19, 1992, Lake View School District No. 25, school district officials, and certain individuals residing in Phillips County (hereinafter Lake View) sued the Governor of the State, the State Treasurer, the Speaker of the House of Representatives, the President of the Senate, Officers of the State Department of Education, and the State Board of Education (hereinafter referred to collectively as the State). The complaint prayed for (1) a declaration that the school-funding system was unconstitutional under both the United States Constitution and the Arkansas Constitution, and (2) an injunction against implementing the unconstitutional system.
On November 9, 1994, then-chancery judge Annabelle Clinton Imber found that the school-funding system did not violate the United States Constitution, but that it did violate the Education Article (Article 14, § 1) and the Equality provisions (Article 2, §§ 2, 3, and 18) of the Arkansas Constitution. In December 1994, Judge Imber modified her November order slightly with two additional orders. For purposes of this opinion, the three orders will be referred to as the 1994 order. The chancery judge stayed the effect of her order for two years to enable the Arkansas General Assembly to enact a constitutional school-funding system in accordance with her opinion. In 1995, the chancery judge denied Lake View counsel attorneys’ fees. On March 11, 1996, this court dismissed an appeal by the State contesting the 1994 order based on the fact that the order was not final, since the two-year stay was still in effect. See Tucker v. Lake View School Dist. No. 25, 323 Ark. 693, 917 S.W.2d 530 (1996) (Lake View L). In Lake View I, we expressly referred to the fact that Lake View’s rights in the matter had not been concluded and that further hearings before the trial court were necessary before the trial court’s order could be placed into execution. At the expiration of the two-year stay near the end of calendar year 1996, neither Lake View nor the State appealed from the trial court’s 1994 order.
During its General Session in 1995, the Arkansas General Assembly enacted several acts for the purpose of establishing a new school-funding system. Specifically, Acts 916 and 917 were enacted, as well as Act 1194, which appropriated over $1.3 billion in school funding for the first year of the next biennium and more than $1.4 billion for the second year of the biennium.
On August 22, 1996, following Lake View’s third and fourth amended complaints, the trial court certified the Lake View class, as requested by Lake View, which included all school districts in the state, students and parents of students in all school districts, school board members of all school districts, and school district taxpayers who support the system. On November 5, 1996, the people of Arkansas approved by majority vote Amendment 74 to the Arkansas Constitution which fixed a uniform rate of 25 mills for each school district as the ad valorem property tax rate for the maintenance and operation of the public schools and permitted increases in the uniform millage rate as “variances” to enhance public education.
At its next General Session, the General Assembly enacted new legislation providing for public school financing, including Act 1307 of 1997, codified in part at Ark. Code Ann. §§ 6-20-302 et seq. (Repl. 1999). Act 1307 repealed portions of Act 917 of 1995 but, in addition, made legislative findings relating to educational adequacy, defined a “uniform rate of tax” under Amendment 74, defined terms used in the school-funding formula, and provided incentives for school districts to encourage millage assessments to enhance public education. The General Assembly also enacted Act 1108 of 1997, now codified at Ark. Code Ann. §§ 6-15-1001 through 1011 (Repl. 1999), which set educational goals, and Act 1361 of 1997, which appropriated funds totaling over $1.5 billion for each year of the next biennium for grants and aid to the state’s school districts.
In 1998, there was an effort by Lake View and the State to settle the lawsuit. The trial court, however, declined to approve the settlement. On August 17, 1998, the trial court dismissed Lake View’s fourth amended complaint on the grounds that with Amendment 74 and the 1995 and 1996 legislative acts, a new standard for public school funding had been implemented. Legislative acts are presumed to be constitutional, the trial court observed, and, thus, the fourth amended complaint and show-cause petition for why the State should not be held in contempt of the 1994 order were moot. No attorneys’ fees were granted to Lake View counsel.
The 1998 Dismissal Order was appealed to this court, and we reversed. See Lake View Sch. Dist. No. 25 v. Huckabee, 340 Ark. 481, 10 S.W.3d 892 (2000) (Lake View II). In Lake View II, we remanded the matter for a compliance trial to be held regarding the constitutionality of the post-1994 legislative acts and for a determination of attorneys’ fees. See id.
In its 1999 General Session, the General Assembly appropriated funds for public education totaling more than $1.6 billion for the first year of the biennium and more than $1.7 billion for the second year. See Act 1392 of 1999. The General Assembly also enacted Act 999 of 1999, amending Ark. Code Ann. §§ 6-15-401 through 407, 6-15-419 through 422, and 6-15-1003 (Repl. 1999), and establishing the Arkansas Comprehensive Testing Assessment and Accountability Program (ACTAAP) to assess and evaluate academic progress and performance in the public schools with an emphasis on reading and writing, literacy, and mathematics from the earliest grades.
Prior to the compliance trial in 2000, a total of 144 school districts sought to intervene and align themselves with the State’s position that the post-1994 legislation had cured the constitutional deficiencies. The trial court denied the motions. In September and October of 2000, the trial court conducted the compliance trial over nineteen days. Thirty-six witnesses testified, including some for a second time. One hundred and eighty-seven exhibits were introduced and considered. The resulting appellate record was ninety-nine volumes and totaled 20,878 pages. On September 19, 2000, Lake View filed a revised petition for an award of attorneys fees in the amount of $32.5 million and for litigation costs of at least $200,000. On September 22, 2000, the Rogers and Bentonville School Districts filed a cross-complaint against the State in which they contended that the school-funding system was constitutionally inadequate.
Judge Kilgore entered his final order on May 25, 2001, as already referenced, in which he declared the current school-funding system to be unconstitutional on the twin grounds of inadequacy under, the Education Article and inequality under the Equality provisions of the Arkansas Constitution. See Ark. Const, art. 14, § 1, art. 2, §§ 2, 3, 18. He further awarded Lake View’s counsel attorneys’ fees of $9,338,035 but denied their request for costs.
I. Posture of the Parties
Though Lake View prevailed on the core issue of the unconstitutionality of the post-1994 legislative acts, it filed the first notice of appeal on June 22, 2001, and raised issues including Judge Kilgore’s failure to deem Judge Imber’s 1994 order law of the case, the failure to classify desegregation money as state aid, the failure of the trial court to award adequate attorneys’ fees, the failure of the trial court to hold the State in contempt of court for failure to comply with the 1994 order, and the failure of the trial court to order specific remedies.
Little more than one hour later on June 22, 2001, the State appealed the 2001 order on both the constitutionality points and the award of attorneys’ fees. Over the ensuing year, the parties jockeyed for position on various issues such as who was the true appellant and who was the cross-appellant, who would prepare the abstract of testimony, and whether a separate brief on attorneys’ fees was warranted. This court concluded that Lake View was the appellant and the State was the cross-appellant, that the State could reabstract the testimony and record, and that Lake View was entitled to a brief on the merits of the case as well as a brief on attorneys’ fees. The Rogers and Bentonville school districts were designated as Intervenors/Appellees, as was the Little Rock School District. The three school districts intervened in support of the trial court’s conclusion that the school-funding system was unconstitutional on adequacy and inequality grounds. No other school districts intervened on appeal. The rulings and orders made by this court over the past year were memorialized in an opinion of this court. See Lake View Sch. Dist. No. 25 v. Huckabee, 349 Ark. 116, 76 S.W.3d 250 (2002) (per curiam) {Lake View III). This opinion included reference to the filing of amicus curiae briefs. With the permission of this court, the following groups filed amicus curiae briefs in this matter: the Arkansas Education Association (in support of the trial court’s order); the Arkansas State Chamber of Commerce, Inc. and the Associated Industries of Arkansas, Inc. (in support of the trial court’s order); Arkansas Advocates for Children and Families (in support of the trial court’s order); the Arkansas Public Policy Panel and the Rural School and Community Trust (in support of the trial court’s order); and the Arkansas Policy Foundation (in support of the State’s position).
At the time of the 2001 final order, there were 310 school districts in Arkansas. In Lake View II, this court described the school-funding system as it existed in 1994 as follows:
II. School-Funding System
In 1994, school districts received approximately thirty percent of their revenue from local funds, sixty percent from state aid, and ten percent from federal funds.
Lake View II, 340 Ark. at 484, 10 S.W.3d at 894.
In his 2001 final order, Judge Kilgore presented what he described as a “simplified explanation” of the school-funding formula, which no party has contested. According to the trial court, under the formula, the State Department of Education first calculates a “base level revenue” which is determined by adding all state and local money available to all public schools throughout the state and dividing that figure by the average daily membership of all students statewide. The base level revenue per student according to the 2001 order was $4535 for the 1996-97 school year. The State then calculates the local resource rate for students in each individual school district. This calculation is made by first determining the assessed value of personal, real, and utility property within the school district, and then multiplying that figure by 98 percent. That figure is multiplied by the uniform rate of 25 mills pursuant to Amendment 74. The resulting number is then divided by the average daily membership of students in that school district which results in the local resource rate. If the local resource rate is less than the base level revenue per student ($4535 in 1996-97), the Department of Education will make up the difference through its Equalization Aid so that all school districts in the state will receive equal revenues per student under the formula.
The 2001 school-funding formula is essentially the same as what was in place in 1994, which Judge Imber described in her order. The principal differences are that in 1994 the Department of Education used a “charge” of 26.7 mills rather than the uniform rate of 25 mills pursuant to Amendment 74, which was approved two years later, and the average daily membership was “weighted” for fictional students to provide school districts with funds for students with special needs. The 1994 “weighted” sys tem changed in 1995 with Act 1194, in which the General Assembly began providing grants and aid for special needs through specific categories. In 1994 and in 2001, based upon the two court orders, the State sought to achieve equal opportunity for Arkansas students by equalizing per-student revenues statewide according to the base level rate.
In 1994, as in 2001, individual school districts could pass additional millages assessed against district property to enhance local education, whether for building programs or for maintenance and operation. Indeed, Amendment 74 specifically contemplates variations in millages among school districts for maintenance and operation:
(a) The General Assembly shall provide for the support of common schools by general law. In order to provide quality education, it is the goal of this state to provide a fair system for the distribution of funds. It is recognized that, in providing such a system, some funding variations may be necessary. The primary reason for allowing such variations is to allow school districts, to the extent permissible, to raise additional funds to enhance the educational system within the school district. It is further recognized that funding variations or restrictions thereon may be necessary in order to comply with, or due to, other provisions of this Constitution, the United States Constitution, state or federal laws, or court orders.
The State provides other funding and guarantees to school districts as well. For example, it provides what the trial court described as “additional base funding,” which guarantees that all school districts will have a minimum state and local revenue per average daily membership that is at least eighty percent of the state and local revenue available for a school district at the ninety-fifth percentile. The State also has programs to assist school districts with capital improvements, although the Growth Facilities Funding program for new buildings and equipment was phased out in 2001. What remains is General Facilities Funding for purchases of buses, computers, facility repairs, and maintenance, and Debt Service Funding to assist school districts in paying their debt service incurred for capital improvements. The trial court concluded that these programs for capital improvements were inadequate:
Even with these three programs, some districts cannot afford to build new buildings, complete necessary repairs or buy buses. Either the money is not available through General Facilities or Growth Facilities Funding or the district is too poor to incur sufficient debt to finance new construction and take advantage of the Debt Service Funding Supplement.
The trial court further alluded to three formulas commonly used to determine whether disparities in funding among the school districts exist. In doing so, the court drew a distinction between revenues provided to the school districts by means of local and state funding and expenditures made by the school districts for the benefit of their students:
20. The purpose of the three formulas (Federal Range Ratio, Coefficient of Variation and GINI Index of Inequality) is to aid in analyzing disparities in funding for schools, school districts and students. But the question, as framed by the Supreme Court, is do unconstitutional disparities exist? Does the state fulfill its constitutional duty to provide each of its children an education adequate to give the child the opportunity to realize his potential, enrich his life and be an asset to his community? The formulas do not provide an exclusive way to answer the questions. (Greene, Def. Ex. 68, fh 1)
21. Using expenditures in the calculation of the Federal Range Ratio, this court finds that there is more than a 25% difference between the 5th and the 95th percentile in amount spent per pupil which is not in compliance with the 1994 Order. However, using revenues, the State is within the 25% range differential. Using expenditures in the Coefficient of Variation, the State is not in compliance. Using expenditures in the calculation of the GINI Index of Inequality, the State is in compliance.
Finally, federal funds are distributed to the school districts for special-need students. These funds are dispersed outside of the school-funding formula and are not subject to the discretion of the school districts.
III. Standard of Review
Our standard of review in chancery cases has been often stated:
We review chancery cases de novo on the record, but we do not reverse a finding of fact by the chancery court unless it is clearly erroneous. Moon v. Marquez, 338 Ark. 636, 999 S.W.2d 678 (1999); Office of Child Support Enforcement v. Eagle, 336 Ark. 51, 983 S.W.2d 429 (1999). A finding of fact by the chancery court is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. Huffman v. Fisher, 337 Ark. 58, 987 S.W.2d 269 (1999); RAD-Razorback Ltd. Partnership v. B.G. Coney Co., 289 Ark. 550, 713 S.W.2d 462 (1986). It is this court’s duty to reverse if its own review of the record is in marked disagreement with the chancery court’s findings. Dopp v. Sugarloaf Mining Co., 288 Ark. 18, 702 S.W.2d 393 (1986) (citing Rose v. Dunn, 284 Ark. 42, 679 S.W.2d 180 (1984); Walt Bennett Ford v. Pulaski County Special Sch. Dist., 274 Ark. 208, 624 S.W.2d 426 (1981)).
State Office of Child Support Enforcem’t v. Willis, 347 Ark. 6, 11-12, 59 S.W.3d 438, 442 (2001). See also Wisener v. Burns, 345 Ark. 84, 44 S.W.3d 289 (2001).
We initially must address which order we are reviewing. Are we reviewing Judge Imber’s 1994 order, Judge Kilgore’s 2001 order, both orders, or some combination of the two? We are convinced that what is on appeal is Judge Kilgore’s 2001 order in which he found the post-1994 legislative acts to be unconstitutional. In Lake View II, we referred to Judge Imber’s November 1996 orders, where she found that the 1995 legislation constituted new facts and that law of the case would not apply to her 1994 order. We then remanded this case for a compliance trial on whether the post-1994 legislation and Amendment 74 had corrected the constitutional deficiencies. That is the task which Judge Kilgore undertook — an examination of the new legislative acts in light of constitutional mandates. We further note on this point that Judge Imber’s 1994 order was never appealed after it reached finality, but that the State and Lake View specifically appealed from Judge Kilgore’s order. Accordingly, it is the 2001 order that is before us for review.
With this in mind, we turn to the merits of this appeal. Because the State’s points on appeal go to the heart of the matter, we will consider them first.
IV. Justiciability
The State devotes a substantial portion of its opening brief to its argument that the constitutionality of the school-funding system is a nonjusticiable issue for the courts. In the State’s view, the courts unduly interfere and even usurp legislative and executive branch functions when they declare school-funding systems unconstitutional. This, the State maintains, equates to a mandate to the General Assembly to appropriate more funds for the public schools which violates the separation-of-powers clauses in the Arkansas Constitution. See Ark. Const, art. 4, §§ 1, 2. Moreover, the State contends, citing Baker v. Carr, 369 U.S. 186 (1962), that the funding of our public schools is a political question involving public policy and the interplay between the State and local school districts, which is best left to the General Assembly to resolve. In support of its nonjusticiability argument, the State directs our attention to five cases from other jurisdictions. See Ex parte James v. Alabama Coalition for Equity, Inc., 836 So. 2d 813 (Ala. 2002); Marrero v. Commonwealth of Pennsylvania, 559 Pa. 14, 739 A.2d 110 (1999); Coalition for Adequacy & Fairness in School Funding v. Chiles, 680 So. 2d 400 (Fla. 1996); Committee for Educational Rights v. Edgar, 174 Ill. 2d 1, 672 N.E,2d 1178 (1996); City of Pawtucket v. Sundlun, 662 A.2d 40 (R.I. 1995). As a corollary to this argument, the State urges that the courts should avoid getting “mired down” in endless litigation in an effort to supervise the public schools.
The State’s nonjusticiability point appears to have been raised for the first time in this appeal. The State implicitly claims that a violation of separation of powers is a question of subject-matter jurisdiction, which, of course, can be raised at any time or even by this court on its own motion. See Vanderpool v. Fidelity & Cas. Ins. Co., 327 Ark. 407, 939 S.W.2d 280 (1997). Regardless of this argument, we believe that the issue of nonjusticiability was laid to rest in a previous school-funding case in which we discussed the distinctive roles of the legislative and judicial branches. See DuPree v. Alma. Sch. Dist. No. 30, 279 Ark. 340, 651 S.W.2d 90 (1983). The State never discusses DuPree in connection with this point, but in that case, we quoted favorably from a seminal school-funding opinion by the California Supreme Court:
The dispositive answer to the above arguments is simply that this court is not now engaged in — nor is it about to undertake — the “search for tax equity” which defendants prefigure. As defendants themselves recognize, it is the Legislature which by virtue of institutional competency as well as constitutional function is assigned that difficult and perilous quest. Our task is much more narrowly defined: it is to determine whether the trial court committed prejudicial legal error in determining whether the state school financing system at issue before it was violative of our state constitutional provisions guaranteeing equal protection of the laws insofar as it denies equal educational opportunity to the public school students of this state. If we determine that no such error occurred, we must affirm the trial court’s judgment, leaving the matter of achieving a constitutional system to the body equipped and designed to perform that function.
DuPree, 279 Ark. at 349-50, 651 S.W.2d at 95 (quoting Serrano v. Priest, 18 Cal. 3d 728, 759, n. 38, 557 P.2d 929, 946, 135 Cal. Rptr. 345, 362 (1976) (internal citations omitted)). We continue to adhere to our opinion in DuPree and its discussion of the respective roles of the legislative and judicial branches relative to school funding. Clearly, the roles are different, and we conclude that the two branches do not operate at cross purposes in the school-funding context.
We further observe that the Education Article in the Arkansas Constitution designates the State as the entity to maintain a general, suitable, and efficient system of free public schools:
Intelligence and virtue being the safeguards of liberty and the bulwark of a free and good government, the State shall ever maintain a general, suitable and efficient system of free public schools and shall adopt all suitable means to secure to the people the advantages and opportunities of education.
Ark. Const., art. 14, § 1 (emphasis added). That is not the case in the state constitutions in four of the five cases cited by the State as authority for its nonjusticiability position; rather, in those state constitutions it is incumbent upon the General Assembly to provide, maintain, or promote the public schools. See James v. Alabama Coalition for Equity, Inc., supra (“The legislature may by law provide for or authorize the establishment and operation of schools. . . .”); Marrero v. Commonwealth of Pennsylvania, supra (“The General Assembly shall provide for the maintenance and support of a thorough and efficient system of public education. . . .”); Coalition for Adequacy & Fairness in School Funding, Inc. v. Chiles, supra (“Adequate provision shall be made by law for a uniform system of free public schools. . . .”); City of Pawtucket v. Sundlun, supra (“[I]t shall be the duty of the general assembly to promote public schools. . . .”).
As a historical footnote, our own Education Article in our current state constitution was adopted in 1874 and amended by Amendment 53 in 1968. The four preceding constitutions in Arkansas all stated that the General Assembly would provide for public education. See Ark. Const. of 1836, art. VII; Ark. Const. of 1861, art. VII, § 1; Ark. Const. of 1864, art. VIII; Ark. Const. of 1868, art. IX, § 1. In 1874, however, that duty was expressly shifted to the State, which signaled, in our judgment, a deliberate change. The people of this state unquestionably wanted all departments of state government to be responsible for providing a general, suitable, and efficient system of public education to the children of this state.
The State’s argument appears to be that not only are legislative acts presumed to be constitutional, see, e.g., Ford v. Keith, 338 Ark. 487, 996 S.W.2d 20 (1999), but that they are per se constitutional and not subject to judicial review. Thus, the State’s position is that the judiciary has no role in examining school funding in light of the Arkansas Constitution, though the annual appropriation constitutes almost one half of the State’s total budget and affects the vast majority of school-aged children in this State.
We reject the State’s argument. This court’s refusal to review school funding under our state constitution would be a complete abrogation of our judicial responsibility and would work a severe disservice to the people of this state. We refuse to close our eyes or turn a deaf ear to claims of a dereliction of duty in the field of education. As Justice Hugo Black once sagely advised: “[T]he judiciary was made independent because it has . . . the primary responsibility and duty of giving force and effect to constitutional liberties and limitations upon the executive and legislative branches.” Hugo L. Black, The Bill of Rights, 35 N.Y.U. L. Rev. 865, 870 (1960).
Early on, this court announced:
The people of the State, in the rightful exercise of their sovereign powers, ordained and established the constitution; and the only duty devolved upon this court is to expound and interpret it.
State v. Floyd, 9 Ark. 302, 315 (1849). And then in 1878, we said:
[W]e claim it to be a right and a duty to interpret our own Constitution and laws; and in local concerns, so long as they do not conflict with the Constitution and laws of the United States, they are supreme ....
Graham v. Parham, 32 Ark. 676, 684 (1878).
The Supreme Court of Kentucky has emphasized the need for judicial review in school-funding matters. The language of that court summarizes our position on the matter, both eloquently and forcefully, and, we adopt it:
Before proceeding ... to a definition of “efficient” we must address a point made by the appellants with respect to our authority to enter this fray and to “stick our judicial noses” into what is argued to be strictly the General Assembly’s business.
... [In this case] we are asked — based solely on the evidence in the record before us — if the present system of common schools in Kentucky is “efficient” in the constitutional sense. It is our sworn duty, to decide such questions when they are before us by applying the constitution. The duty of the judiciary in Kentucky was so determined when the citizens of Kentucky enacted the social compact called the Constitution and in it provided for the existence of a third equal branch of government, the judiciary.
... To avoid deciding the case because of “legislative discretion,” “legislative function,” etc., would be a denigration of our own constitutional duty. To allow the General Assembly (or, in point of fact, the Executive) to decide whether its actions are constitutional is literally unthinkable.
The judiciary has the ultimate power, and the duty, to apply, interpret, define, and construe all words, phrases, sentences and sections of the Kentucky Constitution as necessitated by the controversies before it. It is solely the function of the judiciary to so do. This duty must be exercised even when such action services as a check on the activities of another branch of government or when the court’s view of the constitution is contrary to that of other branches, or even that of the public.
Rose v. Council for Better Education, Inc., 790 S.W.2d 186, 208-10 (Ky. 1989) (emphasis in original). For these reasons, we conclude the matter before us is justiciable.
V. Adequacy
We turn then to a review of the trial court’s declaration that the State’s school-funding system violates Article 14, § 1. To reiterate, § 1 of the Education Article reads:
Intelligence and virtue being the safeguards of liberty and the bulwark of a free and good government, the State shall ever maintain a general, suitable and efficient system of free public schools and shall adopt all suitable means to secure to the people the advantages and opportunities of education. The specific intention of this amendment is to authorize that in addition to existing constitutional or statutory provisions the General Assembly and/or public school districts may spend public funds for the education of persons over twenty-one (21) years of age and under six (6) years of age, as may be provided by law, and no other interpretation shall be given to it. [As amended by Const. Amend. 53.]
The State first contends that this court did not remand this case in Lake View II for a compliance trial on adequacy under Article 14, but only for a trial on equality under Article 2, §§ 2, 3, and 18. The State is incorrect. In Lake View II, this court remanded the case to the trial court for a determination of whether the post-1994 legislation had satisfied the two constitutional deficiencies underscored by Judge Imber in her 1994 order. Judge Imber had concluded that the school-funding system failed as inadequate under Article 14 and inequitable under Article 2 of the Arkansas Constitution. Indeed, Lake View had filed a separate lawsuit contesting school funding as constitutionally inadequate, and the trial court properly approved a nonsuit of that action by Lake View because adequacy issues were already before the court in the compliance trial. The State’s argument is meritless.
a. Adequacy Study.
The keystone of the State’s adequacy argument is that an adequate education in Arkansas is impossible to define. We observe that on this point, the Department of Education and the General Assembly may be at odds. In her 1994 order, Judge Imber stated that there had been no studies on the per-student cost to provide “a general, suitable and efficient” educational opportunity to Arkansas schoolchildren. In 1995, the Arkansas General Assembly seized upon that theme and called for an adequacy study:
(c) The State Board of Education shall devise a process for involving teachers, school administrators, school boards, and parents in the definition of an “adequate” education for Arkansas students.
(d) The State Board shall seek public guidance in defining an adequate education and shall submit proposed legislation defining adequacy to the Joint Interim Committee on Education prior to December 31, 1996.
Act 917 of 1995, § 6(c-d).
Despite this directive from the General Assembly, nothing has been done by the Department of Education, and seven year-s have passed. Judge Kilgore echoed this in his 2001 order:
Pursuant to Act 917 of 1995, and in order that an amount of funding for an education system based on need and not on the amount available but on the amount necessary to provide an adequate educational system, the court concludes an adequacy study is necessary and must be conducted forthwith.
Stated simply, the fact that the Department of Education has refused to prepare an adequacy study is extremely troublesome and frustrating to this court, as it must be to the General Assembly. Indeed, the General Assembly in two 1997 Acts partially addressed what an adequate education in Arkansas would entail:
(c) The General Assembly finds that a suitable and efficient system of public education should:
(4) Assure that:
(A) All students graduating from high school are able to demonstrate a defined minimum level of competence in:
(i) English communications, oral, reading, and writing;
(ii) Mathematical skills; and
(iii) Science and social studies disciplines!.]
Act 1307 of 1997, § 1, codified at Ark. Code Ann. § 6-20-302(c)(4)(A) (Repl. 1999).
(a) Arkansas public school students will achieve competency in the basic core of knowledge and skills.
(1) Students will meet required standards in academic areas of the curriculum that will serve as a basis for students to pursue immediate and lifelong educational and employment opportunities.
(2) Students will achieve competency in language arts (writing, spelling, speaking, listening, and reading), math (computation, measurement, probability and statistics, problem solving, basic algebra, data analysis, and geometry concepts), science (physical and life science knowledge, and scientific problem solv ing), and social studies (history, geography, economics, and civic education).
(b) Arkansas public school students will apply practical knowledge and skills.
(1) Students will meet required academic standards in those areas that will better prepare them for lifelong career opportunities.
(2) Students will achieve competency at the local level in computer science and other technologies, practical economic and consumer skills, and be offered courses in vocational-preparation skills.
(c) Arkansas public school students will demonstrate achievement.
(1) Students will participate in the state assessments in the basic core of knowledge and skills as defined by the State Department of Education in the Arkansas Comprehensive Testing and Assessment Program.
(2) The students’ numerical and percentage scores on the High School Proficiency Examination will be recorded on their transcripts, and the examination will be a part of the local school grading system in a way to be determined by the local school district.
(3) Each local school district shall report to the State Department of Education how it will incorporate the assessment system required by this subsection into the district’s grading system.
Act 1108 of 1997, § 3, codified in slightly different language at Ark. Code Ann. § 6-15-1003(a), (b), (c) (Repl. 1999). In short, the General Assembly is weh on the way to defining adequacy while the Department of Education, from all indications, has been recalcitrant.
Without the benefit of an adequacy standard developed by the Department of Education, both Judge Imber and Judge Kilgore looked to the case of Rose v. Council for Better Education, Inc., supra, for a definition of “efficient” education:
We concur with the trial court that an efficient system of education must have as its goal to provide each and every child with at least the seven following capacities: (i) sufficient oral and written communication skills to enable students to function in a complex and rapidly changing civilization; (ii) sufficient knowledge of economic, social, and political systems to enable the student to make informed choices; (iii) sufficient understanding of governmental processes to enable the student to understand the issues that affect his or her community, state, and nation; (iv) sufficient self-knowledge and knowledge of his or her mental and physical wellness; (v) sufficient grounding in the arts to enable each student to appreciate his or her cultural and historical heritage; (vi) sufficient training or preparation for advanced training in either academic or vocational fields so as to enable each child to choose and pursue life work intelligently; and (vii) sufficient levels of academic or vocational skills to enable public school students to compete favorably with their counterparts in surrounding states, in academics or in the job market.
Rose, 790 S.W.2d at 212. Many of the “Rose standards,” as we will call them, were adopted by our General Assembly with Act 1108 and Act 1307 in 1997, as has already been set forth in this opinion.
In addition to the State’s argument that an adequate education is incapable of definition, it further contends that there is no correlation between enhanced school funding and better student performance. For example, it argues that more money has been spent on education since the DuPree decision in 1983, and student performance has not appreciably improved. The State points to the ACTAPP program for assessing and evaluating student performance in English and mathematical skills as a positive step the State has recently taken. The State also fiercely contends that the Arkansas Constitution does not require pre-school programs such as those, it contends, were mandated by Judge Kilgore.
b. Educational Deficiencies.
What the State does not address are Arkansas’ abysmal rankings in certain key areas respecting education. What follows is a compendium of the trial court’s findings, which the State does not contest:
Arkansas ranks fiftieth among the states in per capita state and local government expenditures for elementary and secondary education.
Arkansas students scored several tenths below the national average in a standardized test (ACT) between 1990 and 1999.
Arkansas ranks lower than the national average for the percentage of adults twenty-five years and older who have graduated from high school.
Arkansas ranks forty-ninth in the country for the percentage of the population age twenty-five or older with a Bachelors degree or higher.
Arkansas is tied for fiftieth in the country in percentage of adults with graduate degrees.
Arkansas’ fourth- and eighth-grade students are below the national average for proficiency in math, reading, science and writing.
On the first ACTAPP test, only forty-four percent of the fourth-grade students tested were proficient in reading and only thirty-four percent of those tested were proficient in math.
Arkansas’ per pupil revenue under the school-funding formula in school year 1996-97 was $4,535, while the national average was $5,923.
Arkansas ranks between forty-eighth and fiftieth among the states in teacher pay.
Results of the State’s own Benchmark testing for eighth-grade students in April 2000 showed that only sixteen percent were proficient or above in math statewide, and in the Little Rock School District only nine percent were proficient or above. Arkansas has no funding for the remediation of individual students and no funding to train teachers for remediation after ACTAPP evaluations.
With respect to Arkansas high school students entering state universities, fifty-eight percent needed remediation in either English or math. For the Rogers High School students entering a university (including some students with 3.0 grade averages), forty-four percent needed remediation in either English or math.
Judge Kilgore concluded in his 2001 order that the “State has a remarkably serious problem with student performance.” We agree.
Arkansas’ entry level for teacher salaries is last when compared to our eight bordering states, and Arkansas spends twenty percent less than the national average for teachers across the board. The entry level salary for Arkansas school districts bordering Memphis, Tennessee, was about $5,695 less than that offered in Memphis school districts, and for more experienced teachers the differential was almost $6,000. A similar disparity exists for beginning salaries between school districts in Texarkana, Arkansas, and Texarkana, Texas. Arkansas school districts pay about $4,000 less than those in Texas.
Serious disparities also exist in teacher salaries among school districts within the State of Arkansas. One example given by the trial court was the science teacher with two masters degrees and forty-one years’ teaching experience receiving a salary of $31,500 in the Lake View School District, while a teacher with comparable degrees and experience received $43,524 in the Fort Smith School District.
Poor school districts with the most ill-prepared students are losing their teachers due to low pay. Both recruitment and retention of teachers are difficult in those districts. The Bentonville School District, which is not impoverished, will lose fifteen percent of its teachers in the next three years due to retirement. Low pay and competition from the private sector present real obstacles to teacher recruitment in that district.
Dr. Raymond Simon, Director of the Department of Education, had this to say about the salary crisis:
Mr. Heller: And I wanted to ask you what else you — you think we should be doing in Arkansas to address students’ above and beyond ACTAPP?
Dr. Simon: I think we’re facing —• I think the most critical thing we need to address now is the issue of teacher’s salaries. ACTAAP, Smart Start, Smart Step, all of that depends primarily on the classroom teacher to function. And we are beginning to see a crisis now in our State of quality teachers, some retiring.
My generation has had all of this they want in many cases, and they’re — they’re retiring.
Mr. Matthews: That’s right. Okay. We’re getting there. Track with me. In order to implement ACTAPP, you’ve got to have good teachers?
Dr. Simon: Yes.
Mr. Matthews: In order to have good teachers, we’ve got to have more —
Dr. Simon: Money.
Mr. Matthews: Money.
Dr. Simon: For teachers’ salaries.
Mr. Matthews: And until we have more money for teachers’ salaries, we jeopardize the efficiency, the suitability, and the quality of the ACTAPP program, which you and others have implemented. Isn’t that true?
Dr. Simon: That’s correct, yes, sir.
In short, the Benchmark testing and the ACTAAP program which represent the paramount initiatives by the State to correct the course of educational deficiencies in Arkansas are dependent on quality teachers. And, according to the Director of the Department, quality teachers is an area where we have a crisis.
Testing, rankings, and teacher salaries do not tell the whole story. According to the uncontested findings of the trial court, in the Lake View School District, which is undeniably a poor school district, ninety-four percent of the students are on free or reduced school lunches. That school district has one uncertified mathematics teacher who teaches all high school mathematics courses. He is paid $10,000 a year as a substitute teacher and works a second job as a school bus driver where he earns $5,000 a year. He has an insufficient number of calculators for his trigonometry class, too few electrical outlets, no compasses and one chalkboard, a computer lacking software and a printer that does not work, an inadequate supply of paper, and a duplicating machine that is overworked. Lake View’s basketball team does not have a com píete set of uniforms, while its band has no uniforms at all. The college remediation rate for Lake View students is 100 percent.
The Holly Grove School District has only a basic curriculum and no advanced courses or programs. The starting salary for its teachers is $21,000. Science lab equipment, computers, the bus fleet, and the heating and air conditioning systems need replacing. The buildings have leaking roofs and restrooms in heed of repair. Because millage increases are difficult to win in the school district, Holly Grove must borrow against next year’s revenues to repair a falling library roof and leaking gas line.
The Barton Elementary School in Phillips County has two bathrooms with four stalls for over one hundred students.
Lee County schools do not have advanced placement courses and suffer also from little or no science lab equipment, school buildings in need of repair, school buses that fail to meet state standards, and only thirty computers for six hundred students. Some buildings have asbestos problems and little or no heating or air conditioning.
These are just a few examples of deficiencies in buildings, equipment, and supplies that plague the State’s school districts. School districts experiencing fast-growing student populations such as Rogers and Bentonvifle in Northwest Arkansas need additional buildings. Buildings in disrepair are rampant in Eastern Arkansas. And qualification for debt-service-funding supplements from the State depends on how much debt can be incurred by the school districts. Poorer districts with deteriorating physical plants are unable to incur much debt.
The Rogers School District has mushroomed by 4,300 students in the last decade. Since 1987, the enrollment in the Bentonville School District has increased 83.57 percent. About $432 of the revenue available per student in Rogers goes to debt. With the influx of the Latino population, an English-as-a-second-language program is a critical need. In 1991, eighty-four students were enrolled in the program. In 2000, there were 2,615 students enrolled. Rogers received $743,000 for the program from the State and spent $1,013,000.
In response to poor student performance, the State instituted academic distress programs in 1995 for school districts not meeting State Standards of Accreditation. See Ark. Code Ann. §§ 6-20-1601 through 6-20-1610 (Repl. 1999). Deficient test scores trigger Phase I, which requires the school district to submit an improvement plan to the Department of Education; then Phase II, where the Department prepares the improvement plan; and finally Phase III, where the Department may mandate consolidation or a take-over of the district. Of the twelve school districts on the academic distress list at the time of the 2001 order, all were classified as poor.
c. Constitutional History.
We return then to our starting point and that is what Article 14, § 1, of the Arkansas Constitution requires of the State for education:
Intelligence and virtue being the safeguards of liberty and the bulwark of a free and good government, the State shall ever maintain a general, suitable and efficient system of free public schools and shall adopt all suitable means to secure to the people the advantages and opportunities of education.
Education has been a constitutional focus and mandate since the founding of our state. The framers of the first Arkansas constitution adopted the following Education Clause in 1836:
Knowledge and learning generally diffused through a community being essential to the preservation of a free government, and diffusing the opportunities and advantages of education through the various parts of the State being highly conducive to this end, it shall be the duty of the General Assembly to provide by law for the improvement of such lands as are, or hereafter may be, granted by the United States to this State for the use of schools, and to apply any funds which may be raised from such lands, or from any other source, to the accomplishment of the object for which they are, or may be, intended. The General Assembly shall from time to time pass such laws as shall be calculated to encourage intellectual, scientific and agricultural improvement by allowing rewards and immunities for the promotion and improvement of arts, science, commerce, manufactures and natural history, and countenance and encourage the principles of humanity, industry and morality.
Ark. Const, of 1836, art. VIL, reprinted in Ark. Code Ann. Constitutions 497 (1987). The 1836 Education Article embodied two fundamental ideas: the inherent value of education in creating a virtuous citizen and the crucial role of an educated citizenry in a functioning democracy.
The Secessionist Constitution of 1861 contained a truncated Education Article:
The General Assembly shall apply any and all funds which may be raised for the purpose of education, to the accomplishment of the object for which they may be raised; and from time to time, pass such laws as shall be calculated to encourage intellectual, scientific and agricultural improvement, by allowing rewards and immunities for the promotion and improvement of art, science, commerce, manufactures, and natural history; and countenance and encourage the principles of humanity, industry and morality.
Ark. Const, of 1861, art. VII, § 1, reprinted in Ark. Code Ann. Constitutions 520 (1987).
The 1864 Constitution reverted to the language used in the 1836 Constitution. See Ark. Const, of 1864, art. VIII, § 1, reprinted in Ark. Code Ann. Constitutions, at 543. The Reconstruction Constitution in 1868 contained an Education Article that mandated a common school system, provided for the distribution of school funds, created a public officer responsible for the school system, and detailed how a common fund for the school system should be created and financed. The relevant language read:
A general diffusion of knowledge and intelligence among all classes being essential to the preservation of the rights and liberties of the people, the General Assembly shall establish and maintain a system of free schools, for the gratuitous instruction of all persons in this State between the ages of five and twenty-one years, and the funds appropriated for the support of common schools shall be distributed to the several counties in proportion to the number of children and youths therein ....
Ark. Const, of 1868, art. IX, § 1, reprinted in Ark. Code Ann. Constitutions, at 567.
Following reconstruction, the 1874 Constitution contained the following clause:
Intelligence and virtue being the safeguards of liberty and the bulwark of a free and good government, the State shall ever maintain a general, suitable, and efficient system of free schools whereby all persons in the State between the ages of six and twenty-one years may receive gratuitous instruction.
Ark. Const, of 1874, art. 14, § 1. After Amendment 53 was adopted in 1968, we have the Education Article as we know it today.
That education has been of paramount concern to the citizens of this state since the state’s inception is beyond dispute. It is safe to say that no program of state government takes precedence over it. In 1983, this court emphasized that “[ejducation becomes the essential prerequisite that allows our citizens to be able to appreciate, claim and effectively realize their established rights.” DuPree v. Alma Sch. Dist. No. 30, 219 Ark. at 346, 651 S.W.2d at 93. We further said in DuPree that “we believe the right to equal educational opportunity is basic to our society.” Id. However, we shied away in DuPree from proclaiming education to be a fundamental right of each school child under the Education Article of our constitution. Indeed, the DuPree decision primarily dealt with the disparity in equal educational opportunity caused by the school-funding system and not with whether the system was inadequate under the Education Article.
d. Constitutional Duty
Our constitutional history underscores the point that education has always been of supreme importance to the people of this state. The General Assembly recognized this in 1997, when it acknowledged that the state is constitutionally required to provide a general, suitable, and efficient system of free public schools, and that the Arkansas courts have held that obligation to be a “paramount duty.” See Act 1307 of 1997, § 1 (d)(l-2), codified at Ark. Code Ann. § 6-20-302(d)(l-2) (Repl. 1999). There is no ques tion in this court’s mind that the requirement of a general, suitable, and efficient system of free public schools places on the State an absolute duty to provide the school children of Arkansas with an adequate education. The next question, however, is whether this language also implies a fundamental right vested in the people of this state so as to require strict scrutiny of all legislative actions regarding it.
In resolving this question, we look first to the Arkansas Constitution. Article 2 of the Constitution, entided Declaration of Rights, deals with the personal rights vested in the people of this state, including equality, free speech and free press, the right to trial by jury, the right to due process and bail, the right to be protected against self-incrimination and double jeopardy, the right to be protected against unreasonable searches and seizures, and the right to religious freedom. The Education Article is found in a separate article, Article 14, and it is couched in terms of the state’s duty and not in terms of a personal right vested in the people. This court has said repeatedly that in construing the language of our constitution, we must give the language its plain, obvious, and common meaning. See, e.g., Maddox v. City of Fort Smith, 346 Ark. 209, 56 S.W.3d 209 (2001); Daniel v. Jones, 332 Ark. 489, 966 S.W.2d 226 (1998). Nonetheless, Lake View and the intervening school districts urge that a fundamental right can be implied from the language of Article 14. See, e.g., Claremont Sch. Dist. v. Governor, 142 N.H. 462, 703 A.2d 1353 (1997) (constitution’s specific charge to legislature to provide education is sufficient to afford fundamental-right status to beneficiaries of that duty).
Other states in the last decade have wrestled with the issue of whether education is a fundamental right under the Education Article of their state constitutions, thus necessitating strict scrutiny of all legislative actions affecting education. Of course, the education language in each state constitution varies. Some states that have found their school-funding systems to be inadequate under their respective education articles simply have not addressed the issue of whether an adequate education is a fundamental right. See, e.g., DeRolph v. State, 78 Ohio St. 3d 193, 677 N.E.2d 733 (1997); McDuffy v. Secretary of the Executive Office of Educ., 415 Mass. 545, 615 N.E.2d 516 (1993); Edgewood Indep. Sch. Dist. v. Kirby, 804 S.W.2d 491 (Tex. 1991).
This reluctance to discuss the matter, no doubt, is due in large part to the difficulty surrounding this issue. The Arizona Supreme Court commented directly on the confusion involved in the fundamental-right question. It noted that in one of its earlier decisions in 1973, it proclaimed that education was a fundamental right, but in the same opinion, upheld the existing school financing scheme, using the rational basis test rather than examining the system under strict scrutiny. See Roosevelt Elementary Sch. Dist. No. 66 v. Bishop, 179 Ariz. 233, 877 P.2d 806 (1994) (questioning Shofstall v. Hollins, 110 Ariz. 88, 515 P.2d 590 (1973)). The Arizona Supreme Court determined, however, that it need not resolve this “conundrum,” because the Arizona Constitution placed a specific duty and responsibility on the Legislature to establish and maintain the public school system. Id. The issue was whether the present financing system satisfied the constitutional mandate of a general and uniform school system and not what standard should be applied in judicial review.
The Tennessee Supreme Court found its state school-funding system unconstitutional under the equal protection provisions of its constitution and, thus, refrained from deciding whether an adequate education was a fundamental right under its Education Article. See Tennessee Small Sch. Sys. v. McWherter, 851 S.W.2d 139 (Tenn. 1993). Similarly, the Vermont Supreme Court held that an adequate education was essential under its state constitution, but it did not proclaim it to be a fundamental right. See Brigham v. State, 166 Vt. 246, 692 A.2d 384 (1997). The court proceeded, however, to hold that its system “violate [d] the right to equal educational opportunities” under both its Education Article and equal protection clause, and that there was no rational basis for the gross inequities in the educational opportunities offered to school children in different school districts in that state. Id. at 268, 692 A.2d at 397.
On the other hand, the New Hampshire Supreme Court has held that an adequate education is a fundamental right in that state:
We hold that in this State a constitutionally adequate public education is a fundamental right. In so doing we note that “[t]he right to an adequate education mandated by the constitution is not based on the exclusive needs of a particular individual, but rather is a right held by the public to enforce the State’s duty.” Claremont I, 138 N.H. at 192, 635 A.2d at 1381.
We emphasize that the fundamental right at issue is the right to a State funded constitutionally adequate public education. It is not the right to horizontal resource replication from school to school and district to district. The substance of the right may be achieved in different schools possessing, for example, differing library resources, teacher-student ratios, computer software, as well as the myriad tools and techniques that may be employed by those in on-site control of the State’s public elementary and secondary school systems. But when an individual school or school district offers something less than educational adequacy, the governmental action or lack of action that is the root cause of the disparity will be examined by a standard of strict judicial scrutiny.
Claremont Sch. Dist., 142 N.H. at 473-74, 703 A.2d at 1359. The New Hampshire court then viewed the Rose standards “as benchmarks of a constitutionally adequate public education.” Id. at 475, 703 A.2d at 1359. See also Rose v. Council for Better Educ., Inc., supra (holding in 1998 that an adequate education was a fundamental right under its Education Article). Similarly, the Wyoming Supreme Court affirmed an earlier decision in State v. Campbell County Sch. Dist., 19 P.3d 518 (2001), and reiterated that “[b]ecause education is a fundamental right and our citizens are entitled to equal protection under our state constitution, all aspects of the school finance system are subject to strict scrutiny, and statutes establishing the school financing system are not entitled to any presumption of validity.” 19 P.3d at 535.
Turning to our authority in Arkansas, the seminal school-funding case, DuPree v. Alma Sch. Dist. No. 30, supra, did not measure the school-funding system against the Education Article but rather did so under the equality provisions of the state constitution. In doing so, this court stated that it was not necessary to decide whether education was a fundamental right because “we can find no constitutional basis for the present system, as it has no rational bearing on the educational needs of the district.” DuPree, 279 Ark. at 346, 651 S.W.2d at 93. In other words, because the system failed for lack of a reasonable and legitimate governmental purpose to support it, it was not necessary to use a heightened standard of review like strict scrutiny to examine the system’s constitutionality. Judge Imber used the same reasoning when she ruled that the current funding system was unconstitutional in her 1994 order. She found it unnecessary to decide whether an adequate education was a fundamental right for purposes of adequacy and inequity, since the school-funding system faded to pass constitutional muster even using a rational-basis standard.
In his 2001 order, Judge Kilgore did not specifically state that an adequate education was.a fundamental right under the Education Article. However, he did rule that he would apply a strict-scrutiny analysis to the state’s legislation to decide whether there was constitutional compliance. Strict scrutiny usually goes hand-in-hand with a claim that a fundamental right has been impaired. See, e.g., Jegley v. Picado, 349 Ark. 600; 80 S.W.3d 332 (2002) (the right to privacy for private sex between consenting adults was deemed a fundamental right where strict scrutiny would be the standard regarding any impairment). Judge Kilgore also announced at a pretrial hearing “that language in the Constitution is consistent with and supports the proposition that the State of Arkansas has a compelling interest in seeing that our children get adequate educations, or general, suitable and efficient education. . . . That being the case, the standard that the State will be held to in showing that we do have an adequate system of education will be strict scrutiny.”
With the exceptions of New Hampshire, see Claremont Sch. Dist. v. Governor, supra, and Kentucky, see Rose v. Council for Better Educ., Inc., supra, most states in recent years have avoided proclaiming that an adequate education is a fundamental right because that carries with it the obligation of the courts to examine and scrutinize all legislation respecting education strictly. We must admit to some apprehension about using a strict-scrutiny standard, because it has never been this court’s constitutional function to micromanage the public schools of this state or even to retain jurisdiction over the public school system until, in our judgment, an adequacy standard has been achieved.
At the same time, this court is troubled by four things: (1) the Department of Education has not conducted an adequacy study; (2) despite this court’s holding in DuPree v. Alma Sch. Dist. No. 30, supra, that equal opportunity is the touchstone for a constitutional system and not merely equalized revenues, the State has only sought to make revenues equal; (3) despite Judge Imber’s 1994 order to the same effect, neither the Executive branch nor the General Assembly have taken action to correct the imbalance in ultimate expenditures; and (4) the State, in the budgeting process, continues to treat education without the priority and the preference that the constitution demands. Rather, the State has continued to fund the schools in the same manner, although admittedly taking more steps to equalize revenues. This being said, perhaps the recalcitrance of the State to reform the school-funding system is reason enough to adopt the heightened standard of strict scrutiny.
Nevertheless, because we conclude that the clear language of Article 14 imposes upon the State an absolute constitutional duty to educate our children, we conclude that it is unnecessary to reach the issue of whether a fundamental right is also implied. Many states, as we have already discussed, appear to get lost in a morass of legal analysis when discussing the issue of fundamental right and the level of judicial scrutiny. This court is convinced that much of the debate over whether education is a fundamental right is unnecessary. The critical point is that the State has an absolute duty under our constitution to provide an adequate education to each school child. Like the Vermont and Arizona Supreme Courts, we are persuaded that that duty on the part of the State is the essential focal point of our Education Article and that performance of that duty is an absolute constitutional requirement. See Brigham v. State, supra; Roosevelt Elementary Sch. Dist. No. 66 v. Bishop, supra. When the State fails in that duty, which we hold today is the case, our entire system of public education is placed in legal jeopardy. Should the State continue to fail in the performance of its duty, judicial scrutiny in subsequent litigation will, no doubt, be as exact as it has been in the case before us.
For the foregoing reasons, we conclude that the State has not fulfilled its constitutional duty to provide the children of this state with a general, suitable, and efficient school-funding system. Accordingly, we hold that the current school-funding system violates the Education Article of the Arkansas Constitution, and we affirm the trial court on this point.
VI. Equality
The State next argues that the trial court erred in finding that the school-funding system was inequitable. On this point, the State contends that there are two types of equity: (1) horizontal, or dollar, equity where the State equalizes per-student revenues available across the state; and (2) vertical equity where efforts are made by the State to meet the special needs of certain students through categorical funding, such as the English-as-a-second language program, special education, gifted-and-talented programs, and vocational-technical training. According to the State, it is virtually impossible to equalize all revenues when special needs come into play and when certain value judgments must be made.
The State further maintains that it has met the Federal Range Ratio test and the GINI Index of Inequality for equal revenues available per student. Equal revenues per student is the correct test for equality, according to the State, and, thus, the trial court erred in concluding that the test for equality is the actual money spent per student rather than state money made available to the school districts. Finally, the State argues that any disparity in the wealth of the school districts is offset by two legitimate governmental purposes in funding the schools the way it does: (1) the necessity to fund other state programs, and (2) local control of public schools by the school districts.
There is no doubt in our minds that there is considerable overlap between the issue of whether a school-funding system is inadequate and whether it is inequitable. Deficiencies in certain public schools in certain school districts can sustain a finding of inadequacy but also, when compared to other schools in other districts, a finding of inequality. Bearing that in mind, we first address whether state revenues paid to the school districts under the school-funding formula is the test for deciding equality dr whether the test is actual expenditures spent on the students. We conclude it is the latter and that the trial court was correct in so determining. The Arkansas Constitution has the following provisions guaranteeing equal treatment to its citizenry under the law:
§ 2. Freedom and independence.
All men are created equally free and independent, and have certain inherent and inalienable rights, amongst which are those of enjoying and defending life and liberty; of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness. To secure these rights governments are instituted among men, deriving their just powers from the consent of the governed.
§ 3. Equality before the law.
The equality of all persons before the law is recognized, and shall ever remain inviolate; nor shall any citizen ever be deprived of any right, privilege or immunity, nor exempted from any burden or duty, on account of race, color or previous condition.
§ 18. Privileges and immunities — Equality.
The General Assembly shall not grant to any citizen or class of citizens privileges or immunities which upon the same terms shall not equally belong to all citizens.
Ark. Const, art. 2, §§ 2, 3, 18.
The answers to many of the State’s arguments can be found in our decision of DuPree v. Alma Sch. Dist. No. 30, supra, which, again, was handed down almost twenty years ago. In DuPree, we found that the school-funding system then in existence violated the three equality provisions set out above. We first referred to “the undisputed evidence that there are sharp disparities among school districts in the expenditures per pupil and the education opportunities available as reflected by staff, class size, curriculum, remedial services, facilities, materials and equipment.” DuPree, 279 Ark. at 344, 651 S.W.2d at 92 (emphasis added). With respect to whether local control by the school districts was a legitimate government interest or rational basis for disparities in educational opportunity among the school districts, we said: “[W]e can find no constitutional basis for the present system, as it has no rational bearing on the educational needs of the district.” Id. at 346, 651 S.W.2d at 93. In holding that the system was unconstitutional, we said: “We come to this conclusion in part because we believe the right to equal educational opportunity is basic to our society.” Id., 651 S.W.2d at 93. We added: “For some districts to supply the barest necessities and others to have programs generously endowed does not meet the requirements of the constitution. Bare and minimal sufficiency does not translate into equal educational opportunity.” Id. at 347, 651 S.W.2d at 93. We concluded: “If local government fails, the state government must compel it to act, and if the local government cannot carry the burden, the state must itself meet its continuing obligation.” Id. at 349, 651 S.W.2d at 95 (quoting Robinson v. Cahill, 303 A.2d 273, 275 (N.J. 1973)).
It is clear to this court that in DuPree, we concentrated on expenditures made per pupil and whether that resulted in equal educational opportunity as the touchstone for constitutionality, not on whether the revenues doled out by the State to the school districts were equal. We were clearly interested in DuPree, as we are here today, on what money is actually being spent on the students. That is the measuring rod for equality. Both Judge Imber in 1994 and Judge Kilgore in 2001 concluded that that was the case. Equalizing revenues simply does not resolve the problem of gross disparities in per-student spending among the school districts. It provides an educational floor of money made available to the school districts but in no way corrects the inherent disparity between a wealthy school district that can easily raise additional school funds for educational enhancement by passing millage increases far in excess of the 25 mill uniform rate and poorer school districts that are only offering, as we said in DuPree, the “barest necessities.” 279 Ark. at 347, 651 S.W.2d at 93. We agree that the focus for deciding equality must be on the actual expenditures. We affirm Judge Kilgore on this point.
Looking then to the end result of expenditures actually spent on school children in different school districts, we quickly discern inequality in educational opportunities. The deficiencies in Lake View and Holly Grove have already been noted. In both those districts, the curriculum offered is barebones. Contrast the curriculum in those school districts with the rich curriculum offered in the Fort Smith School District, where advanced courses are offered and where specialty courses such as German, fashion merchandising, and marketing are available. The inequality in educational opportunity is self-evident.
The same holds true for buildings and equipment. Whether a school district has rainproof buildings, sufficient bathrooms, computers for its students, and laboratory equipment that functions is all a matter of money. Certain schools in Fort Smith, for example, do not suffer from such deficiencies. Other schools in the Delta and in Northwest Arkansas where the student population is exploding are experiencing dire facility and equipment needs.
Again, we turn to Dr. Simon’s assessment of the situation:
Mr. Lewellen: Is it your — is it your opinion that a child who lives in a poor district because of the property wealth values are low should be in a facility which is sub-standard to the facilities that are located in property wealthy districts?
Dr. Simon: I don’t think that’s fair.
Mr. Lewellen: Do you agree with me that that situation existed in 1994 in the State of Arkansas?
Dr. Simon: Yes.
Mr. Lewellen: And do you agree with me that that situation exists today in 2000 in the State of Arkansas?
Dr. Simon: Yes.
Mr. Lewellen: And do you agree that based on that fairness that the State of Arkansas still has not passed a formula where it is responsible for constructing a cure for those situations in the poor districts?
Dr. Simon: Outside the parameters that have been set.
Mr. Lewellen: Do you agree with me, they have not established a system to correct the problem?
Dr. Simon: Not to the — not to the extent you’re talking about, that’s correct.
Mr. Lewellen: Okay. Now, is it your opinion that all children have — well, you’ve said that you believe facilities has something to do with the education of a child, right?
Dr. Simon: Yes.
Mr. Lewellen: And I think you would agree that you think materials and other resources has something to do with the ability of a child to learn.
Dr. Simon: Yes.
Mr. Lewellen: Okay. Then that being the case, do you think that all children in this State have equal physical facilities?
Dr. Simon: No.
Mr. Lewellen: Do you think all children in this State have equal materials and resources in every district?
Dr. Simon: No.
The discrepancies in teacher salaries among Arkansas school districts have already been noted in this opinion. Well-paid and well-motivated teachers are what make the education engine run. Dr. Simon candidly admitted this in his testimony and also testified:
Mr. Lewellen: But you’re not paying your teachers equally across the State?
Dr. Simon: No.
In the face of this testimony, the State makes the implausible argument that more money spent on education does not correlate to better student performance. This position is contrary to Judge Imber’s finding in her 1994 order and to the Tennessee Supreme Court: “[T]here is a ‘direct correlation between dollars expended and the quality of education a student receives.”’ McWherter, 851 S.W.2d at 141. The State’s argument is farfetched in this court’s opinion. We are convinced that motivated teachers, sufficient equipment to supplement instruction, and learning in facilities that are not crumbling or overcrowded, all combine to enhance educational performance. Certainly, Dr. Simon’s testimony confirms that. All of that takes money.
The State’s retort on the variations in revenue among school districts is that Amendment 74 specifically contemplates variations and authorizes them. It is true that Amendment 74 states: “The primary reason for allowing such variations is to allow school districts, to the extent permissible, to raise additional funds to enhance the educational system within the school district.” However, Amendment 74 does not authorize a system of school funding that fails to close the gap between wealthy school districts with premier educational programs and poor school districts on the lower end of the economic spectrum, which are mired in poverty and unable to provide a system of education much above the most elementary kind.
The initial inquiry in our equality analysis is whether school districts are impermissibly classified on the basis of wealth so that discrimination exists. We hold that a classification between poor and rich school districts does exist and that the State, with its school-funding formula, has fostered this discrimination based on wealth. Having identified the classification created by the school-funding formula, the next issue is what level of judicial scrutiny will be employed in this case. Two levels are offered by the parties. The heightened level is strict scrutiny under which the State would have to show, first, that it has a compelling interest to support disparate treatment in funding between school districts and, secondly, that the school-funding system is narrowly tailored to serve that interest. See, e.g., Shaw v. Hunt, 517 U.S. 899 (1996); Pridgeon v. State, 266 Ark. 651, 587 S.W.2d 225 (1979) (“Only when a classification is based on a suspect category . . . will strict scrutiny, a more demanding standard of review, be applied.”). The less severe level is rational-basis review, where the question is whether there is merely a legitimate governmental purpose behind the disparate treatment in school funding between school districts, and whether the current school-funding system bears a rational relationship to that purpose. See, e.g., San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973); Jegley v. Picado, supra.
Strict-scrutiny review is unwarranted in this case. We have never considered school districts to be a suspect class for purposes of an equal-protection analysis. See DuPree v. Alma Sch. Dist. No. 30, supra. See also San Antonio Indep. Sch. Dist. v. Rodriguez, supra. We hold, once again, that requiring the State to show a compelling interest to support the classification is unnecessary in this case, because the State fails to justify the classification even under the more modest rational-basis standard. See DuPree v. Alma Sch. Dist. No. 30, supra.
We turn then to the State’s contention that even though disparities in educational opportunities may exist due to the property wealth of the individual districts, there are legitimate government purposes or rational bases for this. Those purposes, according to the State, are local control and other state programs. We rejected the argument of local control in DuPree in no uncertain terms and stated that such reasoning was illusory because deference to local control has nothing to do with .whether educational opportunities are equal across the state. It is the General Assembly’s constitutional duty, not that of the school districts, to provide equal educational opportunity to every child in this state. Furthermore, the State’s claim that the General Assembly must fund a variety of state programs in addition to education and that this is reason enough for an inferior education system hardly qualifies as a legitimate reason.
It has long been the State’s position that its duty is fulfilled under the state constitution if it pays school districts an equal amount in revenues on a per-student basis and then defers to local control as to how that money is spent. Nothing could be farther from the truth. It is the States’s responsibility to provide an equal education to its school children and, as we said in DuPree, “[i]f local government fails, the state government must compel it to act.” 279 Ark. at 349, 651 S.W.2d at 95 (quoting Robinson v. Cahill, supra). Deference to local control is not an option for the State when inequality prevails, and deference has not been an option since the DuPree decision.
It is the State’s responsibility, first and foremost, to develop forthwith what constitutes an adequate education in Arkansas. It is, next, the State’s responsibility to assess, evaluate, and monitor, not only the lower elementary grades for English and math proficiency, but the entire spectrum of public education across the state to determine whether equal educational opportunity for an adequate education is being substantially afforded to Arkansas’ school children. It is, finally, the State’s responsibility to know how state revenues are being spent and whether true equality in opportunity is being achieved. Equality of educational opportunity must include as basic components substantially equal curricula, substantially equal facilities, and substantially equal equipment for obtaining an adequate education. The key to all this, to repeat, is to determine what comprises an adequate education in Arkansas. The State has failed in each of these responsibilities.
We hold that the trial court did not err in concluding that the current school-funding system violates the equal-protection sections of the Arkansas Constitution in that equal educational opportunity is not being afforded to the school children of this state and that there is no legitimate government purpose warranting the discrepancies in curriculum, facilities, equipment, and teacher pay among the school districts. It is clear to this court that, as we indicated in DuPree, whether a school child has equal educational opportunities is largely an accident of residence. We affirm the trial court on this point.
VII. Early Childhood Education
The State argues that while it may agree that as a matter of public policy pre-kindergarten programs may be one way to increase student achievement, it does not agree that such programs are mandated by the Arkansas Constitution. The State contends that Article 14, § 1, contemplates that public funds may be expended for education beyond grades one through twelve, but it does not mandate it. Rather, the State maintains, the constitution’s language is permissive and gives authority not only to the General Assembly but also to local school districts to implement pre-kindergarten programs as they see fit. The State asserts that determinations as to what types of programs are best to promote student achievement should be made by the entities entrusted to make them by the state constitution, and those entities are the General Assembly and the public school districts, not the courts.
Lake View responds that this court should apply constitutional remedies to the case at hand. It further asserts that the trial court’s ruling simply states that under the provisions of Arkansas Constitution Article 2, §§ 2, 3, and 18, the State must provide equal access to pre-school education, if the State is already either directly or indirectly financing some school districts that are providing early childhood education.
The Little Rock, Rogers, and Bentonville Intervenors also respond that the State’s arguments might have some merit but for the uncontroverted testimony that the State cannot provide a constitutionally adequate education for students age six and older unless it establishes a program of pre-kindergarten education. The Intervenors’ position, in a nutshell, is that if a child starts out behind due to no pre-school education, that child never makes up the lost ground. The Intervenors concede that Article 14 on its face does not mandate public education for students under che age of six. The Intervenors urge, however, that the State is required to “adopt all suitable means to secure to the people the advantages and opportunities of educationf,]” under Article 14, and early-childhood education is clearly a suitable means. As a final point, the Intervenors emphasize that there was no evidence presented at trial to rebut the testimony of educators and experts that early-childhood education is a necessary component of an education system which reasonably expects to enable significant numbers of students to perform at grade level. It is also the most efficient way for the State to fulfill that expectation, according to the Intervenors.
The State’s argument, boiled down to its essence, is that the plain language of Article 14, § 1, does not mandate the chancery court’s order of State-provided, early-childhood education. We agree. Section 1 reads in pertinent part that the General Assembly and public school districts “may spend public funds for the education of persons over twenty-one (21) years of age and under six (6) years of age, as may be provided by law, and no other interpretation shall be given to it.”
In its order, til^e trial court found:
7. Three facts were uncontroverted at trial: 1) A substantial number of our children are entering kindergarten and first grade significantly behind their peers; 2) Those children that enter the first grades needing remediation will have a difficult time performing at grade level by the third grade; and 3) If a student cannot perform at grade level, especially in reading, by the third grade, then he is unlikely to ever do so. The only possible conclusion is that in order to provide our children with an adequate education as required by the Constitution and ACTAPP, the State must forthwith provide programs for those children of preschool age that will allow them to compete academically with their peers. The urgency of this need equals that of the deficiency in teacher salaries.
Later in its opinion, the trial court wrote that forming remedies was not the role of the courts, and courts should not proclaim remedies unless all else fails. The trial court concluded that “for now” these matters are “left to the legislature.”
But aside from the fact that Article 14 does not require early childhood education and leaves that matter to the General Assembly, the trial court could not order the implementation of pre-school programs in any event. That is a public-policy issue for the General Assembly to explore and resolve. It is elementary that the powers of our state government are divided into three separate branches of government. See Ark. Const, art. 4, § 1. The state constitution further provides that one branch of government shall not exercise the power of another. See Ark. Const, art. 4, § 2.
This court has said that the legislature can neither be coerced nor controlled by judicial power. See Wells v. Purcell, 267 Ark. 456, 592 S.W.2d 100 (1979). In Wells, we commented on the remedies being left to the legislature and not to the courts:
The legislature is responsible to the people alone, not to the courts, for its disregard of, or failure to perform, a duty clearly enjoined upon it by the constitution, and the remedy is with the people, by electing other servants, and not through the courts.
Wells v. Purcell, 267 Ark. at 462, 592 S.W.2d at 104 (emphasis added). We then said:
It must always be remembered that the state’s constitution is neither an enabling act nor a grant of enumerated powers, and the legislature may rightfully exercise the power of the people, subject only to restrictions and limitations fixed by the constitutions of the United States and this state. Under our system of government the legislature represents the people and is the reservoir of all power not relinquished to the federal government or prohibited by the state constitution.
Wells, 267 Ark. at 464, 592 S.W.2d at 105 (internal citations omitted).
While it is uncertain whether the trial court, in its order, was underscoring the need for pre-school education or ordering its implementation, we hold that the trial court had no power to do the latter. Nor do we agree with the Intervenors that the courts of this state can mandate pre-school education as an essential component of an adequate education. That, again, is for the General Assembly and the school districts to decide. Article 14 contemplates that very thing when it refers to funding pre-sixyear-old programs, as provided “by law.”
VIII. Lake View’s Arguments
We turn next to the various arguments raised by Lake View in its appeal.
a. 1994 Order As Law of the Case
Lake View first claims that law of the case, res judicata, laches, estoppel, and Ark. R. Civ. P. 60 should have been applied by the trial court at the compliance trial. Lake View, however, fails to discuss or develop the latter four doctrines in its brief on appeal. It is incumbent on an appellant to develop issues for purposes of appeal, as we will not consider assignments of error that are unsupported by convincing legal authority or argument. See Porter v. Harshfield, 329 Ark. 130, 948 S.W.2d 83 (1997). Accordingly, this court will only address the point raised regarding law of the case.
Last term, this court discussed the doctrine of law of the case:
The venerable doctrine of law of the case prohibits a court from reconsidering issues of law and fact that have already been decided on appeal. The doctrine serves to effectuate efficiency and finality in the judicial process. Frazier v. Fortenberry, 5 Ark. 200 (1843); see also, 5 Am. Jur. 2d Appellate Review § 605 (1995). We have said the following with regard to the law-of-the-case doctrine:
The doctrine provides that a decision of an appellate court establishes the law of the case for the trial upon remand and for the appellate court itself upon subsequent review. Kemp v. State, 335 Ark. 139, 983 S.W.2d 383 (1998). On the second appeal, the decision of the first appeal becomes the law of the case, and is conclusive of every question of law or fact decided in the former appeal, and also of those which might have been, but were not, presented. Griffin v. First Nat’l Bank, 318 Ark. 848, 888 S.W.2d 306 (1994).
Clemmons v. Office of Child Support Enforcement, 345 Ark. 330, 346, 47 S.W. 3D 227, 237 (2001).
Cadillac Cowboy, Inc. v. Jackson, 347 Ark. 963, 970, 69 S.W.3d 383, 388 (2002). In Jackson, we made it clear that the doctrine governs issues of law and fact concluded in the first appeal. We have further held that the doctrine is “conclusive only where the facts on the second appeal are substantially the same as those involved in the prior appeal.” Wilson v. Wilson, 301 Ark. 80, 82, 781 S.W.2d 487, 488 (1989). Thus, it does not apply if there is a material change in the facts. See id.
Lake View appears to be contending that the trial court in 2001 was bound by the 1994 order as law of the case. We disagree. The 1994 order was not appealed, but, even more importantly, there has been a material change in the school-funding landscape between the time of the 1994 order and the trial court’s 2001 order. We have already discussed the 1995 and 1997 acts as well as Amendment 74, which was adopted by vote of the people in 1996. The issue at the compliance trial and before this court on appeal is whether the State is now in compliance with the state constitution by virtue of what it has done since 1994. The 1994 order, while instructive on certain points, was simply not binding on the trial court in 2001. We affirm the trial court on this point.
b. Desegregation Funds
Lake View next contests the failure of the trial court to include the desegregation money provided to the Pulaski County School Districts for purposes of the Federal Range Ratio to decide disparities in funding among the school districts. On this point, Judge Imber in her 1994 order included the desegregation funds under the formula, while Judge Kilgore excluded them in his 2001 order. We agree with Judge Kilgore that the money should not be included.
In making his decision, Judge Kilgore cited Magnolia Sch. Dist. No. 14 v. Arkansas State Bd. of Educ., 303 Ark. 666, 799 S.W.2d 791 (1990). The State, in addition, cites this court to a later Eighth Circuit Court of Appeals opinion, Little Rock Sch. Dist. v. Pulaski County Special School Dist., 83 F.3d 1013 (8th Cir. 1996). We believe that the Eighth Circuit case supports the trial court’s decision.
In the Little Rock Sch. Dist. case, the Eighth Circuit discussed the fact that the state desegregation funds were “in addition to” existing state aid:
The theme of the [Little Rock Schools Desegregation] Settlement Agreement was that the Pulaski County districts would receive the desegregation payments included in the agreement in addition to other state aid that they would have received. The language we previously cited expresses that theme, as does the statement that “[t]he funds paid by the State under this agreement are not intended to supplant any existing or future funding which is ordinarily the responsibility of the State of Arkansas.” [Settlement Agreement] § II, paragraph E.
83 F.3d at 1019 (emphasis in original). According to this description, the state desegregation funds were separate and apart from normal state aid to education.
We agree that the desegregation funds do not constitute “state aid.” Under federal regulations, “state aid” is defined as “any contribution, no repayment for which is expected, which is made by a State to or on behalf of local educational agencies within the State for current expenditures in the provision of free public education[.]” 34 C.F.R. § 222.61(d)(1) (1994).
We agree with the trial court that the desegregation money was not “state aid” for current expenditures and should not form part of state funds for purposes of the Federal .Range Ratio test. Judge Imber’s conclusion to the contrary in her 1994 order was not law of the case, as already decided in this opinion. Lake View has simply failed to convince this court that Judge Kilgore erred in his legal conclusion. As a result, we affirm the trial court on this point.
c. Weighted Average Daily Membership
Lake View also advances the claim that Judge Kilgore erred in not reverting to the 1994 school-funding formula, which used weighted average daily membership as opposed to categorical grants and aid. Again, Lake View posits that Judge Imber’s 1994 order is law of the case, and her use of weighted average daily membership in the funding formula must be followed.
We disagree that weighting average daily membership is still a viable part of the school-funding formula. In 1995, the General Assembly changed the formula and substituted categorical grants and aid for the previous system where fictitious students were added to average daily school membership as a means of paying for the special needs of that school district. See Act 1194 of 1995.
The new school-funding formula is what Judge Kilgore measured against constitutional mandates. It would make no sense for him to determine compliance by examining the constitutionality of a formula that had been repealed by the General Assembly. We have previously held in this opinion that the 1994 order is not law of the case. Lake View’s argument has no merit.
d. Excess Debt Millages
Lake View urges that the trial court erred in upholding Act 1300 of 1997, codified at Ark. Code Ann. § 26-80-204(18) (Supp. 2001), which authorized school districts to subtract excess debt millages against the uniform tax of 25 mills owed to the State under Amendment 74.
Lake View’s point appears to have merit. Amendment 74 provides in pertinent part:
(b)(1) There is established a uniform rate of ad valorem property tax of twenty-five (25) mills to be levied on the assessed value of all taxable real, personal, and utility property in the state to be used solely for maintenance and operation of the schools.
(2) Except as provided in this subsection the uniform rate of tax shall not be an additional levy for maintenance and operation of the schools but shall replace a portion of the existing rate of tax levied by each school district available for maintenance and operation of schools in the school district. The rate of tax available for maintenance and operation levied by each school district on the effective date of this amendment shall be reduced to reflect the levy of the uniform rate of tax. If the rate of tax available for maintenance and operation levied by a school district on the effective date of this amendment exceeds the uniform rate of tax, the excess rate of tax shall continue to be levied by the school district until changed as provided in subsection (c)(1). If the rate of tax available for maintenance and operation levied by a school district on the effective date of this amendment is less than the uniform rate of tax, the uniform rate of tax shall nevertheless be levied in the district.
Ark. Const, amend. 74 § (b)(l-2) (emphasis added).
What the General Assembly did by § 26-80-204(18) was change what comprises the millage requirement.. Under Amendment 74, the uniform millage rate generates money solely for the maintenance and operation of the schools. Section 26-80-204(18), however, adds a new category, excess debt service millage, to meet each school district’s obligation. Subsection (18) reads:
(18) “Uniform rate of tax” means a uniform rate of ad valorem property tax of twenty-five (25) mills to be levied on the assessed value of all taxable real, personal, and utility property in the state to be used solely for maintenance and operation of the schools. In calculating the uniform rate of tax imposed by Arkansas Constitution, Article 14, § 3, as amended by Arkansas Constitution, Amendments 11, 40, and 74, the following categories of millage may be utilized to meet the minimum millage requirement:
(A) The local school district’s maintenance and operation millage;
(B) The dedicated maintenance and operation millage;
(C) Excess debt service millage; and
(D) The millage derived from the ratio of the debt service funding supplements divided by the total assessment.
Ark. Code Ann. § 26-80-204(18) (Supp. 2001) (emphasis added).
Crediting excess debt service millage against the 25 mill obligation is not contemplated by Amendment 74. Nor can we accept the trial court’s explanation for finding § 26-80-204(18)(C) & (D) to be constitutional. The trial court said:
5. The plaintiffs have raised the issue that Amendment 74 and Article 2, §§ 2, 3, and 18 have been violated by allowing under A.C.A. § 26-80-201 et seq. school districts to use the excess debt millages to satisfy the uniform tax rate of 25 mills. However, the court finds otherwise. Plaintiffs’ argument is that Amendment 74 requires school districts to levy twenty-five mills to be dedicated to maintenance and operations, and that by fail ing to do so the State loses substantial sums of money that would otherwise be available for Arkansas public schools. Some school districts have levied various millages in order to secure debt incurred through bond issues. Because of the requirement that millages dedicated to the retirement of debt be equal to 150% of the indebtedness there are virtually always excess debt millages. In fact, it is represented in the bond indenture, and, therefore, the voters must be presumed to know that the excess millages are to be available for maintenance and operations.
Plaintiffs complain that this use of excess debt service mills does not satisfy Amendment 74 and that the amendment requires each school district to levy twenty-five mills, independent of any other mills, exclusively for maintenance and operations. However, Amendment 74 (b)(2) states in part, “Except as provided in this subsection the uniform rate of tax shall not be an additional levy for maintenance and operation of the schools but shall replace a portion of the existing rate of tax levied by each school district available for maintenance and operation of schools . . .”
The Plaintiffs argue for a result that could easily have been obtained by more specific language in the amendment. However, no such language is present, and therefore, the method of counting mills to meet the uniform rate of tax used by the State complies with the language of the Constitution.
In our view, the trial court assumes too much. It assumes, first, that there is always an excess debt service millage and, secondly, that taxpayers have, in effect, authorized by their votes that the excess be applied to maintenance and operation of the schools. Why taxpayers would “authorize” by implication that the excess be used for maintenance and operation and not for some other expense such as another capital expense is not explained by the court.
The record does not reflect how many school districts credit excess debt service millages against the 25 mills owed or even the value of the credits taken across the state. This, of course, is pertinent information that this court would have liked to have had at its disposal, but the State, in opposing Lake View’s position, does not argue the financial impact of eliminating the excess-debt-service-millage credit.
In construing our state constitution, we give words their plain, ordinary, and common meaning. See Frank v. Barker, 341 Ark. 577, 20 S.W.3d 293 (2000); Hoyle v. Faucher, 334 Ark. 529, 975 S.W.2d 843 (1998). The wording of Amendment 74 makes it abundantly clear that each school district is responsible for assessing a uniform rate of 25 mills for maintenance-and-operation purposes. If a school district already has in effect millages for maintenance and operation, those millages may be counted against the uniform rate of 25 mills required by Amendment 74. Nowhere, however, does Amendment 74 provide that part of a millage adopted by the school district for an entirely different purpose may be subtracted from the 25 mills owed. The General Assembly’s legislation permitting excess debt service millage is clearly contrary to the plain meaning of Amendment 74.
The State, in its brief before this court, only addressed Lake View’s argument in a footnote. In that footnote, the State maintained that Amendment 74 is not self-executing and that legislation was necessary to put the amendment into effect. Though the State does not make this argument, we note where Amendment 74, subsection (d), provides that “maintenance and operation” means “such expenses for the general maintenance and operation of schools as may be defined by law.” Giving the General Assembly authority to define what expenses are included within the term “maintenance and operation,” however, does not empower that body to change the uniform millage rate or alter the funds required to be sent to the State under Amendment 74.
We hold that Ark. Code Ann. § 26-80-204(18)(C) violates Amendment 74 of the Arkansas Constitution and is void and of no effect.
e. Incentive Award
Lake View next contends that the trial court erred in denying its posttrial request for an incentive award of $10 million. Lake View’s primary assertion is that it has driven this litigation since its inception in 1992, and the State has made great strides in education due to its efforts. It cites two cases to support its argument. See In Re: Continental Illinois Sec. Litig., 962 F.2d 566 (7th Cir. 1992); Rand v. Monsanto Co., 926 F.2d 596 (7th Cir. 1991).
Neither case is persuasive. First, neither case is a school-funding matter involving a monetary claim against a state government. In both cases, the Seventh Circuit Court of Appeals discussed the duties of a class representative, and only In Re: Continental Illinois Sec. Litig. did the court address' the fact that in some instances, a plaintiff may be entitled to an incentive fee. Flowever, the court in neither case concluded that the plaintiff involved was entitled to an incentive award. In its brief, Lake View faded to cite to a rule for when an incentive award is appropriate or to develop an argument based on that rule. We have said time and again that this court will not research an appellant’s argument for it. See, e.g., Holt v. Wagner, 344 Ark. 691, 43 S.W.3d 128 (2001).
We finally note that the trial court did not specifically address Lake View’s incentive-award claim but issued a blanket denial of all claims not addressed. Regardless, Lake View’s failure to develop this point legally or factually is reason enough to affirm the trial court on this issue.
f. Contempt and Retroactive Funding
Lake View submits that the record clearly establishes that there was an intentional violation of Judge Imber’s 1994 order by the State with the passage of the 1995 and 1997 legislative acts. Thus, according to Lake View, a contempt sanction is warranted. Lake View further maintains that retroactive funding by the State to the school districts back to 1994, under the school-funding formula it espouses, is required. However, Lake View leaves this court in the dark as to what that retroactive funding should be and which school districts should receive it.
Again, our failure to embrace Lake View’s law-of-the-case argument vis-a-vis Judge Imber’s 1994 order largely decides the issue of contempt. Moreover, we are hard pressed to conclude that the State is in contempt of the 1994 order, when we have already concluded that the issue in this appeal is whether the 1995 and 1997 legislation as well as Amendment 74 have brought the state into constitutional compliance.
With regard to retroactive funding, Lake View’s argument suffers from lack of specificity and citation to authority. We, again, observe that we will not develop an appellant’s argument for it or do an appellant’s legal research on a point raised. See Holt v. Wagner, supra.
This point has no merit, and we affirm the trial court.
g. Remedies
' Lake View argues generally that the trial court should have ordered specific remedies against the State. What Lake View appears to be arguing is that the trial court should have directed the State to take specific steps to render school funding constitutional. We, however, do not see that as the trial court’s or this court’s function. Development of the necessary educational programs and the implementation of the same falls more within the bailiwick of the General Assembly and the Department of Education. The Ohio Supreme Court acknowledged the different functions in the branches of government regarding remedies when it said: “[W]e recognize that the proper scope of our review is limited to determining whether the current system meets constitutional muster [and we] refuse to encroach upon the clearly legislative function of deciding what the new legislation will be.” DeRolph v. State, 78 Ohio St. 3d at 213, n.9, 677 N.E.2d at 747. See also Tennessee Small Sch. Sys. v. McWherter, supra (affirming trial court’s holding that the appropriate remedy should be fashioned by the General Assembly); Brigham v. State, supra (holding that the court’s duty was solely to define the impact of the State Constitution on educational funding, not to fashion and impose a remedy; “The remedy at this juncture properly lies with the Legislature.”) The trial court’s role and this court’s role, as previously discussed in this opinion, are limited to a determination of whether the existing school-funding system satisfies constitutional dictates and, if not, why not.
VIII. Attorneys’ Fees
In a separate brief, Lake View vigorously contends that the trial court was in error when it used a “hybrid” method of calculating attorneys’ fees which resulted in a fee award of $9,338,035 and no costs. What the trial court should have done, according to Lake View, is award a percentage fee' based on a common fund of $130 million, which, it submits, was created by its efforts. Contingent fees ordinarily range from twenty-five percent to forty percent of the common fund, it claims. Thus, its fee award should have been $32,500,000 or $52,000,000. Moreover, Lake View contends that because the benefit to the school districts now exceeds $130 million (almost $311 million), the attorneys’ fees awarded should be even higher. Lake View bemoans the fact that the trial court’s fee award works out to about six-and-a-half percent of the common fund. Lake View also asks for reimbursement of its costs.
The State also appeals the fee award but contends that it was too high. According to the State, the trial court should have awarded fees based only on a “lodestar” method, which basically is tied to the number of hours attorneys have worked on a case, with the potential for a “multiplier” for contingent and novel litigation. The State advocates a fee based on the total hours worked at an hourly rate of $150 an hour with no multiplier.
In Lake View II, this court held that “an economic benefit did accrue to the State of Arkansas due to Lake View’s efforts and attorneys’ fees should be awarded.” 340 Ark. at 497, 10 S.W.3d at 902. However, we did not hold what that economic benefit was. We noted that “this is a unique case with a unique set of circumstances,” and we held that under these exceptional facts, the State had waived its right to sovereign immunity. Id. We stated that we were “not sanctioning attorneys’ fees in all public-interest litigation or endorsing a new exception to the American Rule.” Id. In remanding this issue to the trial court, we refused to make a pronouncement on how the fees should be paid, stating that this was a task for the trial court to undertake. See id. We mentioned both a percentage fee based on economic benefit or the lodestar approach based on hours worked as possible methods for awarding attorneys’ fees. See id.
On remand, the trial court ultimately awarded attorneys’ fees to Lake View counsel in the amount of $9,338,035.00. In making its award the trial court used a $130 million economic benefit, which it stated the parties had agreed to, as the starting point for calculating fees. The court next examined whether a percentage of that economic benefit or “some other approach” was appropriate in this case. The court noted: “One purpose of the percentage method is to encourage early settlement by not penalizing efficient counsel and ensuring that competent counsel continue to be willing to undertake risky, complex, and novel litigation.” The court observed that this litigation had been “long and arduous” and that the issues involved were novel and difficult. The court further observed that the Lake View counsel were placed “at a very high risk because of the time and effort involved and the uncertainty of success. . . .” The court pointed to the 1995 and 1997 legislation as well as Amendment 74 and “a common fund of $130,000,000” as the results of the attorneys’ efforts.
The trial court then cited other common-fund cases where a percentage of the fund had been awarded as attorneys’ fees. The cases cited were all class-action cases involving either a business or municipal corporation, or an illegal-exaction issue. The trial court stated that Lake View counsel requested a fee of twenty-five percent of the “common fund” and that expert witnesses had testified that contingent fees “are normally 33 1/3% and even 40% in extremely difficult cases.”
Based on the expert witnesses, affidavits, the contingent nature of the case, and the factors for awarding attorneys’ fees set out in Chrisco v. Sun Indus., Inc., 304 Ark. 221, 800 S.W.2d 717 (1990), the trial court awarded the following attorneys’ fees:
Liability Phase: period prior to February 1998:
award: $8,500,000.00.
calculation: 6.5% of $130,000,000.00, or, alternatively, 15,000 hours (supported by Lake View affidavit) x $150.00 per hour (supported by expert testi mony of two attorneys) x 3.877 (multiplier court stated was reasonable based upon length of litigation, difficulty, and contingent nature of success).
February, 1998- — Tune 18. 2000
award: $525,000.
calculation: attorneys estimated 4500-5500 hours of work and requested no particular rate. The court reduced the hours to 3500 and used the $150 per hour rate.
Tune 19, 2000 — November 1, 2000
Attorneys kept contemporaneous work records for this period, per the trial court’s order.
award: $313,035.
calculation: 2,086.90 hours x $150 per hour.
Total Award: $9,338,035
At the outset, we must admit to some concern about the lack of time records for the number of hours claimed to have been worked in this case for the liability phase. The trial court found, however, that no one disputed the 15,000 hours claimed, and Lake View attested to the total hours by affidavit. The State, in its brief on appeal, merely questions the total hours worked in a footnote. Accordingly, we will accept 15,000 as the hours worked in the liability phase, as found by the trial court.
We disagree with Lake View, however, in two respects. It is virtually impossible to fix precisely what the economic benefit to the state has been as a result of counsels’ efforts. To be sure, there has been an economic benefit to the State, as this court acknowledged in Lake View II. But just what that exact benefit might be is fodder for speculation. $130 million was simply the amount agreed to by opposing counsel in an effort to setde the case and to decide upon appropriate attorneys’ fees for Lake View counsel.
Our second disagreement concerns the propriety of arguing caselaw involving fees awarded in class-action lawsuits involving a corporation or an illegal-exaction issue as precedent for a fee award in a school-funding case, where taxpayer money will be used to pay those fees. The two situations do not appear to be remotely comparable. Indeed, counsel for Lake View at oral argument was unable to cite this court to a single school-funding case where a percentage fee based on an economic-benefit theory had been awarded. In the one school-funding case in recent years where a state supreme court affirmed an attorneys’ fee to successful counsel, the lodestar method was employed and not a percentage fee. See Claremont Sch. Dist. v. Governor, 144 N.H. 590, 761 A.2d 389 (1999).
The trial court used the Chrisco factors for guidance in assessing attorneys’ fees. See Chrisco v. Sun Indus., Inc., supra. Those factors are (1) the experience and ability of counsel; (2) the time and labor required to perform the legal service properly; (3) the amount involved in the case and the results obtained; (4) the novelty and difficulty of the issues involved; (5) the fee customarily charged in the locality for similar services; (6) whether the fee is fixed or contingent; (7) the time limitations imposed upon the client or by the circumstances; and (8) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer. See id. This court recognized, in Chrisco, the superior perspective of the trial judge in weighing the applicable factors, and we concluded that we would not set aside a trial court’s fee award absent an abuse of discretion.
It is obvious to this court in the case at hand that the trial court used most of the Chrisco factors in making his award. But in his analysis, he looked to both a percentage fee based on six-and-one-half percent of $130 million and hours worked at a rate of $150 an hour, plus a multiplier. Thus, the initial award of $8,500,000 for the liability phase of the litigation was based, alternatively, on a percentage calculation and also on hours worked, with a 3.778 multiplier based on the length, difficulty, risk, and importance of the case.
Because the economic benefit in this case does not lend itself to a firm figure and because the fee award must be paid by the government, either state or local, from tax revenues, we reject a percentage fee in this case. Furthermore, this court has never expressly adopted a multiplier against hours worked as a means for arriving at appropriate fees. We will not do so in this case.
To reiterate what we said in Lake View II, this is a unique case with a unique set of circumstances, where there is no question but that the state and local school districts derived an economic benefit. Ordinarily, there could be no fee award assessed against the State due to the doctrine of sovereign immunity under our state constitution. It is only because the State waived sovereign immunity in this case that the issue of an attorneys’ award became viable.
We conclude that attorney’s fees based on hours worked at an hourly rate of $150 is appropriate in this case. The novelty and difficulty of this case, the results obtained, the hours worked, the expertise of counsel, and the effect on other legal work of counsel, all militate in favor of an attorney’s fee, as we previously held in Lake View II. Nevertheless, for reasons already stated, we cannot justify an award based on a percentage applied against $130 million or the use of a multiplier to enhance the fee. We hold that, in so doing, the trial court abused its discretion.
We modify the trial court’s fee award to a total fee of $3,088,035, which is based on total hours worked, 20,587 hours, multiplied by the hourly rate of $150 per hour. We further modify the trial court’s order and award costs in the amount of $309,000, which amount was supported by a Lake View affidavit. The total award of attorneys’ fees and costs, as modified, is $3,397,035.
IX. Stay
Because we hold that the current school-funding system is unconstitutional, our schools are now operating under a constitutional infirmity. Other supreme courts facing this dilemma have either remanded the matter to the trial courts or stayed the court’s mandate in order to give the General Assembly and Executive Branch an opportunity to cure the deficiencies. See, e.g., Claremont Sch. Dist. v. Governor, 142 N.H. 462, 703 A.2d 1353 (1997) (staying all further proceedings until the end of the upcoming leg islative session and maintaining present funding system through the 1998 tax year); DeRolph v. State, 78 Ohio St. 3d 193, 677 N.E.2d 733 (1997) (staying the effect of the decision for twelve months and remanding to the trial court for entry of judgment and retention of jurisdiction until legislation is enacted and in effect for action as may be necessary in conformity with opinion); Brigham v. State, 166 Vt. 246, 692 A.2d 384 (1997) (entering default judgment for students and school districts and remanding so that jurisdiction could be retained until valid legislation enacted and in effect, and for any further proceedings); Roosevelt Elementary Sch. Dist. No. 66 v. Bishop, 179 Ariz. 233, 877 P.2d 806 (1994) (reversing and remanding the case to the trial court for entry of judgment and retention of jurisdiction to determine within a reasonable time whether legislative action had been taken); Edgewood Ind. Sch. Dist. v. Kirby, 804 S.W.2d 491 (Tex. 1991) (staying the effect of the Supreme Court’s previously-ordered injunction until April 1, 1991); Rose v. Council for Better Educ., 790 S.W.2d 186 (Ky. 1989) (withholding the finality of the decision until 90 days after the adjournment of the General Assembly).
Clearly, the public schools of this state cannot operate under this constitutional cloud. Were we not to stay our mandate in this case, every dollar spent on public education in Arkansas would be constitutionally suspect. That would be an untenable situation and would have the potential for throwing the entire operation of our public schools into chaos. We are strongly of the belief that the General Assembly and Department of Education should have time to correct this constitutional disability in public school funding and time to chart a new course for public education in this state. Accordingly, we stay the issuance of our mandate in this case until January 1, 2004. This will give the General Assembly an opportunity to meet in General Session and the Department of Education time to implement appropriate changes. On January 1, 2004, the stay will terminate, and this case will be over. Any subsequent challenge will constitute separate litigation.
X. Conclusion
We emphasize, once more, the dire need for changing the school-funding system forthwith to bring it into constitutional compliance. No longer can the State operate on a “hands off” basis regarding how state money is spent in local school districts and what the effect of that spending is. Nor can the State continue to leave adequacy and equality considerations regarding school expenditures solely to local decision-making. This court admits to considerable frustration on this score, since we had made our position about the State’s role in education perfectly clear in the DuPree case. It is not this court’s intention to monitor or superintend the public schools of this state. Nevertheless, should constitutional dictates not be followed, as interpreted by this court, we will have no hesitancy in reviewing the constitutionality of the state’s school-funding system once again in an appropriate case.
Corbin and Hannah, JJ., concur.
Glaze, J., concurs in part and dissents in part.
Imber, J., not participating.
Special Justice Carol Dalby joins.
Amendment 80 to the Arkansas Constitution which became effective July 1, 2001, designated all courts as “circuit courts.”
The style of this case reflects the appellees as identified in the State’s notice of appeal.
This court subsequently held that Act 916 of 1995 was unconstitutionally adopted due to an alteration of the bill, which ran counter to its original purpose as stated in the bill’s tide. See Barclay v. Melton, 339 Ark. 362, 5 S.W.3d 457 (1999).
In January 1997, Judge Imber assumed her role as Associate Justice of the Arkansas Supreme Court. Chancellor Collins Kilgore was subsequently assigned the case.
For a complete history of this case through March 2, 2001, refer to Lake View Sch. Dist. No. 25 v. Huckabee, 340 Ark. 481, 10 S.W.3d 892 (2000) (Lake View II).
State statutes refer to “base local revenue per student” rather than “base level revenue” and “local revenue per student” rather than “local resource rate.” See Ark. Code Ann. § 6-20-303(5) & (15) (Repl. 1999).
The school district at the ninety-fifth percentile is determined pursuant to Ark. Code Ann. § 6-20-303(17) (Repl. 1999), which provides:
“Local school district at the ninety-fifth percentile” means, when ranking school districts in descending order by the total state and local revenue per average daily membership, a district which falls at the ninety-fifth percentile of the total number of pupils in attendance in the schools of this state, as described by 34 C.F.R. § 222.63 (1994) [.]
At least two post-1994 legislative Acts specifically refer to the desirability of local control. See Act 1307 of 1997, codified at Ark. Code Ann. § 6-20-302(b) (Repl. 1999) and Act 917 of 1995.
We further note that federal regulations pertaining to the calculation of the disparity limitation under tire Federal Range Ratio permit the Secretary of Education to calculate the percentage of disparity using either revenues or expenditures. See 34 C.F.R. § 222.63(a) (1994).
Lake View does make one conclusory allegation regarding Rule 60: “Rule 60 prevented the [SJtate . . . from seeking modification, amendment, or nullification of any part of the 1994 [OJrders[.]” | [
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Tom Glaze, Justice.
Appellant Eugene Cathey was convicted of capital murder and, because the State had waived the death penalty, was sentenced to life in prison for the shooting death of Delone “D.J.” Washington on October 12, 2000.
On appeal, Cathey raises only one argument: Judge Gary Arnold erred in denying his motion for directed verdict, because he had heard only one witness testify during trial. At the conclusion of the State’s case, Cathey moved for a directed verdict, which the presiding judge, Judge Grisham Phillips, denied. At that time, the court recessed, and in the interim, Judge Phillips was called away for a family medical emergency. When the court recpnvened, Judge Arnold presided over the trial. Judge Arnold asked Cathey directly if he understood the situation and if he had any objection to Judge Arnold completing the trial, at least through the guilt-or-innocence phase. Cathey replied that he had no objection.
Cathey called one witness for his case-in-chief, and he then rested. Judge Arnold read the instructions and verdict forms to the jury. The State and Cathey gave their closing arguments, and the jury then retired to deliberate on the guilt phase.
The State then proceeded to make a record of the fact that it had no objection and concurred with Judge Arnold sitting on this case for the guilt/innocence phase and for sentencing if necessary. Cathey made no response. The jury was out for nearly two-and-a-half hours, and then returned with a guilty verdict on the capital murder charge. The jury then retired again to deliberate sentencing. At that point, the following exchange occurred:
The Court: Mr. Cathey, if you and your attorneys will step up here, I know there’s a motion or I want to make sure we make a record on your previous [sic] and the Court recognizes your previous position. But with respect — Mr. Hardin [defense counsel], I’ll let you go ahead.
Mr. Hardin: Your Honor, Mr. Cathey did not agree to you as sitting on the sentencing phase and he does object to having a judge substituted in the sentencing phase for a trial in which another judge tried the actual jury trial.
The Court: Mr. Cathey, I understand what your attorney just said, and do you again acknowledge that you had no objection to my hearing the case through the conclusion of the guilt or innocence phase, you simply object to my hearing the case from this point through the sentencing phase. Is that correct?
Mr. Cathey: Yes, sir.
The Court: Well, your objection is noted and I’m going to overrule that objection, not grant your request, and proceed with the trial through its conclusion, but a record has been made.
Mr. Hardin: And we also would have the record show to renew my motion for a directed verdict on the capital murder charge and that there was insufficient evidence for a deliberated purpose of the killing.
The Court: So noted. Does the State have any response to that?
Mr. Standridge: No, just that Judge Phillips had ruled initially there was sufficient proof to take it to the jury, and we would just renew our argument that there was sufficient proof to take it to the jury.
The Court: I’ll again deny that motion. Please have a seat. We’ll be in recess until the jury returns with its verdict on punishment.
The jury returned shortly thereafter and sentenced Cathey to life in prison.
On appeal, Cathey’s argument states simply that Judge Arnold did not review the earlier trial testimony, which Judge Phillips had heard, and that Judge Arnold could not possibly have made a determination on whether Cathey’s directed-verdict motion should be granted or denied. However, Cathey had failed to renew his motion for directed verdict at the close of his own case, and indeed, he did not renew it until after the jury had already returned a verdict of guilt on the capital murder charge.
Our case law is well-settled that the renewal of a directed-verdict motion is more than a matter of mere form: it goes to the substance of the evidence arrayed against the criminal defendant; therefore, it is too late to renew a motion for directed verdict after the jury has been charged. See Rankin v. State, 329 Ark. 379, 386, 948 S.W.2d 397, 401 (1997) (death penalty case in which this court refused to consider a sufficiency-of-the-evidence argument because appellant Rankin did not attempt to renew his motion for directed verdict until after the jury had been charged); Thomas v. State, 315 Ark. 504, 868 S.W.2d 483 (1994) (capital murder case involving life imprisonment, in which this court held that Thomas’s sufficiency argument was not preserved for appeal where he did not renew his motion for directed verdict until the jury “was well into the course of its deliberations”); see also Ark. R. Crim. P. 33.1(c). Here, Cathey did not only wait until after the jury had been instructed, and until after closing arguments; he waited to renew his motion until after the jury had already returned a verdict of guilty. Clearly, this issue is not preserved for appellate review.
Finally, we note that Cathey raised one objection that merits mentioning pursuant to Ark. Sup. Ct. R. 4-3(h), although it does not warrant reversal. Cathey specifically objected to Judge Arnold presiding over the sentencing phase of his trial, and Judge Arnold overruled his objection. Although this was an adverse ruling, it does not constitute reversible error because Cathey was not prejudiced by it. Because he was convicted of capital murder, and the State had waived the death penalty, life imprisonment was the only possible sentence he could have received.
Affirmed. | [
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Tom Glaze, Justice.
Appellant Dennis Smith was convicted of aggravated robbery and sentenced to life imprisonment by a Desha County jury on December 18, 2001. The aggravated robbery was the first event in a crime spree that took place on June 22, 2000, when Smith, armed with a handgun, entered a grocery store in the town of Reed in Desha County and demanded money from the owner, George Barnes. At gunpoint, Smith took Barnes’s money bag, and then Smith told Barnes to hand over the keys to his truck. Barnes kept the truck keys, and Smith, still pointing the gun at Barnes, told Barnes to get in his truck. The two men got in the truck, Smith still holding the bank bag, and they proceeded to the nearby Tillar Airport, in Drew County.
Once at the airport, Smith forced Barnes, Wes Lawson, an airport employee, and Judy Quandt, co-owner of the airport’s flying service, into the office. Smith struck Mrs. Quandt in the head with the butt of his pistol, and had her call her husband, Frank •Quandt, and tell him that Smith would kill the three hostages if Mr. Quandt did not return to the airport with his crop duster. When Mr. Quandt returned to the airstrip and exited his plane, he was still wearing hearing protection, and did not hear Smith order him to “stop and get naked”; Smith shot him in the stomach. Smith then shot Lawson in the arm and chest as Lawson ran out of the office. Smith also raped Mrs. Quandt and forced her to perform oral sex on him and on Barnes. State Police were later able to negotiate the release of all of the hostages.
Smith was convicted in Drew County on July 18, 2001, of three counts of kidnapping, two counts of attempted capital murder, four counts of rape, one count of first-degree battery, and one count of vehicular piracy. The Drew County Circuit Court severed the aggravated robbery charge. Smith was then tried for aggravated robbery in Desha County on December 18, 2001, and the jury convicted him and sentenced him to life in prison, which resulted in this appeal.
In this case involving the aggravated robbery, Smith moved in limine to exclude evidence of anything that happened after leaving the grocery store in Reed. He urged to the trial court that the act of putting Barnes into the truck and taking him to the airport implied a charge of kidnapping, with which he was not being charged. The State responded that it needed to offer corroborating evidence that Smith still possessed a firearm when he and Barnes got out of the truck, and that Smith’s brandishing of the firearm was an element of aggravated robbery. The Desha County Circuit Court ruled that, to the extent that the evidence of the gun corroborated an element of the crime of aggravated robbery, it could be used for that purpose. Smith asserted that he just wanted to keep out any mention of the events and crimes that occurred in Drew County at the Tillar airport. The prosecutor replied that he would not use the word “airport,” and would advise Barnes and the State’s other witnesses not to use the word, saying only that Smith took him “to another location.” Smith stated that he would “be open to that.” The witnesses subsequently testified accordingly, with Barnes stating that Smith drove him to “another location,” and Investigator Scott Woodward testified that he recovered the gun used in the robbery at the “other location.”
On appeal, Smith asserts that the trial court erred in denying his pretrial motion in limine whereby he tried to keep out evidence that he forced Barnes into the truck at gunpoint; he contends that this evidence was more probative of kidnapping, with which he had not been charged, than of aggravated robbery, and therefore should have been excluded under Ark. R. Evid. 403. We begin with the observation that trial courts have broad discretion in deciding evidentiary issues, and their decisions are not reversed absent an abuse of discretion. Thomas v. State, 349 Ark. 447, 69 S.W.3d 864 (2002); Flores v. State, 348 Ark. 28, 69 S.W.3d 864 (2002); McFerrin v. State, 344 Ark. 671, 42 S.W.3d 529 (2001).
The trial court’s decision was correct. The general rule is that evidence of other crimes by the accused, not charged in the indictment or information and not a part of the same transaction, is not admissible at the trial of the accused. Gaines v. State, 340 Ark. 99, 8 S.W.3d 547 (2000); Haynes v. State, 309 Ark. 583, 832 S.W.2d 479 (1992). However, under Ark. R. Evid. 404(b), evidence of other crimes may be admissible to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. The list of exceptions to inadmissibility under Rule 404(b) is not an exclusive list but rather represents examples of the types of circumstances where evidence of other crimes of wrongs or acts would be relevant and admissible. See Cook v. State, 345 Ark. 264, 45 S.W.3d 820 (2001); Williams v. State, 343 Ark. 591, 602, 36 S.W.3d 324, 331 (2001).
This court has further made it clear that if the introduction of testimony of other crimes, wrongs, or acts is independently relevant to the main issue — relevant in the sense of tending to prove some material point rather than merely to prove that the defendant is a criminal — then evidence of that conduct may be admissible with a proper cautionary instruction by the court. Clem v. State, 351 Ark. 112, 90 S.W.3d 428 (2002). Thus, if the evidence of another crime, wrong, or act is relevant to show that the offense of which the appellant is accused actually occurred and is not introduced merely to prove bad character, it will not be excluded. Id. Stated another way, the test for establishing motive, intent, or plan as a Rule 404(b) exception is whether the evidence of the other act has independent relevance. Burmingham v. State, 342 Ark. 95, 27 S.W.3d 351 (2000); Haire v. State, 340 Ark. 11, 8 S.W.3d 468 (2000). See also Burley v. State, 348 Ark. 422, 73 S.W.3d 600 (2002) (prior bad acts independently relevant to prove motive in not contacting police); Williams v. State, 343 Ark. 591, 36 S.W.3d 324 (2001) (prior crime independently relevant as proof of intent to commit charged offenses); Eliott v. State, 342 Ark. 237, 27 S.W.3d 432 (2000) (escape conviction was not used to show appellant’s character, but was independently relevant to show his consciousness of guilt of the rape offenses).
Here, the evidence suggesting or implying a kidnapping — namely, evidence that Smith forced Barnes into his truck at gunpoint and drove him to another location — is independently relevant to the main issue. The fact that Smith still had a handgun in his possession when he and Barnes got out of the truck tends to prove a material point. A person commits aggravated robbery “if he commits robbery as defined in [Ark. Code Ann.] § 5-12-102, and he ... is armed with a deadly weapon or represents by word or conduct that he is so armed[.]” Ark. Code Ann. § 5-12-103(a)(1) (Repl. 1997). The State’s evidence that tended to show that a kidnapping also took place was independently relevant in the sense that it showed that Smith had a gun, which was necessary to proving an element of the aggravated robbery with which Smith was charged. During pretrial conference, Smith argued that “anything after the point of what happened in the store would be prejudicial.” Assuming that objection is sufficient to preserve an argument under Rule 403 on appeal, we conclude that the probative value of such evidence is not substantially outweighed by the danger of unfair prejudice. Not only is the evidence independently relevant, but the state is entitled to prove a case as conclusively as possible. See Bledsoe v. State, 344 Ark. 86, 39 S.W.3d 760 (2001). Therefore, although the trial court did not phrase his decision in any specific terms, the court nevertheless did not abuse its discretion in denying Smith’s motion in limine.
For his second point on appeal, Smith asserts that the trial court should have granted his motion for mistrial. Arkansas State Police Investigator Roger McLemore was one of the officers who investigated the crime scene at Barnes’s store the day after the robbery in Reed. During his testimony, the prosecutor asked him what he had done during his investigation. The following colloquy then occurred:
Prosecutor: Was there a crime scene at that location?
McLemore: Yes, sir, there was a crime scene there.
Prosecutor: Okay. And for what crime?
McLemore: I would say the crime of robbery and a crime of kidnapping.
Prosecutor: And specifically what kind of robbery?
McLemore: It would be aggravated.
Prosecutor: Okay. Did you take any statements?
Defense: Objection, your Honor, May we approach? ... At this point I’m going to have to move for a mistrial based on the fact that the other charge was mentioned and it was at the loca tion of the store, which I was trying to keep out all this time the inference of a kidnapping at the store. Now, he’s saying at the store was the crime scene of the kidnapping. And I move for a mistrial.
The trial court denied the motion. Although Smith initially asked the trial court for a limiting instruction, he almost immediately withdrew the request after agreeing with the State’s suggestion that such an instruction might draw more attention to the kidnapping comment. On appeal, Smith argues that the trial court erred in denying his mistrial motion, contending that the jury could have been more prone to believe that he was guilty of the aggravated robbery because of the implication that he had committed multiple crimes.
This court has held that any reference to a defendant’s prior convictions during the guilt phase of a criminal trial results in some prejudice to the defendant. Hamilton v. State, 348 Ark. 532, 74 S.W.3d 615 (2002); Kimble v. State, 331 Ark. 155, 959 S.W.2d 43 (1998). However, in this regard, the trial court is granted a wide latitude of discretion in granting or denying a motion for mistrial, and the decision of the trial court will not be reversed except for an abuse of that discretion or manifest prejudice to the complaining party. Hamilton, 348 Ark. at 542. This court generally adheres to the rule that a cautionary instruction or admonishment to the jury can make harmless any prejudice that might occur from an inadvertent reference to a prior conviction. Id. (citing Strawhacker v. State, 304 Ark. 726, 804 S.W.2d 720 (1991)). An important factor in our analysis is whether the prosecutor deliberately induced a prejudicial response. Id.
Here, the reference was not to a prior conviction, but to another possible crime that was being investigated. The prosecutor asked Investigator McLemore what kind of crime scene it was; the officer replied first that it was an aggravated robbery, and also a kidnapping. McLemore did not, however, state that Smith had been charged with kidnapping, nor that he had been prosecuted and convicted of that offense. McLemore’s statement does not appear to have been a deliberately induced response, but was instead simply an answer that was perhaps more complete and thorough than Smith would have liked. It was not “so patently inflammatory that justice could not be served by continuing the trial.” Hamilton, 348 Ark. at 542. Because the trial court was in a better position to judge the effect of the statement on the jury, see Kimble, supra, we conclude that there was no error in denying the mistrial motion. We additionally note that, because the evidence suggesting a kidnapping was independently relevant to prove an element of the aggravated robbery, as noted in the point discussed above, Smith cannot demonstrate that he was prejudiced by the officer’s reference to a kidnapping crime scene.
Further, Smith explicitly declined to request a limiting instruction. Such an instruction was held sufficient to cure the prejudice in Hamilton. In Kimble, this court pointed out that we have held that an admonition is sufficient to cure a reference a witness made to a defendant’s “previous record.” Kimble, 331 Ark. at 160 (citing Heard v. State, 322 Ark. 553, 910 S.W.2d 663 (1995)). The Kimble court further held that, in that case, an admonition “would have been sufficient to cure any prejudice . . ., but Kimble never requested one. It was clearly Kimble’s obligation to ask for a curative instruction, and the failure to do so will not inure to his benefit on appeal.” Id. at 160. Similarly, in the present case, Smith’s decision to decline a curative or limiting instruction precludes reversal on this point.
Finally, Smith asserts that the trial court erred in allowing the State to introduce his convictions arising from the same course of conduct to be used for enhancement purposes during his sentencing at this trial. After the jury convicted Smith of aggravated robbery, the State introduced evidence of Smith’s Drew County convictions for kidnapping, attempted murder, rape, first-degree battery, and vehicular piracy. This evidence was introduced under Ark. Code Ann. § 5-4-501 (d)(1)(A) (Supp. 2001), which provides that a defendant convicted of a Class Y felony involving violence, including aggravated robbery, who has previously been convicted of two or more violent felonies enumerated in the statute, shall be sentenced to a term of not less than life in prison.
Smith asserts that, because these “prior” convictions arose out of the same course of conduct as the aggravated robbery, it was error to admit them in order to sentence him to life in prison as a habitual offender. He relies on Tackett v. State, 298 Ark. 20, 766 S.W.2d 410 (1989), to support his claim that the Drew County convictions could not be used to enhance his sentence.
In Tackett, this court reversed a sentence that had been enhanced under the Habitual Offender Act. There, Tackett had caused an automobile accident on March 24, 1983. The accident killed one passenger in the car struck by Tackett; another passenger, Denise Barrentine, went into a coma as a result of her injuries. On March 30, 1983, Tackett was charged with manslaughter and leaving the scene of the accident. He was convicted of both offenses in September of 1983. In March of 1987, Barrentine died, and the State charged Tackett with manslaughter for recklessly causing her death. At this manslaughter trial, the trial court allowed the State to use Tackett’s 1983 manslaughter and leaving-the-scene-of-an-accident convictions, arising from the same incident, in order to enhance his punishment.
On appeal, our court noted first that prior convictions are admissible to enhance punishment pursuant to the Habitual Offender Act, although the conviction was for an offense occurring after the offense on appeal. The Tackett court further stated that the obvious intent of the Act was to enhance the punishment of a party who has a habit of criminal conduct, and that the Act was not designed to act as a deterrent, but was simply punitive. Tackett, 298 Ark. at 25. However, the court concluded that it was error to allow the use of the 1983 manslaughter conviction to enhance Tackett’s punishment for the later death, holding as follows:
The manslaughter charge in connection with the [1983] death . . . and the charge for leaving the scene of the accident for which Tackett was previously convicted and the manslaughter charge in connection with the death of Denise Barrentine in the case at bar all arose from Tackett’s single act of recklessly driving his car into the victims’ car. To utilize these prior convictions arising from one single act to enhance punishment pursuant to the Habitual Offender Act contravenes fundamental fairness and due process. Simply put, there is nothing habitual about the commission of a single criminal act resulting in multiple charges and convictions.
Id. at 26.
Tackett is factually distinguishable from the case at hand. In that case, the two manslaughter charges and the charge of leaving the scene of an accident arose out of the identical act: Tackett’s striking the victims’ car with his truck. In the present case, however, Smith first committed an aggravated robbery by stealing Barnes’s bank bag at gunpoint. He then proceeded to a different location, in a different county, where he committed a series of kidnappings, rapes, attempted murders, a battery, and vehicular piracy. These subsequent crimes, for which he was convicted prior to his aggravated robbery trial, did not arise out of the same course of conduct that culminated in the aggravated robbery of Barnes. Other people were involved; the crimes were in a different county; and the crimes were of an entirely different nature than the aggravated robbery. Simply stated, the multiple crimes did not constitute a “single criminal act” or “continuing course of conduct.” In the case of Smith v. State, 296 Ark. 451, 757 S.W.2d 554 (1988), this court upheld seven separate terroristic threatening convictions arising out of one incident, because there were seven separate victims and because the crime of terroristic threatening was not defined as a “continuing course of conduct.” There, the court noted that, “[i]f Smith had killed seven people, it would hardly be argued that he could only be convicted of one count of murder.” Smith, 296 Ark. at 454.
In the present case, Smith’s multiple criminal acts were not a “continuing course of conduct,” nor did they arise out of the same transaction, as was the case with Tackett’s single car accident from which multiple charges pertaining to different victims arose. Therefore, there was no error in admitting Smith’s earlier convictions to enhance his sentence in this matter.
In compliance with Ark. Sup. Ct. R. 4-3 (h), the record has been examined for all objections, motions, and requests made by either party that were decided adversely to appellant, and no error has been found.
Affirmed.
Smith failed to request a cautionary instruction, and so he cannot argue that it was error for the trial court to permit testimony on this issue without giving such an instruction.
Among these violent felonies enumerated in the statute are rape, kidnapping, first-degree battery, and attempted capital murder. See Ark. Code Ann. § 5-4-501(d)(2)(iii), (v), (vi), and (xiii)(a). | [
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Robert L. Brown, Justice.
Petitioner Dan Ivy petitions this court for a writ of certiorari that respondent, Honorable Tom J. Keith, circuit judge, has exceeded his authority in sentencing Mr. Ivy to jail for thirty-six days for contempt of court. In the alternative, Mr. Ivy appeals Judge Keith’s order that he serve this sentence for contempt. The respondent, Judge Keith, found the petitioner in contempt of court after he failed to pay Rule 11 sanctions in connection with a civil case tried in his court. Judge Keith sentenced Mr. Ivy to thirty-six days in jail. He also orally ordered a payment schedule of $1,000 a month to begin sixty days after release from jail. On March 27, 2002, this court stayed Judge Keith’s order and granted Mr. Ivy’s motion for expedited appeal. Judge Keith has requested that the Attorney General not file a brief on his behalf. We are, therefore, limited in our review to Mr. Ivy’s brief in support of the petition.
The facts leading up to the Rule 11 sanctions are taken from Judge Keith’s Order for Rule 11 Sanctions. On March 2, 2001, Mr. Ivy filed a civil lawsuit on behalf of Jerry Otis for damages arising from a car accident between Otis and Helen R. Walton. In his complaint, Mr. Ivy prayed for punitive damages on the basis that Mrs. Walton was intoxicated at the time of the accident and the Bentonville Police Department “knowingly protected her reputation.” On November 16, 2001, Judge Keith granted partial summary judgment in favor of Mrs. Walton on the punitive damages issue, finding that there was “not even a scintilla of evidence” supporting Mr. Ivy’s allegations made on behalf of Otis.
Mr. Ivy refused to retract his claim on behalf of Otis, however, and subsequently, according to Judge Keith, “compounded the seriousness of the [Rule 11] violation by restating the allegation in an amended complaint and various other pleadings filed with the Court.” On December 7, 2001, Judge Keith found that Mr. Ivy’s allegations on behalf of Otis “were not made in good faith, but rather were imposed for an improper purpose” and, thus, violated Rule 11 of the Arkansas Rules of Civil Procedure. Judge Keith’s order for Rule 11 sanctions imposed a $12,085.27 fine on Mr. Ivy which amount corresponded to opposing counsel’s attorneys’ fees and costs. The sanction was to be paid within thirty days. The Rule 11 order also stated: “The failure to pay this sanction within 30 days of the entry of this Order shall constitute contempt of court.”
On January 25, 2002, during a pretrial hearing on the Otis case, Mr. Ivy told Judge Keith that he had been served with an order for Rule 11 sanctions. Mr. Ivy questioned the judge about whether the contempt threat was standard practice in his court. The judge replied, “That’s — that’s the Court’s order, Mr. Ivy.” Mr. Ivy then asked whether, if he was unable to pay the sanction, should he submit himself to go to jail. Judge Keith responded, “If you want —• if you want to admit contempt of Court and go to jail, that’s up to you.”
On February 11, 2002, in an effort to settle with Mrs. Walton, Mr. Ivy sent a letter to Mrs. Walton’s counsel and offered to pay the Rule 11 sanctions at a rate of $500.00 per month, beginning on March 1, 2002. The next day, Mrs. Walton’s counsel alerted Judge Keith that Mr. Ivy had made no payments on his fine and of Mr. Ivy’s settlement offer, which counsel maintained he had no power to accept because it would violate the Judge’s order.
On February 20, 2002, Judge Keith issued a summons for Mr. Ivy to appear in court on March 7, 2002, and show cause why he should not be held in contempt for violating the judge’s Rule 11 order.
On March 7, 2002, Judge Keith conducted the contempt hearing, at which time Mr. Ivy told Judge Keith that the reason he had not complied with the order was he did not have enough money to pay the Rule 11 sanctions. The judge asked Mr. Ivy if he had any evidence in support of his claim of inability to pay. Mr. Ivy replied that he was under oath as an attorney to tell the truth, and then related a litany of financial problems: he stated that he owed $300,000 to the IRS as the result of a divorce, that he had lost all of his office assets to satisfy a judgment against him and that his mother had bought them at auction, and that he owned no assets beyond clothing and personal possessions. Mr. Ivy recounted previous times that he had been ordered to pay money to the other side and reminded the court that he had always paid his fines on those occasions. Mr. Ivy related that the nature of his practice was such that he had an uneven cash flow from one day to the next.
The following colloquy then occurred:
Mr. Ivy: It would be difficult for me to come up with $500 today, in fact I couldn’t, but tomorrow I could have $20,000 in my pocket. ... I have taken a vow of poverty when I became a minister —
The Court: I don’t want to hear that. I agree with that old sage who says religion and patriotism become the last refuge of scoundrels. And I don’t want to hear that. This is a civil courtroom and I don’t want to hear that.
Mr. Ivy: Then I wish to object, your Honor.
The Court: Well, I don’t care if you object.
Mr. Ivy: And I wish to proffer.
The Court: I — I don’t care. You’re — what your religious leanings or practices are is your business but it’s not a part of this proceeding.
Mr. Ivy: Then God has no place in your courtroom, Your Honor?
The Court: What your religious practices are, Mr. Ivy, do not have any part in this proceeding. Now, you may continue, but — but I don’t want — what you do in your religious practice is your business, it’s not a part of this proceeding.
Mr. Ivy: Your Honor, if —•
The Court: Did I understand you to say that you agree that — that the appropriate step for the Court to take at this time is to incarcerate you?
Mr. Ivy: Your Honor, yes, Your Honor. I see no alternative to it. I have — I have no way to pay the Court. The other side, the richest woman in the world has the money —
The Court: I don’t want — I don’t want you engaging in that kind of language in this court. I’m sick and tired of you using this inflammatory language. You’re no Robin Hood, you’re no Friar Tuck and I don’t want to — I don’t want you playing the role in this courtroom.
Mr. Ivy: Your Honor, I consider myself to be a Robin Hood.
The Court: Well, you’re no Robin Hood and you’re certainly no Friar Tuck. Anything else you wish to say?
Mr. Ivy: . . . Your honor has the right to put me in jail for whatever time, five years if you want to. Of course, at that point some — certain rights might kick in, might become criminal. But when an attorney tries to stand up for truth and justice —
The Court: That doesn’t have anything to do with this. We’ve already addressed that issue. The Court has already found that all these allegations that you’ve made were — were without foundation, were frivolous, without merit. If you want to take that up on appeal — but that argument is closed.
Mr. Ivy: It’s not closed pending new evidence I assume, Your Honor.
The Court: It’s closed until — until — until some higher court says it’s not closed. I’ve already ruled on that, we’re not going to revisit it.
Mr. Ivy: I am prepared to submit myself to the will of the Court for whatever they wish to do. I am without the funds to pay the contempt charge and that — I guess that’s all a person can say.
You know, it is difficult for me to stand here and look around this courtroom when I realize that this courtroom — well, the renovations that the courthouse was paid for by Mrs. Walton. I mean $600,000.
The Court: Mr. Mr. Ivy, I am — I’m going to remand (sic) you. You better start addressing the issues. . . .
Now you can address the issue or you can sit down but I don’t want to hear all this stuff— this Robin Hood stuff that you like to preach. That’s not the issue.
Mr. Ivy: Yes, Your Honor. The issue is I am without funds to pay it, I do not have no way (sic) to raise it. I have attempted to negotiate —
The Court: Have you got any evidence to offer in support of your position?
Mr. Ivy: No, sir, Your Honor.
After a brief recess, Judge Keith issued his ruling from the bench:
The Court: . . . The court finds that you [Mr. Ivy] have willfully disobeyed the Court’s order and orders the following: That you will be incarcerated in the Benton County Jail for a period of 36 days and that you pay the balance, what you owe, the 12,000 that the Court has ordered at the rate of $1,000 per month beginning 60 days after your release. You’ll be remanded to the custody of the sheriff.
On that same day, Judge Keith signed a County Jail Order, sentencing Ivy to thirty-six days in jail. There was no reference in the County Jail Order to payment of the $12,085.27 Rule 11 sanctions. On March 13, 2002, Mr. Ivy filed his notice of appeal from the County Jail Order. On March 25, 2002, Mr. Ivy petitioned this court for a writ of certiorari on the basis that the trial court had exceeded its authority in sentencing him to jail and moved to stay Judge Keith’s order. The motion to stay was granted by this court on March 25, 2002, and the matter was expedited.
I. Due Process
The first basis for Mr. Ivy’s certiorari petition is an asserted violation of his right to due process of law, as afforded under the Arkansas and United States Constitutions.
A writ of certiorari is appropriate when the face of the record shows that no other remedy is available to correct a plain, manifest, and gross abuse of discretion by the trial judge. E.g., Johnson v. Johnson, 343 Ark. 186, 33 S.W.3d 492 (2000). See also Arkansas Democrat-Gazette v. Zimmerman, 341 Ark. 771, 20 S.W.3d 301 (2000). Certiorari proceedings are governed by the normal appellate rules unless the normal appellate review process would be useless, such as when the contemnor has to remain in jail during the course of the appeal. See Johnson, 343 Ark. at 195-196, 33 S.W.3d at 498 (holding that when contemnors were jailed indefinitely by the trial judge, an appeal to dispute the jail sentence is useless); Bates v. McNeil, 318 Ark. 764, 888 S.W.2d 642 (1994) (holding that when contemnor had to remain in jail pending a show-cause hearing, appeal remedy was useless). The situation here is on point with Johnson and Bates, because the thirty-six day jail-time would run but for this court’s stay and expedited appeal. Mr. Ivy is correct in pursuing a writ of certiorari.
a. Contempt Generally.
In order to evaluate Mr. Ivy’s due process claims, it is initially necessary to identify precisely what action by Mr. Ivy was deemed to be contemptuous and what type of contempt Judge Keith invoked.
The Arkansas Constitution addresses the contempt power of the courts and the power of the General Assembly to regulate con-tempts not committed in front of the judge:
§ 26. Punishment of indirect contempt provided for by law.
The General Assembly shall have power to regulate the punishment of contempts not committed in the presence or hearing of the courts, or in disobedience of process.
Ark. Const, art. 7 § 26.
State law then sets out the contempt power of the courts and the appropriate penalties, with the exception of contempts committed in the immediate view and presence of the court:
(a) Every court of record shall have power to punish, as for criminal contempt, persons guilty of the following acts, and no others:
(1) Disorderly, contemptuous, or insolent behavior committed during the court’s sitting in-its immediate view and presence, and directly tending to interrupt its proceedings or to impair the respect due to its authority;
(2) Any breach of the peace, noise, or disturbance directly tending to interrupt its proceedings;
(3) Willful disobedience of any process or order lawfully issued or made by it;
(4) Resistance, willfully offered, by any person to the lawful order or process of the court; and
(5) The contumacious and unlawful refusal of any person to be sworn as a witness and, when so sworn, a similar refusal to answer any legal and proper interrogatory.
(b) (1) Punishments for contempt may be by fine or imprisonment in the jail of the county where the court may be sitting, or both, in the discretion of the court. However, the fines shall in no case exceed the sum of fifty dollars ($50.00) nor the imprisonment ten (10) days.
(2) Courts shall always have power to imprison until their adjournment.
(b) (3) When any person is committed to prison for the nonpayment of any such fine, he shall be discharged at the expiration of thirty (30) days.
(c) Contempts committed in the immediate view and presence of the court may be punished summarily. In other cases, the party charged shall be notified of the accusation and shall have a reasonable time to make his defense.
(d) (1) Whenever any person is committed for a contempt under the provisions of this section, the substance of his offense shall be set forth in the order or warrant of commitment.
Ark. Code Ann. § 16-10-108 (Repl. 1999).
Our constitution and caselaw make it clear that the courts of this state have inherent power to punish a contemnor for contempts committed in the presence of the court or in disobedience of process. Ark. Const. art. 7, § 26. See also Johnson v. Johnson, supra; Carle v. Burnett, 311 Ark. 477, 845 S.W.2d 7 (1993); Yarbrough v. Yarbrough, 295 Ark. 211, 748 S.W.2d 123 (1988). This inherent power goes beyond the statutory authority provided by § 16-10-108. There is no question that willful disobedience of a valid order of a court is contemptuous behavior. Ark. Code Ann. § 16-10-108 (a) (3) (Repl. 1999). See also Hilton Hilltop v. Riviere, 268 Ark. 532, 534, 597 S.W.2d 596, 597 (1980) (“Disobedience of any valid judgment, order, or decree of a court having jurisdiction to enter it may constitute contempt.”); Henderson v. Dudley, 264 Ark. 697, 710, 574 S.W.2d 658, 666 (1978) (“[T]he disobedience of any valid judgment, order or decree of a court having jurisdiction to enter it is such an interference with the administration of justice as to constitute contempt.”). Before a person can be held in contempt for violating a court order, the order must be definite in its terms, clear as to what duties it imposes, and express in its commands. E.g., Lilly v. Earl, 299 Ark. 103, 771 S.W.2d 277 (1989).
We have observed in the past that contempt ,is a matter between the judge and the litigant, and not between the two opposing litigants. See Hickinbotham v. Williams, 228 Ark. 46, 305 S.W.2d 841 (1957). Cf. Cooter & Gell v. Hartmarx Corp., 496 U.S. 384 (1990) (noting that contempt, Rule 11 sanctions, and award of attorneys’ fees are all actions separate and apart from the underlying proceeding and that all three actions concern the integrity of the court and judicial process, not the merits of the underlying claim).
We next examine what category of contempt is involved.
b. Criminal and Civil Contempt
Contempt is divided into criminal contempt and civil contempt. Johnson, 343 Ark. at 197, 33 S.W.3d at 499. Criminal contempt preserves the power of the court, vindicates its dignity, and punishes those who disobey its orders. Johnson, 343 Ark. at 197, 33 S.W.3d at 499. Civil contempt, on the other hand, protects the rights of private parties by compelling compliance with orders of the court made for the benefit of private parties. Id. This court has often noted that the line between civil and criminal contempt may blur at times. Id. Our Court of Appeals has given a concise description of the difference between civil and criminal contempt. See Baggett v. State, 15 Ark. App. 113, 116, 690 S.W.2d 362, 364 (1985) (“[Criminal contempt punishes while civil contempt coerces.” (emphasis in original)).
In determining whether a particular action by a judge constitutes criminal or civil contempt, the focus is on the character of relief rather than the nature of the proceeding. Fitzhugh v. State, 296 Ark. 137, 138, 752 S.W.2d 275, 276 (1988). Because civil contempt is designed to coerce compliance with the court’s order, the civil contemnor may free himself or herself by complying with the order. See Id. at 139, 752 S.W.2d at 276. This is the source of the familiar saying that civil contemnors “carry the keys of their prison in their own pockets.” Id. at 140, 752 S.W.2d at 277 (quoting Penfield Co. v. S.E.C., 330 U.S. 585, 593 (1947) (quoting In re Nevitt, 117 F. 448, 461 (8th Cir. 1902)). Criminal contempt, by contrast, carries an unconditional penalty, and the contempt cannot be purged. Fitzhugh, 296 Ark. at 139, 752 S.W.2d at 276-277.
In the instant case, Judge Keith ruled from the bench that Mr. Ivy was to serve a fixed term of thirty-six days in jail, followed by a payment of $1,000 per month to start sixty days after the jail term ended. The County Jail Order referred only to the thirty-six days to serve. By the terms of that order, Mr. Ivy could not purge himself of the jail sentence by paying the Rule 11 sanctions. We conclude that the jail sentence was intended as a punishment, not as an inducement to pay. Flence, Mr. Ivy was clearly held in criminal contempt.
c. Direct and Indirect Contempt
Both the Arkansas Constitution and the governing state statute distinguish between direct and indirect contempt. See Ark. Const., art. 7, § 26; Ark. Code Ann. § 16-10-108 (Repl. 1999). See also Allison v. DuFresne, 340 Ark. 583, 12 S.W.3d 216 (2000); Davis v. Meritt, 252 Ark. 659, 480 S.W.2d 924 (1972). Direct contempt is a contemptuous act “committed within the immediate presence of the Court ...” Meritt, 252 Ark. at 670, 480 S.W.2d at 930. Indirect contempt is contemptuous behavior committed outside the presence of the judge. An obvious example of direct contempt, besides open misconduct in the courtroom, is a party coming to court drunk. See Burradell v. State, 326 Ark. 182, 931 S.W.2d 100 (1996). Examples ofindirect contempt include an attorney’s failure to appear in court before receiving permission to withdraw as counsel (Allison v. DuFresne, supra), and failure to pay court costs (Bates v. McNeil, supra).
In a recent case, this court upheld a trial judge’s finding that two prosecutors were in direct criminal contempt when they did not comply with a scheduling order and proceed to trial on the trial date. See Johnson v. Johnson, 343 Ark. 186, 33 S.W.3d 492 (2000). After the trial judge held the two prosecutors in contempt for violating his scheduling order and remanded them to the sheriff the prosecutors petitioned this court for a writ of certiorari. In denying the writ, we said:
The issue was one of proceeding to trial which the prosecutors refused to do in direct contravention of the judge’s scheduling order. This occurred in front of the judge and under our statutes and under the judge’s inherent authority punishment could be summarily meted out.
Johnson, 343 Ark. at 202, 33 S.W.3d at 502.
The Johnson opinion uses the language associated with direct contempt. If the failure to comply with the judge’s order had been considered indirect contempt, that is, outside of the trial judge’s presence, then the prosecutors would have been entitled to the due process protections of notification of the accusation and a reasonable time to make a defense. See Ark. Code Ann. § 16-10-108(c) (Repl. 1999).
Mr. Ivy’s arguments in support of his writ all rest on the central assumption that he was held in indirect criminal contempt by Judge Keith. According to Mr. Ivy, because he was held in indirect contempt rather than direct contempt, due process rights, such as the right to have his guilt proven beyond a reasonable doubt, the right to counsel, and the right to trial by jury, attached, and the trial judge violated those rights.
We agree that Judge Keith held Mr. Ivy in indirect contempt for willfully disobeying a prior order. When that is the case, the contemnor, as just mentioned, is entitled to notice of the accusation and a reasonable time to make a defense. Ark. Code Ann. § 16-10-108(c) (Repl. 1999). Mr. Ivy did little to invoke his due process rights before the trial court. As best we can determine, he merely made the following statement: “Your honor has the right to put me in jail for whatever time, five years if you want to. Of course, at that point — some certain rights might kick in, might become criminal. . . .”
On appeal, however, he raises specific due process deprivations for the first time — shifting the burden of proof, right to counsel, and right to a jury trial. We decline to address these specific points, because it is elementary that an issue, even a constitutional issue, must first be raised before the trial court. E.g., Green v. State, 300 Ark. 458, 956 S.W.2d 849 (1997). Here, that was not done. Even where the requested relief is certiorari. for a gross abuse of the trial judge’s discretion, the trial court must first be presented with those rights the defendant contends were not afforded to him.
' The statutory rights under § 16-10-108 (c) of (1) notice of the accusation, and (2) a reasonable time to make a defense are a different matter. Mr. Ivy is an attorney. He knew of the contempt contingency as early as the Rule 11 order on January 8, 2002. He then questioned Judge Keith about possible contempt on January 25, 2002. He was then served with a notice of noncompliance with the Rule 11 order, which was mailed on February 12, 2002. He next received an Order of Summons for a show-cause hearing related to failure to comply with the Rule 11 order, which was filed on February 20, 2002. The show-cause hearing then took place on March 7, 2002. Clearly, Mr. Ivy was afforded ample notice of the accusation and reasonable time to make a defense. Moreover, he never argued to Judge Keith that he was prejudiced by the shortness of notice or time to prepare. We hold that Mr. Ivy was not deprived of his statutory protections.
II. Substantial Evidence
For his next argument, Mr. Ivy argues that there was insufficient evidence presented to show that his nonpayment of the Rule 11 sanction was “willful disobedience.” He argues that, to the contrary, the record indicates that he tried to resolve his financial dilemma by offering to pay at a reduced rate of $500 a month. He also maintains that he advised the judge that he could not pay. Mr. Ivy asserts that Judge Keith simply concluded that he willfully disobeyed the Rule 11 order without sufficient evidence to support this finding. He also claims that the record supports the fact that the real reason he was found in contempt had to do with the merits of the underlying case. Specifically, he contends: “the trial judge was evidently frustrated with the Petitioner because of the behavior which had triggered the trial court’s original decision to impose a sanction. However, the purpose of this contempt proceeding was to determine whether the Petitioner had willfully and inexcusably failed to comply with the sanction order — not to review the reasons for imposing the sanction in the first place.”
What was in Judge Keith’s mind, of course, is speculation on Mr. Ivy’s part. Mr. Ivy, however, is correct that criminal contempt is not appropriate as a penalty for violating Rule 11. Indeed, our research has only disclosed the use of civil contempt to coerce payment of Rule 11 sanctions. See, e.g., Verone v. Taconic Tel. Corp., 826 F. Supp. 632 (N.D. N.Y. 1993); Cannon v. Loyola University of Chicago, 676 F. Supp. 823 (E.D. Ill. 1987). The rule itself lists as “appropriate sanction[s]” reasonable expenses incurred by the litigation, including attorney’s fees. See Ark. R. Civ. P. 11. Manifestly, the trial judge should not be allowed to do indirectly with the criminal contempt power what he could not do directly under Rule 11. We hold that Judge Keith plainly, manifestly, and grossly abused his discretion in using criminal contempt as a penalty for failure to pay the Rule 11 sanctions.
Mr. Ivy also raises the specter of a party being jailed essentially for inability to pay a debt. The practice of imprisoning people for debts was abolished by the Debtor’s Act of 1869. See Black’s Law Dictionary 412 (7th Ed. 1999) (defining “Debtor’s Act of 1869”). Moreover, our own constitution provides: “No person shall be imprisoned for debt in any civil action, or mense or final process, unless in cases of fraud.” Ark. Const. art. 2, § 16. This court has said, in the civil contempt context, that “lack of ability to pay is a complete defense against enforcing payment from the defendant by imprisonment.” Griffith v. Griffith, 225 Ark. 487, 490, 283 S.W.2d 340 (1955). The Griffith court further said: “[t)he court is empowered to punish the defendant by imprisonment for willful obstinancy where it shall appear that he had the means with which to comply with the decree, but it should not imprison him where he shows that he has not the pecuniary ability to comply with the decree and is in such ill health that he cannot earn enough money to do so.” Id. at 491, 283 S.W.2d at 342.
Bearing this fundamental principle in mind, we are convinced, however, that Mr. Ivy received his day in court on his defense of inability to pay, albeit for criminal comtempt. As already noted in this opinion, he had ample notice of the show-cause hearing. Yet, he came to the hearing armed only with his contention that he could not pay the Rule 11 sanctions at that time. It is clear that Judge Keith gave Mr. Ivy every opportunity to put on evidence. At the start of the hearing on March 7, 2002, the trial court asked Mr. Ivy: “Do you have any evidence — are you prepared to offer evidence in support of your position?” Mr. Ivy responded with a long answer in which he stated “under penalty of perjury, [because] an attorney has an obligation to tell the truth in court” that (1) he had no assets except for clothes and a few personal possessions; (2) he owes the IRS about $300,000; (3) he had considered filing bankruptcy; (4) he offered, beginning March 1, to pay off the sanction at $500 a month, which he said he could afford; (5) that-he could have $20,000 to $30,000 in his pocket tomorrow because of the way his income is; (6) his mother purchased all his office assets at a sale following execution on a judgment; (7) that he understood jail is the proper remedy for nonpayment; (8) that he previously had made court ordered payments for smaller amounts; (9) that he had taken a vow of poverty when he became a minister.
During the course of the hearing, the trial judge continued to request evidence from Mr. Ivy: “Anything else you wish to say?” jnd “Now, you can address the issue. . . . “ Just before adjourning to' make his decision, the trial judge asked Mr. Ivy a final time: “Have you got any evidence to offer in support of your position?” To this, Mr. Ivy answered simply, “No, sir, Your Honor.”
According to Mr. Ivy, Judge Keith should have made inquiries into whether he was indeed indigent. Yet, we see indigency as a defense to contempt and one that should have been mounted by Mr. Ivy as part of his effort to show cause why he should not be held in contempt. It was Mr. Ivy’s obligation and responsibility to present evidence of his allegedly dire financial condition on March 7, 2002. He failed to do so.
Furthermore, Judge Keith, sitting as fact-finder, was still entitled to judge the credibility of this witness. In short, as the trial judge, he was not required to believe Mr. Ivy’s bare assertion that he could not pay. See Gatlin v. Gatlin, 306 Ark. 146, 811 S.W.2d 761 (1991) (holding that a trial judge was not required to believe a contemnor’s testimony that she was without funds to pay an IRS debt, and upholding a finding of contempt.)
Nevertheless, finding Mr. Ivy in criminal contempt for not paying the Rule 11 sanctions constituted a plain, manifest, and gross abuse of discretion, and we grant the writ of certiorari. .We void the sentence of thirty-six days in jail and remand the matter for further proceedings, which may include proceedings for civil contempt if deemed appropriate by the trial court in this case. We direct that should the trial court wish to pursue civil contempt against Mr. Ivy for failure to pay the Rule 11 sanctions that a new notice and reasonable time to make a defense be afforded him under Ark. Code Ann § 16-10-108(c). At first blush, it would appear that there is little to be gained from holding still another show-cause hearing on Mr. Ivy’s financial status in connection with civil contempt. By the same token, we can conceive of how clear notice of what type of contempt Mr. Ivy might be facing under the circumstances by not paying the sanctions and the potential sentence following a finding of contempt would be important to him in fashioning his defense of inability to pay. Of course, if Mr. Ivy is indeed unable to pay the sanctions, placing him in jail to coerce him to pay as part of civil contempt would equate to holding him in criminal contempt. Because we grant the writ of certiorari, it is unnecessary to address Mr. Ivy’s identical arguments as a direct appeal.
Petition for writ of certiorari granted.
Remanded.
Arnold, C.J., not participating.
Glaze and Imber, JJ., concurring in part and dissenting in part.
Mr. Ivy’s brief shows “State of Arkansas, Benton County Circuit Court — Div. Í, and Benton County Sheriff Andy Lee” as respondents. We conclude that Hon. Tom J. Keith, as shown on the record of this case, is the more appropriate party for a certiorari petition.
In response to the concurrence in part and dissent in part, it is undisputed from the record that at the time of appeal, Mr. Ivy had not paid the Rule 11 sanctions in violation of Judge Keith’s order. Under these circumstances, it is proper for Judge Keith to proceed with a show-cause order for civil contempt, should he choose to do so. If Mr. Ivy has now paid the sanctions, he can so advise Judge Keith. If not, he must show cause why he should not be held in contempt. | [
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Ray Thornton, Justice.
Appellant, Joe Clem, was convicted of one count of rape and three counts of accomplice to rape. Based on these convictions, appellant was sentenced to three life sentences and one term of forty years’ imprisonment. These convictions stem from the rape of appellant’s daughter, M.C., who was under the age of fourteen at the time the offense occurred, and the rape of appellant’s son, J.C., who was also under the age of fourteen at the time the offense occurred.
At trial, appellant objected to the admission of several photographs, which depicted the condition of his home, and showed various items found in his home, such as a wooden paddle and framed posters of nude or partially dressed women. The trial court denied appellant’s objection and admitted the photographs.
During his trial, appellant also objected to the testimony of his seven-year-old daughter, M.C. He argued that M.C. was incompetent to testify. After conducting two in camera hearings, the trial court determined that M.C. was competent to testify.
At the close of the State’s case, and again at the close of all of the evidence, appellant requested that the trial court direct verdicts in his favor on all charges. The trial court denied appellant’s motions and sent the matter to the jury for resolution. The jury found appellant guilty of all charges, and appellant was thereafter sentenced.
It is from these convictions that appellant appeals. On appeal, appellant raises three points for our consideration, and we affirm the trial court on all points.
In his final point on appeal, appellant urges that the trial court erred in denying his motions for directed verdicts. Although this issue is raised as appellant’s final point on appeal, we consider it first because double-jeopardy considerations require us to consider a challenge to the sufficiency of the evidence prior to examining other issues on appeal. Atkinson v. State, 347 Ark. 336, 64 S.W.3d 259 (2002). We have explained that a motion for a directed verdict is a challenge to the sufficiency of the evidence. Id.
In Burmingham v. State, 342 Ark. 95, 27 S.W.3d 351 (2000), we outlined the rules that we follow in our consideration of whether the verdict was supported by sufficient evidence. We wrote:
In reviewing a challenge to the sufficiency of the evidence, we view the evidence in a light most favorable to the State and consider only the evidence that supports the verdict. Wilson v. State, 332 Ark. 7, 962 S.W.2d 805 (1998). We do not reweigh the evidence but determine instead whether the evidence supporting the verdict is substantial. McFarland, supra. We affirm a conviction if substantial evidence exists to support it. Prater v. State, 307 Ark. 180, 820 S.W.2d 429 (1991). Evidence, whether direct or circumstantial, is sufficient to support a conviction if it is forceful enough to compel reasonable minds to reach a conclusion without having to resort to speculation or conjecture. Id. We do not, however, weigh the evidence presented at trial, as that is a matter for a factfinder. Wilson, supra. Nor will we weigh the credibility of the witnesses. }d. We have also noted that the testimony of the rape victim satisfies the substantial evidence requirement in a rape case. Prater, supra.
Burmingham, supra. We have further noted that a rape victim’s testimony need not be corroborated to support a conviction. Sublett v. State, 337 Ark. 374, 989 S.W.2d 910 (1999).
In our appellate review, we must determine whether there was sufficient evidence to support appellant’s conviction. Appellant was convicted of one count of rape and three counts of accomplice to rape. At the time appellant committed his crime, Ark. Code Ann. § 5-14-103 (Repl. 1997) (superseded) articulated the elements for the offense of rape. The statute provided:
(a) A person commits rape if he engages in sexual intercourse or deviate sexual activity with another person:
(1) By forcible compulsion; or
* * *
(4) Who is less than fourteen (14) years of age. It is an affirmative defense to prosecution under this subdivision (a)(4) that the actor was not more than two (2) years older than the victim.
Id. Additionally, at the time appellant committed his crime, Ark. Code Ann. § 5-14-101 (Repl. 1997) (superseded) provided:
As used in this chapter, unless the context otherwise requires:
(1) “Deviate sexual activity” means any act of sexual gratification involving:
* * *
(B) The penetration, however slight, of the labia majora or anus of one person by any body member or foreign instrument manipulated by another person.
Id. We have explained that penetration can be shown by circumstantial evidence, and if that evidence gives rise to more than a mere suspicion, and the inference that might reasonably have been deduced from it would leave little room for doubt, that is sufficient. Tinsley v. State, 338 Ark. 342, 993 S.W.2d 898 (1999).
Arkansas Code Annotated § 5-2-402 (Repl. 1997), articulates the elements necessary to establish that a person is criminally liable for the conduct of another person. The statute provides:
A person is criminally liable for the conduct of another person when:
(1) He is made criminally liable for the conduct of another person by the statute defining the offense; or
(2) He is an accomplice of another person in the commission of an offense; or
(3) Acting with the culpable mental state sufficient for the commission of the offense, he causes another person to engage in conduct that would constitute an offense but for a defense available to the other person.
Id. Finally, Ark. Code Ann. § 5-2-403 (Repl. 1997), gives the statutory definition of an accomplice. The statute provides:
(a) A person is an accomplice of another person in the commission of an offense if, with the purpose of promoting or facilitating the commission of an offense, he:
(1) Solicits, advises, encourages, or coerces the other person to commit it.
Id. We have explained that relevant factors in determining the connection of an accomplice to a crime are the presence of the accused in proximity of a crime, the opportunity to commit the crime, and an association with a person involved in a manner suggestive of joint participation. Atkinson v. State, 347 Ark. 336, 64 S.W.3d 259 (2002).
With the relevant statutes and case law outlined, we consider whether there was sufficient evidence to support appellant’s conviction. Appellant was convicted of raping his seven-year-old daughter, M.C. Appellant argues that the trial court should have granted his motion for a directed verdict because “there was no evidence to support the supposition that a rape had occurred.” A review of the testimony presented at trial clearly establishes that there was sufficient evidence to support appellant’s rape conviction.
At trial, Dr. Dwight Williams testified that he examined M.C., and that her exam was consistent with recent sexual abuse. He stated that there was redness present in the internal labia. Dr. Williams also testified that M.C. had some abrasions, scratches, or trauma present on the internal labia, and that the examination of M.C.’s hymen “revealed it to not be totally present.” Dr. Williams explained that it is irregular for a hymen of a child M.C.’s age to be partially absent without penetration. Dr. Williams also stated that during his examination of M.C. he found skin tags around the anus. He explained that skin tags on a child M.C.’s age can be consistent with anal penetration.
M.C. also testified at trial. She testified that appellant touched her “private spot” with his finger while she was not wearing any clothes. M.C. explained that it hurt when appellant put his finger in her private spot because “he was sticking it all the way in.” She also testified that appellant touched her “private spot” with his “private spot,” and that appellant forced her to perform oral sex on him.
Finally, Donna Clem, appellant’s wife and M.C.’s mother, testified. She stated that she saw appellant call M.C. into his bedroom, and that appellant told her that he had inserted his finger into M.C.
After reviewing the evidence, we conclude that there was sufficient evidence to support appellant’s rape conviction. Specifically, we hold that there was sufficient evidence upon which the jury could have concluded that appellant engaged in sexual intercourse or deviate sexual activity with M.C., who was under the age of fourteen.
Appellant was also convicted of three counts of being an-accomplice to rape. .One count of the conviction stems from appellant’s participation in a crime committed by Donna Clem. Specifically, Donna Clem raped J.C., who was her son and who was also appellant’s son. Additionally, appellant participated in sexual acts which occurred between his children M.C. and J.C. On appeal, appellant contends that there was insufficient “evidence to support the supposition that the elements of coercion, advisement, or solicitation were present for the charge of accomplice to rape.” A review of the trial testimony is necessary to determine whether the trial court erred in denying appellant’s motion for directed verdict.
At trial, J.C. testified. He stated that appellant would force him and his mother to remove their clothes and lie on the bed together. J.C. further testified that appellant would order him to lie on top of his mother. He also stated that appellant forced him to put is “private” in his mother’s “private.” J.C. explained that appellant told him that he would hurt him if he did not follow appellant’s instructions.
Next, J.C. testified that appellant forced him and M.C. to remove their clothes and lie on the bed with J.C. lying on top of M.C. He also stated that appellant forced him to put his “private” in M.C.’s “private.”
M.C. also testified about these charges. M.C. stated that she and J.C. removed their clothes and that J.C. lay on top of her. She further testified that J.C. put his “private” in her and that J.C. also put his finger in her. M.C. explained that the children engaged in these acts because appellant told them to, and that they obeyed him because they were scared of appellant.
Finally, Donna Clem testified. She stated that she and the children were scared of the appellant because he was abusive. Mrs. Clem further testified that appellant would “make Q.C.] get on top of me and have sex with me.” She explained that watching these acts aroused appellant. Mrs. Clem also stated that while she was having sex with J.C., appellant would offer sexual instructions to J.C.
After reviewing the evidence, we conclude that there was sufficient evidence to support appellant’s accomplice to rape convictions. Specifically, we hold that there was sufficient evidence upon which the jury could have concluded that appellant solicited, advised, encouraged, or coerced Mrs. Clem to rape J.C. Additionally, there was sufficient evidence to establish that appellant coerced J.C. and M.C. to engage in sexual activities. Accordingly, the trial court correctly denied appellant’s motions for directed verdicts.
In appellant’s second point on appeal, he argues that the trial court erred when it admitted certain photographs and testimony about these photographs into evidence. Appellant argues that the photographs and the testimony about the photographs was irrelevant and prejudicial. We have often stated that the admission and relevancy of photographs is a matter within the sound discretion of the trial court. Sanders v. State, 340 Ark. 163, 8 S.W.3d 520 (2000). Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Ark. R. Evid. 401. The general rule is that all relevant evidence is admissible. Ark. R. Evid. 402. However, relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Ark. R. Evid. 403. A trial court’s ruling on relevancy is entided to great weight and will not be reversed absent an abuse of discretion. Miles v. State, 348 Ark. 544, 74 S.W.3d 615 (2002).
On appeal, appellant argues that “the trial court abused its discretion by allowing any testimony and photographs into evi dence which served only to depict the appellant’s home as one of deplorable conditions.” At trial, appellant objected to State’s exhibits 2, 3, 4, 5, 6, 7, 8, and 9. The contested exhibits were photographs. The photographs were taken by LeAnn Vanaman, a supervisor with the Arkansas State Police, Family Protection Division, and were introduced during her testimony. Ms. Vanaman was assigned to investigate a report of child abuse at appellant’s home. During her testimony, Ms. Vanaman described the photographs. Specifically, she testified that exhibit 2 was a photograph taken “in the drive, when we pulled up to the home, just to show what the outside of the trailer looked like.” Ms. Vanaman further testified that “number 3 is just a little bit closer-up view, just to show the walkway into the home.” Exhibit 4 was a photograph of “the back of the trailer.” Exhibit 5, Ms. Vanaman explained, was a photograph of “a trash can,” “a paddle,” “roaches and other things around the trash,” and a “world’s greatest dad coffee cup with a roach inside.” Exhibit 6 was a photograph depicting a framed poster of “a naked woman” found hanging in appellant’s bedroom. Exhibit 7 depicted another poster of a nude woman. This poster was also found in appellant’s room. Ms. Vanaman further testified that exhibit 8 was a photograph depicting a framed poster of “a woman wearing short shorts and an open jacket, sitting on a motorcycle.” She explained that this poster was hanging in appellant’s living room. Finally, Ms. Vanaman testified that exhibit 9 was a photograph depicting appellant’s bedroom. She explained that the photograph showed appellant’s unmade bed that was covered in dog feces.
The trial court admitted the photographs and the testimony about the photographs because it concluded that they were relevant in that the evidence showed the conditions of the trailer in which the children resided. We cannot say that the trial court abused its discretion in admitting the testimony and the photographs. The challenged evidence was relevant to establish that appellant had a complete disregard for the well-being of his children. We discussed this issue in Lindsey v. State, 319 Ark. 132, 890 S.W.2d 584 (1994) (plurality opinion). In that case, Lindsey was convicted of raping his eight-year-old daughter. At trial, the State introduced evidence concerning a medical condition suf fered by Lindsey’s daughter, and left untreated by Lindsey. Id. The medical condition was not directly related to the rape charges. On appeal, Lindsey argued that the trial court erred by admitting the medical testimony because it was irrelevant to the rape charges and prejudiced his case. Id. We concluded that the trial court properly admitted the evidence of neglect and explained:
[W]e have no hesitancy in concluding that permitting an eight-year-old child to develop a severe case of trench foot is a form of neglect by the parent and that the neglect of a child’s physical needs is necessarily a form of abuse. Hence, we believe that a father’s perpetration of child abuse by neglect is relevant to a case of sexual abuse against that same child, when both forms of abuse are occurring at the same time. Such evidence is pertinent in that it establishes an intentional pattern of abusive behavior on the part of the parent toward the child — the first by neglecting her basic hygienic needs and the second by soliciting her to engage in sexual activity. A contemptible lack of caring for a child’s essential healthcare needs easily intertwines with sexual abuse of the child. Both forms of abuse are intentional and evidence lack of care, concern, and respect for the child’s well-being.
Id.
The reasoning outlined in Lindsey is applicable to the case now before us. We conclude that the sexually explicit posters on the wall and the deplorable living conditions of the trailer, including a room crawling with roaches and a bed covered in feces, was relevant evidence because it established a pattern by appellant of intentionally neglecting his children’s well-being. We further conclude that this evidence establishing an intentional neglect of his children’s well-being was relevant to the consideration of whether appellant sexually abused his children. Further, we conclude that the relevant evidence was more probative than prejudicial. Accordingly, the trial court properly admitted the evidence.
In his third point on appeal, appellant argues that the trial court erred when it allowed M.C., appellant’s seven-year old daughter, to testify. Specifically, appellant argues that M.C. was not competent to testify because M.C. was unable to receive and retain accurate impressions, and because she lacked the capacity to transmit a reasonable statement of what transpired in the past.
In Byndom v. State, 344 Ark. 391, 39 S.W.3d 781 (2001), we discussed the standard of review we follow when considering a trial court’s determination of competency of a witness. In that case, we wrote:
The question of the competency of a witness is a matter lying within the sound'discretion of the trial court and in the absence of clear abuse, we will not reverse on appeal. King v. State, 317 Ark. 293, 877 S.W.2d 583 (1994); Jackson v. State, 290 Ark. 375, 720 S.W.2d 282 (1986). The trial court must begin with the presumption that every person is competent to be a witness. Id.; Ark.R.Evid. 601. The party alleging a witness is incompetent has the burden of persuasion. Logan v. State, 299 Ark. 266, 773 S.W.2d 413 (1989). The issue of competency of a witness is one in which the trial judge’s evaluation is particularly important due to the opportunity he is afforded to observe the witness and the testimony. Clifton v. State, 289 Ark. 63, 709 S.W.2d 63 (1986). As long as the record is one upon which the trial judge could find a moral awareness of the obligation to tell the truth and an ability to observe, remember and relate facts, we will not hold there has been a manifest error or abuse of discretion in allowing the testimony. Hoggard v. State, 277 Ark. 117, 640 S.W.2d 102 (1982); Chambers v. State, 275 Ark. 177, 628 S.W.2d 306 (1982).
Byndom, supra. We have explained that the criteria for determining whether a witness is competent to testify are: (1) the ability to understand the obligation of an oath and to comprehend the obligation imposed by it; or (2) an understanding of the consequences of false swearing; or (3) the ability to receive accurate impressions and to retain them, to the extent that the capacity exists to transmit to the factfinder a reasonable statement of what was seen, felt, or heard. Laughlin v. State, 316 Ark. 489, 872 S.W.2d 848 (1994); see also Greenlee v. State, 318 Ark. 191, 884 S.W.2d 947 (1994).
With these principles in mind, we consider whether the trial court erred in deciding that M.C. was competent to testify. At trial, appellant challenged M.C.’s testimony. He argued that she was an incompetent witness. After raising this objection, the trial court conducted two in camera hearings. At the hearings, M.C. testified: (1) that she was seven years old, (2) that her birthday was May18th, (3) that she was in first grade, (4) that she had two brothers and one sister, (5) that she would get in trouble at school if she told a lie, and (6) that a person should tell the truth. She also answered a series of questions in which she was able to distinguish between the truth and a lie. Additionally, M.C. stated that she would be able to take an oath in open court and that she would promise to tell the truth during her testimony.
During her trial testimony, M.C. was able to explain the details surrounding the crimes committed by appellant. Specifically, M.C. was able to remember and testify about: (1) where the crimes occurred, (2) how often the crimes occurred, (3) what appellant was wearing when the crimes occurred, (4) how she felt when the crimes occurred, (5) what appellant was doing during the crimes, and (6) where her mother was when the crimes occurred.
After reviewing the in camera hearings and M.C.’s trial testimony, we conclude that the trial court did not abuse its discretion. Specifically, we conclude that M.C. had a moral awareness of the obligation to tell the truth and an ability to observe, remember, and relate facts.
4-3(h) Review
In compliance with Ark. Sup. Ct. R. 4-3(h), the record has been examined for all objections, motions, and requests made by either party that were decided adversely to appellant, and no error has been found.
Affirmed.
Arnold, C.J., not participating.
Hannah, J., concurs.
We note that appellant did not include copies of the contested photographs in either his abstract or his addendum. In his brief, appellant addressed this issue. He wrote:
[T]he Rules of Appellate Procedure require, unless waived by the court upon motion, that the appellant reproduce a photograph and attach it to the abstract whenever that photograph must be examined for a clear understanding of the testimony. See Ark. Sup. Ct. R.*4~2 (a)(6); Bunn v. State, 320 Ark. 516, 898 S.W.2d 450 (1995). It is appellant’s contention that this is unnecessary in the case at bar as the photographs were thoroughly described in the transcript and depicted none of the elements related to the charge, but were solely put into evidence to prove that the appellant was a poor housekeeper and had unconventional tastes in decor by having a framed picture of a nude woman in a home where children lived.
Appellant’s contention is well-taken. Specifically, we conclude that an examination of the photographs was not necessary for our consideration of this issue because we were able to fully understand the issue by reviewing LeAnn Vanaman’s testimony, which was included in appellant’s abstract. | [
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Robert L. Brown, Justice.
This appeal is brought by the appellant, Rex Bradford, from a judgment and commitment order sentencing him to three five-year sentences to be served consecutively. Bradford asserts that the trial court erroneously sentenced him, sua sponte, to consecutive sentences in violation of a plea agreement and an earlier pronouncement of sentence in open court. Because Bradford was not advised by the trial court of his right to affirm or withdraw his guilty plea in open court, which violated Ark. R. Crim. P. 25.3(b), we reverse and remand.
On February 25, 2002, Bradford entered a plea of guilty to three separate felonies pursuant to a plea agreement negotiated with the prosecuting attorney. The felonies included two counts of possession of methamphetamine and one count of possessing and manufacturing marijuana. During the hearing before the trial court on that date, Bradford stated that he signed the plea agreement submitted to the court, that he understood he could receive anywhere from three to thirty years in prison for the charged offenses, that he had a right to a trial by jury, that he had a right to confront witnesses, and that he had the right to appeal the trial court’s decision, if he proceeded to trial. Fie further stated his intention to waive these constitutional rights and to plead guilty. The court then accepted the plea agreement and made it part of the record. Bradford next stated that he had discussed the minimum and maximum penalties with his attorney and that he was entering his guilty plea freely and voluntarily. FFe also stated that he understood that the State’s recommendation was not binding on the court and that the actual disposition by the trial court could differ from his plea agreement with the prosecutor.
The trial court found that in all three cases, Bradford had freely and voluntarily waived his right to a jury trial and entered a plea of guilty. He further found that there was a factual basis for his plea. The court adjudged Bradford guilty on all counts and questioned the parties as to sentencing:
The Court: . . . What is the State’s recommendation?
The State: Your Honor, that on each of the charges, the defendant is sentenced to five years in the Arkansas Department of Correction. Those sentences are to run concurrently with one another.
The Court: Is that your recommendation, Mr. Etoch, of what the recommendation would be?
Defense Counsel: Yes, sir.
The Court: What is the recommendation regarding the sentences being concurrent or consecutive?
The State: Concurrent.
The trial court then pronounced judgment, which was five years on each count, to be served concurrently.
Eight days later, on March 5, 2002, the trial court issued an order sua sponte directing Bradford to appear in open court for resentencing. On March 7, 2002, the trial court held the resentencing hearing. A conversation in chambers regarding this matter apparently occurred with counsel and the trial court before the hearing commenced, but it was not transcribed. At the hearing, Bradford requested due process, including notice and an opportunity to respond. The prosecutor answered that the trial court could not resentence a defendant after execution of the judgment, which is defined as a formal entry of judgment and commitment or actual physical placement of the defendant in the Department of Correction. The prosecutor took the position that neither event had occurred in this case. The trial court agreed.
Various witnesses were then called. The court heard from Freddie Flouston, who had compiled a pre-sentence report on Bradford and found Bradford’s presumptive sentence to be thirty months. Bradford attempted to call the prosecuting attorney who had negotiated the plea agreement, but he was out of town. • The trial court ruled that Bradford could have subpoenaed the prosecuting attorney and denied Bradford’s motion for a continuance on that basis. Melanie Bradford next took the stand on behalf of her husband. She testified that he was a good husband, father, and worker, and that it would, be a hardship on the family for him to go to prison. The State, on rebuttal, called Dale Arnold, a Criminal Narcotics Investigator for the Arkansas State Police, who testified to the events stemming from a search warrant executed on Bradford’s home on October 25, 2001, which led to the drug arrests.
In its ensuing ruling and sentence, the trial court noted that the execution of sentence had not commenced, that Bradford had remained at liberty, and that its judgment and commitment order had not been entered. The court concluded that it could revisit the previous sentence pronounced in open court. The court sentenced Bradford to five years on each of the three charges, to be served consecutively. On request by Bradford, the court cited its reason for departure from the recommended thirty months as “based on the record produced today in this hearing in its entirety.” The trial court granted Bradford’s request for an appeal bond, and Bradford now brings this appeal.
Bradford argues, as his primary point, that he is entitled to rely upon the sentence he received in open court on February 25, 2002. He cites Ark. Code Ann. § 16-65-121 (Supp. 2001), in support of his argument, which reads: “All judgments, orders, and decrees rendered in open court by any court of record in the State of Arkansas are effective as to all parties of record from the date rendered and not from the date of entry of record.” He further contends that it “violates common principles of fundamental fairness and due process” to permit the trial court to come back ten days later and change its mind. Because the sentence pronounced on February 25, 2002, was in effect, Bradford maintains that the trial court lacked authority to change the sentences from running concurrently to consecutively. Bradford admits that he openly acknowledged that his disposition of sentence could differ from that negotiated with the prosecutor, but he claims that he was never told that after being sentenced in open court, “the judge could change his mind at a later time and re-sentence him to a greater amount of time.”
In the alternative, Bradford urges that he should have been given the chance to withdraw his plea if the trial court was not going to sentence him in accordance with the negotiated plea.
The State contends that Bradford is barred from appealing this matter because he pled guilty, and this court has no authority to hear this appeal. The State claims that this appeal does not fall within any of the acknowledged exceptions to the general rule precluding appeals from guilty pleas. Moreover, the State asserts that the trial court did have authority to change Bradford’s sentence before the entry of the judgment and commitment order. The State further emphasizes that the trial court gave notice of its intent to resentence him and held a hearing on the matter. Had Bradford wanted to withdraw his guilty plea, according to the State, he could have motioned the court accordingly, but he failed to do that.
The State is correct that Arkansas Rule of Appellate Procedure — Criminal 1(a) reads that “[e]xcept as provided in by ARCrP 24.3(b) there shall be no appeal from a plea of guilty[,]” Ark. R. App. P. — Crim. 1(a). This court has endorsed that principle on several occasions. See, eg., Reeves v. State, 339 Ark. 304, 5 S.W.3d 41 (1999). However, this court has also approved two additional exceptions to this rule, as outlined in our decision in Reeves v. State, supra. Those exceptions are: (1) an appeal relating to an issue involving testimony or evidence which occurred during a sentencing trial before a jury following a guilty plea; and (2) an appeal from a postjudgment motion to amend an incorrect or illegal sentence following a guilty plea. See id.
This court addressed a situation similar to the matter at hand in State v. Sherman, 303 Ark. 284, 796 S.W.2d 339 (1990). In Sherman, the defendant entered a guilty plea, which was accepted by the trial judge, and he was informed that his offense carried a possible sentence of three to ten years in prison. After accepting his plea, the trial court delayed imposition of sentence. Upon receiving the pre-sentence investigation report, the trial court decided, sua sponte, to sentence Sherman to thirty years as a habitual offender, even though the appellant was not charged as a habitual offender and was not informed at the plea hearing that prior convictions would be used to enhance his sentence. On appeal, the court of appeals modified the sentence to ten years. On review, this court dismissed the appeal altogether for lack of jurisdiction and said:
The appellant challenges the validity of the sentence he received as a direct result of his guilty plea. Therefore, the appeal is from a sentencing procedure which was an integral part of the acceptance of the appellant’s guilty plea. The appeal must be dismissed.
The appellant is not left without a remedy. A motion to correct an illegal sentence may be filed subsequent to the dismissal of this appeal. Ark. Code Ann. § 16-90-lll(b) (Supp. 1989). In the alternative, the appellant may seek relief under A. R. Cr. P. Rule 37. See Brown v. State, 290 Ark. 289, 718 S.W.2d 937 (1986) (motion to withdraw guilty plea filed after sentencing may be treated as a Rule 37 petition). Even though Rule 37 was abolished in Whitmore v. State, 299 Ark. 55, 771 S.W.2d 266 (1989), the appellant was sentenced while the rule was still in effect.
State v. Sherman, 303 Ark. at 286-87, 796 S.W.2d at 340.
Subsequent to State v. Sherman, supra, this court decided Hill v. State, 318 Ark. 408, 887 S.W.2d 275 (1994). In Hill, the defendant pled guilty to robbery, and a jury was empaneled to decide his sentence. He was sentenced to fifteen years. Hill appealed and asserted error in the sentencing hearing by the admission of evidence that he had previously attempted to rob the victim. The State objected to an appeal from a guilty plea. The issue before this court was whether the 1993 bifurcation statute, Ark. Code Ann. § 16-97-101 (Supp. 2001), conflicted with our rule disallowing appeals from guilty pleas. We held that the statute did not conflict for the reason that sentencing was now a separate proceeding held subsequent to the guilty plea. Thus, errors that occurred in the sentencing proceeding itself could be appealed.
The Hill reasoning is applicable to the instant case. The sentencing hearing took place separate and apart from the guilty plea. As a result, we will not dismiss this appeal as one from a guilty plea but will proceed to decide the case on the merits.
As an initial matter, the State is correct that a judgment and commitment order is not effective until it is entered of record. It is true that § 16-65-121 reads that a judgment rendered in open court is effective from the date it is rendered, but it is also true that the statute has been superseded in civil matters by Ark. R. Civ. P. 58, which provides that a judgment is effective upon entry of record. See Price v. Price, 341 Ark. 311, 16 S.W.3d 248 (2000). In Price, we said that “[t]o 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.” 341 Ark. at 315, 16 S.W.3d at 251. This principle that a judgment is effective upon entry of record, which occurs when it is filed, is also emphasized in Administrative Order No. 2 of this court.
The same supersession principle holds true for criminal judgments. In Johninson v. State, 330 Ark. 381, 953 S.W.2d 883 (1997), this court cited to Ark. R. Civ. P. 58 in holding that this court’s prior decision in Standridge v. State, 290 Ark. 150, 717 S.W.2d 795 (1986), “that a judgment of conviction and a sentence are ‘entered’ and ‘placed into execution’ upon pronouncement in open court[,]” was inconsistent. 330 Ark. at 388, 953 S.W.2d at 886 (emphasis added). We observed that the statement conflicted with our Administrative Order No. 2, which describes entry of judgment as filing of record, and our rule for civil cases which clearly provides for the effectiveness of judgments upon their entry of or filing. Furthermore, we note on this point that were we to use the legislature’s effective date of judgment under § 16-65-121, several of our criminal rules would be called into question. See, e.g., Ark. R. App. P. — Crim. 2(a)(1) (setting the time in which an appeal must be taken within thirty days from “the date of entry of a judgment”); Ark. R. App. P. — Crim. 10(a) (directing the circuit court, upon imposing a sentence of death, to order the circuit' clerk to file a notice of appeal on behalf of the defendant within thirty days “after entry of judgment”).
We hold that with respect to judgment and commitment orders, they are effective upon entry of record in accordance with our Administrative Order No. 2. Section 16-65-121 directly conflicts with our rules, our Administrative Order, and our caselaw, and it is superseded. Thus, the trial court was well within its authority to modify the sentence pronounced in open court prior to entry of judgment as long as it complied with other pertinent criminal rules.
Bradford next asserts that he should have been allowed to withdraw his negotiated plea and that he was not advised that he could do so, in violation of Ark. R. Crim. P. 25.3(b). Rule 25.3(b) reads:
(b) If a plea agreement has been reached which contemplates entry of a plea of guilty or nolo contendere in the expectation that the charge or charges will be reduced, that other charges will be dismissed, or that sentence concessions will be granted, upon request of the parties the trial judge may permit the disclosure to him of the agreement and the reasons therefor in advance of the time for tender of the plea. He may then indicate whether he will concur in the proposed disposition. If after the judge has indicated his concurrence with a plea agreement and the defendant has entered a plea of guilty or nolo contendere, but before sentencing, the judge decides that the disposition should not include the charge or sentence concessions contemplated by the agreement, he shall so advise the parties and then in open court call upon the defendant to either affirm or withdraw his plea.
Ark. R. Crim. P. 25.3(b) (emphasis added). See also Ark. R. Crim. P. 26.1(b)(v) (reiterating a defendant’s right to withdraw a guilty plea if the trial court does not sentence him in accordance with the plea agreement).
At the first sentencing hearing on February 25, 2002, the trial court concurred with the plea agreement and pronounced sentence in accordance with the terms of that agreement. It is also clear that by virtue of the trial court’s sua sponte order directing Bradford’s appearance at the resentencing hearing, the court intended to change the sentence originally pronounced. Having said that, it is also clear that the trial court did not advise Bradford of his right to either affirm or withdraw his plea, or call upon him in open court to do so at the March 7, 2002 hearing. In fact, the only question posed directly to Bradford during the March 7, 2002 hearing was the following:
The Court: Does the defendant have any questions before the Court pronounces sentence in the case?
Mr. Bradford: No, sir.
Compliance with Rule 25.3(b) is mandatory. We reverse and remand for the trial court to follow the mandates of that rule.
Because we reverse and remand on the foregoing point, it is unnecessary for us to address Bradford’s points relating to due process and the timeliness of entry of the judgment and commitment order. With respect to double jeopardy, however, we must address the argument because a violation of the double-jeopardy clause of the United States Constitution results in a dismissal of the State’s case. See, e.g., State v. Hulum, 349 Ark. 400, 78 S.W.3d 111 (2002). We conclude that double jeopardy does not attach to these facts. The State correctly cites this court to the United States Supreme Court’s analysis in United States v. DiFrancesco, 449 U.S. 117 (1980), which applies. In DiFrancesco, the Court held:
B. The double jeopardy focus, thus, is not on the appeal but on the relief that is requested, and our task is to determine whether a criminal sentence, once pronounced, is to be accorded constitutional finality and conclusiveness similar to that which attaches to a jury’s verdict of acquittal. We conclude that neither the history of sentencing practices, nor the pertinent rulings of this Court, nor even considerations of double jeopardy policy support such an equation.
449 U.S. at 132. Because sentencing is not afforded the constitutional finality of an acquittal, Bradford is not entitled to double-jeopardy protection against the trial court’s judgment and commitment order following resentencing.
Bradford also cites this court to the former-prosecution statute and specifically to section (2), which reads:
A former prosecution is an affirmative defense to a subsequent prosecution for the same offense under any of the following circumstances:
(2) The former prosecution resulted in a conviction. There is a conviction if the prosecution resulted in a judgment of conviction which has not been reversed or vacated, a verdict of guilty which has not been set aside and which is capable of supporting a judgment, or a plea of guilty or nolo contendere accepted by the court.
Ark. Code Ann. § 5-1-112(2) (Repl. 1997). Section 5-1-112(2) appears to provide that a guilty plea is effective once it is accepted by the trial court and at that time equates to a judgment of conviction. We have held in this opinion that entry of the judgment and commitment order is what determines the effectiveness of a guilty plea and that a guilty plea may be withdrawn in accordance with our criminal rules under certain circumstances. The accepted guilty plea of February 25, 2002, with the resulting sentence on that date was never memorialized as a judgment and commitment order and entered of record. Hence, it was never an effective judgment of conviction. To the extent § 5-1-112(2) conflicts with our Administrative Order No. 2, we hold that it is superseded by that Order and our caselaw. See Johninson v. State, supra.
Bradford relies on a court of appeals’ case, Reaves v. City of Little Rock, 25 Ark. App. 14, 751 S.W.2d 18 (1988), in his double-jeopardy argument. In Reaves, the court of appeals held that a letter opinion finding the defendant not guilty equated to an acquittal for double-jeopardy purposes. No judgment of acquittal had been entered of record, but the acquittal had been noted on the court’s docket. The Reaves decision predated this court’s opinion in Price v. Price, supra, and Johninson v. State, supra, and for that reason is not controlling.
There is one final point. Apparently, a conversation among counsel and the trial court took place in chambers immediately before the resentencing hearing on March 7, 2002. This conversation was not transcribed, though it appears to have been relevant to the issues on appeal. We emphasize once more that our Administrative Order No. 4 requires that a verbatim record of all proceedings pertaining to any contested matter be made.
Reversed and remanded.
Glaze, Corbin, and Imber, JJ., dissent.
Arkansas Rule of Criminal Procedure 24.3(b) permits a “conditional plea of guilty” from 'which a defendant may appeal.
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Robert L. Brown, Justice.
Appellant Amanda Lewellyn-Fleming appeals the trial court’s order awarding sole custody of their children to appellee Tim Lewellyn. She contends that changing joint custody of the children in both parents to sole custody in Tim constituted an abuse of discretion by the trial court and urges, instead, that she should have sole custody, as she relocates with a new husband from RusseEviEe to FayetteviEe. She further contends that substantial evidence does not exist for placing sole custody of the children in Tim and, thus, the trial court’s finding that a change of custody was in the best interests of the children was clearly erroneous. We disagree on both points and affirm the trial court.
On June 18, 1988, Tim and Amanda Lewellyn married. They had two chEdren during their twelve-year marriage: KeEy born in 1991, and Jake born in 1997. On December 5, 2000, the trial court granted the LeweEyns an uncontested divorce. With respect to child custody, the divorce decree provided that the parties would be bound by the court’s standard visitation order, as modified by the decree. The divorce decree designated Amanda as the “custodial parent” and Tim as the “non-custodial parent.” The decree also provided that Tim and Amanda would have joint custody of KeEy and Jake, with each parent enjoying physical custody of the chEdren on alternating months, and, for the noncustodial parent, weekly visits at midweek and every other weekend on off-months. Holidays were to be equally divided between the parties.
The divorce decree further contained an agreement that Kelly and Jake were to remain in the Russellville School District. To enforce this agreement, the decree contained a change-of-residency provision, which read:
Neither of the parties shall remove their primary residence more than 25 miles from the Pope County Courthouse without prior approval of the opposite party. Any change of residence more than 25 miles from the Pope County Courthouse without approval of the opposite party shall constitute a change of circumstances to be considered by the Court with respect to the issue of custody.
The divorce decree prohibited overnight “romantic partner[s]” while the children were present.
On June 16, 2001, Tim filed a show-cause petition in the trial court in which he alleged that Amanda had an overnight romantic guest in violation of the divorce decree. Amanda answered and stated that she had married a man named Denis Fleming. She attached a copy of her marriage license in support of her answer. On July 24, 2001, Amanda filed an “Exparte (sic) Petition for a Change in Custody and Other Relief.” She stated that Denis Fleming worked in Fayetteville and that she had found work in that city at a higher rate of pay — between $2.50 and $3.00 per hour — than what she had in Russellville. Citing the change-of-residency clause in the divorce decree, she argued that a material change in circumstances had taken place and asked for sole custody of the children and permission to move them to Fayetteville. In support of her petition, she argued for an emergency change in custody so that she could enroll Kelly and Jake in the Fayetteville public schools. Tim counterclaimed for custody of Kelly and asserted that the reason the change-of-residency clause was included in the divorce decree in the first place was because Kelly wished to stay in the Russellville school district. On August 8, 2001, the trial court denied Amanda’s motion.
On August 9, 2001, Amanda filed a petition for a change in the custody of the children, repeating the reasons she had given in the request for an ex parte order. Tim amended his counterclaim with an allegation that Mr. Fleming had mistreated Kelly, and asked for sole custody of both children.
On August 30, 2001, the trial court held a hearing on the parties’ motions for change in custody. The first witness called was Dr. Dan Ott, a licensed psychologist, who testified for Tim by way of a deposition. Fie testified about several counseling sessions that he had had with the Lewellyns, both before and after their divorce. According to Dr. Ott, after the divorce, Tim brought Kelly to him for counseling to help her cope with the divorce. He then testified generally about the negative effects of divorce on children and related the tumultuous school experiences of Kelly. She attended Westside Elementary School in Jonesboro for the first grade, was home-schooled for second grade after the random murders occurred at that school, and then went to Crawford Elementary in Russellville for the third grade. He testified that Kelly expressed a desire to say in the Russellville School District.
Dr. Ott also testified that he was concerned about the emotional impact on Kelly in moving to Fayetteville and adjusting to life there. He expressed concern about the new environment in Fayetteville with Mr. Fleming, and stated that Kelly had told him of her conflict with Mr. Fleming. He further testified that Kelly complained that her mother spent excessive time on her computer. Dr. Ott recommended that the court give “serious consideration” to Kelly’s desire to stay in Russellville.
Amanda testified on her own behalf and told the court that her new husband worked as a vice-president of a real estate and construction firm and that she and her husband lived in a two-bedroom apartment in Fayetteville. She characterized Kelly and Jake as “obedient, polite, very loving children.” She expressed a willingness to afford Tim liberal visitation. On cross examination, she admitted that the children slept in a converted computer room in the new apartment and stated that she did not agree with Dr. Ott’s assessment of the effect a move would have on Kelly. She admitted to having some behavioral problems with Kelly and added that she had taken her to another therapist to help deal with the stress of divorce.
Betty Hefner, Kelly and Jake’s day-care provider, testified for Amanda. She told the court that she had known Tim and Amanda for two years. She characterized Amanda as a good mother and added that she had seen Kelly and Jake interact with Mr. Fleming and that they seemed to like him. On cross examination, she characterized Tim as a good father who was concerned and loving toward his children. She related one incident when Kelly became sick at day care and Tim decided to leave her there. She testified that the children seemed settled and happy in Russellville.
Gretchen Douthit, a licensed professional counselor, testified for Amanda. She testified that Amanda’s goal in counseling was to develop a better relationship with Kelly following the divorce. In her opinion, Kelly showed progress over the course of the sessions in resolving problems related to the divorce. She concluded that Amanda was a “very concerned, involved parent,” who was worried about a “temporary deterioration in her relationship with her daughter.” She said that they were able to resolve some of the problems between Kelly and Amanda.
Two of Tim’s coworkers from Waste Management testified on his behalf. The first was Leslie Bartlett. She testified that Tim had a flexible work schedule at his job, which was oriented around his obligations to Kelly and Jake. She added that she considered Tim trustworthy and that she had let Tim watch her children from time to time. The second coworker was Wesley Sutherlin, a comptroller at Waste Management. He testified that Tim’s work schedule was a flexible eight-to-five position and that Tim’s salary was approximately $38,000 a year.
Tim testified on his own behalf and referred to the custody arrangement and the do-not-relocate provision in the divorce decree. He related an incident where, according to Kelly, Mr. Fleming had dangled her over a balcony. He said that he found out that his wife had remarried by calling the Washington County Circuit Clerk. He testified that Kelly had friends in her class at Crawford Elementary in Russellville. He told the court about the activities that he engaged in with his children, including trips to vacation spots like Sea World and Silver Dollar City. On cross examination, he denied having anything to do with Dr. Ott’s opinion that Kelly should stay in the Russellville School District.
On August 30, 2001, the trial court issued a letter opinion granting sole custody of the two children to Tim. The court concluded in its opinion that it would be in the best interest of the children to stay with Tim. Specifically, the court wrote: “My decision essentially is based on the fact that I believe that these children have had enough trauma and change in their lives over the last year and a half that a further relocation to a different area would be extremely traumatic to them.” The court stated that Amanda would be entitled to standard visitation and would be required to pay child support. The standard visitation schedule entitled the non-custodial parent to visitation every other weekend, on the parent’s birthday, six weeks .in the summer, and alternating holidays.
The trial court issued an order to this effect on September 11, 2001, and a nunc pro tunc followed on October 12, 2001. This second order specified that the children would be exchanged for visitation purposes at the town of Alma. The order further directed Amanda to produce pay stubs so that her child support could be set. Amanda timely filed a notice of appeal to our Court of Appeals.
In an unpublished opinion, the Court of Appeals reversed the trial court’s orders. See Lewellyn v. Lewellyn, 2002 WL 1376214 (Ark. App. June 26, 2002). The court of appeals first held that the trial court erred in finding that Amanda’s relocation to Fayetteville, by itself, was a change in circumstance which affected the best interest of the children. The court of appeals then held that the trial court should have analyzed the case not as a change-of-custody case, but as a relocation case. It remanded the case to the trial court and directed that court to reexamine the matter in light of the relocation factors adopted in Staab v. Hurst, 44 Ark. App. 128, 868 S.W.2d 517 (1994). Tim petitioned for review to this court, which we granted.
I. Procedural Points
a. Standard of Review.
When this court grants a petition to review a decision by the court of appeals, this court reviews the appeal as if it had been originally filed in this court. E.g., Marcum v. Wengert, 344 Ark. 153, 40 S.W.3d 230 (2001). This court has traditionally reviewed matters that sounded in equity de novo on the record with respect to fact questions and legal questions. Con-Agra, Inc. v. Tyson Foods, Inc., 342 Ark. 672, 30 S.W.3d 725 (2000); Ferguson v. Green, 266 Ark. 556, 587 S.W.2d 18 (1979). We have stated repeatedly that we would not reverse a finding by a trial court in an equity case unless it was clearly erroneous. Con-Agra, Inc. v. Tyson Foods, Inc., supra. We have further stated that a finding of fact by a trial court sitting in an equity case is clearly erroneous when, despite supporting evidence in the record, the appellate court viewing all of the evidence is left with a definite and firm conviction that a mistake has been committed. Id. These common law principles continue to pertain after the adoption of Amendment 80 to the Arkansas Constitution, which was effective on July 1, 2001.
b. Final Order.
Tim, as appellee, argues a procedural point for dismissal of this appeal. He contends that this court lacks appellate jurisdiction due to the absence of a final order. According to Tim, the trial court’s nunc pro tunc order, dated October 12, 2001, is not final because it did not fix the amount of Amanda’s child support payments but instead directed her to produce pay stubs so that the amount could be determined in the future. In support of his position, Tim cites Beverly Enterprises-Arkansas v. Hiller, 341 Ark. 1, 14 S.W.3d 487 (2000) (stating the rule that a final order is a jurisdictional requirement for appellate review), as well as Arkansas Rule of Civil Procedure 54(b) (stating that an order which adjudicates fewer than all of the claims in an action is not an appealable absent a required certificate from the trial court).
Tim’s argument, however, overlooks our Rule of Appellate Procedure — Civil 2(d) (“All final orders awarding cus tody are appealable final orders.”). We have interpreted Rule 2(d) to permit “an appeal from any order that is final as to the issue of custody, regardless of whether the order resolves all other issues.” Ford v. Ford, 347 Ark. 485, 490, 65 S.W.3d 432, 436 (2002). The trial court’s order changes custody from joint custody in both parents to sole custody in Tim and, thus, is final on the issue of custody. We hold the order is final for purposes of this appeal.
c. Procedural Bar.
Tim next argues that Amanda’s petition to change custody before the trial court admitted a material change in circumstances and as a result, the custody issue is not preserved for appellate review. Tim appears to be contending that Amanda cannot argue a change in circumstances at the trial court and then claim no change of circumstances at this level. We take issue with Tim’s characterization of what occurred before the trial court. Both parties litigated the issue of a material change in circumstances to the trial court and both parties presented evidence on that issue. Amanda maintained that her move to Fayetteville constituted a material change in circumstances, which justified placing sole custody in her. Tim argued that the relocation of one parent in a joint-custody divorce resulted in a change in circumstances. The trial court disagreed with Amanda and found that her relocation justified changing the relationship with the children from joint custody in both parents to sole custody in Tim. The fact that Amanda may argue on appeal that a material change of circumstances has not occurred does not mean that the issue is not preserved. We hold that Tim’s preservation argument has no merit.
II. Custody
a. Change in Circumstances.
For a trial court to change the custody of children, it must first determine that a material change in circumstances has transpired from the time of the divorce decree and, then, determine that a change in custody is in the best interest of the child. Lloyd v. Butts, 343 Ark. 620, 37 S.W.3d 603 (2001).
Amanda’s first contention on appeal is that there was no material change in circumstances from the time of the divorce decree sufficient to set aside joint custody in the parents and to place sole custody in Tim. She argues, as a specific matter, that her relocation, standing alone, cannot constitute a material change in circumstances. For authority, she cites the court to Jones v. Jones, 326 Ark. 481, 931 S.W.2d 767 (1996). See also Gerot v. Gerot, 76 Ark. App. 138, 145-146, 61 S.W.3d 890, 896 (2001) (“ [Relocating in order to obtain better employment itself does not constitute a material change in circumstances.”); Hollinger v. Hollinger, 65 Ark. App. 110, 986 S.W.2d 105 (1999) (holding that the combined effect of the mother’s move, the desires of the children to stay in their original location, and the long passage of time between the divorce decree and the modification, amounted to a material change in circumstances.).
The problem with Amanda’s case authority is that the Jones case did not involve joint custody in the parents where physical custody alternated on a month-to-month basis. Indeed, the Jones-Gerot-Hollinger line of cases all involved mothers with sole custody of a child or children who sought to relocate. That is not what we have in the case at hand. Here, both parents had custody, and each parent petitioned for sole custody, with Amanda being the parent who wished to relocate.
Joint custody has traditionally been premised on the mutual ability of the parents to cooperate in decisions that affected the child’s welfare. Our court of appeals has recognized this fundamental principle. See Thompson v. Thompson, 63 Ark. App. 89, 974 S.W.2d 494 (1998). In the instant case, however, that ability to cooperate has eroded due to Amanda’s remarriage and relocation to Fayetteville. Kelly and Jake are school-age children and, clearly, joint custody is no longer practical with Tim and Amanda living in different cities. We have no doubt that a material change in circumstances has occurred. We next inquire into what now is in the best interest of the children with respect to their custodial parent and residence.
b. Best Interest of the Children.
Amanda contended in her Reply Brief that the trial court should have employed the factors set out in Staab v. Hurst, supra, in its custodial analysis. The trial court had not used the Staab factors in any sense but instead had analyzed the case as purely one involving change of custody. The trial court was correct.
The facts in Staab v. Hurst, supra, involved a custodial mother who wished to relocate with her child from Fort Smith to Wellington, Texas for a better educational opportunity that would lead to a better job. At issue in Staab was whether the non-custodial father would effectively be denied visitation because the geographical distance from the mother’s new home rendered visitation impossible or impractical. The court of appeals, following a decision from the New Jersey Superior Court (D’Onofrio v. D’Onofrio, 144 N.J. Super. 200, 365 A.2d 27 (N.J. Super. Ch: Div. 1976), aff’d 144 N.J. Super. 352, 365 A.2d 716 (N.J. Super. Ct. App. Div. 1976)), adopted a framework for deciding such cases. That framework placed the burden on the custodial parent to show some real advantage to the new family unit resulting from the move. If the custodial parent met that threshold burden, then the trial court should analyze the case using certain factors:
1) the prospective advantages of the move in terms of its likely capacity for improving the general quality of life for both the custodial parent and the children; (2) the integrity of the motives of the custodial parent in seeking the move in order to determine whether the removal is inspired primarily by the desire to defeat or frustrate visitation by the non- custodial parent; (3) whether the custodial parent is likely to comply with substitute visitation orders; (4) the integrity of the non-custodial parent’s motives in resisting the removal; and (5) whether, if removal is allowed, there will be a realistic opportunity for visitation in lieu of the weekly pattern which can provide an adequate basis for preserving and fostering the parent relationship with the non-custodial parent.
Staab, 44 Ark. App. at 134, 868 S.W.2d at 520.
The Staab factors are irrelevant to the instant case in that visitation between Fayetteville and Russellville is neither impossible nor impractical. The trial court ordered the exchange of the children to take place at Alma, which is roughly where 1-40 and 1-540 intersect between Russellville and Fayetteville. The time of travel from either city to Alma was not objected to as being unduly burdensome. This case is simply not a relocation case where the Staab factors should be applied. Moreover, the Staab case involved relocation of the custodial mother to Texas, which was objected to by the non-custodial father. Those facts are distinguishable from the case at hand where joint custody is the issue.
III. Sufficient Evidence
We next turn to Amanda’s argument that the trial court clearly erred in finding that transferring sole custody to Tim was in the best interest of the children. We hold that he did not.
The following evidence was presented to the trial court in support of placing sole custody of the children in Tim:
• Kelly’s elementary education had taken place in Jonesboro, at home, and then in Russellville. Changing schools again and residence would have a negative emotional impact on Kelly.
• Both children appeared happy and settled in Russellville, and Kelly desired to stay there.
• There had been some problems between Kelly and Mr. Fleming.
• Tim was a fit father and had the flexibility at work to take care of both children.
We cannot say that in light of this evidence, the trial court clearly erred (1) in finding that the children had had enough trauma and change in their lives over the last year and a half or, (2) in concluding that an award of sole custody to Tim was in the best interest of the children.
Affirmed.
Amanda couches her argument in terms of both an abuse of discretion by the trial court and clear error. We conclude that the standard is whether the trial court was clearly erroneous. See, eg., Campbell v. Campbell, 336 Ark. 379, 985 S.W.2d 724 (1999). | [
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Ray Thornton, Justice.
Petitioner, Harold F. Kidd, filed a complaint against Christine and Phillip Hatfield and Lori Amis d/b/a Lori Amis Interiors in the Clark County Circuit Court involving a contract for sale of furniture to a Florida hotel. The complaint alleged that the furniture belongs to the Hatfields, who are residents of Florida. The complaint also stated that Mr. Kidd manufactured, sold, delivered, and installed hotel furniture for the Hatfields for the total amount of $98,933.37. The complaint alleges that the Hatfields paid part of the amount but that $18,025.76 of the balance remains. The Hatfields responded with a motion to dismiss under Rule 12(b)(2) of the Arkansas Rules of Civil Procedure for failure to show facts that establish the jurisdiction of this State’s circuit court. Ms. Amis did not join in the motion. Mr. Kidd responded that basis for jurisdiction is that the furniture manufacturing company is based in Arkansas and that the manufacturing took place in this State. The circuit court denied the motion to dismiss. The Hatfields seek a writ of prohibition to prevent the circuit court from exercising jurisdiction over this case.
A writ of prohibition is issued to prevent or prohibit the lower court from acting wholly without jurisdiction. Arkansas Democrat-Gazette v. KFSM-TV, 341 Ark. 771, 20 S.W.3d 301 (2000). The purpose of the writ of prohibition is to prevent a court from exercising a power not authorized by law when there is no adequate remedy by appeal or otherwise. Young v. Smith, 331 Ark. 525, 964 S.W.2d 784 (1998). Writs of prohibition are prerogative writs, extremely narrow in scope and operation, and they are to be used with great caution and forbearance. Monroe Auto Equipment Co. v. Partlow, 311 Ark. 633, 846 S.W.2d 637 (1993). Prohibition should issue only in such cases of extreme necessity. Id. A characteristic of prohibition is that it does not lie as a matter of right but as a matter of sound judicial discretion. Id. When considering a petition for writ of prohibition, jurisdiction is tested on the pleadings, not the proof. Nucor-Yamamato Steel Co. v. Circuit Court for the Osceola District of Mississippi County, 317 Ark. 493, 878 S.W.2d 745 (1994). A writ of prohibition is appropriate only when there is no other remedy, such as an appeal, available. Pike v. Benton Circuit Court, 340 Ark. 311, 10 S.W.3d 447 (2000).
A review of the pleadings reveals that the writ of prohibition is not warranted. There are sufficient facts in the pleadings to indicate that the contract was at least partially performed in Arkansas, and therefore jurisdiction in this State may be proper. In Mr. Kidd’s complaint, he stated that pursuant to the contract between the parties, the manufacture and partial transport of the furniture was performed in Arkansas. Given the narrow scope and operation of a writ of prohibition, and the availability of another adequate remedy, such as an appeal, we hold that writ of prohibition would not be appropriate.
Denied without prejudice. | [
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Per Curiam.
Myron Kent George, through his attorney, Joseph D. Hughes, renews his motion for a rule on clerk and seeks, in the alternative, a new trial. The record shows that George’s trial was held January 22-23, 2001. On April 23, 2001, George moved for an extension of time to file the record. On June 1, 2001, that motion was granted and the time for filing the record was extended until August 9, 2001. George then filed a motion for rule on clerk on August 8, 2001. On September 13, 2001, we denied the motion and issued a per curiam order to the circuit court “to take whatever actions are necessary to secure the prompt certification of a full and complete record for appeal in this matter.” George v. State, 346 Ark. 22, 22, 53 S.W.3d 526, 527 (2001) (per curiam). On October 2, 2001, George’s counsel received the transcript. By order dated October 25, 2002, the trial court found (1) that there were no substantial defects in the transcript prepared by Nila Keels and lodged by George, and (2) that the transcript was sufficiently accurate for use and consideration by this court for purposes of this appeal.
Counsel for George now brings this renewed motion for rule on clerk and points out again that the court reporter, Nila Keels, was not a certified court reporter at the time of George’s trial. He further states that due to the passage of time, he is unable to certify with any certainty that the transcript of the lower court proceedings is accurate. Moreover, he asserts that he is unwilling to do so. Nevertheless, he moves for a rule on clerk and requests that this court direct the Supreme Court Clerk to file the transcript. In the alternative, he requests a new trial.
The State responds that it is unclear from George’s motion whether George’s counsel actually reviewed the transcript prepared by Ms. Keels. In the absence of such an averment, the State urges this court to deny his motion and direct the Supreme Court Clerk to accept the transcript for purposes of this appeal. In support of its argument, the State submits the affidavit of Curtis Hitt, Deputy Prosecuting Attorney for Green County, in which he states under oath that he prosecuted George and that he has reviewed the transcript and attached exhibits. Hitt avers that with the exception of insignificant clerical errors the trial transcript appears to be a fair and accurate record of the trial.
Our procedure for filing a record prepared by an uncertified court reporter was set out in Mitchell v. State, 345 Ark. 359, 45 S.W.3d 846 (2001)(per curiam). There, we specified that our Supreme Court Clerk would only be directed to accept a record prepared by an uncertified court reporter upon certification by the attorneys of record by means of affidavits that the transcript was true, accurate, and complete. In the case before us, we have a certification by the prosecuting attorney, together with a finding of sufficient accuracy by the trial court. Defense counsel has refused to certify the transcript due to the passage of time, but it is he who moves this court for a rule on clerk to require the clerk to file the transcript. Other than his general reference to the “passing of time,” defense counsel provides this court with no identified defects in the transcript or other reason for his refusal to certify.
We hold that the trial court’s order finding sufficient accuracy for appeal purposes and the prosecuting attorney’s affidavit certifying the transcript to be a fair and accurate record of George’s trial satisfy the Mitchell requirements. The motion, accordingly, is granted.
Corbin and Hannah, JJ., would deny. | [
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Per the Curiam.
The appellees, collectively referred to as the State, have filed a motion for award of costs pursuant to Ark. R. Sup. Ct. 4-2(b)(l), against the appellant, Lake View and its counsel. Lake View did not file a response to the motion. The basis for the State’s motion is Ark. Sup. Ct. R. 4-2(b)(l) which provides:
If the appellee considers the appellant’s abstract or Addendum to be defective, the appellee’s brief should call the deficiencies to the Court’s attention and may, at the appellee’s option, contain a supplemental abstract or Addendum. When the case is considered on its merits, the Court may upon motion impose or withhold costs, including attorney fees, to compensate either party for the other party’s noncompliance with this Rule. In seeking an award of costs under this paragraph, counsel must submit a statement showing the cost of the supplemental abstract or Addendum and a certificate of counsel showing the amount of time that was devoted to the preparation of the supplemental abstract or Addendum.
The State asserts it is entitled to an award of $17,932.73 for the costs it incurred in preparing a new abstract and addendum and notes that the figure includes the costs of photocopying the supplemental abstract and addendum and the costs of secretarial overtime incurred in its preparation.
In this instance, the State first called the deficiencies in Lake View’s abstract to this court’s attention by way of its motion for an extension of time to prepare a new abstract filed on May 1, 2002. The State’s sole allegation was that Lake View’s abstract was deficient, inaccurate, misleading, and full of typographical and grammatical errors. In our per curiam of May 30, 2002, we found the motion to be well-taken and granted it. See Lake View Sch. Dist. No. 25 v. Huckabee, 349 Ark. 116, 76 S.W.3d 250 (2002) (per curiam). We directed the State to prepare a new abstract. See id. At no point, however, did this court address the matter of a deficient addendum; nor did we direct the State to prepare a new one. See id. Accordingly, we deny the State’s motion for costs at this time. Because the State’s certificate of counsel setting forth the costs incurred does not distinguish between the State’s expenses in preparing a new abstract and those incurred in the preparation of a new addendum, we direct the State to submit an amended statement showing the costs of the supplemental abstract and a certificate of counsel showing the amount of time devoted to the preparation thereof, in accordance with our rule. Upon the filing of a new motion for costs pertaining only to preparation of the abstract, we will reconsider the matter.
Motion denied.
Imber, J., not participating.
Special Justice Carol Dalby joins. | [
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PER Curiam.
On October 10, 2002, our court concluded that Mr. Charles Dugger’s attorney, Ronald Carey Nichols, had filed a timely notice of appeal from Dugger’s conviction judgment, but failed to file the record with this court in order to perfect Dugger’s appeal. See Dugger v. State, No. CR 02-637 (Oct. 10, 2002). Mr. Nichols’s failure to file the record resulted in this court ordering him to appear before us on Thursday, January 9, 2003, at 9:00 a.m., and to show cause why he should not be held in contempt. Mr. Nichols appeared before us on January 9 and pled guilty to contempt, conceding his failure to take proper action, which has caused Dugger’s appeal not to be perfected for more than one year. In mitigation, Mr. Nichols blamed his delay on having had an illness and death in his family, and he also related that when he went to pick up the record, he was told by the court clerk that some unknown woman had already picked up the transcript. Mr. Nichols claims he had tendered payment for the record.
As we noted in our October 10, 2002, per curiam, Rule 16 of the Rules of Appellate Procedure — Criminal provides that trial counsel must continue to represent a convicted defendant throughout any appeal unless the trial court or appellate court permits counsel to withdraw. Mr. Nichols has never been relieved of his responsibility in this case, and in fact, Mr. Nichols agreed that the trial court had previously denied his request to withdraw.
We agree that Mr. Nichols is in contempt, and we impose a fine of $250.00 which shall be paid within thirty days from the date of this per curiam. Nichols announced in court that he believed that he could have the record in this case filed within thirty days, and we direct that he do so. A copy of this per curiam will be forwarded to the Professional Conduct Committee.
Mr. Nichols offered mitigating circumstances in an earlier, unrelated show cause hearing in Bowden v. State, 325 Ark. 316, 925 S.W.2d 158 (1996) (per curiam).
It is unclear who paid for the transcript. Mr. Nichols testified that he had the money to pay the clerk, but later said that the unknown woman paid for the transcript. | [
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Donald L. Corbin, Justice.
Appellant Jerry Lural Edmond appeals the order of the Hempstead County Circuit Court convicting him of first-degree murder. On appeal, Appellant argues that: (1) the trial court erred in admitting a photograph, because its prejudicial nature outweighed its probative value; and (2) there was insufficient evidence to support his conviction. As Appellant was sentenced to a term of life imprisonment, our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(a)(2). We find no error and affirm.
On July 4, 2000, at approximately 4:40 p.m., two emergency medical technicians (EMTs) were dispatched to a residence on 2215 Highway 174 South. After arriving at the residence, the EMTs, David Stuard and Jeffrey Ferrand, discovered that there had been a shooting. Two men were standing outside the residence and one of the men, Appellant, was pointing to the residence, stating that he had “shot [his] baby.” Once inside, Stuard and Ferrand discovered a woman slumped over in a living room chair. The woman, later identified as Maxine Turner, had no pulse or heart rhythm. Appellant was subsequently placed under arrest.
A jury trial was held on February 21, 2001. Testifying on behalf of the State was Lieutenant Frank Mcjunkins of the Hemp-, stead County Sheriff’s Department. He explained that on July 4, he was called to Appellant’s residence to investigate a crime scene. Once there, Mcjunkins discovered Turner’s body in a chair in the living room and the murder weapon lying against a living room wall. According to Mcjunkins, the victim had been shot on the left side of the head, just above the earlobe. The weapon found at the scene of the crime was a thirty-eight caliber revolver that contained one spent casing. According to Mcjunkins, the placement of the spent casing just to the left of the chamber indicated that there was only one pull of the weapon’s trigger. Mcjunkins also found one live thirty-eight round on top of a table in the living room that matched the round fired from the weapon. A green cloth case used to store the handgun was discovered in a corner of the couch. Inside the case were ten additional rounds of live ammunition.
Deputy Heath Ross testified that on July 4 he received a dispatch at approximately 4:45 p.m. to assist EMTs who were at Appellant’s residence. When he arrived at the residence, the EMTs, Appellant, and another man were all present at the scene. At that time, Appellant was standing in the front yard with his hands raised in the air. When Ross asked Appellant to identify himself, he responded by stating, “I shot my baby. I shot my friend. I thought the gun was unloaded. I shot her and it was an accident. We was playing and she told me she was leaving. I told her, ‘No, she wasn’t,’ Oh, my God, I shot my baby.” According to Ross, Appellant repeated the statement that he shot Turner two or three times.
Sergeant Brian Russell testified that he assisted in the investigation of the crime scene. Russell first encountered Ferrand, who explained to him that a woman had been shot. He then drew his weapon and went to talk with Appellant. As Russell approached him, Appellant raised his hands in the air and stated, “I shot her. I shot her.” Russell advised Appellant to listen to him as he read him his Miranda rights. Afterwards, Appellant continued to repeat that he had shot Turner.
According to Dr. Steven Ericson, an associate medical examiner with the Arkansas State Crime Laboratory, Turner’s death was the result of a single gunshot wound to the head. Specifically, he stated that the bullet entered her head in the left temple area, passed through her brain, exited the skull on the right side, and lodged in the skin of the right temple. Dr. Ericson opined that the wound was the result of a close-contact shooting. In other words, the gun was placed near the left temple when it was discharged. Dr. Ericson explained that a wound resulting from a close-contact shooting will reveal gun powder that had been driven underneath the skin. Dr. Ericson further stated that the presence of a light soot rim and a deep, dense soot deposition underneath the scalp confirms that the muzzle of a gun was pressed lightly against a victim’s head at the time of discharge. Such a soot deposition was found under Turner’s scalp. According to Dr. Ericson, Turner’s death was a homicide. On cross-examination, Dr. Ericson stated that he had seen self-inflicted gunshot wounds that looked like Turner’s injury, but concluded that this was a homicide based on his physical examination and the investigative materials he received from law enforcement personnel who oversaw this case.
James Looney, a forensic ballistics examiner with the State Crime Lab, also testified. He explained that ballistics tests revealed that the bullet recovered from Turner had been fired from the thirty-eight caliber revolver recovered inside Appellant’s living room. Looney also explained that a conscious act was required in order to fire this particular gun. Specifically, it required thirteen to fourteen pounds of steady pressure to pull this gun’s trigger.
Leroy Gamble testified that he had known Appellant for a long time and that he often lent Appellant money. In exchange, Appellant would give Gamble his thirty-eight caliber revolver to hold as collateral. According to Gamble, Appellant came to him on the morning of July 4 to pick up his revolver at about 11:30 a.m.
Jerry Taylor testified that he, along with Mary Williams, lived next door to Appellant. Turner had stayed with the pair the evening before the shooting, but returned to Appellant’s residence the following morning. Taylor stated that after the shooting, Appellant knocked on his door asking to call 911, because he had shot Turner. Specifically, Appellant stated to Taylor, “he had killed his loved one.”
Mary Williams testified that on July 3, Turner came to her house and wanted to spend the night with her and Taylor in order to keep from arguing with Appellant. The next morning, though, Turner returned to Appellant’s house. Williams stated that on the afternoon of July 4, she heard a shot, and shortly thereafter, Appellant came running to their front door, shouting that he had shot Turner.
Barbara Nixon, Turner’s best friend, also testified at Appellant’s trial. Nixon and Turner had spent July 2 together. According to Nixon, Turner and Appellant would see one another from time to time. She explained that they had known one another for a long time, and would often go through periods where they did not get along. Nixon also stated that Turner had recently started seeing another man. According to Nixon, she and Turner had plans to spend July 4 together. Finally, Nixon stated that Turner had expressed a fear of guns.
Wanda Evans, Turner’s daughter, testified that Appellant came to her mother’s home on July 3 and begged her to go to his house with him. According to Evans, Turner and the Appellant were not dating at the time of her death. Evans stated that her mother and Appellant had broken up in the past, usually after Appellant pulled a gun on Turner. Evans further explained that Turner would still continue to see Appellant, because he would bring her crack. Evans also confirmed that her mother did not own a gun and was very scared of them.
At the close of State’s case, Appellant moved for a directed verdict, arguing that the State failed to prove the element of purpose with regard to the first-degree-murder charge, as well as the elements of any lesser-included offenses. The motion was denied. Appellant then argued that because the case was based on circumstantial evidence, a directed verdict was warranted, as the State faded to disprove other possible explanations for Appellant’s death. The trial court again denied the motion.
Appellant rested without presenting any evidence. The case was then submitted to the jury. Appellant was found guilty of first-degree murder. He was subsequently sentenced as previously set forth. This appeal followed.
Actually raised as his second point on appeal, Appellant challenges the sufficiency of the evidence supporting his conviction. Preservation of Appellant’s right against double jeopardy, however, requires that we consider the challenge to the sufficiency of the evidence before we consider any alleged trial error. Price v. State, 347 Ark. 708, 66 S.W.3d 653 (2002); King v. State, 323 Ark. 671, 916 S.W.2d 732 (1996).
We are mindful of the well-established standard of review in cases challenging the sufficiency of the evidence. This court treats a motion for a directed verdict as a challenge to the sufficiency of the evidence. Fairchild v. State, 349 Ark. 147, 76 S.W.3d 884 (2002); Branscum v. State, 345 Ark. 21, 43 S.W.3d 148 (2001). This court has repeatedly held that in reviewing a challenge to the sufficiency of the evidence, we view the evidence in a light most favorable to the State and consider only the evidence that supports the verdict. Id.; Wilson v. State, 332 Ark. 7, 962 S.W.2d 805 (1998). We affirm a conviction if substantial evidence exists to support it. Carmichael v. State, 340 Ark. 598, 12 S.W.3d 225 (2000). Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resorting to speculation or conjecture. Id. Circumstantial evidence may provide the basis to support a conviction, but it must be consistent with the defendant’s guilt and inconsistent with any other reasonable conclusion. Fairchild, 349 Ark. 147, 76 S.W.3d 884; Bangs v. State, 338 Ark. 515, 998 S.W.2d 738 (1999). In other words, if you have two equally reasonable conclusions as to what occurred, this merely gives rise to a suspicion of guilt which is not enough to support a conviction. Howard v. State, 348 Ark. 471, 79 S.W.3d 273; cert. denied, 123 S. Ct. 606 (2002); Gregory v. State, 341 Ark. 243, 15 S.W.3d 690 (2000).
Appellant’s argument on this point is that other reasonable hypothesis were not excluded by the evidence presented in his case; thus, the State’s circumstantial evidence does not rise to the level of substantial evidence to support his conviction. Specifically, Appellant argues that the evidence was not inconsistent with the possibility that he accidentally shot Turner. In other words, Appellant argues that the State failed to prove that he acted with a purposeful mental state. We disagree.
To sustain a conviction for first-degree murder, the State was required to prove that Appellant purposely caused the death of Maxine Turner. See Ark. Code Ann. § 5-10-102(a) (2) (Repl. 1997). “A person acts purposely with respect to his conduct or a result thereof when it is his conscious object to engage in conduct of that nature or to cause such a result[.]” Ark. Code Ann. § 5-2-202(1) (Repl. 1997). A criminal defendant’s intent or state of mind is seldom capable of proof by direct evidence and must usually be inferred from the circumstances of the crime. Smith v. State, 337 Ark. 239, 988 S.W.2d 492 (1999); Mulkey v. State, 330 Ark. 113, 952 S.W.2d 149 (1997). Thus, this court has recognized that the intent necessary to sustain a conviction for first-degree murder may be inferred from the type of weapon used, the manner of its use, and the nature, extent, and location of the wounds. Id.; Sanders v. State, 340 Ark. 163, 8 S.W.3d 520 (2000). This court has held that guilt can be established without eyewitness testimony and evidence of guilt is not less because it is circumstantial. Ross v. State, 346 Ark. 225, 57 S.W.3d 152 (2001); Gregory, 341 Ark. 243, 15 S.W.3d 690.
As previously stated, the longstanding rule in the use of circumstantial evidence is that, to be substantial, the evidence must exclude every other reasonable hypothesis than that of the guilt of the accused. Fairchild, 349 Ark. 147, 76 S.W.3d 884; Smith, 337 Ark. 239, 988 S.W.2d 492. It is only every other reasonable hypothesis, not every hypothesis, that must be excluded by the evidence. McDole v. State, 339 Ark. 391, 6 S.W.3d 74 (1999). It is also well settled that the question of whether the circumstantial evidence excludes every hypothesis consistent with innocence is for the jury to decide. Id. Upon review, this court’s role is to determine whether the jury resorted to speculation and conjecture in reaching its verdict. Ross, 346 Ark. 225, 57 S.W.3d 152; Phillips v. State, 344 Ark. 453, 40 S.W.3d 778 (2001). Overwhelming evidence of guilt is not required in cases based on circumstantial evidence; rather, the test is one of substantiality. Id.
Here, as the State points out, there was testimony at trial from six different witnesses who heard Appellant admit that he shot and killed Turner. One of those witnesses, Deputy Ross, testified that Appellant told him that Turner stated that she was going to leave, but Appellant would not allow her to do so. Then, Appellant continued to repeat that he had shot her. There was also evidence presented regarding the tumultuous relationship between Appellant and Turner, including the fact that Turner had started seeing someone else. There was also evidence that the two had broken up in the past because Appellant had pulled a gun on Turner. In fact, the night before the shooting, Turner left Appellant and went to stay with a neighbor in order to avoid fighting with him. The very next morning, Appellant went and retrieved his gun from Gamble.
Also supporting the conclusion that this was not an accidental shooting was the forensic evidence presented by the State. According to Dr. Ericson, Turner died as a result of a close-contact wound. Moreover, there was testimony from Looney, the forensics ballistic expert, that a conscious act was required to fire the gun, and that it would take thirteen to fourteen pounds of pressure to fire the weapon. It is axiomatic that a jury need not lay aside its common sense in evaluating the ordinary affairs of life, and it may infer a defendant’s guilt from improbable explanations of incriminating conduct. Branscum, 345 Ark. 21, 43 S.W.3d 148; Goff v. State, 329 Ark. 513, 953 S.W.2d 38 (1997). Considering all this evidence in a light most favorable to the State, we are convinced that there was substantial evidence to support the jury’s verdict. Accordingly, we affirm on this point.
Appellant’s remaining argument on appeal is that the trial court erred in admitting a photograph depicting the inside of Turner’s head after an incision was made by the medical examiner. According to Appellant, the photograph possessed no probative value and served only to inflame the jury. Appellant further argued that the photograph would be cumulative and repetitive, as the doctor’s testimony was sufficient to establish his opinion regarding the cause of death. The State countered that the purpose of the photograph was to help Dr. Ericson in his testimony regarding the nature of Turner’s close-contact wound and, thus, was properly admitted. The admissibility of photographs lies in the sound discretion of the trial judge and will not be reversed absent an abuse of discretion. Mosby v. State, 350 Ark. 90, 85 S.W.3d 500 (2002); Ramaker v. State, 345 Ark. 225, 46 S.W.3d 519 (2001). No such abuse of discretion occurred here; thus, we find no merit in Appellant’s argument on this point.
When photographs are helpful to explain testimony, they are ordinarily admissible. Id. The mere fact that a photograph is inflammatory or is cumulative is not, standing alone, sufficient reason to exclude it. Id. (citing Jones v. State, 336 Ark. 191, 984 S.W.2d 432 (1999)). Even the most gruesome photographs may be admissible if they tend to shed light on any issue, are useful in enabling a witness to testify more effectively or by corroborating testimony, or by enabling jurors to better understand the testimony. Id; Branscum, 345 Ark. 21, 43 S.W.3d 148. Other acceptable purposes are to show the condition of the victims’ bodies, the probable type or location of the injuries, and the position in which the bodies were discovered. Jones v. State, 340 Ark. 390, 10 S.W.3d 449 (2000).
In Mosby, 350 Ark. 90, 85 S.W.3d 500, this court recently discussed the admissibility of gruesome photographs, including a picture that depicted a cross-section of the victim’s brain. In that case, the appellant argued that the photograph was unfairly inflammatory and prejudicial. We disagreed, ruling that the picture was properly admitted, because its probative value outweighed its prejudicial effect. Specifically, this court pointed out that the photograph assisted the trier of fact, as it was introduced to corroborate the medical examiner’s testimony about the path of the bullet through the victim’s brain and the fact that the wound contained necrotic tissue. Id.
Likewise, in the present case, this photograph was admitted during the course of the medical examiner’s testimony regarding the nature of the victim’s wound. Out of the presence of the jury, Dr. Ericson explained that it was necessary to make an incision and examine the soft tissue under Turner’s scalp to look for black sooty matter in order to ultimately determine that this was a close-contact shooting. This soot can be discerned in the photograph. Thus, the photograph aided Dr. Ericson in explaining to the jury how he reached his ultimate conclusion that Turner’s death was the result of a close-contact wound. While the photograph may be gruesome, there is nothing to support Appellant’s accusation that it was admitted for the sole purpose of inflaming the jury. Accordingly, we cannot say that the trial court abused its discretion in admitting the photograph.
The record in this case has been reviewed for other reversible error in accordance with Ark. Sup. Ct. R. 4-3(h), and none has been found. For the aforementioned reasons, the judgment of conviction is affirmed. | [
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Tom Glaze, Justice.
Appellant James Pugh was convicted of being an accomplice to capital murder and sentenced to life imprisonment for his involvement in the killing of Keith Van Maren. Pugh and a woman named Joy Doss were allegedly friends of Van Maren’s, but Pugh and Doss suffocated and strangled Van Maren while he slept in the early morning hours of December 6, 2000. On appeal, Pugh does not challenge the sufficiency of the evidence. Instead, he asserts that the trial court made a number of evidentiary errors that prevented him from effectively demonstrating his affirmative defense of duress.
For his first point on appeal, Pugh asserts that the trial court erred when it refused to permit the complete testimony of Dr. John Anderson, a psychologist employed by the State Flospital. Pugh sought to introduce Dr. Anderson’s testimony and diagnosis of Joy Doss to show that he was acting under duress and under threat from Doss, who had a borderline personality disorder. Before making a ruling on the relevancy of this testimony, the trial court first allowed Dr. Anderson to proffer his testimony about Doss; during the proffer, the doctor stated that he had diagnosed Doss with having a borderline personality disorder because she exhibited at least seven of the nine personality traits that are considered to comprise that disorder. The trial court then ruled that two of the traits were at least “remotely relevant,” and permitted Pugh to elicit testimony from Dr. Anderson that Doss exhibited these two particular traits associated with the disorder: 1) having a pattern of unstable and intense relationships; and 2) expressing intense anger and having difficulty in controlling her anger.
Dr. Anderson testified first that he diagnosed Doss as having borderline personality disorder, and then informed the jury about these two particular traits. He also stated that Doss’s displays of “inappropriate, intense anger” would affect someone who lived with a person with borderline personality disorder. Dr. Anderson conceded, however, that he could not tell the jury how Pugh would react in any given situation.
We note initially that the State asserts that this issue is not preserved for appeal, because Pugh failed to object to the trial court’s ruling that Pugh could only introduce testimony to those two traits. However, it appears that the issue is preserved, because the question both at trial and on appeal is one of relevancy — at trial, Pugh objected to the court’s exclusion of Dr. Anderson’s testimony on the remaining traits by asserting that the evidence was relevant to prove his defense of duress, and on appeal, he continues that same argument.
Nevertheless, the point is without merit. This court has repeatedly held that the admission or rejection of evidence is within the discretion of the trial court, which this court will not reverse in the absence of a manifest abuse of that discretion. Flores v. State, 348 Ark. 28, 69 S.W.3d 864 (2002); Burmingham v. State, 342 Ark. 95, 27 S.W.3d 351 (2000); Munson v. State, 331 Ark. 41, 959 S.W.2d 391 (1998). Here, it is clear that the trial court did not abuse its discretion, and in fact soundly exercised its discretion in permitting even two of these personality traits to come in on the basis that they were “remotely relevant.”
Further, this court held in Barr v. State, 336 Ark. 220, 984 S.W.2d 792 (1999), that evidence of a co-defendant’s psychiatric condition is not relevant to the charges at issue absent any showing that the defendant was aware of the other person’s disorder or that he acted in reliance on it. Pugh makes no argument that he was aware of Doss’s borderline personality disorder at the time the murder was committed. In addition, even though evidence of Doss’s disorder was, at best, marginally relevant, the trial court nevertheless permitted Pugh to question Dr. Anderson about his diagnosis of Doss and about the only two traits that were arguably relevant to his defense.
Finally, Dr. Anderson testified that, based on his evaluation of Pugh, he did not believe Pugh was any more susceptible of reacting to Doss any differently than anyone else. To prove duress, one must show that he was compelled to act by a threat or use of unlawful force that a person of ordinary firmness in the actor’s situation would not have resisted. Ark. Code Ann. § 5-2-208(a) (Repl. 1997). Given Dr. Anderson’s testimony on this issue, it is unlikely that the jury would have found any differently if it had heard evidence regarding Doss’s remaining personality traits. As Pugh cannot demonstrate how he was prejudiced by the exclusion of this other testimony, we hold that there was no abuse of discretion by the trial court.
Next, Pugh argues that the trial court erred in excluding Dr. Anderson’s forensic report of Doss. The trial court permitted Pugh to introduce the doctor’s cover letter attached to his report, containing the diagnosis of borderline personality disorder, but ruled that the remainder of the report would have been cumulative and irrelevant.
The trial court did not abuse its discretion in making this ruling, because the issue in this case was not Doss’s psychological condition or diagnosis, but was instead the reasonableness of Pugh’s reaction to her. See § 5-2-208(a). The judge had already permitted Dr. Anderson to testify on those areas of Doss’s state of mind that had some bearing on Pugh’s behavior, and the information contained in the forensic evaluation added nothing to the evidence that was already before the jury. Therefore, the trial court correctly ruled that this evidence was cumulative and irrelevant.
For his third point on appeal, Pugh challenges the trial court’s exclusion of the testimony of Otis Doss, Joy Doss’s estranged husband. Particularly, he asserts that this testimony was relevant to showing that Doss’s borderline personality disorder was not just an abstract idea, but was instead a real disorder that manifested itself in a pattern of behavior. The court ruled that Otis Doss’s testimony was not relevant.
Otis’s proffered testimony revealed that Joy Doss was angry, destructive, and strong, and that she had once threatened to kill him. However, the defense of duress requires that the perceived threat or use of unlawful force be against the actor or another person; it does not encompass threats made to or force used against a third party of which the actor was unaware. Here, the issue was not Joy Doss’s pattern of behavior, but is instead whether Pugh had a reasonable belief that he had no choice but to follow her orders to help kill Keith Van Maren. Further, Pugh conceded that Otis had never observed Doss’s conduct toward Pugh, and thus the trial court was correct in ruling that there was no evidence in the proffer that would illuminate the relationship between Doss and Pugh.
Fourth, Pugh asserts that the trial court abused its discretion in refusing to admit a letter written by Doss to Sheila Uptegrove, a friend of Pugh, Doss, and Van Maren. In the letter, Doss complained of being lonely, hopeless, worthless, and despicable; Pugh sought to introduce it to demonstrate Doss’s state of mind. The trial court excluded it, however, ruling that the letter was hearsay.
On appeal, Pugh argues that the question was one of relevance, and does not address the trial court’s hearsay ruling. Even if his relevance argument had merit, which it does not, this court will still not reverse in light of Pugh’s failure to attack the trial court’s independent, alternative basis for its ruling. See Pearrow v. Feagin, 300 Ark. 274, 778 S.W.2d 941 (1989) (where trial court expressly based its decision on two independent grounds and appellant challenged only one on appeal, this court affirmed without addressing either). In any event, because it appears that the letter was written after the murder, the letter was not relevant to showing how Doss’s state of mind affected Pugh, and the trial court committed no error in excluding it.
Finally, Pugh argues that the trial court erred when it permitted the prosecutor to inform the jury that the death penalty had been waived. Prior to trial, the State filed a motion in limine seeking to prevent Pugh from speaking to the jury about the sentencing range and possible punishments until the sentencing phase of the trial. At a pre-trial hearing, Pugh responded to the motion by noting that the State intended to tell the jury that it had waived the death penalty. Pugh stated his belief that if the State was able to let the jury know that the death penalty would not be an issue, it seemed only proper that the jury be told the only alternative sentence would be life without parole. The trial court granted the State’s motion in limine, reasoning that life without parole would not necessarily be the only other sentence that could be imposed, because it was possible for the jury to convict on one of the lesser-included offenses Pugh had requested, which would bring into play a whole range of sentencing options.
On appeal, Pugh asserts that permitting the jury to hear that the death penalty was not an option was improper. This point has no merit for two reasons. First, during voir dire, the prosecutor asked if the fact that the death penalty would not be an issue caused anyone to feel that the case was less serious; there was no response from the panel to this question. In posing the question, the prosecutor never said the death penalty had been waived, or that the State had shown Pugh mercy by not asking for death.
Second, Pugh relies on Leaks v. State, 339 Ark. 348, 5 S.W.3d 448 (1999), where the prosecutor stated — during closing arguments — that Leaks had already gotten a break because the State only charged him with first-degree murder, instead of capital murder. The Leaks court held that the prosecutor’s statements suggested that the evidence could have supported a charge of capital murder, and his comments may have skewed the jury’s deliberations in favor of first-degree murder instead of second-degree murder. However, this court held in Hill v. State, 344 Ark. 216, 40 S.W.3d 751 (2001), that there was no abuse of discretion by the circuit judge in allowing a reference to a death-penalty waiver to be made by the prosecutor. In distinguishing the. facts in Hill from those in Leaks, the Hill court noted that the prosecutor in that case did not allude to offenses with which Hill had not been charged or argue that Hill had already been given a break.
Here, unlike in Leaks, the prosecutor never made any suggestions that could have caused the jury to suppose that the death penalty might have been warranted, or that Pugh was fortunate not to have had the death penalty as an option. Hill, rather than Leaks, controls this issue, as the facts and the argument in Hill were nearly identical to the one presented here. Consequently, we are unable to conclude that the trial court erred in allowing the State to make this statement to the jury.
Affirmed.
Imber, J., not participating. | [
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Annabelle Clinton Imber, Justice.
This case arises from a decision by the Arkansas Soil and Water Conservation Commission (ASWCC) to approve a water project submit ted by the City of Centerton that included a portion of the City of Bentonville’s five-mile extraterritorial planning area. ASWCC argues on appeal that it acted within its statutory authority in approving Centerton’s water project. We agree and uphold ASWCC’s decision. Accordingly, we reverse the circuit court’s order and remand with directions to reinstate ASWCC’s decision.
In early 2000, the Centerton Water and Sewer Commission submitted its water distribution project to ASWCC for approval. The proposed project included areas surrounding Centerton to the north, south, and west, a portion of which lies within Benton-ville’s five-mile extraterritorial planning area. ASWCC held public hearings on Centerton’s water project application. Several residents in the proposed service area testified in favor of the project, and letters of endorsement were made a part of the record. Jerry Martin, an engineer with Engineering Services, Inc., testified on behalf of Centerton that the proposed water project would cost customers an additional $4.30 per month and would benefit existing customers by eliminating dead-end areas. He estimated the construction costs at $2.2 million, including a 10% contingency fee and miscellaneous costs, and explained that the costs were based on similar projects. The project would take about a year-and-a-half to two years to complete. On cross-examination, he confirmed that the Preliminary Engineering Report (PER) was prepared without a survey of the residents of the area, which is not unusual. The potential customer base was determined by doing a “house count” in the proposed project’s service area. Britt Vance, public works director for Bentonville, testified that he believed the project was substantially underbid and would actually cost over $3.2 million. Mr. Martin responded by testifying that Mr. Vance’s estimates were very high and out of line with bids he had recently received on a similar project. A resident in the area testified that he and 300 other residents did not want to pay for the water service. An analysis submitted by Centerton estimated that the proposed project would improve the water flow available for fire fighting.
In July 2000, the director of ASWCC approved Centerton’s proposed water project, albeit with certain exceptions that allowed Bentonville to serve customers within 300 feet of its existing lines. In April 2001, the full commission adopted the director’s order but excluded any areas that Bentonville annexed prior to March 15, 2001, and clarified that water would be supplied by the Benton/Washington County Water Association (Two-Ton) regional water system. Bentonville then appealed to the Benton County Circuit Court. During a hearing before the circuit court, ASWCC pointed out that Bentonville had not submitted a water project for the area, and that ASWCC ruled on the only project before it. The circuit court adopted ASWCC’s findings of fact, conclusions of law, and order except the court ruled that ASWCC exceeded its statutory authority by extending Centerton’s water service area into Bentonville’s extraterritorial planning area. ASWCC filed this appeal challenging the circuit court’s decision. Our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(b)(6) (2002). ASWCC maintains it did not exceed its statutory authority by approving Centerton’s water project and that its order is supported by substantial evidence and is not arbitrary, capricious, or characterized by an abuse of discretion. On the other hand, Bentonville claims ASWCC exceeded the scope of its statutory authority. Bentonville also suggests that the decision by ASWCC should not be upheld because: (1) it is based on a faulty procedure whereby ASWCC modified Centerton’s water project; (2) the decision is arbitrary; and (3) the decision is not supported by substantial evidence.
Standard of Review
On appeal from a circuit court’s review of a state agency’s decision, our review is limited in scope and is directed not to the decision of the circuit court but to whether the decision of the administrative agency is supported by substantial evidence. Arkansas Professional Bail Bondsman v. Oudin, 348 Ark. 48, 69 S.W.3d 855 (2002;) Arkansas Contr. Lic. Bd. v. Pegasus Renovation Co., 347 Ark. 320, 64 S.W.3d 241 (2001); Tomerlin v. Nickolich, 342 Ark. 325, 27 S.W.3d 746 (2000). We review the entire record in making that determination. Arkansas Professional Bail Bondsman v. Oudin, supra; Arkansas Alcoholic Beverage Control v. Muncrief 308 Ark. 373, 825 S.W.2d 816 (1992). We have recognized that “administrative agencies are better equipped than courts, by specialization, insight through experience, and more flexible procedures to determine and analyze underlying legal issues affecting their agencies, and this recognition accounts for the limited scope of judicial review of administrative action and the refusal of the court to substitute its judgment and discretion for that of the administrative agency.” Arkansas Professional Bail Bondsman v. Oudin, 348 Ark. at 53, 69 S.W.3d at 858.
Arkansas Code Annotated § 25-15-212(h) provides that this court may reverse or modify the Board’s decision
if the substantial rights of the petitioner have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the agency’s statutory authority;
(3) Made upon unlawful procedure;
(4) Affected by other error or law;
(5) Not supported by substantial evidence of record; or
(6) Arbitrary, capricious, or characterized by abuse of discretion.
Ark. Code Ann. § 25-15-212(h) (Supp. 2001). In making this determination, we review the entire record and give the evidence its strongest probative force in favor of the agency’s ruling. Arkansas Professional Bail Bondsman v. Oudin, supra. “[B]etween two fairly conflicting views, even if the reviewing court might have made a different choice, the board’s choice must not be displaced.” Arkansas Contr. Lic. Bd. v. Pegasus Renovation Co., 347 Ark. at 327, 64 S.W.3d at 245; Jackson v. Arkansas Racing Comm’n, 343 Ark. 307, 34 S.W.3d 740 (2001). These standards have been applied to ASWCC decisions. City of Benton v. Arkansas Soil & Water Conservation Commission, 345 Ark. 249, 45 S.W.3d 805 (2001).
I. ASWCC’s Statutory Authority
Resolution of the conflict between Bentonville and ASWCC requires this court to construe two statutes, one granting municipalities exclusive planning jurisdiction over a five-mile area surrounding the city and the other statute empowering ASWCC to approve all water projects. We first note that municipal corporations are creatures of the legislature and as such have only the power bestowed upon them by statute or the Arkansas Constitution. Stilley v. Henson, 342 Ark. 346, 28 S.W.3d 274 (2000). ASWCC is also a creature of the legislature, and its power and authority is limited to that which the legislature confers upon it. Arkansas County v. Desha County, 342 Ark. 135, 27 S.W.3d 379 (2000). The basic rule of statutory construction is to give effect to the intent of the legislature by giving words their usual and ordinary meaning. Id. Where the statutes are unambiguous, we construe them by looking to all laws on the subject, viewing them as a single system, and giving effect to the general purpose of the system. Id. We also recognize that “the manner in which a law has been interpreted by executive and administrative officers is to be given consideration and will not be disregarded unless it is clearly wrong.” Cave City Nursing Home, Inc. v. Arkansas Dept. of Human Services, 351 Ark. 13, 22, 89 S.W.3d 884.
With these standards in mind, we turn to the statute empowering ASWCC to approve water projects. Arkansas Code Annotated § 15-22-503 (Repl. 2000) sets out the broad powers granted to ASWCC by the General Assembly:
15-22-503. Arkansas Water Plan.
(a) Under such rules and regulations as it may adopt, the Arkansas Soil and Water Conservation Commission is charged with the duty of preparing, developing, formulating, and engaging in a comprehensive program for the orderly development and management of the state’s water and related land resources, to be referred to as the Arkansas Water Plan.
(b) The commission shall be governed in its preparation of the plan by a regard for the public interest of the entire state. It shall direct its efforts to protect the water resources of the state, including boundary waters, against unwarranted encroachments by other states and the United States upon its sovereignty with respect thereto. Any attempt to transport or export any of such waters against the best interests of the State of Arkansas and its inhabitants shall be strongly opposed.
(c) The plan shall give due consideration to existing water rights of the state and its inhabitants and shall take into account modes and procedures for the equitable adjustment of individual water rights affected by the implementation of the plan. The Arkansas Water Plan shall be the state policy for the development of water and related land resources in this state and shah, from time to time, be altered, amended, or repealed to the extent necessary for the proper administration of the state’s water resources.
(d) All state agencies, commissions, and political subdivisions shall take the Arkansas Water Plan into consideration in all matters pertaining to the discharge of their respective duties and responsibilities as they may affect the comprehensive Arkansas Water Plan, but nothing in the Arkansas Water Plan shall be construed as to impair any water right existing under the laws of this state.
(e) No political subdivision or agenq> of the state shall spend any state funds on or engage in any water development project, excluding any project in which game protection funds or federal or state outdoor recreation assistance grant funds are to be spent provided such project will not diminish the benefits of any existing water development project, until a preliminary survey and report therefor, which sets forth the purpose of the project, the benefits to be expected, the general nature of the works of improvement, the necessity, feasibility, and the estimated cost thereof, is filed with the commission and is approved by the commission to be in compliance with the Arkansas Water Plan. Upon approval of the report, no political subdivision nor agency board or commission thereof filing the report, or designated by the commission as having responsibility for constructing, operating, managing, and maintaining the improvement, shall be dissolved, merged, abolished, or otherwise changed during the life of the water development project without prior approval of the commission.
Ark. Code Ann. § 15-22-503 (Repl. 2000) (emphasis added).
Municipalities are generally required to submit their water development proposals to ASWCC for approval as being in compliance with the Arkansas Water Plan. See, e.g., City of Benton v. Arkansas Soil & Water Conservation Comm’n, 345 Ark. 249, 45 S.W.3d 805 (2001). Municipalities may be included within the boundaries of Regional Water Distribution Districts. City of Fort Smith v. River Valley Regional Water Dist., 344 Ark. 57, 37 S.W.3d 631 (2001); Ark. Code Ann. § 14-116-107 (Repl. 1998). Regional Water Districts are required to submit project proposals to ASWCC in order to assure compliance with the Arkansas Water Plan. Ark. Code Ann. § 14-116-402(b) (Supp. 2001). ASWCC is charged with the responsibility of developing the water plan that “shall be the state policy for the development of water and related land resources in this state. . . .” Ark. Code Ann. § 15-22-503(c). Section 15-22-504 even requires that the plan be made generally available “to ensure that the provisions of this subchapter are complied with concerning water and resource planning and development.” Ark. Code Ann. § 15-22-504(b) (Repl. 2000).
Bentonville contends that section 14-56-413 grants it exclusive jurisdiction over the five-mile extraterritorial area surrounding the city limits. “The territorial jurisdiction of the legislative body of the city having a planning commission, for the purpose of this subchapter, shall be exclusive and shall include all land lying within five (5) miles of the corporate limits.” Ark. Code Ann. §14 — 56—413(a)(1)(A) (Repl. 1998). Bentonville also claims that this exclusive planning jurisdiction trumps ASWCC’s authority under section 15-22-503 such that the city has been granted the exclusive right to provide utilities to residents in its five-mile extraterritorial planning area.
Bentonville overstates the power granted to them by section 14-56-413. First, section 15-22-503(e) clearly grants ASWCC power over other political subdivisions, such as municipalities, to approve any water development project for compliance with the state water plan. Ark. Code Ann. § 15-22-503(e). Our case law provides that a Regional Water District, whose water projects also require ASWCC approval, can include municipalities. City of Fort Smith v. River Valley Regional Water Dist., supra. Moreover, cities cannot spend state funds on or engage in any water development project until the project is approved by ASWCC. Ark. Code Ann. § 15-22-503(e); City of Benton v. ASWCC, supra. A municipality clearly does not have absolute power to control water projects within its own boundaries, much less within its five-mile extraterritorial planning area.
Statutes relating to the same subject are said to be in pari materia and should be read in a harmonious manner, if possible. R.N. v. J.M., 347 Ark. 203, 61 S.W.3d 149 (2001); Minnesota Mining & Mfg. v. Baker, 337 Ark. 94, 989 S.W.2d 151 (1999). Here, we have no difficulty in reading the two statutes at issue in harmony. While a municipality may prepare plans for lands lying within five miles of the city limits, Ark. Code Ann. § 14-56-413, all water development projects must still comply with the Arkansas Water Plan. Ark. Code Ann. § 15-22-503.
In the instant case, Bentonville did not provide ASWCC with any plan to annex or otherwise provide water services to the residents who live within its five-mile extraterritorial planning area. The decision by ASWCC did not, as characterized by Bentonville, deny Bentonville any powers to provide city services to its citizens; instead, ASWCC approved Centerton’s project to provide water to residents in the area surrounding Centerton, a portion of which lies within Bentonville’s five-mile extraterritorial planning area. If this court were to adopt the statutory interpretation advanced by Bentonville, the residents of the disputed area would be denied potable water until such time, if ever, Bentonville decides to provide water — even then, a water project would still have to be approved by ASWCC. We therefore hold that ASWCC acted within its statutory authority when it approved Centerton’s water distribution project.
II. Substantial Evidence
Even if ASWCC acted within its statutory authority, Bentonville suggests that ASWCC’s decision is arbitrary and not supported by substantial evidence.
Substantial evidence is defined as “valid, legal, and persuasive evidence that a reasonable mind might accept as adequate to support a conclusion, and force the mind to pass beyond conjee ture.” Tomerlin v. Nickolich, 342 Ark. at 333, 27 S.W.3d at 751 (quoting Arkansas State Police Comm’n v. Smith, 338 Ark. 354, 362, 994 S.W.2d 456, 461 (1999)). The challenging party has the burden of proving an absence of substantial evidence. Id. To establish an absence of substantial evidence, the challenging party must demonstrate that the proof before the administrative tribunal was so nearly undisputed that fair-minded persons could not reach its conclusion. Id. “The question is not whether the testimony would have supported a contrary finding but whether it supports the finding that was made.” Id.
Arkansas Professional Bail Bondsman v. Oudin, 348 Ark. at 55, 69 S.W.3d at 860. Bentonville posits three reasons why ASWCC’s decision should not be upheld. First, it claims that the decision is fatally flawed because ASWCC modified the water project application filed by Centerton; as such, the project as approved is not the project Centerton submitted for approval. Next, Bentonville argues the decision is arbitrary. Finally, Bentonville contends that the decision is not supported by substantial evidence.
A. ASWCC’s Modification of Centerton’s Proposed Water Project
Bentonville asserts that ASWCC modified Center-ton’s water project application, and therefore its approval was without authority. Bentonville contends that ASWCC modified Centerton’s project in two material respects: (1) certain areas were excluded from the project; and (2) water would be supplied by the Two-Ton regional water system. First, ASWCC excluded from the project any areas annexed by Bentonville prior to March 15, 2001. The record does not indicate that Bentonville annexed any of the disputed area between February 14, 2000, when Centerton filed its water project application, and March 15, 2001. As a result, granting Bentonville the opportunity to provide water service to its residents did not materially alter the scope of Centerton’s water project.
As to the second assertion that ASWCC materially altered the project by specifying water would be provided by the Two-Ton regional water system, Bentonville concludes it would be “required to purchase wholesale water from Two-Ton to serve areas in its city limits.” Such an argument is premised on the assumption that Bentonville will at some future time annex portions of the area serviced by the Centerton water project. Once again, this is nothing more than speculation. The Two-Ton regional water system was specified in the original PER and does not represent any change, much less a material change, in the water project.
B. Whether the Decision Is Arbitrary
Next, Bentonville argues that the decision is arbitrary because ASWCC altered Centerton’s project without the knowledge or consent of anyone, the selection of the Two-Ton regional water system to provide the water is arbitrary, and permanently limiting Bentonville to serving only its currently existing customers is arbitrary.
Administrative action may be regarded as arbitrary and capricious where it is not supportable on any rational basis. To have an administrative action set aside as arbitrary and capricious, the party challenging the action must prove that it was willful and unreasoning action, without consideration and with a disregard of the facts or circumstances of the case. We have stated that the requirement that administrative action not be arbitrary and capricious is less demanding than the requirement that it be supported by substantial evidence. . . . [OJnce substantial evidence is found, it automatically follows that a decision cannot be classified as unreasonable or arbitrary.
Arkansas Professional Bail Bondsman v. Oudin, 348 Ark. at 55, 69 S.W.3d at 860 (quoting Arkansas Cont. Lic. Bd. v. Pegasus Renovation Co., 347 Ark. 320, 64 S.W.3d 241 (2001)).
As we have already concluded, ASWCC did not materially alter the project by excluding any area annexed by Bentonville prior to March 15, 2001. Furthermore, the selection of the Two-Ton regional water system, as specified in the original PER, is not an arbitrary decision of the Commission. In fact, ASWCC’s order does not prohibit the use of water from other sources so long as the variance is approved by ASWCC. Moreover, the ASWCC order does not limit Bentonville to serving only its current customers; rather, the decision permits the Centerton water project to service customers located in an area that Benton-ville may or may not at some future time annex or include in a future water project application. ASWCC rules anticipate that water projects may overlap. See ASWCC Rule 601.1 (G) (defining “project” to include “[projects that would serve areas that are being served by other entities or projects that would serve areas on which other projects have, or have applied for, water plan certification”). In any event, the ASWCC order specifically provides that Bentonville and Centerton, with ASWCC approval, may negotiate a modification in the responsibility to provide service to residents in the area or share water lines where the two cities determine it to be economical and beneficial. We conclude that Bentonville’s arguments on this point are without merit.
C. Substantial Evidence
To support its claim of a lack of substantial evidence, Benton-ville quotes its own public works director who testified that Bentonville could provide service to the area residents as quickly as Centerton, and that some of Centerton’s residents do not want to pay for the project. Bentonville goes on to conclude that the project is not needed and that “[opposition to this project clearly outweighs the support.” The argument as framed, however, misapprehends the substantial-evidence standard of review. As quoted above, “[t]he question is not whether the testimony would have supported a contrary finding but whether it supports the finding that was made.” Arkansas Professional Bail Bondsman v. Oudin, 348 Ark. at 55, 69 S.W.3d at 861.
Substantial evidence supports ASWCC’s decision. Centerton filed a PER that detailed the water project’s purpose, expected benefits, necessity, feasibility, and estimated cost. ASWCC conducted public hearings on April 4, 2000, and on May 9, 2000, accepted written comments and evidence, and took testimony from all interested parties, including Centerton, Bentonville, and residents of the proposed project’s service area. An engineer from the firm that prepared the PER testified concerning the need for the project, its beneficial impact on both current and proposed water customers, and its estimated cost. Many of the residents in the area confirmed that their well water is contaminated or of poor quality. Consequently, they are forced to spend substantial sums to secure potable water for their homes and businesses. Existing customers would also benefit from additional quantities of water being available during high flow periods, such as fire fighting. The project could assist Centerton in lowering its ISO rating, thereby reducing fire insurance premiums for the city’s customers. While there was opposition to the project, ASWCC concluded that “(a) the project complies with and implements the goals and objectives of the Arkansas Water Plan; and (b) the project adequately coordinates the use of water resources within the region in which the "project is located, and within the state as a whole.” ASWCC Rule 604.5. Based on our review of the record in this matter, we conclude that ASWCC’s order approving Centerton’s water project is supported by substantial evidence.
Because ASWCC acted within its statutory auchority, which is not preempted by a municipality’s planning authority in a five-mile area surrounding the city limits, and because ASWCC’s decision is supported by substantial evidence, we affirm its order approving Centerton’s water development project, as amended, for water plan compliance certification.
Reversed and remanded with instructions to reinstate the decision by the Arkansas Soil and Water Conservation Commission.
The rules promulgated by ASWCC provide that “[t]he Referee may approve all or part of an application.” ASWCC Rule 604.7.
The circuit court apparently found substantial evidence to support ASWCC’s decision because it adopted the findings of fact, conclusions of law, and order of the commission except where the water project extended into Bentonville’s five-mile extraterritorial planning area. | [
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Donald L. Corbin, Justice.
Appellant Robert Vanderpool was formerly the city marshal of the City of Mammoth Spring. He filed suit in the Fulton County Circuit Court against Appellees Jean Pace, mayor of Mammoth Spring, and four city aldermen, Jack Haney, Carol HoweE, James MiEs, and Bruce Green. In his complaint, AppeEant asserted that the city owed him overtime pay for a period of three years, pursuant to certain provisions of the city’s municipal code. The trial court granted summary judgment in favor of the city officials, and this appeal foEowed. Our jurisdiction of this appeal is pursuant to Ark. Sup. Ct. R. 1-2 (b)(6), as it involves the interpretation of a city ordinance. We find no error and affirm.
AppeEant’s complaint, filed on AprE 26, 2000, aEeged that he was employed as the city marshal from July 1, 1995, to June 30, 1998. He asserted that as city marshal, he was required to have a police-department telephone in his home and was required to be on caE at home twenty-four hours a day, seven days a week. He asserted further that during his employment, he also performed duties relating to the city’s fire department, specificaEy, that he maintained a separate telephone line in his home in order to receive caEs for the fire department. He aEeged that the time he spent at home was compensable, because the restrictions placed on him prevented him from using the time for personal pursuits, as provided under the Fair Labor Standards Act (FLSA). FinaEy, he claimed that he was entitled to $25,572.67 in overtime pay and $94,510.18 for the time he spent on caE at home.
AppeEees filed an answer on June 21, 2000, denying any wrongdoing and aE material aEegations made by AppeEant. On that same date, AppeEees also filed a notice stating that the case had been removed to federal court, due to the claim under the FLSA.
On March 19, 2001, the United States District Court, Eastern District of Arkansas, Northern Division, entered an order granting Appellees’ motion for summary judgment and dismissing Appellant’s federal claims. The district court dismissed the FLSA claims on the ground that the overtime provisions under the Act specifically exempt those agencies that employ less than five law enforcement personnel. At the time of Appellant’s employment as marshal, the city employed fewer than five law enforcement personnel. The district court found further that even if Appellant’s FLSA claims were valid, he would only be entitled to compensation for the period of April 26, 1998, to June 30, 1998, as the statute of limitations under the Act is two years. In an order issued on March 30, 2001, the district court remanded Appellant’s state claims to the Fulton County Circuit Court.
Following remand, both Appellant and Appellees filed motions for summary judgment. In support of their motion for summary judgment, Appellees stated that under the city’s ordinances, Appellant, as head of the police department, was not entided to receive overtime pay. Appellees also stated that even if he was entitled to overtime pay, Appellant could only collect for the period of April 26, 1997, through June 30, 1998, as the statute of limitations on his claim is three years, pursuant to Ark. Code Ann. § 16-56-105 (1987). In a letter order entered on October 24, 2001, the trial court granted Appellees’ motion for summary judgment and denied Appellant’s motion. This appeal followed.
At the outset, we note that summary judgment, although no longer viewed as a drastic remedy, is to be granted only when it is clear that there are no genuine issues of material fact to be litigated, and the party is entided to judgment as a matter of law. Monday v. Canal Ins. Co., 348 Ark. 435, 73 S.W.3d 594 (2002); Mississippi River Transmission Corp. v. Weiss, 347 Ark. 543, 65 S.W.3d 867 (2002). Summary judgment is appropriate when the facts are undisputed and both sides have filed motions for summary judgment. Id. Here, both sides sought summary judgment based on their interpretations of the city ordinances. As such, the case was decided purely as a matter of statutory interpretation.
In construing an ordinance, we apply the same rules of construction that we apply to statutes. Stricklin v. Hays, 332 Ark. 270, 965 S.W.2d 103 (1998); Tackett v. Hess, 291 Ark. 239, 723 S.W.2d 833 (1987). In determining the meaning of a statute, the first rule is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Turnbough v. Mammoth Spring Sch. Dist. No. 2, 349 Ark. 341, 78 S.W.3d 89 (2002); Monday, 348 Ark. 435, 73 S.W.3d 594. The statute must be construed so that no word is left void or superfluous and in such a way that meaning and effect are given to every word therein, if possible. Id. If the language of a statute is clear and unambiguous and conveys a clear and definite meaning, there is no reason to resort to the rules of interpretation. Id. If, however, the meaning of a statute is not clear, we look to the language of the statute, the subject matter, the object to be accomplished, the purpose to be served, the remedy provided, the legislative history, and other appropriate means that shed light on the subject. Id.
Appellant contends that he is entitled to overtime pay because he was on call twenty-four hours a day, seven days a week. He relies on section 2.56.18 of the city’s municipal code, which provides for overtime pay for certain city employees. That section provides in pertinent part:
The standard work week for employees other than department heads shall be five (5) days or a total of forty (40) hours per week. Police officers shall work 50 hours per week. Department heads and supervisors should work those hours necessary to assure the satisfactory performance of their departments, but not less than forty (40) hours per week. The department head or supervisor shall not be entitled to overtime pay under the provisions of this section. [Emphasis added.]
Appeflees argue that under this section, Appellant was not entitled to overtime pay because, as city marshal, he was the head of the police department. We agree. Section 2.44.02 of the city’s municipal code provides in pertinent part: “ The marshal shall be the head of the department and shall be fully responsible for the operation of the department, and the equipment of the depart ment.” (Emphasis added.) This section plainly and unmistakably designates the city marshal as a department head.
Appellant does not dispute the fact that he was a department head. Indeed, his complaint reflects that he was referred to as the department head. He argues, however, that for all intents and purposes, the mayor really ran things. This argument is misplaced. For purposes of this appeal, it is of no significance who actually ran the police department. Appellant’s position as marshal was plainly classified under city ordinances as a department head. Because of this classification, he was not entitled to overtime pay under section 2.56.18.
It is further of no significance that Appellant maintained in his home a separate telephone line to receive fire-department calls. The record reflects that Appellant’s duties were those of a law enforcement officer, not a firefighter. Indeed, in his deposition, Appellant admitted that he was never required to perform duties for the fire department. Rather, his duties, even as they related to the separate telephone line, were as a police officer. The following colloquy is illustrative.
Q. Did the mayor ever ask you to perform duties for the fire department such as notifying firemen about fires?
A. Well, as far as her personally saying, I have no recollection of her personally saying — telling me to do that, no.
Q. Did the city council every instruct you that you needed to perform duties for the fire department other than what you’ve already told me about, sir, you needed to patrol traffic —• control traffic?
A. Yes, yes. At one time I had a pager that they paged me just like they did the firemen, and I went and directed traffic. And then when they started getting more firemen, I gave them the pager and then I responded from the telephone.
Q. Did the city council ever direct you to fight fires?
A. No.
Q. Did the mayor ever direct you to fight fires?
A. No.
Based on these admissions, it is clear that any duties that Appellant performed in relation to the additional telephone line fell within the scope of his job as city marshal, not as a firefighter. As stated above, a city marshal is the head of the law enforcement department and is not entitled to overtime pay under city ordinance 2.56.18. Thus, Appellant’s claim to overtime pay for his fire-department duties is misplaced.
Also misplaced is Appellant’s reliance on this court’s holding in Stricklin, 332 Ark. 270, 965 S.W.2d 103. There, North Little Rock firefighters brought suit against the city and its mayor, seeking enforcement of an initiated ordinance that required firefighters and police officers in North Little Rock to receive salaries and benefits commensurate with their counterparts in Little Rock. The trial court found that the ordinance was valid, but that it had lapsed and the city was no longer obligated to provide parity pay. This court reversed the trial court’s ruling, on the ground that the ordinance did not contain a sunset provision and therefore had not expired or lapsed. We are at a loss as to how the holding in Stricklin aids Appellant in his lawsuit. There is no issue in the present case regarding the viability of the foregoing city ordinances. Stricklin is thus inapplicable to Appellant’s claim.
Finally, in his brief on appeal, Appellant raises the additional argument that he is entitled to overtime pay based on the fact that the city “arbitrarily” paid him overtime pay in some instances, thereby “setting precedent.” In other words, Appellant contends that the city paid him overtime pay on some occasions, and that Appellees should now be estopped from claiming that he, as a department head, is not eligible for overtime pay. We cannot reach the merits of this argument, however, as the record does not reflect that it was ever made below. This court has repeatedly stated that it will not consider an argument for the first time on appeal. See, e.g., Arkansas Blue Cross & Blue Shield v. Hicks, 349 Ark. 269, 78 S.W.3d 58 (2002); Laird v. Shelnut, 348 Ark. 632, 74 S.W.3d 206 (2002); Hurst v. Holland, 347 Ark. 235, 61 S.W.3d 180 (2001).
In sum, the ordinances at issue here demonstrate that Appellant is not entitled to overtime pay. Section 2.56.18 plainly .states that department heads shall not be entitled to overtime pay. Accordingly, because Appellant’s position of city marshal is classified under section 2.44.02 as a “head of the department,” he is not entitled to overtime pay under section 2.56.18. The trial court was thus correct in granting summary judgment to Appellees.
Affirmed.
This case was first submitted to this court last year; however, because the addendum was deficient, we returned the case to Appellant to comply with Ark. Sup. Ct. R. 4-2. See Vanderpool v. Pace, 350 Ark. 460, 87 S.W.3d 796 (2002) (per curiam).
In his complaint, Appellant asserts that he performed duties relating to the fire department. However, he does not assert that he was required to perform these additional duties. In contrast, the complaint does reflect that Appellant was required to maintain a police-department telephone in his home and that he was required to be on call, at home, twenty-four hours a day, seven days a week. | [
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Per Curiam.
Appellant was convicted of capital murder and sentenced to death by lethal injection. Among his points of error is a claim that the jury failed to consider mitigating circumstances in the sentencing phase of his trial in violation of Ark. Code Ann. § 5-4-603 (Repl. 1997). The verdict forms identified as Forms 1 through 4 (presumably as specified under AMCI 2d 1008) were specifically discussed by the trial judge during the trial and are referenced in the trial court’s order denying appellant’s motion for a new trial. Those forms, however, are not included in the record presented to this court. At oral argument, counsel for the appellant and for the State represented to this court that they have been unable to locate the forms.
Ordinarily we w ould leave it to the parties to move that the record on appeal be supplemented under Ark. R. App. P. — Civ. 6(e) (2000), which the appellant has not done. However, inasmuch as this is a capital murder case in which the death penalty was imposed, we order that the record on appeal be supplemented to include Verdict Forms 1, 2, 3, and 4 from the sentencing phase of appellant’s trial within fifteen days hereof. See Ark. R. App. P. — Civ. 6(e) (2000); Snell v. State, 290 Ark. 184, 717 S.W.2d 818 (1986); Snell v. State, 290 Ark. 503, 721 S.W.2d 628 (1986). | [
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Donald L. Corbin, Justice.
This case involves an allegation of attorney malpractice. Appellant Karen Barnes charged Fayetteville attorney John Everett with malpractice, alleg ing that Everett was negligent in advising her to settle her claim with an insurance agent, which, in turn, barred her claim against the insurance company. She filed suit against Everett in the Washington County Circuit Court in August 2000, and a jury trial was held in May 2001. The jury returned a verdict in favor ofEverett, and Barnes now brings this appeal. Barnes raises five points for reversal, three of which challenge evidentiary rulings and two that challenge jury instructions. This appeal was certified to us from the Arkansas Court of Appeals, pursuant to Ark. Sup. Ct. R. 1-2(a)(5). We affirm.
The record reflects that Barnes was in an automobile accident on September 6, 1995, in which her vehicle was struck by another vehicle driven by Jerry Herring. It was later discovered that Herring, who had fled the scene of the accident, was uninsured. Barnes was insured by National Security Fire and Casualty Company, under a policy purchased by her father from Rebsamen Insurance, Inc. Barnes reported the accident and the fact that Herring was uninsured to Rebsamen. Rebsamen informed her that her policy was for liability only and did not provide uninsured motorist coverage. When Barnes inquired as- to the status of her policy, Rebsamen produced a document, purporting to bear Barnes’s signature, showing a written declination of uninsured motorist coverage. After reviewing the document, Barnes informed Rebsamen that the signatures on the documents were not hers, and that her last name had been misspelled three of the four times as “Barens.”
Following her discovery of the forged signatures, Barnes made a claim against Rebsamen and National for payment of her damages. National settled with Barnes on the property damage caused to her vehicle, but refused further payment for her medical expenses.
Barnes hired Everett to represent her in a suit against both Rebsamen and National. Everett filed a complaint on her behalf in the Pulaski County Circuit Court in January 1997. The complaint charged both defendants with fraud and with violating the Arkansas Trade Practices Act. The complaint also alleged that under the doctrine of respondeat superior, National was liable for the acts of its agent, Rebsamen. The complaint alleged further that Barnes was entitled to the full amount available for uninsured motorist coverage from National, which coverage was implied by operation of law because Barnes had never declined the coverage in writing.
Rebsamen answered the complaint, but National did not. A jury trial was scheduled in the Pulaski County Circuit Court in December 1997, before the Honorable Judge John Plegge. Rebsamen appeared for trial, but National did not. That morning, Everett negotiated a settlement for $10,000 with Rebsamen. Everett informed Barnes of the offer and advised her to take it. When Barnes inquired about the effect of the settlement on her suit against National, Everett informed her that her acceptance of the offer from Rebsamen would not impair her suit against National. Barnes accepted the offer. Thereafter, the trial court allowed Everett to proceed against National in a default trial. Because National had defaulted, the jury was only asked to consider the issue of damages. Thereafter, Everett presented his case and asked the jury for compensatory damages of $25,000 and punitive damages of $250,000. The jury returned a verdict of $25,000 compensatory damages and $500,000 in punitive damages.
Following the jury’s award, National appeared before the Pulaski County Circuit Court and moved to set aside the default judgment. National alternatively sought a remittitur of the punitive damages. The trial court denied the motion to set aside, but reduced the award of punitive damages to $250,000. National then appealed.
The Arkansas Court of Appeals reversed and dismissed the judgment against National. See National Sec. Fire & Cas. Co. v. Barnes, 65 Ark. App. 13, 984 S.W.2d 80 (1999). First, the court determined that National was not in default, because Rebsamen’s answer raised a common defense and thus inured to National’s benefit. The court then held that under the theory of respondeat superior, Barnes’s settlement with Rebsamen, the agent, released National, the principal, from liability. The decision was issued on January 13, 1999.
In August 2000, Barnes filed suit against Everett for attorney malpractice in the Washington County Circuit Court. The complaint alleged that Everett was negligent in advising her to accept the offer made by Rebsamen, and that his negligence was the proximate cause of her losing the judgment against National. A jury trial was held in May 2001, before the Honorable Judge Kim Smith.
During the trial, both Barnes and her father, Howard Barnes, testified that they had specifically asked Everett whether settling with Rebsamen would impair the suit against National, and that Everett had assured them that it would not.
Barnes also presented testimony from attorney Jeff Pence, who stated that, in his opinion, a lawyer practicing in Arkansas in December 1997 should have known that settling a claim with the agent, which was premised on a theory of respondeat superior, would have the effect of releasing the principal. Pence stated further that an attorney who faded to advise his client of this would be in violation of the standard of care at the time. On cross-examination, however, Pence acknowledged that the law would not release a principal following settlement with the agent if there was an independent claim still pending against the principal. Pence then admitted that the suit filed by Everett had stated an independent claim against National for breach of contract.
Everett testified that he was knowledgeable about the law of respondeat superior. He also testified that, at the time he advised Barnes to settle her claim with Rebsamen, he knew that the settlement with Rebsamen would release National from any claim of liability under respondeat superior. Everett maintained, however, that he advised Barnes to settle with Rebsamen because he believed that the complaint stated independent claims against National, specifically a claim of fraud and a claim for breach of contract for the uninsured motorist coverage, that would remain viable. Two other witnesses called by Everett echoed his testimony about the viability of the remaining claims against National. The jury found in favor of Everett, and this appeal followed.
We note at the outset that an attorney is negligent if he or she fails to exercise reasonable diligence and skill on behalf of a client. Pugh v. Griggs, 327 Ark. 577, 940 S.W.2d 445 (1997); Schmidt v. Pearson, Evans, and Chadwick, 326 Ark. 499, 931 S.W.2d 774 (1996). To prevail on a claim of attorney malpractice, a plaintiff must prove that the attorney’s conduct fell below the generally accepted standard of practice and that such conduct proximately caused the plaintiff damages. Id. To prove damages and proximate cause, the plaintiff must show that, but for the alleged negligence of the attorney, the result in the underlying action would have been different. Id. In this respect, a plaintiff must prove a case within a case, as he or she must prove the merits of the underlying case as part of the proof of the malpractice case. An attorney is not liable to a client when, acting in good faith, he or she makes mere errors of judgment. Id. Moreover, an attorney is not, as a matter of law, liable for a mistaken opinion on a point of law that has not been settled by a court of the highest jurisdiction and on which reasonable attorneys may differ. Id.
I. Evidentiary Issues
Barnes raises five points on appeal, the first three of which involve evidentiary issues. The decision to admit or refuse evidence is within the trial court’s discretion, and we will not reverse the trial court’s ruling absent an abuse of discretion and a showing of prejudice. See Columbia Nat’l Ins. Co. v. Freeman, 347 Ark. 423, 64 S.W.3d 720 (2002); Madden v. Aldrich, 346 Ark. 405, 58 S.W.3d 342 (2001); Dodson v. Allstate Ins. Co., 345 Ark. 430, 47 S.W.3d 866 (2001). With this standard of review in mind, we discuss Barnes’s arguments.
A. Damages Awarded in the Default Trial
Barnes first argues that the trial court erred in refusing to allow her to present evidence of the amount of damages obtained, a total of $525,000, in the default trial against National. She contends that the amount of damages was relevant to her claim of malpractice to show that, but for Everett’s negligence, she would have been successful in her claim against National. She contends further that because the jurors were not informed of the amount of damages previously awarded, they were forced to speculate or guess as to the damages that would have been awarded. The record reflects that this latter argument was not raised in the trial court. This court has repeatedly stated that it will not consider an argument raised for the first time on appeal. See, e.g., Arkansas Blue Cross & Blue Shield v. Hicks, 349 Ark. 269, 78 S.W.3d 58 (2002); Laird v. Shellnut, 348 Ark. 632, 74 S.W.3d 206 (2002); Hurst v. Holland, 347 Ark. 235, 61 S.W.3d 180 (2001). Accordingly, we will confine our review to the preserved issue of the evidence’s relevance.
During a pretrial hearing, Everett sought to exclude this evidence on the ground that it was irrelevant and its admission would be unfairly prejudicial because it was the result of a default-judgment trial, where liability was not an issue and there was no defense at all. Barnes’s attorney argued that while the jury may not be bound by the actual amount of the default judgment, it should be informed of all the facts and of what actually occurred in the underlying case. The trial court found that the evidence of the default judgment had little probative value, and that such value was substantially outweighed by the danger of unfair prejudice to Everett. The trial court explained:
They were unrepresented, and to allow that to stand against this defendant is clearly wrong and not permitted under the law. You certainly will be given your opportunity to prove to the jury what you feel the damages should be under these facts if you prove negligence on behalf of the defendant. But for them to even hear what that jury did is so misleading because there was no one defending, there was only one defendant in there, there' was no defense counsel present to cross-examine the plaintiffs witnesses or to argue on behalf of Rebsamen or National Security that if it was relevant, which I don’t think it is because it’s not given in a fully contested case, it was not brought about by a jury hearing both sides of the case, but by a jury that only heard one side and did not hear anything from the other side. But if it is, has any probative value, then under Arkansas Rule of Evidence 403 that the unfair prejudice and misleading nature of that evidence outweighs any probative value that it might have.
The trial court then stated that Barnes could inform the jury that a favorable judgment was obtained, and that she was only prohibited from telling the jury the amount of the default judgment.
We find no error with the trial court’s ruling. Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Ark. R. Evid. 401. See also NationsBank, N.A. v. Murray Guard, Inc., 343 Ark. 437, 36 S.W.3d 291 (2001). A trial court’s ruling on relevancy is entitled to great weight and will not be reversed absent an abuse of discretion. Columbia Nat’l Ins. Co., 347 Ark. 423, 64 S.W.3d 720; Arthur v. Zearley, 337 Ark. 125, 992 S.W.2d 67 (1999). However, even relevant evidence may be excluded to prevent possible unfair prejudice or confusion “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Ark. R. Evid. 403. See also Arkansas Dep’t of Human Servs. v. Huff, 347 Ark. 553, 65 S.W.3d 880 (2002); NationsBank, 343 Ark. 437, 36 S.W.3d 291. This court has consistently held that the determination of whether the probative value of admitting the evidence is substantially outweighed by its prejudicial effect is left to the sound discretion of the trial court, and that determination will not be reversed absent a manifest abuse of that discretion. Id.; Edwards v. Stills, 335 Ark. 470, 984 S.W.2d 366 (1998).
Here, the trial court found that the evidence of the amount of damages assessed by the jury in the default trial was of little probative value, given that neither Rebsamen nor National defended during the proceeding. The trial court found further that any probative value was substantially outweighed by the danger of unfair prejudice to Everett and the misleading nature of the evidence. Based on the record before us, we cannot say that the trial court manifestly abused its discretion in denying admission of the evidence under the circumstances.
B. Statements Made During Closing Argument in Default Trial
For her second evidentiary point, Barnes argues that the trial court erred in refusing to allow her to present evidence of alleged admissions made by Everett during the default trial as to the value of Barnes’s damages. She argues further that, at a minimum, the trial court should have allowed her to impeach Everett’s, testimony with these statements after he opened the door to this issue by testifying as to what he thought Barnes’s claim was actually worth.
The evidence that Barnes refers to as admissions by Everett were actually statements made during his closing argument to the jury in the default trial. During the hearing below, Barnes’s attorney sought to introduce the statements as substantive evidence of what Everett had previously believed Barnes’s case was worth. In response, Everett argued that such statements could not be construed as admissions on his part; rather, he contended that they were merely part of an argument made on behalf of a client. The trial court agreed that the statements were the product of his zealous representation of his client and could not be considered as personal admissions. The trial court explained:
And as you know, attorneys have a privilege in lawsuits to argue their positions and that of their clients and are free from defamation. You can’t use those statements made in a lawsuit to try. to sue a lawyer or another party for defamation. The law states that those statements are privileged and cannot be used in a defamation context. And I think that’s the same issue we’re getting into that this is an argument of the attorney. It’s not a confession or an admission that is one given outside of the realm of the lawsuit. And over your objection, Mr. Cazort, I’m going to grant his motion as to statements made by Mr. Everett as to what the amount ought to be or what he argued to the jury or requested from the jury the amounts be. I previously ruled those amounts by the jury are subject to the motion in limine because of their frailty and the fact that only one side of the lawsuit was there arguing to receive those amounts. And for the same reasons, this is evidence that should not go before the jury as to what Mr. Everett argued on behalf of his client, and I’ll note your objections to that ruling also.
Barnes now asserts that the trial court’s ruling was erroneous, in large part due to the fact that during his testimony, Everett stated that he felt that $10,000 was a fair settlement of Barnes’s case, because she only had $1,700 in medical bills and she did not “look like she was an injured person.” The problem with this argument is that Barnes did not object to this testimony, nor did she seek to impeach Everett with the statements he made to the jury in the default trial. Barnes’s failure to make any objection below precludes us from addressing the argument on appeal. Arkansas Blue Cross & Blue Shield, 349 Ark. 269, 78 S.W.3d 58; Laird, 348 Ark. 632, 74 S.W.3d 206; Hurst, 347 Ark. 235, 61 S.W.3d 180. We are likewise precluded from addressing Barnes’s argument that the evidence was admissible to challenge Everett’s credibility under Ark. R. Evid. 806, as that argument was not made below. Accordingly, we confine our review to the argument made at trial, that the statements were substantive evidence of what Everett personally believed to be the value of Barnes’s case.
We agree with the trial court that such statements made on behalf of a client and under the duty to zealously represent the client may not be characterized as personal admissions on the attorney’s part. Indeed, statements made by attorneys during opening statement or closing argument are not even considered as evidence at all. See AMI 4th 103(e); AMCI2d 101(e); Union Pac. R.R. Co. v. Sharp, 330 Ark. 174, 952 S.W.2d 658 (1997). The pertinent statements made by Everett were as follows. On the subject of compensatory damages, Everett said: “I believe that the evidence in this case would support a verdict in favor of Karen Barnes for twenty-five thousand dollars ($25,000) of actual debts.” Regarding punitive damages, Everett said:
I think your verdict should be, on punitive damages, ten times the amount of compensatory damages, two hundred and fifty thousand dollars ($250,000). I think the verdict should be that it’s twenty-five thousand dollars ($25,000) of actual damage that Karen Barnes sustained in this accident, and it costs another two hundred and fifty thousand dollars ($250,000) for this insurance company, because of the way they treated this lady, because of lying about it, because of bogusing up papers, and sending them to her daddy, and lying about what they say, because they forged a name and didn’t do it very well, and then you start checking the boxes after you get caught.
None of these statements is indicative of Everett’s personal belief of the value of Barnes’s claim. They are nothing more than an argument made by a lawyer on behalf of a client. As such, the trial court was correct to exclude them as evidence in this case.
C. Expert Testimony
For her third evidentiary point, Barnes argues that the trial court erred in allowing two witnesses called by Everett to testify that they believed that the court of appeals was in error in dismissing Barnes’s claim against National in National Sec. Fire & Cas. Co., 65 Ark. App. 13, 984 S.W.2d 80. The first witness, Judge John Plegge, who presided over the default trial, was asked if he agreed with the appellate decision, to which he replied: “Absolutely not.” Judge Plegge later stated that “they made the wrong decision.” The second witness, attorney Gail Matthews, was asked his opinion on the correctness of the court of appeals’ decision, and Mr. Matthews replied: “It’s just as wrong as it can be.”
On appeal, Barnes argues that such testimony was objectionable and that the trial court erred in admitting it. Her argument, however, is procedurally barred because she failed to object to the testimony below. It is well settled that to preserve a point for appeal, a proper objection must be asserted at the first opportunity. See Madden, 346 Ark. 405, 58 S.W.3d 342; Seeco, Inc. v. Hales, 341 Ark. 673, 22 S.W.3d 157 (2000). The record here reveals that Barnes never objected to the testimony that she now challenges. Accordingly, she has waived this issue on appeal. Id. Furthermore, Barnes has failed to demonstrate that she was prejudiced, because she opened the door to this line of testimony by asking her own witness, attorney Jeff Pence, whether he agreed with the court of appeals’ decision. See Madden, 346 Ark. 405, 58 S.W.3d 342; Edwards, 335 Ark. 470, 984 S.W.2d 366.
On a similar note, Barnes argues that the court of appeals’ decision was the definitive statement of law that releasing an agent from liability, based on a theory of respondeat superior, thereby effects the release of the principal. She argues that the trial court should have formulated instructions outlining the decision and then instructed the jury that it was bound by this statement of the law. This argument, however, like the previous one, was not raised below. Accordingly, we will not address it on appeal.
II. Jury Instructions
Barnes’s remaining two points raise issues pertaining to the trial court’s rulings on jury instructions. Particularly, Barnes argues that the trial court erred (1) in refusing to give a modified AMI instruction submitted by her, and (2) in giving a non-model instruction requested by Everett. We note at the outset our well-settled law regarding the giving or refusal to give jury-instructions. This court has consistently held that a party is entitled to a jury instruction when it is a correct statement of the law, and there is some basis in the evidence to support giving the instruction. See Dodson, 345 Ark. 430, 47 S.W.3d 866; Coca-Cola Bottling Co. v. Priddy, 328 Ark. 666, 945 S.W.2d 355 (1997). However, this court will not reverse a trial court’s refusal to give a proffered instruction unless there was an abuse of discretion. Id. When instructions are requested that do not conform to AMI, they should be given only when the trial judge finds that the AMI instructions do not contain an essential instruction or do not accurately state the law applicable to the case. Tyson Foods, Inc. v. Davis, 347 Ark. 566, 66 S.W.3d 568 (2002). The model AMI instructions are to be used as a rule, and non-AMI instructions should only be used when an AMI instruction cannot be modified. Id. (citing Parker v. Holder, 315 Ark. 307, 867 S.W.2d 436 (1993)). Furthermore, it is not error for the trial court to refuse a proffered jury instruction when the stated matter is correctly covered by other instructions. Dodson, 345 Ark. 430, 47 S.W.3d 866. With this standard of review in mind, we discuss the individual points.
A. Refusal to Give AMI Civ. 4th 903 as Modified
Barnes argues that the trial court erred in refusing to give a modified version of AMI Civ. 4th 903 that she submitted below. Her proposed instruction would have informed the jury:
You are instructed to assume there was in force in the State of Arkansas at the time of this occurrence a law which provided that a setdement with a[n] agent for any alleged harm by a party suing that agent, automatically releases the principal from any liability, unless it can be shown by a preponderance of the evidence that the principal was guilty of negligence or intentional conduct, independent of and apart from that of the agent.
During the proceedings below, Barnes’s counsel candidly admitted that AMI Civ. 4th 903 is designed to inform the jury of the substance of a statute or code provision, as opposed to a holding from case law, and that he knew his modification was “a little unusual.” The trial court then asked counsel if he had any legal authority stating that the model instruction could be used in this manner, to which counsel responded that he did not.
Ultimately, the trial court concluded that the proffered instruction was not a proper form of AMI Civ. 4th 903. The trial court also found that the instruction was improper because the issue of whether Everett’s conduct was negligent was a matter for the jury to decide based on the expert testimony presented. As Everett points out on appeal, the trial court’s ruling is consistent with AMI Civ. 4th 1512, which was given in this case and provided:
In performing legal services for a client, an attorney must possess and use with reasonable diligence and skill ordinarily used by attorneys acting in the same [or] similar circumstances. A failure to meet this standard is negligence. In deciding whether John Everett possessed and used with reasonable diligence the skill the law required of him, you may consider only the evidence presented by expert witnesses.
We cannot say that the trial court abused its discretion in refusing to instruct the jury as proffered by Barnes. In the first place, AMI Civ. 4th 903 is designed to instruct a jury that violation of a statute, while not necessarily an act of negligence, may be considered along with other facts and circumstances as evidence of negligence. Parker, 315 Ark. 307, 867 S.W.2d 436. Barnes’s counsel admitted that his proposed modification was not in line with the design of the model instruction.
In the second place, we agree with the trial court that the issue whether Everett was negligent was for the jury to decide based on the standard in the legal community as testified to by the expert witnesses. Our case law has consistently held that the attorney’s conduct must be measured against the generally accepted standard of practice. See, e.g., Pugh, 327 Ark. 577, 940 S.W.2d 445; Schmidt, 326 Ark. 499, 931 S.W.2d 774. Such a measurement plainly requires expert testimony as to what the standard of practice is, unless the trial court determines that such testimony is not necessary because the case falls within the common-knowledge exception. See AMI Civ. 4th 1512, NOTE ON USE. AMI Civ. 4th 1512 properly instructed the jury on this issue.
B. Giving of a Non-Model Instruction
For her final point, Barnes argues that the trial court erred in giving a non-model instruction proffered by Everett, which provided:
A lawyer’s conduct must be judged in light of all the surrounding circumstances existing before and during the course of litigation and not solely according to the hindsight gained after completion of the litigation.
During the instruction conference below, Barnes’s counsel objected to the instruction because Everett had not offered any Arkansas case law showing that the instruction accurately represents the law in this state. Fie candidly admitted, however, that he did not believe that the proffered instruction was an incorrect statement of the law. The trial judge found that the instruction was a correct statement of the law that was not covered by a model instruction, and he instructed the jury accordingly.
On appeal, Barnes contends that the instruction was improper because it is a deviation from AMI and because the instruction, particularly the language regarding hindsight gained after completion of the litigation, was highly prejudicial because it amounted to a comment on the evidence. This is not the argument made below. It is well settled that an appellant may not change the grounds for objection on appeal, but is limited by the scope and nature of his or her objections and arguments presented at trial. See National Front Page, LLC v. State, 350 Ark. 286, 86 S.W.3d 848 (2002); City of Benton v. Arkansas Soil and Water Conserv. Comm’n, 345 Ark. 249, 45 S.W.3d 805 (2001). Accordingly, we will not address her argument for the first time on appeal.
Affirmed.
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Tom Glaze, Justice.
The State has appealed from the trial court’s granting of summaiy judgment in favor of Regional Care Facilities, Inc., a Benton County-based company that applied for a permit to construct a nursing home in Benton County. This appeal presents a question of whether a rule adopted by the Arkansas Health Services Commission constitutes special or local legislation in violation of Ark. Const, amend. 14; our jurisdiction arises under Ark. Sup. Ct. R. l-2(a)(l).
The Commission is vested with the authority to approve permits of approval for the construction of new nursing homes in the state. See Ark. Code Ann. § 20-8-104(d) (Repl. 1991). In order to determine whether new nursing home beds are needed in a particular county, the Commission has adopted certain “methodologies” that look at populations and occupancy rates in the county. At a meeting on March 19, 1999, the Commission adopted an “emergency rule” to create a one-time exception to its population-based methodology. Prior to the change, this population-based methodology allowed the Commission to determine the need for additional nursing home beds merely by determining the difference between the total beds that exist for an area and the projected need for beds in the future. For a “need” for new nursing home beds to exist, a county’s population figures must show a projected bed need, and the occupancy levels of existing facilities in the county must show that the facilities have been, on average, at least 94.5% occupied during the previous fiscal year.
At least part of the reason for adopting the March 1999 emergency rule was to respond to repeated requests for additional nursing home beds in the Bella Vista area of Benton County. Residents of Bella Vista, members of the Bella Vista Long Term Care Committee, representatives of Washington Regional Medical System (a Benton County-based nursing home company doing business as Bella Vista Health Care) and members of the Arkansas General Assembly from Benton and Washington Counties had all made such requests. Indeed, from 1996 until the filing of this lawsuit, Washington Regional had worked in conjunction with the Bella Vista Long Term Care Committee to seek a permit for Washington Regional to construct a new nursing home in Benton County. In fact, Washington Regional in 1996 had applied for, and the Commission granted, a permit to construct a new nursing home, but the Commission’s decision to award it a permit was later reversed by a Pulaski County .court in 1997.
Thereafter, Washington Regional submitted a proposal to the Commission in the form of a new rule change that would create an exception whereby the 94.5% occupancy requirement could be disregarded. Washington Regional’s proposal was subsequently adopted by the Commission in March 1999, and that new rule permitted the occupancy requirement to be disregarded one time in order to approve a new 70-bed facility in a county where the projected need for the county exceeded the “existing” (i.e. licensed and approved) beds by 150 or more beds. When this new rule was adopted in March 1999, the Commission believed that Benton County was the only county in the state that fell within the provisions of the new rule. The Commission later learned that other counties could comply when, in May of 1999, two separate applicants applied to construct new nursing homes in Garland and Pulaski counties.
In June of 1999, the Commission repealed the March 1999 emergency rule on the expressed grounds that an improper notice had been given. After repealing the March 1999 rule, the Commission then adopted a modified version on August 19, 1999, which read as follows:
The Commission may disregard the overall county occupancy one time in order to approve a 70-bed facility in a county where the projected need for the county exceeds the “existing” (i.e. licensed and approved) beds by 250 or more beds. This rule could be used every three (3) years.
(Emphasis added.) The effect of this change was to make the rule applicable only to Benton County, since that county was the only one whose projected need exceeded 250 or more beds. In this respect, the Commission’s August 1999 rule excluded Garland and Pulaski counties by increasing the earlier 150-bed requirement to 250 or more beds. It also added that the rule could be used only every three years. The Commission expressed no explanation for this increase in beds. In sum, under the permanent August 1999 version of the rule, only one new 70-bed facility could be added in a county showing a need for over 250 additional beds.
Prior to the Commission’s adoption of the August 1999 rule, Regional Care Facilities, Inc. had filed an application for a permit to construct a new nursing home in the Bella Vista area of Benton County, but the Commission voted to deny Regional Care’s application in May of 1999. In early November of 1999, Washington Regional submitted an application for a permit of approval under the August 1999 rule, but prior to the Commission’s acting on that application, Regional Care filed a complaint on November 30, 1999, seeking a declaratory judgment to have the August 1999 rule declared invalid as special or local legislation. In the complaint, Regional Care asserted that the issuance of a permit to Washington Regional would affect and jeopardize the feasibility and existence of Regional Care’s proposed facility; for that reason, Regional Care sought both a declaration that the new rule was invalid and a preliminary injunction restraining the Commission from applying the rule and accepting or acting upon applications under the rule.
The trial court denied the preliminary injunction, finding that Regional' Care had failed to establish that it would be irreparably harmed in permitting the Commission to hear and consider Washington Regional’s application. Subsequently, Regional Care filed a motion for summary judgment, contending that it was entitled to a judgment as a matter of law on the basis that the Commission had acted arbitrarily and in violation of Ark. Const, amend. 14, which prohibits special and local legislation.
The circuit court granted Regional Care’s summary judgment motion, finding .there was no rational basis for excluding from the rule other counties, such as Garland and P.ulaski, that showed a population-based net numerical need but low occupancy. The court further noted that, if the Commission’s recent August 1999 rule was intended to meet a need for additional beds, then there was no rational basis for excluding Garland and Pulaski and other counties showing a net numerical need from the rule. The Commission has appealed the trial court’s order, arguing the court erred in two respects: 1) in concluding' that the rule was special or local legislation; and 2) in considering the deposition testimony of members of the Commission regarding their opinions bearing on the intent and purpose of the rule.
The first issue we address is whether the amended rule adopted by the Commission in August of 1999 constitutes special or local legislation in violation of Amendment 14 to the Arkansas Constitution. This Amendment states that “[t]he General Assembly shall not pass any local or special act.” In Arkansas Game & Fish Comm’n v. Clark, 192 Ark. 840, 96 S.W.2d 699 (1936), this court determined that the General Assembly could not grant a state agency the authority to promulgate regulations contrary to Amendment 14.
When considering the validity of a regulation, the court must give the regulation the same presumption of validity as it would a statute. National Park Med. Ctr., Inc. v. Arkansas Dep’t of Human Servs., 322 Ark. 595, 911 S.W.2d 250 (1995). In reviewing the adoption of regulations by an agency under its rule-making procedures, a court is limited to considering whether the administrative action was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law. Department of Human Servs. v. Berry, 297 Ark. 607, 764 S.W.2d 437 (1989) (citing Arkansas Pharmacists Assoc. v. Harris, 627 F.2d 867 (8th Cir. 1980)). A court will not attempt to substitute its judgment for that of the administrative agency. Id. (citing Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971)). A rule is not invalid simply because it may work a hardship, create inconveniences, or because an evil intended to be regulated does not exist in a particular case. Id.
An act is special if, by some inherent limitation or classification, it arbitrarily separates some person, place, or thing from those upon which, but for such separation, it would operate, and the legislation is local if it applies to any division or subdivision of the state less than the whole. Hall v. Tucker, 336 Ark. 112, 983 S.W.2d 432 (1999); Fayetteville Sch. Dist. v. Arkansas State Bd. of Educ., 313 Ark. 1, 852 S.W.2d 122 (1993); Owen v. Dalton, 296 Ark. 351, 757 S.W.2d 921 (1988). Merely because a statute ultimately affects less than all of the state’s territory does not necessarily render it local or special legislation. Boyd v. Weiss, 333 Ark. 684, 971 S.W.2d 237 (1998); Littleton v. Blanton, 281 Ark. 395, 665 S.W.2d 239 (1984). Instead, we have consistently held that an act of the General Assembly (or, as here, an administrative agency) that applies to only a portion of the state is constitutional if the reason for limiting the act to one area is rationally related to the purposes of that act. McCutchen v. Huckabee, 328 Ark. 202, 943 S.W.2d 225 (1997). Although a law may be limited in effect only to a few classifications, it is not necessarily special or local legislation if the classification is not arbitrary and bears a reasonable relation to the purpose of the law. Foster v. Jefferson County Bd. of Election Comm’rs, 328 Ark. 223, 944 S.W.2d 93 (1997).
Here, the State concedes that the application of the rule affects only Benton County. The question, therefore, is whether this separation of Benton County was done arbitrarily. Other cases striking statutes as special or local legislation have discussed what constitutes an arbitrary classification. For example, in Littleton v. Blanton, supra, the law in question, Act 616 of 1975, provided that any municipality of the first class located in any county having a population of not less than 26,500 nor more than 28,000 according to the 1970 Federal Census could establish a municipal court with the same jurisdiction as courts of the Justice of the Peace, which jurisdiction shall be coextensive with the township. Further, the mayor of the municipality could designate any qualified elector of the township, or any licensed attorney, to serve as judge of the court. The stated purpose of the Act was to “provide an alternative procedure for the creation of the municipal court by a city of limited financial means and lacking a local attorney.” Littleton, 281 Ark. at 397.
The Littleton court reversed the lower court’s finding that Act 616 did not violate the Constitution. Noting that the Act could only apply to Marked Tree, in Poinsett County, the court first cited the rule that “generality ends and specialty begins where the class established by the Act has no reasonable relation to the purpose or subject matter of the enactment and omits from its operation persons or areas which would fall naturally into the class to which the act is limited.” Id. at 399. The court then went on to conclude that Act 616 was local because of its arbitrariness, writing as follows:
Act 616 can never apply to any county other than Poinsett County. The announced purpose of the Act is to enable a city of the first class but of limited financial means and lacking a local attorney an alternative means of creating a municipal court; but a population classification applying only to a county of not less than 26,500 nor more than 28,000 according to the 1970 Federal Census is arbitrary and has no reasonable relationship to cities of limited financial means or lacking a local attorney. According to the 1970 census, Marked Tree had a population of 3,208; there were 32 municipalities in Arkansas with a population of between 2,500 and 5,000 in 1970. There could well have been cities of limited financial means and lacking a local attorney in counties other than Poinsett County.
# jfi íjí
Whether or not Act 616 was passed for the benefit of [the then-sitting judge in Marked Tree], limiting the Act to Poinsett County is arbitrary and bears no reasonable relation to the announced intention of the Act to provide an alternate procedure for the creation of a municipal court by a city of limited financial means and lacking a local attorney. 2jf there was in fact a real need for such a court, it is arbitrary and unreasonable to assume that such a need existed only in Poinsett County. Act 616 is a shining example of the type of local and special legislation which the people sought to stop by the adoption of Amendment 14.
Id. at 404 (emphasis added).
Another case where an act was found arbitrary and special legislation is Knoop v. City of Little Rock, 277 Ark. 13, 638 S.W.2d 670 (1982). There, this court invalidated an act that directed cities with populations over 100,000 and a city manager form of government to elect the mayor by a majority vote. Only Little Rock met this criteria. The chancellor had ruled that the purpose of the act was to make the legislative body and mayor of larger cities more responsive to the voters, and that the Act was therefore not special or local legislation. This court, however, reversed, emphasizing that, in determining whether an act is general, local, or special, we “look to its substance and practical operation, rather than to the form or phrasing of the act; otherwise, the prohibition against special and local legislation . . . could easily be circumvented.” Knoop, 277 Ark. at 15. Because the act granted to one city powers in the election of its governing officials not granted to other cities with the same form of government, this court was unable to discern that there was any reasonable connection between a city having a population in excess of 100,000 and the desirability of the act’s electoral provisions. On this question, the court wrote as follows:
[The powers of a mayor] are the same whether the mayor is selected by the directors or by direct election with a majority vote. In the absence of reasonable statutory difference in the powers or functions of the mayors of cities of different sizes, we cannot, although the act is accorded presumptive validity, find any reasonable basis for granting to one city but not others the power of directly electing its mayor and holding runoff elections for the positions of mayor and city directors two weeks after the general election.
Id. at 16-17.
Further, our court in Humphrey v. Thompson, 222 Ark. 884, 263 S.W.2d 716 (1954), invalidated Act 273 of 1953, because there was no rational basis for singling out one particular county. In Humphrey, the General Assembly passed Act 273, which was intended to establish a vocational school “in all counties having a population of less than 6,000 according to the 1950 Census.” Perry County was the only county that fit within that classification. Testimony was introduced in the case that showed there was no reason why Perry County, and not other counties, should have been singled out for the construction of a vocational school; one witness testified that he knew of “no reason for Perry County having any special need over these counties [such as Montgomery County, which had a population of 6,680] that have a few more population than Perry County.” Humphrey, 222 Ark. at 889. Because the population of a county afforded no basis on which to justify the classification, and because the “local act affects only one locality arbitrarily selected,” the court held that Act 273 violated the prohibition against special and local legislation. Id. at 890 (emphasis added).
However, we also are mindful of cases where legislation that obviously applied to only one locality was held valid, because a legitimate reason existed for singling out one particular city. For example, in Boyd v. Weiss, 333 Ark. 684, 971 S.W.2d 237 (1998), the law in question, Act 48 of 1977, permitted residents in border cities divided by a “street state line” to pay an additional one percent sales tax in exchange for an exemption from the state sales tax. The stated purpose of Act 48 was to equalize the tax burden for residents in these border cities, thereby offering tax inducements to people to locate their homes and businesses in Arkansas. The only city divided by a street state line was Texarkana, Arkansas. Boyd, 333 Ark. at 687.
This court rejected claims that Act 48 constituted special or local legislation, because the Act “ha[d] a valid purpose . . . to protect the border city by removing the inducement for that city to settle across the state line.” Id. at 691. This court dismissed the argument that the Act arbitrarily treated Texarkana more favorably than a city like West Memphis, pointing out that West Memphis and Memphis, Tennessee, are separated by several miles and by the Mississippi River, but Texarkana, Arkansas, and Texarkana, Texas, were separated merely by a simple fine on the map. Our court observed that “moving a home across one city street in what is essentially a combined city is categorically different from moving some distance away across a major waterway into a completely different urban environment.” Id. at 692. For that reason, the legislature’s decision to limit the effect of Act 48 to Texarkana was not arbitrary. Because the geographical limitation was rationally related to the purposes of the Act, the court declined to hold that Act special or local legislation. Id. at 694.
Our court decided the case of McCutchen v. Huckabee, 328 Ark. 202, 943 S.W.2d 225 (1997), utilizing the same reasoning. There, the challenged law was Act 739 of 1995, which appropriated $20 million to the Department of Finance and Administration to defray the cost for construction of a multipurpose civic center in Pulaski County. McCutchen, 328 Ark. at 205. The purpose of Act 739 was to “provide funds for the construction of a multipurpose civic center which would increase tourism, recreation, and economic development throughout the entire state.” Id. at 209. This court found the singling out of Pulaski County for the location of the civic center to be rationally related to the purposes of the Act, because Pulaski County was the most populous county in the state, was centrally located, and was the seat of state government. These reasons, the court held, were “[n]either arbitrary [n]or capricious,” and therefore, concluded that the decision to construct the civic center in Pulaski County was rationally related to the intended purposes of Act 739. Id.
In the present case, as noted above, the question is whether or not the August 1999 amendment was rationally related to the purpose of the rule, since the rule affected only Benton County. In viewing the facts in a light most favorable to the Commission, the trial court held yes, finding the legitimate purpose for the August 1999 amended rule was to meet a need for additional nursing home beds. The court stated that, for purposes of summary judgment, it accepted as true the Commission’s contention that the amended rule applied to every county in the State because, in the future, other counties may have net numerical bed needs of 250 or more and have less than 94.5% occupancy. However, the trial court then concluded that it found no rational basis for excluding from the rule other counties showing a population-based net numerical need but low occupancy, stating that it could find no reason “for disregarding low occupancy in only one county when other counties showed net numerical need for additional nursing home beds in excess of 70 beds.”
We disagree with the trial court’s ruling. We first reiterate our standard of review in matters such as these: this court will presume that legislation is constitutional and that it is rationally related to achieving a legitimate governmental objective. See Streight v. Ragland, 280 Ark. 206, 655 S.W.2d 459 (1983). Further, it is not the court’s role to discover the actual basis for the legislation; rather, our role is merely to consider if any rational basis exists which demonstrates the possibility of a deliberate nexus with state objectives so that the legislation is not the product of utterly arbitrary and capricious government and void of any hint of deliberate and lawful purpose. Id. When dealing with agency rules, we recognize that administrative agencies are better equipped by specialization, insight through experience, and more flexible procedures than courts to determine and analyze issues affecting their agencies. See Arkansas Health Services Agency v. Desiderata, 331 Ark. 144, 958 S.W.2d 7 (1998).
It is not arbitrary to conclude that, regardless of the occupancy rate requirement o£ the population-based methodology, a nursing home is needed in any county where the projected bed need exceeds the existing bed need by 250 or more beds. It is within the discretion and expertise of the Commission to determine the criteria necessary for determining whether a nursing home is needed in any county. Additionally, it is reasonable to set the number at 250 in order to ensure that there is truly a need for new nursing home beds before overriding the occupancy-rate requirement. Both before the trial court and at oral argument, counsel for the State described the August 1999 rule as a “relief valve” that does not dispense with the occupancy requirement altogether, but instead permits the Commission to disregard the occupancy rate in a county where the projected need for that county exceeded the existing number of beds by 250 or more. By granting a permit for one new 70-bed nursing home in the face of a county’s projected need for 250 beds over the next five years, even though the occupancy rate in that county is still below 94.5%, the Commission can determine whether the need is eased and can plan for future needs accordingly.
On the subject of future needs, and in further support of its argument that the classification is reasonable, the State cites the cases of Murphy v. Cook, 202 Ark. 1069, 155 S.W.2d 330 (1941), and McLaughlin v. Ford, 168 Ark. 1108, 273 S.W. 707 (1925), wherein this court validated population-based statutes that were open-ended, that is, while the acts applied to only one county at the time of their enactments, it was conceivable that other counties could grow into that population bracket in the future. This prospective operation of the acts in issue in these two cases saved them from being unreasonable and arbitrary. For instance, in McLaughlin, a pre-Amendment 14 case, a 1923 act applied to “cities [with a commission form of government] which [had] a population of 25,000 or more according to the latest census taken by authority of the United States government.” When the 1923 act was enacted, Fort Smith was the only city to meet the criteria. However, the McLaughlin court held that, “although it may happen that but one city may fall within the class named by the Legislature, it does not follow that other cities may not in the future come within the class and thereby be governed by the provisions of the act.” McLaughlin, 168 Ark. at 1113. The Murphy court, faced with a similar situation, relied on McLaughlin to approve a statute that applied only to cities that had a population of 5,000 or more. There, Act 41 of 1941 stated that it was “intended to apply to all the counties of the state which now have cities of a population of 5,000 inhabitants or which may hereafter have cities of 5,000 population.” Because other cities could easily come within this classification in the future, the Murphy court held Act 41 valid.
The State urges that the Commission’s rule at issue here could, in the future, apply to other counties. Particularly, the State points out that “an applicant in any county in the State where the projected nursing home bed need exceeds the number of existing licensed beds in that county by 250 or more beds may apply for and receive a permit of approval to operate a seventy-bed facility.” Further, the State urges, under the rule in question, other counties in the state where the projected bed need has not yet exceeded the existing bed need by 250 or more could subsequently come under the provisions of the regulation. The State notes that, at the time of the summary-judgment hearing, there was one county at 209 and one county at 160, and contends that both counties likely will meet the criteria within the next few years.
We agree. Under the August 1999 rule, it is conceivable that other counties in the State will, in the future, come under its provisions. At the time the circuit court heard this matter, Garland County was projected to have a need for 209 beds by the year 2005, and Pulaski County was projected to have a need for 160 beds by that time. Clearly, as the need for more nursing home beds increases in this state, counties other than Benton County will come within the ambit of the August 1999 rule. As in McLaughlin and Murphy, it is not unreasonable to expect that other counties will come within the rule’s classification in the future, and therefore, we conclude that the Commission did not act arbitrarily in singling out Benton County.
The State raises as a second point on appeal that the trial court’s alleged error in granting summary judgment, at least in part, on the basis of the depositions of numerous Commission members who testified about the intent and purpose of the August 1999 rule. However, because we reverse on the point discussed above, it is unnecessary for us to consider this second issue further.
For the reasons above, we reverse and remand the trial court’s decision.
In Wagnon v. Arkansas Health Services Agency, 73 Ark. App. 271, 40 S.W.3d 849 (2001), the court of appeals affirmed the Commission’s decision that the emergency rule adopted in March of 1999 was invalid. That lawsuit was filed by a Garland County resident who applied for a permit to construct a nursing home on May 3, 1999. The reason that the court held the rule invalid was because the emergency rule failed to state its reasons for finding that there was an “imminent peril to the public health, safety, or welfare.” Wagnon, 73 Ark. App. At 372; Ark. Code Ann. § 25-15-204(f) (Supp. 1999).
In January of 2000, a Pulaski County court reversed the Commission’s denial of Regional Care’s application and awarded Regional Care a permit to construct a new nursing home in Bella Vista.
Neither Regional Care nor any nursing home other than Washington Regional had applied for a 70-bed permit when this suit was filed. | [
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Per Curiam.
Petitioner, Melton Smith, by his attorney, Dennis R. Molock, has filed a motion for rule on the clerk. His attorney admits that the record was tendered late due to a mistake on his part.
We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See Terry v. State, 272 Ark. 243, 613 S.W.2d 90 (1981); In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).
A copy of this per curiam will be forwarded to the Committee on Professional Conduct. In Re: Belated Appeals in Criminal Cases, 265 Ark. 964. | [
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Annabelle Clinton Imber, Justice.
Appellant Buckie Mills was convicted of the kidnapping and rape of an eleven-year-old girl, and sentenced to thirty years in prison for kidnapping and to life in prison for raping her, with both terms to run consecutively. On appeal, he challenges the sufficiency of the evidence to support the convictions, and he claims that the trial court erred in failing to properly instruct the jury on the kidnapping count. The points raised on appeal are without merit. We affirm.
On April 6, 2000, an eleven-year-old girl, D.W., was riding her bicycle to school when she was approached by a white male riding a bicycle. The man grabbed D.W. and brandished a knife, stating that if she tried anything, he would slit her throat. He told her he was taking her with him because people were trying to kill him. She was then taken for a fifteen-minute ride on her bicycle to an area located off the main road and near the Arkansas River in Sebastian County.
After reaching the secluded location by the river, the man pushed the girl to the ground and tried to spread her legs open. When she resisted, he pulled her pants and underwear down and put her shirt over her face. Then, he penetrated D.W.’s vagina with his fingers and penis. After D.W. told the man that she had to go to school, he got on his bicycle and left. At that point, she pulled her pants up and tried to find her way back home. However, she became confused and had to stop and ask for directions. D.W. finally got home and reported the incident to her parents. Her father notified the police immediately.
The same day, D.W.’s story aired on the local evening news. As a result of the television coverage, the Fort Smith Police Department received numerous phone calls from potential witnesses. Some of the phone calls pointed to the appellant, Buckie Allan Mills, as a suspect. When police officers arrived at his home, Mills was seen running out the back door. He was stopped a few blocks away and agreed to be interviewed. Mills denied any knowledge of or involvement in the crime.
The police continued to investigate Mills as a primary suspect, and he was eventually identified by the victim and several other witnesses in a photo line-up. Mills was then charged with rape and kidnapping. A Sebastian county jury convicted him on both charges. Mills now appeals, challenging the sufficiency of the evidence to support the convictions and claiming that the trial court erred in failing to properly instruct the jury on the kidnapping count.
1. Sufficiency of the Evidence
As to his first point on appeal, Mills contends that the trial court erred in refusing to direct a verdict in his favor. A motion for a directed verdict is a challenge to the sufficiency of the evidence. Miles v. State, 350 Ark 243, 85 S.W.3d 907 (2002); Britt v. State, 344 Ark. 13, 38 S.W.3d 363 (2001). The test for such motions is whether the verdict is supported by substantial evidence, direct or circumstantial. Miles v. State, 350 Ark 243, 85 S.W.3d 907. Substantial evidence is evidence of sufficient certainty and precision to compel a conclusion one way or another and pass beyond mere suspicion or conjecture. Id. On appeal, we review the evidence in the light most favorable to the appellee and consider only the evidence that supports the verdict. Id.
At trial, several witnesses testified on behalf of the State. Three police officers testified that the victim, D.W., was able to give a detailed description of her assailant that matched Mills. According to the officers, she was also able to identify the crime scene. One officer related that in developing Mills as a suspect, two people called in and identified Mills by name. Furthermore, one officer testified that the victim identified Mills as her assailant from a photographic line-up.
D.W. also testified on behalf of the State. She gave a detailed recitation of the events leading up to the crimes. She said that the perpetrator grabbed her, showed her a knife, and told her that he would slit her throat if she tried anything stupid. Then she was taken on a 10 to 15 minute bike ride to the river where Mills told her to get off her bike because they were going to make love. D.W. explained how Mills pulled down her pants and panties and put her shirt over her head. She testified that Mills penetrated her vagina with his fingers and his penis. According to D.W., the perpetrator got up and left when she told him she had to go to school. After Mills left, she pulled her pants up and tried to get home as fast as she could. On the way home, D.W. stopped to ask directions because she was lost. When she finally got home, she reported the incident to her mother. In her testimony, D.W. described what the perpetrator was wearing and his physical characteristics. She also recounted her initial identification of Mills at a photo line-up, and she unequivocally identified Mills from the stand as her assailant.
Two other witnesses testified about seeing Mills in the area of the crime. Rita Green saw Mills on a dark bike in the vicinity of the crime. She identified him at a photo line-up and again at trial. Roy Whitfield saw two people riding bikes on the same path where D.W. was taken; one of them was a man holding the handlebars on a little girl’s bike. Mr. Whitfield had also identified Mills from a photo line-up as a person who “favored” the perpetrator. A third witness, Randy Whitlock, testified that he encountered a young girl who was crying and asking for directions.
Additionally, two of the defendant’s friends testified about certain admissions he made to them. According to Donald Mizer, Mills told him that he had done something very wrong. Specifically, Mills told Mizer that he saw a little girl on a bicycle going to school. He grabbed the handlebars on the girl’s bicycle and showed her a knife. Then, he took her to the woods and told her to take off her clothes. The other friend, Jerry Thompson, testified about Mills telling him that he “took a girl to the river and tried to put it in, but it would not fit.”
In Arkansas, a person commits the offense of kidnapping if, without consent, he restrains another person so as to interfere substantially with his liberty with the purpose of inflicting physical injury upon him, or for engaging in sexual intercourse, deviate sexual activity, or sexual contact with him. Ark. Code Ann. § 5-11-102 (Repl. 1997). Kidnapping is a Class Y felony, except that if the defendant shows by a preponderance of the evidence that he or an accomplice voluntarily released the person restrained alive and in a safe place prior to trial, it is a class B felony. Ark. Code Ann. § 5-ll-102(b) (Repl. 1997). A person commits rape in Arkansas if he engages in sexual intercourse or deviate sexual activity with another person by forcible compulsion. Ark. Code Ann. § 5-14-103 (Repl. 1997).
Mills cites Gregory v. State, 341 Ark. 243, 15 S.W.3d 690 (2000), for the proposition that a conviction based on circumstantial evidence must exclude every other reasonable hypothesis other than that of the guilt of the accused. Evidence that comes from witnesses who testify to what they saw, heard or experienced is direct evidence. See AMI Crim. 2d 106. Circumstantial evidence is evidence that allows a fact to be established by inference from other facts in the case. Id. In the instant case, there was direct evidence in the form of the victim’s own testimony. She unequivocally identified Mills as the perpetrator. Thus, Gregory v. State, supra, is inapposite.
Next, without citation to legal authority, Mills contends that the appellate court “must review the quality and substance of all witness testimony, including the victim’s testimony.” We first note that this court will not entertain an argument where there is no citation to authority or convincing legal argument. Kelly v. State, 350 Ark. 238, 85 S.W.3d 893 (2002). In any event, such a contention is contrary to our well-established standard of review. The credibility of witnesses is an issue for the jury and not this court. Sanford v. State, 331 Ark. 334, 962 S.W.2d 335 (1998). On appeal, we review the evidence in the light most favorable to the appellee and consider only the evidence that supports the verdict. Miles v. State, supra.
With regard to the rape conviction, the State properly points out that the testimony of a rape victim alone is sufficient to support a conviction. Laughlin v. State, 316 Ark. 49, 872 S.W.2d 848 (1994). In this case, D.W.’s testimony, including her in-court identification of the defendant, is alone sufficient evidence to support the rape conviction. Moreover, the testimony of at least four other witnesses linked Mills to the kidnapping and rape.
Mills also suggests the evidence established by a preponderance of the evidence that the victim was released alive and in a safe place. As stated earlier, in order for kidnapping to be reduced from a class Y felony to a class B felony, the defendant must show by a preponderance of the evidence that he or an accomplice voluntarily released the person restrained alive and in a safe place prior to trial. Ark. Code Ann. § 5-ll-102(b). Here, the evidence shows that after being sexually assaulted, D.W. was left in the woods and that she was scared, lost, and confused. We agree with the trial court that a fact question existed for the jury to decide which of the felonies applied. See Jameson v. State, 333 Ark. 128, 970 S.W.2d 785 (1998). The jury found that Mills failed to prove by a preponderance of the evidence that he released D.W. alive and in a safe place. Once again, it is not within this court’s province to try issues of fact. Sanford v. State, supra. In sum, there was sufficient evidence to support the jury verdict convicting Mills of rape and kidnapping as a class Y felony.
2. Jury Instructions — Kidnapping
Mills’s second point on appeal is two-fold. First, he contends that the trial court erred in refusing to submit the kidnapping charge as a class B felony to the jury. “Kidnapping is a Class Y felony, except that if the defendant shows by a preponderance of the evidence that he or an accomplice voluntarily released the person restrained alive and in a safe place prior to trial, it is a Class B felony.” Ark. Code Ann. § 5-ll-102(b). Mills states that the jury was not allowed to decide whether the victim was released alive and in a safe place. That assertion is not supported by the record.
The verdict form signed by the jury reads as follows:
We, the jury, find beyond a reasonable doubt that Buckie Mills is guilty of kidnapping and we further find that he has not proved by a preponderance of the evidence that he released the victim alive and in a safe place prior to trial.
The jury made two separate findings: (1) Mills was guilty of kidnapping; and (2) Mills did not prove by a preponderance of the evidence that he released the victim alive and in a safe place. Thus, any error asserted about the trial court failing to present the issue of the victim’s voluntary release to the jury is wholly without merit, because the issue was both placed before, and decided by, the jury.
For his second argument, Mills claims a preponderance of the evidence proved that the victim was released alive and in safe place. We have already addressed this contention, which appears to be another challenge to the sufficiency of the evidence. There was substantial evidence, as set out earlier in this opinion, to support the jury’s finding that Mills failed to establish by a preponderance of the evidence that he released his victim in a safe place. The eleven-year-old victim was left in the woods at a secluded location by the Arkansas River. Furthermore, she got lost trying to find her way home.
For the foregoing reasons, the convictions and sentences are affirmed. The record has been reviewed for other reversible error, as required by Supreme Court Rule 4-3 (h), and none has been found.
Affirmed. | [
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Robert L. Brown, Justice.
This is an appeal brought by the appellants, William Jackson Butt, II, Butt-N-Buck Hardwood Plantation (Butt-N-Buck), and 3,019 taxpayers from an order of the Washington County Circuit Court, which awarded attorneys’ fees in a consolidated illegal-exaction suit. The appeal alleges that the circuit court abused its discretion in the amount of fees awarded, which was 25% of the various settlement amounts for a total fee award of approximately $4.6 million. The named appellees, Evans Law Firm, E. Kent Hirsch, and David G. Nixon, were class counsel, who were awarded the fees in question. The appellees cross-appeal on two points: (1) the circuit court incorrectly stated the amount of the refunds made; and (2) the trial court erred in allowing appellant Jack Butt to solicit representation of members of the class. This case stems from illegal exaction suits filed in 1998 in northwest Arkansas against Washington County and various cities and school districts within that county for violation of Amendment 59 of the Arkansas Constitution. On February 12, 1998, the circuit court entered a class certification order which defined the class as “All persons and entities that have paid real or personal property ad valorem tax for the years 1993, 1994, 1995, 1996 and 1997, in any of the following taxing units in Washington County, Arkansas: City of Fayetteville, Arkansas; Fayetteville School District No. 1; City of Springdale, Arkansas; Springdale School District No. 50; West Fork School District No. 141; City of Prairie Grove, Arkansas; Prairie Grove School District No. 23, City of Elkins, Arkansas; Elkins School District No. 10; Greenland School District No. 95; Winslow School District No. 20, Lincoln School District No. 48 and Washington County, Arkansas [.]” The order further ordered that notice of the class action be given by newspaper publication and by individual notice in accordance with Arkansas Rule of Civil Procedure 23.
On March 5, 1998, Mr. Butt filed a motion to intervene in the suit. In his attached complaint in intervention, he stated that among the substantive issues to be resolved was “whether and how much counsel for the class will be paid and from what source.” He further asserted his desire to participate in the suit for the pur pose of “determining whether, how much, and the source of attorneys’ fees paid to class counsel.” On April 17, 1998, Mr. Butt’s motion to intervene was granted by the circuit court.
On July 3, 2000, stipulations of settlement for each government entity, all of which were subject to court approval, were filed with the Washington County Circuit Court Clerk. In each stipulation, the class and the governmental entity agreed that the “[taxpayers shall have the opportunity to receive a prorata [sic] refund of all illegally exacted ad valorem taxes paid less the award of attorneys’ fees. ...” With regard to attorneys’ fees, several of the proposed settlements read:
2.2 Attorneys’ Fees of Plaintiff’s Attorneys.
a. Attorneys for the Plaintiff shall request an award of attorneys’ fees and costs for representing the Class an [sic] amount of 33-1/3% of the illegally exacted ad valorem property taxes, subject to court approval, which shall be payable directly to The Evans Law Firm, and Hirsch Law Firm, P.A., within 14 days of entry of Order Approving Settlement. Defendant shall not object to the requested attorneys’ fee of 33-1/3% of the fund.
Other stipulations of settlement that were filed read:
Attorneys’ Fees of Plaintiffs’ Attorneys.
Attorneys for the Plaintiffs shall make application to the Court to receive attorneys’ fees and costs for representing the Plaintiffs in an amount not to exceed thirty-three and one-third percent (33 1/3%) of the Settlement Amount. The District agrees not to object to such application for attorneys’ fees and costs up to a total amount of thirty-three and one-third percent (33 1/3%) of the Settlement Amount. The exact amount of the fees and costs to be paid to Attorneys of the Plaintiffs will be determined and awarded by the Court, which amount shall be paid out of the Settlement Amount and thereby reduce the Settlement Amount. Due to the uncertainty in payment sums that will develop should any appeal of any part of this Agreement be taken, the Parties to this agreement stipulate and agree that the damages to the settling parties in the event of appeals shall be the time value of money on any amounts which are due for payment or shall become due for payment under the terms of this stipulation and setdement agreement. The parties further agree and stipulate that any appeal bond should be sufficient to cover the value of any payments due or to become due hereunder. The District further agrees to pay such amount as approved by the Court as follows: one-half within five (5) days of the entry of the Order Approving Settlement and the other half on or before October 2001, without interest.
In the stipulation of settlement for Washington County, the following was written regarding attorneys’ fees:
Attorneys’ Fees of Plaintiff’s Attorneys.
Attorneys for the Plaintiffs shall seek as an award of attorneys’ fees and costs for representing the Plaintiffs the sum of $1.5 million from the Settlement Amount, $375,000 of which shall be payable directly and jointly to The Evans Law Firm, P.A. and The Hirsch Law Firm and $375,000 to The Nixon Law Firm within 5 days of entry of the Order Approving Settlement. The remaining attorneys’ fees in the amount of $375,000 joindy to The Evans Law Firm, P.A. and The Hirsch Law Firm and $375,000 to The Nixon Law Firm shall be paid directly to each firm on or before October 10, 2001, without interest. County will not object to such.
In the stipulation of settlement for the Springdale School District, the following was written:
2.4 Attorneys’ Fees of Plaintiffs’ Attorneys.
Attorneys for the Plaintiffs shall make application to the Court to receive attorneys’ fees and costs for representing the Plaintiffs in an amount not to exceed thirty-three and one-third percent (33 1/3%) of the Settlement Amount. The District agrees not to object to such application for attorneys’ fees and costs up to a total amount of thirty-three and one-third percent (33 1/3%) of the Settlement Amount. The exact amount of the fees and costs to be paid to Attorneys of the Plaintiffs will be determined and awarded by the Court, which amount shall be paid out of the Settlement Amount and thereby reduce the Settlement Amount. The District further agrees to pay such amount as approved by the Court as follows: one-half within five (5) days of the time in which the Court’s order approving such attorney’s fees becomes a final order and the other half on or before October 2001, without interest.
On August 14, 2000, class counsel Marshall Dale Evans, E. Kent Hirsch, and Stephanie Brodacz filed individual petitions for award of attorneys’ fees as class counsel for the following class members: Washington County ad valorem taxpayers, City of Fayetteville ad valorem taxpayers, City of Elkins ad valorem taxpayers, City of Prairie Grove ad valorem taxpayers, City of Springdale ad valorem taxpayers, Fayetteville School District ad valorem taxpayers, Springdale School District ad valorem taxpayers, Elkins School District ad valorem taxpayers, Prairie Grove School District ad valorem taxpayers, Lincoln School District ad valorem taxpayers, Greenland School District ad valorem taxpayers, and Winslow School District ad valorem taxpayers. From August 9 through 21, 2000, notices of the settlement hearings for each group of class members were filed with the circuit clerk. Each notice either stated the amount of attorneys’ fees agreed to by the parties, or stated that the court at the hearing would consider “the application of plaintiffs’ counsel for an award of fees and reimbursement of expenses [.]” All notices of settlement hearings included the figure of 33 1/3% of the settlement amount in reference to attorneys’ fees, with the exception of the Washington County notice which included exact figures.
On August 31, 2000, Mr. Butt and Woody Bassett entered their appearance as counsel on behalf of 3,019 taxpayers, who were members of the class, and gave notice of their objection to the attorneys’ fees requested by class counsel. The list of the taxpayers was attached to the notice and entry of appearance.
On September 5, 2000, Mr. Butt moved for summary judgment regarding attorneys’ fees based on the allegation that insufficient notice had been given to the class members about their right to object to those attorneys’ fees. On September 6, 2000, Wayne Krug, a member of the class, and Mr. Butt, moved to appoint a guardian ad litem for the class members on the attorneys’ fees issue. Mr. Butt filed his response to class counsels’ petitions for attorneys’ fees on September 26, 2000. On September 29-, 2000, the motion for summary judgment was denied. That same day, the motion for appointment of a guardian ad litem was denied by the circuit court.
On March 16, 2001, the circuit court entered its order approving the settlement for Washington County. The court, however, retained jurisdiction of the class action in order to determine, among other things, the award of attorneys’ fees and associated costs. The circuit court subsequently entered similar orders in the other settlements: on March 26, 2001, it entered orders approving the settlements with the City of Fayetteville, the City of Springdale, and Springdale School District No. 50; on April 9, 2001, it entered an order approving the settlement with the City of Elkins; on April 12, 2001, it entered orders approving the settlements with Elkins School District No. 10, Prairie Grove School District No. 23, West Fork School District No. 141, Lincoln School District No. 48, Greenland School District No. 95, and Winslow School District No. 20; and on April 13, 2001, it entered orders approving the settlements with the City of Prairie Grove and Fayetteville School District No. 1.
On May 14, 2001, following several hearings, the circuit court issued its order awarding attorneys’ fees. In it, the court made numerous findings of fact and conclusions of law and awarded attorneys’ fees at the rate of 25% of each settlement amount, for a total award of approximately $4.6 million for class counsel. Each government entity subsequently paid the court-ordered attorney’s fees, with the exception of the Springdale School District, which will pay one half of the amount due when this appeal is final.
Notice of appeal of the circuit court’s May 14, 2001 order was filed by Mr. Butt and 3,019 taxpayers on June 11, 2001. Notice of cross appeal was filed by class counsel on June 21, 2001.
I. Motion to Dismiss
The appellees, The Evans Law Firm, P.A., E. Kent Hirsch, P.A., and David G. Nixon, have moved to dismiss the appeal of appellant 3,019 taxpayer class members. In that motion, they assert that the law in Arkansas is clear that the 3,019 alleged class members do not have standing to appeal the circuit court’s deci sion awarding attorneys’ fees because they either (1) failed to intervene in the case before the circuit court, (2) did not opt out of the case, or (3) did not file separate lawsuits challenging the adequacy of the class representation. They cite Haberman v. Lisle, 317 Ark. 600, 884 S.W.2d 262 (1994), in support of their motion.
In their brief on appeal, class counsel further assert that the appeal should be dismissed as to all of the appellants, including Mr. Butt and Butt-N-Butt Hardwood Plantation, as they have no financial interest in this appeal. Class counsel maintain that pursuant to the settlement agreements, all undistributed funds remain the property of the respective governmental entities, each of which has already agreed to attorneys’ fees up to 33 1/3% of the settlement amount and costs and in most cases has already paid the attorneys’ fees and costs in accordance with the court order. Class counsel, as a result, maintain that the appellants have no financial interest in the fees awarded to class counsel. Finally, they contend that because there was no testimony regarding the amount of money which the appellants claimed or could have claimed for refunds, as a result of this litigation, there is no way to determine whether 25% of such an unknown amount was an unreasonable attorneys’ fee.
The appellants respond to the motion and admit that, with respect to the 3,019 taxpayers, the case of Haberman v. Lisle, supra, cannot be ignored. They urge, nonetheless, that this court overrule that decision. They point out that since our decision in Haber-man, the Ninth Circuit Court of Appeals has held in Powers v. Eichen, 229 F.3d 1249 (9th Cir. 2000), that unnamed class members do have the right to appeal class counsel fees, regardless of whether they had the right to appeal the settlement itself, and that the reasoning in that decision should be controlling in this case. Additionally, the appellants contend that a class member always retains an interest in attorneys’ fees, even when his claims have been paid in full. Finally, they assert that they have suffered a $4.6 million loss of funds, either directly or indirectly, by the award of attorneys’ fees, as those funds came from one of two sources: the refunds otherwise payable to the class members, or the refund pool which was being returned to the governmental entities, presumably for the delivery of future services.
In Haberman v. Lisle, supra, this court held that where the appellant had failed to intervene in a class action at the circuit court level, he did not have standing to appeal the class-action settlement order approving attorneys’ fees and costs. Although the appellants request this court to overrule Haberman, we note that we recently reaffirmed our holding in that case in Ballard v. Advance Am., 349 Ark. 545, 79 S.W.3d 835 (2002), where we stated:
[T]his court’s opinion in Haberman v. Lisle, 317 Ark. 600, 884 S.W.2d 262 (1994), continues to be the controlling precedent in Arkansas. In Haberman, this court found that for unnamed class members to have standing to appeal a class-action setdement in state court, those class members must have intervened at the trial court level. Haberman, supra. Non-parties and unnamed members of the class who have failed to intervene are precluded from appealing a class setdement. Haberman, supra.
349 Ark. at 549, 79 S.W.3d at 837. In addition, we further stated in Ballard that our Rule 23(b) of the Arkansas Rules of Civil Procedure did not mirror Rule 23(b) of the Federal Rules. See e.g., Ballard v. Advance Am., supra.
An important distinction exists between the Ballard facts, where the appeal of a class settlement was involved, and the case at hand, where an appeal of the amount of the attorneys’ fees to class counsel is the issue. The Haberman case did concern an appeal of attorneys’ fees, and this court addressed the split of authority regarding the right of a class member to intervene in such cases and chose to rely on the reasoning of an Eighth Circuit decision. See Croyden Assoc. v. Alleco, Inc., 969 F.2d 675 (8th Cir. 1992). The Croyden case, like our Ballard decision, also concerned the right to appeal a class settlement and not an appeal of attorneys’ fees for class counsel. Just this year, the Croyden decision was cast into doubt by the United States Supreme Court in the case of Devlin v. Scardelletti, 536 U.S. 1, 122 S. Ct. 2005 (2002). Thus, one of the common-law foundations for our Haberman decision has been eroded. Yet, the Croyden case involved an objection to a class settlement by a class member and not an objection to attorneys’ fees.
We grant the motion to dismiss regarding the 3,019 class members under Haberman v. Lisle, supra. Nevertheless, we serve notice by this opinion that we will entertain in a subsequent case the issue of whether Haberman v. Lisle, supra, should be overruled in order to permit a class member to appeal attorneys’ fees awarded by the circuit court when that class member merely objected to the fees but did not intervene at the trial-court level. We will do so when the distinction between an illegal-exaction class action under Article 16, § 13, of the Arkansas Constitution and a certified class under Rule 23 has been thoroughly discussed and the impact of Devlin v. Scardelletti, supra, has been thoroughly analyzed.
We deny the motion to dismiss with regard to Mr. Butt, who did specifically intervene on the issue of attorneys’ fees before the circuit court and, thus, is not subject to the Haberman decision. Furthermore, we conclude that Mr. Butt does have a financial interest in this matter because he has a pecuniary interest affected by the circuit court’s disposition of the attorneys’-fees issue. See In Re: $3,166,199, 337 Ark. 74, 987 S.W.2d 663 (1999). Therefore, he has standing to appeal. See id.
II. Factual Findings
Mr. Butt argues as his first issue that under Powell v. Henry, 267 Ark. 484, 592 S.W.2d 107 (1980), which examined an award of attorneys’ fees in a class action against a governmental entity, the circuit court clearly erred in making two of its findings. Specifically, he asserts that the court erred in finding that (1) there was evidence that there was a vindication of economic right and that the results obtained were a substantial benefit to the class; and (2) that class counsel were experienced and were competent attorneys in the area of illegal exactions. Mr. Butt claims that there was only the potential for a rollback and reduction in taxes in the Amendment 59 class action and that because all of the school districts later reinstituted by popular vote all of the ad valorem taxes to the pre-rollback level, the class, in effect, rejected the rollback opportunity as not being economically beneficial. Fie further maintains that the economic benefit was at best neutral, and probably negative, in that any payment of a refund would necessitate a corresponding reduction in public services. Additionally, he points to the fact that only about half of the refunds were claimed. Finally, he urges that although Hirsch and Evans were competent class counsel, David G. Nixon had no prior illegal-exaction experience or class-action experience and, thus, did not qualify under the Powell criterion.
Class counsel respond that the circuit court correctly found that there was an aggregate refund pool of over $18.6 million created as a result of class counsel’s services. They further emphasize the court’s findings (1) that the members of the class enjoyed a common benefit in the millage rollbacks that were part of the settlements, and (2) that the persons receiving the government services paid for with the illegally collected money are not necessarily the taxpayers from whom the illegally collected taxes were exacted. Class counsel also claim that the appellants do not dispute the circuit court’s finding that the services of class counsel were “of the highest caliber.” They underscore the circuit court’s finding that of over 400 practicing attorneys in Washington County, the only experienced counsel who will represent a class in an illegal-exaction case were class counsel and John Lisle, who is not involved in this litigation. Finally, they contend that David Nixon, who was singled out as inexperienced, testified that he was also working on an Amendment 59 illegal-exaction case in Benton County, had an undergraduate degree in accounting, was a certified public accountant, had practiced law for twenty years, and was involved in a substantial amount of tax work in his practice. Class counsel conclude that the balance between Evans’s and Hirsch’s class action experience and Nixon’s tax experience equaled a successful attorney combination.
When reviewing findings of fact by a circuit court, this court uses a clearly erroneous standard. See Ark. R. Civ. P. 52(a). Thus, findings by the circuit court will not be set aside unless they are clearly against the preponderance of the evidence. See id. Additionally, this court gives due regard to the circuit court’s opportunity to judge the credibility of witnesses. See id.
We turn then to case law advanced by Mr. Butt in opposition to payment of the attorney’s fees. The first case is Powell v. Henry, supra. In Powell, this court examined an appeal of an order awarding attorneys’ fees in an action brought by Henry and others against the mayor and aldermen of North Little Rock and the North Little Rock Electric Department, alleging that the city improperly charged its customers $639,226.24. Attorneys’ fees in the amount of $95,884.31 were awarded to counsel representing the customers in the litigation. The city’s officials appealed the order of attorneys’ fees.
The Powell court noted that the action maintained by the customers was a class action which resulted in the recovery of a substantial amount which constituted a common fund and that the attorneys represented the rate payers in the litigation against the city. We then referenced several factors which were presented to the circuit court through testimony of expert witnesses: (1) time spent; (2) experience in dealing with class actions and utility rates; (3) the harmful effect of the litigation on counsel’s practice; (4) the complexity of the litigation; (5) the specialized nature of utility rate cases; (6) the lack of a prospect of a continuing lawyer-client relationship; (7) the urgency of the case; (8) the contingency of the fee; and (9) the fact that the suit was against a political entity. The circuit court then made these findings: (1) there was a substantial economic benefit bestowed on the class; (2) there was a personal and professional hardship incurred by the attorneys; (3) there was a vindication of an economic right; (4) the litigation was novel; (5) the case was difficult and substantial time was devoted to it; and (6) the attorneys possessed extraordinary skill and competence.
This court concluded, without endorsing specific factors, that the circuit court had not abused its discretion in awarding attorneys’ fees. We included in our discussion a comment on the need for attorneys to take these cases:
An important factor in our consideration of the fee allowance in this case is the realization that inadequate compensation will cause attorneys who are competent to handle this type of litigation to shun it, or if they accept it, fail to devote sufficient time to adequately prepare or present the case. This is an appropriate consideration in matters of this sort. Old Republic Insurance Co. v. Alexander, 245 Ark. 1029, 436 S.W.2d 829. The individual rate payer ordinarily cannot afford to employ counsel because attorneys’ fees and other expenses could be expected to exceed his prospective recovery. If attorneys do avoid employment such as that accepted by the attorneys in this case because they cannot expect to be adequately compensated, even if they are successful, there would be few cases where excessive charges would ever be refunded. The fact that no one who is the beneficiary of the recovery is complaining about the award is not without significance.
Powell v. Henry, 267 Ark. at 491, 592 S.W.2d at 111.
Although the Powell case does not mandate a list of factors to be considered by a circuit court when awarding attorneys’ fees, this court’s decision in Chrisco v. Sun Indus., Inc., 304 Ark. 227, 800 S.W.2d 717 (1990), did precisely that. In Chrisco, which involved a contract dispute and not a class action or illegal-exaction lawsuit, this court held that circuit courts should be guided by several recognized factors when awarding attorneys’ fees. The Chrisco factors parallel some of the factors found by the circuit court in Powell and referred to by expert witnesses in that case. The Chrisco factors are: (1) the experience and ability of the attorney; (2) the time and labor required to perform the legal service properly; (3) the amount involved in the case and the results obtained; (4) the novelty and difficulty of the issues involved; (5) the fee customarily charged in the locality for similar legal services; (6) whether the fee is fixed or contingent; (7) the time limitations imposed upon the client or by the circumstances; and (8) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer. See also Lake View Sch. Dist. No. 25 v. Huckabee, 351 Ark. 31, 91 S.W.3d 472 (2002).
In the instant case, the circuit court made the following findings relevant to the issues raised by Mr. Butt:
30. Class Counsel in this case are experienced and competent attorneys in the area of illegal exaction.
42. The members of the plaintiff class received a benefit from the establishment of the Settlement Funds.
43. The members of the plaintiff class received a benefit from the millage rollback provisions contained in the Settlement Agreements.
44. The members of the plaintiff class received a benefit from the tax year 2000 savings with respect to those defendant taxing entities that chose to leave their millage at the rolled back levels.
45. The results obtained from this lawsuit were that class counsel successfully negotiated settlement agreements with all fourteen defendant taxing entities that provided both the opportunity for class members to claim refunds and for tax millage rollback relief. The settlement amount is over $18,600,000.00. The millage rollbacks affected as a result of the fourteen settlement agreements removed the levy of illegal taxes from the plaintiff class. The intervenors argue that since the September school elections raised the millage rates to the old pre-rollback levels that the plaintiff class did not enjoy any benefit from the millage rollbacks. This court agrees with Class Counsel that the millage rollback benefits are evaluated as of the date of the approval of the settlement agreements and that there is certainly a benefit received in being allowed to vote upon a tax increase. As a direct result of this lawsuit the citizens of Washington County were provided the right and opportunity to go to the polls and vote on the tax increase. The cities of Elkins, Fayetteville, and Springdale chose to leave their millage at the lower levels and Washington County only increased their millage by approximately one-half of the amount by which it was rolled back. Therefore, all of the plaintiff taxpayers will enjoy actual tax savings as a result of the settlement agreements. In short, one of the results of this lawsuit is that the citizens of Washington County decide whether to raise their own taxes. There is no question that the plaintiff class received a substantial economic benefit and the vindication of an economic right as a result of this lawsuit. It may be that there have been and will be a loss of services as a result of this lawsuit and this Court understands intervenors’ concerns and arguments in that regard. However, it should be the decision of the people of Washington County whether they want the services or lower taxes. All of the representatives of the various taxing entities testified that if the money was collected illegally they did not want it. They also testified in favor of the settlements and they all said they could pay the settlement amounts. Another result from this lawsuit was that it settled some issues of first impression regarding the interpretation of Amendment 59. A further result of this lawsuit is that it stopped the collection of an illegal exaction. If this lawsuit had not been filed, it is reasonable to assume that based on this record these taxes would have continued to be collected in violation of Amendment 59.
In the case before us, the circuit court’s findings are comparable to those enumerated in Chrisco and referred to in Powell. The circuit court found that a settlement amount of over $18.6 million and taxpayer rollback relief were obtained by class counsel. That goes to the factor of the economic benefit to the class and the results obtained. Although not every class member claimed his refund, class counsel did obtain a refund for each member. The amount of the refunds set aside by each government entity is clearly definable, as each proposed settlement agreement identifies the agreed-upon amount to be made available by the entity to satisfy class claims. In addition, as found by the circuit court, a positive result was obtained in that had the litigation not occurred, each government entity could have continued collecting the illegally exacted funds. A vindicated right, as stated in Powell, or a positive result, as stated in Chrisco, was obtained by virtue of the fact that each class member got the right to vote on the matter of whether he or she desired to be taxed at the rate which had been illegally forced upon the taxpayer. As for the competency of the attorneys, David Nixon’s knowledge of taxes and his experience as an attorney, including representation in a similar Amendment 59 illegal-exaction case in Benton County, certainly support a finding of experience and ability of counsel as required by Chrisco.
The analysis of the circuit court was thorough and well-reasoned. We cannot say the circuit court clearly erred in finding an economic benefit to the class and in determining that David Nixon was experienced counsel.
III. Excessive Fees
Mr. Butt next argues that a comparison of the award of attorneys’ fees in Powell v. Henry, supra, and the award in the case at hand shows that the circuit court abused its discretion in fading to apply the standards consistently. Specifically, he takes issue with the circuit court’s findings based on Powell and contends that because six of the fifteen factors used by the circuit court indicate parity with Powell, because two other factors show an abuse of discretion, and because the remaining seven factors provide no good reason to award more fees than what were awarded in Powell, the circuit court abused its discretion “by granting a higher formula for class counsel attorneys’ fees where none of the factors indicated a higher fee structure than Powell.”
As he claimed under Issue II, Mr. Butt urges under this point that the economic benefit to the class was questionable. Moreover, he claims that class counsel did not suffer personal or professional hardship or forego other employment as referred to in Powell. Finally, he maintains that while the Powell court noted the absence of class members objecting to the fees awarded in that case, the presence of over 3000 objecting class members in the instant case has considerable significance in deciding the fee.
In Chrisco, this court reiterated its standard for reviewing the circuit court’s award of attorneys’ fees:
We have also previously noted that due to the trial judge’s intimate acquaintance with the record and the quality of service rendered, we usually recognize the superior perspective of the trial judge in assessing the applicable factors. Accordingly, an award of attorney’s fees will not be set aside absent an abuse of discretion by the trial court.
304 Ark. at 230, 800 S.W.2d at 719 (internal citation omitted). Nevertheless, this court has found an abuse of discretion and declined to award a percentage fee where the economic benefit did not lend itself to a firm figure and where the fee award was to be paid by the government, either state or local. See Lake View Sch. Dist. No. 25 v. Huckabee, supra.
It is clear that Mr. Butt is comparing the fee award made by the circuit court to class counsel in this case to the fee award affirmed in Powell and arguing that we are limited by what was awarded in Powell. However, the Powell case does not prescribe a threshold for awarding attorneys’ fees in all subsequent cases. We conclude that the circuit court in the case before us engaged in the proper analysis and clearly made findings that support each Chrisco factor. Merely because the circuit court’s consideration of those factors did not effect the same result as that in Powell does not mean that the circuit court abused its discretion.
In the instant case, we are directly confronted for the first time with the issue of what is a “reasonable part of the recovery of the class members” to be apportioned as attorneys’ fees. See Ark. Code Ann. § 26-35-902 (Repl. 1997). Section 26-35-902 reads:
(a) It is the public policy of this state that circuit and chancery courts may, in meritorious litigation brought under Arkansas Constitution, Article 16, § 13, in which the court orders any county, city, or town to refund or return to taxpayers moneys illegally exacted by the county, city or town, apportion a reasonable part of the recovery of the class members to attorneys of record and order the return or refund of the balance to the members of the class represented.
(b) If, after expiration of a reasonable period of time for the filing of claims for the illegally exacted moneys as ordered by the court, residual funds exist, said residual funds shall be deemed abandoned and escheat to the county, city, or town which exacted same.
Ark. Code Ann. § 26-35-902 (Repl. 1997).
The circuit court reduced the percentage of the contingent fee from 33 1/3% to 25%, but applied the percentage against the settlement pool in each case for a total settlement amount of $18,602,277, as opposed to applying the percentage against the total amount claimed by the taxpayers, which was $8,629,634. By doing this, we conclude that the circuit court abused its discretion. The statute speaks clearly in terms of a reasonable part of the “recovery of the class members” being apportioned as attorneys’ fees and not a reasonable part of what might have been recovered. The plain meaning of the words indicates that what a taxpayer actually recovers is the amount against which the percentage must be applied. See Omega Tube & Conduit Corp. v. Maples, 312 Ark. 489, 850 S.W.2d 317 (1993). Moreover, in our view, the “results obtained,” which is a crucial factor under either a Powell analysis or Chrisco analysis, speaks to the direct benefit a taxpayer receives rather than what taxpayers might have claimed.
The dissent reads § 26-35-902 as requiring assessment of fees against the full settlement amounts. But that interpretation is directly at odds with the clear statutory language which reads “apportion a reasonable part of the recovery of the class members to attorneys of record.” After that occurs, the balance of the claims are then paid to the class members. To the extent the full settlement amounts are not claimed by the class members, the balance of the fund escheats to the government entity. This interpretation is not only clear from the statutory language but is entirely reasonable in light of the fact that attorneys’ fees are being assessed against taxpayer money.
Neither Powell v. Henry, supra, nor City of Little Rock v. Cash, 277 Ark. 494, 644 S.W.2d 229 (1982), as cited by the dissent, address or interpret § 26-35-902, which authorizes the award of attorneys’ fees in illegal-exaction cases, even though the statute was in effect at the time both cases were decided. In addition, not only is the United States Supreme Court’s decision in Boeing v. Van Gamert, 444 U.S. 472 (1980), not binding precedent on this court, but there was no statute, such as § 26-35-902, that was interpreted by the Court in that case. Finally, at least one other state has held as we do in the instant case. In Goodrich v. E.F. Hutton Group, Inc., 681 A.2d 1039 (Del. 1996), the Supreme Court of Delaware affirmed a chancery court’s award of fees based only on claims submitted in a class-action suit.
We remand this case to the circuit court to assess attorneys’ fees based on the amount claimed by the class members in accordance with this opinion. There is one remaining problem, however. We note from the briefs in this case as well as from oral argument that in all instances except for the Springdale School District, the attorneys have already been paid their fees by the government entities as ordered by the circuit court. Generally, a party’s voluntary payment of a judgment amount renders a subsequent contest of the judgment by that party moot. See Shepherd v. State Auto Prop. & Cas. Ins. Co., 312 Ark. 502, 850 S.W.2d 324 (1993). Here, however, it is not the parties who paid the attorneys’ fees who are contesting the amount paid but an intervenor, Mr. Butt. The question is whether an intervenor can unravel attorneys’ fees by merely filing a notice of appeal when no supersedeas bond has been posted or stay obtained.
Mr. Butt raises the specter of collusion between the paying parties and class counsel, were an intervenor not able to automatically stay the payment of attorneys’ fees by filing a notice of appeal. However, Mr. Butt took no steps to stay the order awarding attorneys’ fees or to post a supersedeas bond. Under these facts, we hold that the issue of attorneys’ fees that have been voluntarily paid is moot.
IV. Notice
Mr. Butt next contends that members of the taxpayer class received two notices in this case: (1) a class-certification notice advising prospective members of the pending class action; and (2) a published notice advising class members of their right to object to the proposed settlement. His argument is that neither notice informed members of their right to object to attorneys’ fees for class counsel. He further maintains that to award attorneys’ fees without proper notice to class members of their right to object deprives them of substantial property without due process of law, violating Amendments 5 and 14 of the United States Constitution and Rule 23 of the Arkansas Rules of Civil Procedure. Additionally, he contends that while the settlements stipulated when, where, and how a certain amount would be paid in refunds after court approval, it was abundantly clear that no settlement had been reached on attorneys’ fees. He, finally, urges this court to consider the fact that the notice that was published by class representatives drew no objection to fees, while his notice which articulated the right of class members to challenge fees resulted in over 3,000 objections. He concludes that despite the fact that the 3,019 class members may lack standing, this issue should be addressed by this court because of its substantial public interest.
Class counsel respond that the circuit court’s orders approving the fourteen separate settlement agreements were all filed of record during the period of time from March 16, 2001, through April 13, 2001, and that those orders resolved all issues before the court, with the exception of a determination of attorneys’ fees. Class counsel submit that the issue of notice regarding an objection to attorneys’ fees should have been appealed within 30 days of the entry of the orders approving the settlements. The appellants’ failure to appeal in a timely fashion, argue class counsel, requires dismissal of this point on appeal. Class counsel make the additional point that the circuit court correctly held that not only was the settlement notice sufficient, but that Mr. Butt, as attorney for the objectors, specifically agreed to and approved the contents of the notices concerning the settlement. The circuit court said:
I took this case over from another Judge and I was advised back some time ago that people had intervened on the limited objection to the attorneys’ fees. And when we got to the notice portion and I was advised the case had been settled, I felt like it was important the Intervenors be involved at that point, especially in the notice. So I think then I shut down our first conference call when I asked that Mr. Butt be involved in our conference call and he was. In that particular conference call he said that notice appeared to be fine with him.
The court further found that “[e]veryone that was involved in the case was consulted, agreed to it. Nothing was said during the settlement hearings with regard to the adequacy of the notice.”
We again underscore the fact that Mr. Butt is the sole remaining appellant who has standing to appeal this issue. Mr. Butt, as the circuit court emphasized, specifically agreed to the contents of the notice regarding settlement. It seems somewhat inconsistent for him now to contend that the notices he approved were faulty with regard to objecting to attorneys’ fees.
In the instant case, two notices were provided to class members. The first provided that if a class member so desired, he or she had the right to enter an appearance before the circuit court at his or her own expense. The second notice either expressly alerted class members to the proposed amount of fees or notified members that the court would take up class counsels’ application for fees and referenced all members’ right to appear at the settlement hearing and show cause why the stipulation of settlement should not be approved. It is undisputed that payment of attorneys’ fees was part of the settlements. Although the exact amount of the fees had not been decided upon by the circuit court at the time of the notices, the notices certainly alerted class members that an award of fees was an outstanding issue still to be decided by the circuit court, even though they had been agreed to by the governmental entities. Obviously, if a class member could challenge the settlement, that person could challenge any facet of it such as the refund itself or the fees or any other matter negotiated by class counsel and set forth in the notice.
We analyze the notice point under the Due Process Clause of the United States Constitution because an illegal exaction is at issue and not under Rule 23 of the Arkansas Rules of Civil Procedure. See T & T Chem., Inc. v. Priest, 351 Ark. 537, 95 S.W.3d 750 (2003). Under these facts, we fail to discern how the Due Process Clause was violated. The circuit court did not err in finding against Mr. Butt on this point.
V. Guardian Ad Litem
Mr. Butt’s theory on this point is that once a settlement is achieved in a class action, class counsel’s interest in a fee recovery becomes self-serving and directly conflicts with the interests of the class members because the higher the fee, the lower the recovery of the class. A guardian ad litem, he contends, would protect the interests of the class. Moreover, he submits that the power to protect the class by means of a guardian ad litem is inherent in Rule 23(d). Fie states that while the circuit court acts as a fiduciary with respect to the class on counsel fees, the circuit court in this case would have likely awarded class counsel their full, one-third claim had it not been for his vigorous opposition to that percentage. Thus, appointment of a guardian ad litem would have been proper. He concludes that as with the issue of notice to the class, a decision by the court to not address this issue “prospectively oppresses all members of all potential future classes.”
There is no need for this court to reach the issue. As the sole class member with standing to appeal, Mr. Butt alone can mount this argument, and he was fully informed and knowledgeable on the attorneys’ fees issue and the potential conflict between himself and class counsel on the attorneys’ fees issue. Moreover, he failed to timely appeal the orders approving the setdements which resulted in payment of the attorneys’ fees. The circuit court did not err on this point.
VI. Cross-Appeal
Class counsel raise two points on cross-appeal. Initially, they contend that the amount of gross refunds paid to taxpayers was actually in excess of $8.6 million and not the $5.5 million used by the circuit court which was the amount of net refunds after deducting attorneys’ fees. This issue is not sufficiently developed by class counsel for us to address it. Secondly, class counsel argue that the circuit court erred in allowing Mr. Butt to solicit members of the taxpayer class to represent them in objecting to attorneys’ fees. Because we hold that only Mr. Butt has standing to appeal this matter and, further, that it is unnecessary for us to determine the standing of the 3,019 taxpayers, any judgment rendered on the solicitation point would have no practical legal effect on the pending legal controversy. See Forrest Constr., Inc. v. Milam, 345 Ark. 1, 43 S.W.3d 140 (2001); Quinn v. Webb Wheel Prods., 334 Ark. 573, 976 S.W.2d 386 (1998). Accordingly, we decline to address it.
VII. Conclusion
We emphasize, in conclusion, that under our precedent of Haberman v. Lisle, supra, the 3,019 class members are without standing to appeal the amount of attorneys’ fees and that only Mr. Butt can appeal that issue. However, we will revisit the Haberman decision as it relates to the challenge of attorneys’ fees when the issue next presents itself.
Because the attorneys’ fees have now been paid to class counsel, with the sole exception of the Springdale School District, which owes the balance of the fees after the order relating to attorneys’ fees becomes “final,” we consider the issues raised regarding the fees already paid voluntarily to class counsel to be moot. We address the issue only with regard to the Springdale School District. We reverse the circuit court on the fees awarded in connection with that school district and remand for the circuit court to determine attorneys’ fees based on the amount of the actual recovery of illegally-paid taxes by class members in that district. We note on this point that class counsel question Mr. Butt’s standing to contest attorneys’ fees paid by the Springdale School District, but we leave that issue for the circuit court to resolve.
Motion to dismiss is granted in part and denied in part. Appeal is affirmed in part and reversed and remanded in part. Cross-appeal is moot.
Thornton, J., concurs.
Corbin, Imber, and Hannah, JJ., concur in part and dissent in part.
Glaze, J., not participating.
This court recently held that Rule 23 is not applicable to illegal-exaction class actions brought under Article 16, § 13, of the Arkansas Constitution. See T & T Chem., Inc. v. Priest, 351 Ark. 537, 95 S.W.3d 750 (2003). That precise issue was not raised in the instant case.
The parties assume that Butt-N-Buck Hardwood Plantation also intervened but the record reveals that Mr. Butt was the sole intervenor.
Although diere may well have been more taxpayers on the original list, no one now contests the figure of 3,019 taxpayers.
We recognize that the Ballard language contains a misstatement in that the Haberman opinion involved an attempted appeal of class counsel fees by a class member and not the setdement.
Attorneys’ fees in illegal-exaction cases are permitted by statute. See Ark. Code Ann. § 26-35-902 (Repl. 1997):
(a) It is the public policy of this state that circuit and chancery courts may, in meritorious litigation brought under Arkansas Constitution, Article 16, § 13, in which the court orders any county, city, or town to refund or return to taxpayers moneys illegally exacted by the county, city, or town, apportion a reasonable part of the recovery of the class members to attorneys of record and order the return or refund of the balance to the members of the class represented.
(b) If, after expiration of a reasonable period of time for the filing of claims for the illegally exacted moneys as ordered by the court, residual funds exist, said residual funds shall be deemed abandoned and escheat to the county, city, or town which exacted same.
Two of the parties (City of Fayetteville and City of Springdale) did move to stay the order to pay attorneys’ fees but later withdrew their motions. | [
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Per Curiam.
On November 15, 2002, the Supreme Court Committee on Professional Conduct filed a petition in this court seeking an order requiring Kenneth George Fuchs to show cause why he should not be held in contempt by this court for willfully disobeying orders issued by the Committee directing Mr. Fuchs to pay restitution to three individuals. Mr. Fuchs has not responded to the petition.
The petition reflects three separate instances involving bank trust account overdrafts where the Committee either cautioned or reprimanded Mr. Fuchs and required him to make restitution in the total amount of $2,000. The orders were issued on September 3, 2002. According to the petition, Mr. Fuchs has failed to pay the restitution and has failed to communicate with the Committee as to why he cannot pay the sanctions.
Pursuant to the Committee’s petition, we order Mr. Fuchs to appear before this court at 9:00 a.m. on January 23, 2003, for consideration of the relief requested in the petition, including why he should not be held in contempt.
It is so ordered. | [
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Per Curiam.
Ricky Lee Scott was convicted by a jury of first-degree murder and was sentenced to life in prison. We affirmed his conviction and sentence in Scott v. State, 337 Ark. 320, 989 S.W.2d 891 (1999). Thereafter, Scott filed a Rule 37 petition. After a hearing, the circuit court denied Scott’s petition for relief.
On appeal, Scott raises three claims of ineffective counsel. He argues that: (1) trial counsel and previous appellant counsel were ineffective in their failure to abstract the criminal docket in this matter and preserve for appellate review violations of Scott’s constitutional rights; (2) trial counsel was ineffective in his failure to properly investigate and document inconsistent statements of a key witness and the circumstances regarding ballistics; and (3) trial counsel was ineffective in his failure to seek a mistrial after damaging and highly prejudicial testimony from a key witness regarding unsubstantiated allegations that Scott raped her daughter.
Scott raised each argument below, but the arguments were not individually addressed by the circuit court in its order denying relief. Instead, the circuit court provided the procedural history of the case, stated the legal standards for the analysis of an ineffective assistance claim, and issued the following conclusory findings:
After a full and complete review of the petition, legal arguments cited and case citation thereto, the Court finds that the evidence is insufficient to establish ineffective assistance of coun sel warranting post-conviction relief. Cason v. State, 271 Ark. 803, 610 S.W.2d 891 (1981). Accordingly, the Rule 37 petition is respectfully denied.
In pertinent part, Rule 37.3(c) of the Arkansas Rules of Criminal Procedure provides that after a hearing, “[t]he court shall determine the issues and make written findings of fact and conclusions of law with respect thereto.” Without exception, we have held that this rule is mandatory and requires written findings. Dulaney v. State, 338 Ark. 548, 999 S.W.2d 181 (1999); Coleman v. State, 338 Ark. 545, 998 S.W.2d 748 (1999); Williams v. State, 272 Ark. 98, 612 S.W.2d 115 (1981). We have also held that the requirement of written findings of fact applies to any issue upon which a Rule 37 hearing is held. See Dulaney, supra (citing Bumgarner v. State, 288 Ark. 315, 705 S.W.2d 10 (1986)); Coleman, supra (citing Bumgarner, supra).
In Dulaney, supra, the court noted that without the circuit court’s sufficient written findings on the points raised in the appellant’s petition for postconviction relief, this court is “unable to effectively review the evidence and the court’s reasoning to determine if the court’s conclusions were clearly against the preponderance of the evidence.” Id. at 549. The case was remanded to the circuit court for fact-finding on the arguments raised in the appellant’s Rule 37 petition. .
In Coleman, supra, the court stated that the circuit court’s “findings of facts” were conclusory. The court stated:
Specifically, [the findings of fact] do not reflect how the trial court applied the standard for ineffective assistance of counsel claims, as set forth in Strickland v. Washington, 446 U.S. 668 (1984), to the allegations that were raised in Coleman’s petition and that were addressed during the postconviction hearing. Accordingly, we must . . . reverse and remand the case for findings that comply with the rule.
Coleman, 338 Ark. at 547.
In the present case, due to the circuit court’s failure to make sufficient written findings, this court cannot effectively review the evidence and the circuit court’s reasoning to determine if the circuit court’s conclusions were clearly against the preponderance of the evidence. We hereby remand the case in accordance with Rule 37.3(c) for fact-finding on the arguments raised in Scott’s Rule 37 petition.
Reversed and remanded. | [
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Ray Thornton, Justice.
This is an interlocutory appeal from the trial .court’s denial of a petition for certification under the provisions of Rule 23 of the Arkansas Rules of Civil Procedure. On November 30, 1999, appellant, T&T Chemical, Inc. (“T&T”), brought an action against appellees, Sharon Priest, Secretary of State, and Jimmie Lou Fisher, State Treasurer, alleging that appehees wrongfully collected a six-dollar increase in the annual corporate franchise tax from T&T and similarly situated taxpayers for 1993 and subsequent years. That case is still pending before the trial court as an action for an alleged illegal exaction.
With regard to the underlying action for an illegal exaction, we note that taxpayers who are the victims of an illegal exaction form a class as a matter of law under Article 16, Section 13, of the Arkansas Constitution. Frank v. Barker, 341 Ark. 577, 20 S.W.3d 293 (2000). An illegal-exaction claim is by its nature in the form of a class action. Hamilton v. Villines, 323 Ark. 492, 915 S.W.2d 271 (1996). Here, the existence of the class based upon the illegal-exaction clause of our constitution does not depend upon, or require certification under, the provisions of Rule 23. We recently held in Worth v. City of Rogers, 351 Ark. 183, 89 S.W.3d 875 (2002), that “although an illegal-exaction case is a class action, it is not a class action established under Rule 23.” Id.
Notwithstanding its status as a taxpayer plaintiff in an illegal-exaction action with its attendant class of similarly situated taxpayers, T&T sought to invoke the provisions of Rule 23, and petitioned for additional certification as the class representative pursuant to the provisions of Rule 23. Following a hearing in which T&T failed to produce any evidence upon which such a Rule 23 certification could be based, the trial court denied the petition for Rule 23 certification, and T&T brings this interlocutory appeal, contending that the trial court erred in failing to certify the existence of a Rule 23 class as a matter of law.
T&T argued to the trial court that Rule 23 is applicable to this case, and that T&T satisfied the prerequisites for certification by meeting all requirements of Rule 23(a) and (b). In this appeal, T&T now contends that its status as a plaintiff in an illegal exaction case should automatically entitle it to certification as a class representative under Rule 23. T&T did not present this argument to the trial court, but specifically asserted that Rule 23 was applicable and that T&T met the requirements of the rule. The .trial court denied the Rule 23 certification, but did not deny or otherwise rule against T&T’s continuing status as a taxpayer in an illegal exaction action with its attendant class of similarly situated taxpayers.
In this interlocutory appeal, T&T relies upon arguments that were not presented to the trial court. In its petition to the trial court seeking certification under Rule 23, T&T stated:
The class of taxpayers previously described meets all requirements of Rule 23(a). Furthermore, the questions of law and fact at issue in the case at bar are common to all members of the class previously described and predominate over any possible questions affecting only individual members of the class. As such, a class action is superior to other available methods for the fair and efficient adjudication of the issues and controversies raised by this suit and thus certifiable under Rule 23(b) of the Arkansas Rules of Civil Procedure.
4. The named plaintiff, T&T, represents the type of taxpayer who has been, and will be, subjected to the payment of illegal franchise fees in question and has claims that are typical of the claims of all class members. T&T will fairly and adequately protect the interest of all class members, and is qualified to prosecute this action to a conclusion. As such, it should be allowed to proceed as the named plaintiff on behalf of all other class members.
T&T then asserted in its motion that subsection (c) of Rule 23 was not applicable because, according to appellant, no notice was required.
By a letter dated August 21, 2001, the trial court notified the parties that it would conduct a hearing on October 30, 2001, on the motion to certify T&T as the representative of the class. At the scheduled hearing, the trial court afforded T&T an opportunity to present evidence supporting its petition for certification under the provisions of Rule 23, but T&T was not present at the certification hearing. Moreover, counsel for T&T did not offer any witnesses, documents, or other evidence to support its contested motion for certification under Rule 23.
At the trial level, T&T never advanced the argument that ¿he provisions of Rule 23 were inapplicable to illegal-exaction cases. To the contrary, T&T argued to the trial court that it fully met the requirements of Rule 23. It is well settled that to preserve an issue for appeal, the trial court must be apprised of the particular error alleged. Grandjean v. Grandjean, 315 Ark. 620, 869 S.W.2d 709 (1994). An appellant may not change the basis for its arguments or raise issues for the first time on appeal. Id.
Here, however, we have said numerous times that taxpayers in an illegal exaction lawsuit constitute a class as a matter of law. Frank, supra. Accordingly, an appeal from a refusal to grant Rule 23 certification of a class in an illegal-exaction case is not a proper basis for an interlocutory appeal' under Ark. R. App. P. — Civ. 2(a)(9) because the taxpayers are already a class under Article 16, Section 13, of the Arkansas Constitution. We hold that there is no interlocutory appeal from a refusal to certify a Rule 23 class in an illegal-exaction case, but only from a refusal to certify a class in a civil action brought pursuant to Rule 23, and we dismiss the appeal for lack of jurisdiction. To the extent that City of Little Rock v. Cash, 277 Ark. 494, 644 S.W.2d 229 (1982), can be read to require the application of Rule 23 to an illegal exaction lawsuit, we overrule it.
Accordingly, we dismiss this interlocutory appeal from the trial court’s decision denying certification under Rule 23, and remand the case to the trial court for further proceedings as an action for an illegal exaction under the provisions of Article 16, Section 13, of the Arkansas Constitution. | [
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Per Curiam.
Bruce Earl Ward was convicted of capital murder and sentenced to death. The conviction was affirmed on appeal as to Mr. Ward’s guilt, but we remanded the case for resentencing. Ward v. State, 308 Ark. 415, 827 S.W.2d 110 (1992). A resentencing trial was conducted on February 9, 1993, and Mr. Ward was again sentenced to death. A notice of appeal was filed, and a record filed with this Court.
Counsel for Mr. Ward asserted there were numerous errors in the transcript of the resentencing hearing. We stayed the appeal and remanded the case to the Trial Court to settle the record. The Trial Court held hearings in an attempt to settle the record and entered a long list of corrections based on testimony, primarily by the attorneys involved, as to misidentified speakers as well as omissions which could be reconstructed. The Trial Court, could not, however, reconstruct the record with respect to a number of bench conferences which were not recorded stenographically. The reporter has destroyed the tape recording of the trial.
In his order responding to our order to settle the record, the Trial Court states, in part:
5. That, in spite of the best efforts of both the court and counsel for both parties, and because of Ms. Davis’ [the court reporter] incompetence, significant errors and omissions remain in this record. Even though the court has been able to correct the errors and omissions listed in paragraph four, the errors and omissions which remain are such that the record has not been settled. These errors and omissions include, but are not limited to, the absence of transcripts of at least seven bench conferences during which discussions between counsel and the court took place.
* * t-
7. That the record of the trial in this matter has not been and cannot be settled.
In response to Mr. Ward’s motion for reversal of the death sentence and for a new trial the State cites Bell v. State, 296 Ark. 458, 757 S.W.2d 937 (1988), in which we denied a new trial upon concluding that, despite omissions which apparently could not be cured, the record before us was sufficient. In that case, the matters missing, due to a courthouse fire, were recordings of pretrial hearings. We stated that the record before us was sufficient to establish what went on the hearings and pointed out that no one had requested that the hearings in question be recorded as was required by a statute subsequently omitted from the Code.
By contrast, in this case it is apparent that the omitted matters which cannot be reconstructed should have been recorded but were not. The State can point to nothing in the record before us which cures the error, and we have no means of ascertaining that the failure to have the missing matters in the record is not prejudicial to Mr. Ward. If a record of trial is insufficient to permit a full review of the proceedings from which an appeal has been taken, we have no alternative but to reverse and order a new trial. Holiday Inns v. Drew, 276 Ark. 390, 635 S.W.2d 252 (1982).
The death sentence is reversed, and the case is remanded for a new trial on sentencing only. | [
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Bradley D. Jesson, Chief Justice.
The appellant was convicted of simultaneous possession of drugs and firearms, Ark. Code Ann. § 5-74-106 (Repl. 1993), for which he received a forty-year sentence. Three issues are presented on appeal. We find no error and affirm.
On November 27, 1993, a gang-related shootout.occurred at a fast-food restaurant in Little Rock. Little Rock Police Detective Ronnie Smith and Patrolman Rodney Lewis arrived at the scene shortly after the incident. Both observed the appellant lying on the ground with gunshot wounds. Rescue units were called, and the appellant and another man were transported to the hospital. At that point, appellant was not considered a suspect, but a victim.
Crime scene specialists Barbara Polite and Roger Swope arrived at the scene. They were requested by Detective Smith to go to the hospital and collect the clothing of the shooting victims. They did so, and returned with the clothing to the crime scene unit. While conducting a routine inventory, they found a plastic bag in the pocket of the appellant’s jeans. The bag contained a “white, rock-like substance” which was forwarded to the narcotics division. Upon analysis, it turned out to be cocaine.
The appellant eventually became a suspect in the shooting. He was arrested and charged with one count of battery, nine counts of aggravated assault, and one count of simultaneous possession of drugs and firearms. The jury was unable to reach a verdict on the battery and aggravated assault counts, but did convict the appellant on the simultaneous possession of drugs and firearms charge. The first issue we address is whether the evidence was sufficient to support that conviction.
Ark. Code Ann. § 5-74-106(a)(l) (Repl. 1993) provides that a person who commits a felony violation of § 5-64-401 (controlled substances) while in possession of a firearm is guilty of a Class Y felony. The appellant argues that there was no evidence which showed him to be in simultaneous possession of the drugs and the gun.
When the sufficiency of the evidence is challenged, we must determine if there is substantial evidence to support the verdict. The evidence is viewed in a light most favorable to the appellee. Abdullah v. State, 301 Ark. 235, 738 S.W.2d 58 (1990). Circumstantial evidence is considered substantial evidence and may support a conviction. Summers v. State, 300 Ark. 525, 780 S.W.2d 541 (1989). It is true that in this case, no witness could say that the appellant was in simultaneous possession of the gun and the cocaine. However, several witnesses at trial testified that the appellant brandished a handgun during the course of the shootout. Additionally, a test of the appellant’s hands for gunshot residue was positive. Within minutes after the appellant was seen with the gun, he was discovered lying wounded on the ground. He was immediately transported to the hospital where his clothes were bagged and turned over to the police. The controlled substance was found in these clothes. The state’s drug chemist determined that the total weight of the substance was 1.64 grams of which 86.2% was cocaine, a net of 1.42 grams.
We hold there was substantial evidence to support the conviction. Based upon the facts, the appellant could only have avoided simultaneous possession of these items if the contents of his clothing changed between the time of the shooting and the time the clothes were retrieved from the hospital. This is so implausible that the jury was justified in reaching the more logical conclusion: that the cocaine was in the appellant’s pocket at the time he was seen in possession of the gun.
Before we leave this issue, one clarification is needed. The record does not show conclusively whether the appellant’s drug violation was a felony or a misdemeanor. A felony controlled substance violation is required to satisfy the first prong of § 5-74-106. The appellant makes no argument on this point and limits his sufficiency of the evidence challenge to the “simultaneous” aspect of the offense. However, we caution that this opinion should not be read to hold that any possession of a controlled substance is sufficient for a conviction under § 5-74-106. We do note that the amount of cocaine recovered in this case is sufficient to raise the presumption of possession with intent to deliver, a felony. Ark. Code Ann. § 5-64-401(d) (Repl. 1993).
We turn now to the evidentiary issues raised by the appellant. He claims first that the cocaine found in his clothing was the result of an illegal, warrantless seizure and, therefore, should have been suppressed.
At the suppression hearing and at trial, the officers who were at the scene of the shooting testified that they initially considered the appellant a victim, not a suspect. They testified that his clothes were to be obtained as evidence. The crime scene specialists testified that it is customary to inventory the contents of clothing for two reasons: one, the police are responsible for the contents and, two, if the clothes are bloody (as these were) they need to be hung to dry, making it necessary to empty the contents. The specialists also testified that, when the plastic bag was pulled from the jeans, it appeared to contain a controlled substance, based upon their experience.
To gain admission of the evidence, the state relied on Ark. R. Crim. P. 10.2. This rule sets out “Permissible Objects of Seizure,” among them “evidence . . . concerning the commission of a criminal offense.” The appellant argued that the state cannot seize property without a warrant merely because it is termed “evidence.” The trial judge, without elaboration, denied the motion to suppress.
On appeal of a trial court’s ruling on a motion to suppress, this court will make an independent determination of the admissibility of the evidence based on the totality of the circumstances. The trial court’s finding will not be set aside unless it is clearly erroneous. State v. Villines, 304 Ark. 128, 801 S.W.2d 29 (1990).
The appellant argues on appeal that Rule 10.2 is unconstitutionally broad because it allows the seizure of items under the all-encompassing category of “evidence.” He offers no convincing authority to support this proposition. But, in any event, we find that there was no infirmity in the application of Rule 10.2 in this case. The totality of the circumstances herein includes the fact that the appellant was thought to be a victim. The clothing of a gunshot victim is evidence of the commission of a crime. These circumstances have convinced other courts to decide that such a seizure was reasonable. Chavis v. Wainwright, 488 F.2d 1077 (5th Cir. 1973); Floyd v. State, 24 Md. App. 363, 330 A.2d 677 (1975); State v. Adams, 224 N.J. Super. 669, 541 A.2d 262 (1988).
The appellant refers in his brief to the case of Kirk v. State, 38 Ark. App. 159, 832 S.W.2d 271 (1992). In that case, the police searched the vehicle of a man who was taken to the hospital after a car accident. The court held the search unreasonable, noting that no testimony was presented regarding standard procedures for inventory of seized items. By contrast, crime scene specialists testified in this case that, as a matter of procedure, they routinely inventory the contents of all victims’ clothing. The United States Supreme Court has recognized that such inventory procedures serve the dual purpose of protecting the owner’s property and protecting the police from disputes over lost or stolen property. Florida v. Wells, 495 U.S. 1 (1990); South Dakota v. Opperman, 428 U.S. 364 (1976). See also Ark. R. Crim. P. 15.1 which provides that an officer who seizes property must provide for its safekeeping.
The totality of the circumstances in this case convinces us that the application of Rule 10.2 allowing the seizure of the clothing was reasonable.
The appellant’s final argument concerns chain of custody. The appellant was brought into the hospital on a stretcher. A nurse on duty in the trauma room saw him and observed that some of his clothing had been cut away from his body. She recalled at trial that the clothing was underneath the appellant’s back, on the stretcher. When shown the clothing at trial she testified, although not with absolute confidence, that they fit her memory of how the appellant’s clothes looked when he was brought in. She further testified that it was customary hospital procedure for someone on the nursing team to bag the clothing of all trauma victims, put a sticker on the bag bearing the victim’s name ana date of birth, then tape the bag shut. The bag would then stay with the patient in the trauma room.
A second nurse confirmed that when a trauma victim is brought into the trauma room, his clothes have sometimes been cut away and are lying beneath him. When the victim is rolled over for examination, the clothes are customarily removed and placed in a bag marked with the victim’s name. The victim is then kept in a partitioned area of the trauma room, and his personal belongings are kept with him. The nurse further testified that, in this instance, she signed out the bag bearing the appellant’s name to officers Swope and Polite. Swope and Polite testified that they received the bag and took it to the crime scene unit, where they performed an inventory of its contents.
At trial, the appellant argued that the state did not establish a proper chain of custody. The trial court, after a careful review of the testimony, disagreed and allowed admission of the evidence. The trial court was correct.
The purpose of the chain of custody requirement is to satisfy the court that the evidence being presented is, in all reasonable probability, authentic and has not been tampered with. Caldwell v. State, 319 Ark. 243, 891 S.W.2d 42 (1995). The testimony of the nurses regarding their own observations and established hospital procedures presents a reliable chain of custody. Absent evidence of tampering, the trial judge’s ruling will not be disturbed unless it was a clear abuse of discretion. Gomez v. State, 305 Ark. 496, 809 S.W.2d 809 (1991). We find no abuse of discretion in this case.
Affirmed. | [
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Per Curiam.
Donald E. Zueco, by his attorney, Michael Knollmeyer, has filed a motion for rule on the clerk. The motion admits that the record was not timely filed but states that it was not the fault of appellant’s counsel.
The motion does not state good cause for granting the motion as discussed in our per curiam issued February 5, 1979. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).
If the appellant’s attorney will file within thirty days from the date of this per curiam a motion and affidavit in this case accepting full responsibility for not timely filing the transcript, the motion will be granted and a copy of the opinion will be forwarded to the Committee on Professional Conduct. The present motion for rule on the clerk is denied. | [
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Robert H. Dudley, Justice.
On October 1, 1993, appellant Michael Catlett trailed Stephanie Jungkind’s car from the Pizza D’Action cafe in the Hillcrest section of Little Rock to the Rodney Parham exit on Interstate 630, pulled up beside her, reached out his car window, fired a semi-automatic pistol into her car, freed the jammed pistol, and fired again. The shots struck and killed Ms. Jungkind. At trial, appellant did not deny the foregoing facts. Rather, he argued that his mental illness rendered him incapable of forming the intent required for murder and, in addition, asserted the affirmative defense of not guilty by reason of mental disease or defect.
Appellant has a long history of mental illness that culminated in months of obsessive behavior toward Ms. Jungkind. Appellant and the victim had dated, lived together, and were engaged to be married before Ms. Jungkind terminated their relationship. After their breakup, appellant stalked Ms. Jungkind at her home, at friends’ and relatives’ homes, at her place of employment, and at public places. The content of his numerous phone calls to her ranged from pleading with her to come back, insulting and threatening her, making peculiar animal-like noises, and hanging up the moment she answered. Just before he killed Ms. Jungkind, appellant spray-painted bizarre graffiti on the parking lots of Riverfront Park and of the law firm where she was employed.
Appellant’s first suicide attempt occurred at age eighteen. He was subsequently placed in a series of psychiatric hospitals and was involuntarily committed to the Arkansas State Hospital in 1992 and again in 1993. He was diagnosed as having bipolar affective (manic-depressive) disorder and suffered from various paranoid delusions.
The only seriously contested issues at trial involved appellant’s mental condition at the time of the murder. The State’s evidence of premeditation showed that appellant had (1) attempted to purchase a gun from a pawn shop by falsifying a federal firearms form; (2) purchased a semi-automatic pistol three days before the murder; (3) visited a travel agency and possibly purchased an airline ticket two weeks before the murder; (4) stated that he hated Ms. Jungkind and that a manic-depressive person could murder someone and get away with it; (5) stated that he was going to kill Ms. Jungkind; and (6) was served with an order of protection two days before the murder and was scheduled to appear at a hearing three days after the murder. The jury found that the State proved beyond a reasonable doubt that appellant acted with a premeditated and deliberated purpose and that appellant did not prove his affirmative defense of mental disease or defect by a preponderance of the evidence. Appellant was convicted of capital murder and was sentenced to life imprisonment without parole. We affirm the judgment of conviction.
Appellant’s initial point of appeal is that the trial court erred in refusing to sustain an objection to a part of the deputy prosecutor’s closing argument. The deputy prosecutor, in arguing against appellant’s affirmative defense, said:
If you have found that the State has proven that Michael Catlett has committed an offense, then and only then after you’ve decided what he has committed, do you pick up that affirmative defense [of mental disease or defect]. Because if you don’t find him guilty, you don’t even need to consider it. He’s just plain not guilty. But if you have found him guilty, you pick up that affirmative defense.
Appellant objected to the argument on the ground that the applicable instruction, AMI Crim. 2d 609, provides that the jury must find that appellant “engaged in the conduct alleged to con stitute the offense charged” and not that it must find appellant guilty before determining whether he proved the affirmative defense. The trial court overruled the objection.
Before taking up the issue of the deputy prosecutor’s statement, we examine the full text of the State’s argument. It addresses both of appellant’s contentions. Appellant asserted two defenses, a “failure of proof’ defense and an “excuse” defense. He contended that because of his mental illness he was incapable of forming the requisite intent to commit capital murder and the State was required to prove that intent beyond a reasonable doubt. Section 5-2-303 of the Arkansas Code Annotated provides: “Evidence that the defendant suffered from a mental disease or defect is admissible to prove whether he had the kind of culpable mental state required for commission of the offense charged.” Ark. Code Ann. § 5-2-303 (Repl. 1993). Appellant argued at trial that he should be acquitted because he could not form a “premeditated and deliberated purpose,” the required element for a capital murder conviction. See Ark. Code Ann. § 5-10-101(a)(4). Appellant’s contention that the State failed to prove intent to commit murder beyond a reasonable doubt was a “failure of proof defense.”
Appellant also contended that he should be acquitted because of his affirmative defense. An affirmative defense is a general defense which bars conviction even if all the elements of the offense are proven beyond a reasonable doubt. Lack of capacity is an “excuse” defense in which the defendant does not deny that his conduct was wrong, but argues that he is excused from that wrongful conduct because he lacked the capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law. Ark. Code Ann. § 5-2-312(a). In asserting the affirmative defense, appellant contended that he lacked the ability to control his conduct to the extent that he should not be held accountable for it.
With the context set out, we now address the point of appeal. In the first sentence of the statement, the deputy prosecutor argued that if the jury found that appellant “has committed an offense, then and only then after you’ve decided what he has committed, do you pick up that affirmative defense.” Under the applicable model instruction, AMLCrim. 2d 609, the jury must find that appellant “engaged in conduct alleged to constitute the offense charged,” as distinguished from the deputy prosecutor’s statement that it must find “appellant committed an offense.” However, when viewed in context of the State’s argument, it is obvious that the statement was a reference to the sequence in which the jurors consider the “failure of proof’ defense and the “excuse,” or affirmative, defense, and in this regard the difference is metaphysical.
The second and third sentences in the deputy prosecutor’s statement were entirely correct. They were: “Because if you don’t find him guilty, you don’t even need to consider it. He’s just plain not guilty.” Again, the framework of the sentences is to show the sequence in which the jurors are to consider the affirmative defense.
The third sentence in the statement was: “But if you have found him guilty, you pick up that affirmative defense.” Appellant argues that this part of the statement was misleading and prejudicial because it required the jury to first find appellant was “guilty,” and then, if they found he had proved his affirmative defense, find him “unguilty.” Again, the statement concerned the two related defenses by appellant, and the sequence in which they were to be considered.
Certainly, if the prosecutor had argued that none of the insanity evidence could be considered for any purpose unless the jury found that all of the elements of the offense had been proved, or that appellant had been found guilty, it would have been an incorrect and misleading statement of the law. However, that was not the argument. The deputy prosecutor was referring solely to the jury’s consideration of the evidence as an affirmative defense and was referring to the sequence in which they should consider the affirmative defense. It was with this predicate that the deputy prosecutor said, “but if you have found him guilty, you pick up that affirmative defense.” The statement, taken in full context with the other statements, meant that, even though the jurors might find the State proved beyond a reasonable doubt that appellant had the requisite mental culpability to commit a crime, they were then to determine whether he could conform his conduct to the requirements of the law. Appellant was not prejudiced by the deputy prosecutor’s statement.
Appellant next argues that the trial court erred in allowing the State to prove that appellant made preparations to flee. The facts underlying the argument are as follows. Prior to trial, appellant moved to exclude the testimony of Amy Thompson, who would supposedly testify that appellant had visited a travel agency the day before the murder and had possibly purchased an airline ticket, and to exclude the testimony of Rita Hawkins, who would supposedly testify that she rode with appellant to the travel agency “several days before the murder.” Appellant argued at trial that neither witness could say whether appellant purchased a plane ticket and therefore, their testimony should be excluded. The State proffered Ms. Thompson’s testimony, and the court deemed it inadmissible because Ms. Thompson’s recollection of the event was so poor. The deputy prosecutor then told the court that the State would rely solely on the testimony of Rita Hawkins, the witness who went with appellant to the travel agency “the day before the murder.” Appellant argued that her testimony should be excluded because she did not go into the travel agency with him and that she did not know what was in the envelope he brought out of the travel agency. The trial court refused to exclude the evidence, ruling that there was a reasonable inference that appellant could have purchased a ticket and that the event was “close enough in time to the offense” to be relevant.
At trial, Ms. Hawkins testified that she did not know exactly when she and appellant went to the travel agency, that it was “maybe two weeks relative to Michelle’s shooting.” She testified that she did not go into the travel agency with appellant, but when appellant returned to the car, he had an envelope in his hand.
On appeal, appellant argues that the time factor made the evidence more prejudicial than probative. However, that argument was not made below. Appellant argued below that the evidence should be excluded because Ms. Hawkins could not say that appellant purchased a travel ticket. It is well settled that a party cannot change his grounds for objection on appeal. Walker v. State, 301 Ark. 218, 783 S.W.2d 44 (1990).
Appellant next argues that the trial court erred in charging the jury, but this argument is procedurally barred because trial counsel neither objected to the instructions given nor did he offer his own instructions. Watson v. State, 313 Ark. 304, 854 S.W.2d 332 (1993); Nichols v. State, 306 Ark. 417, 815 S.W.2d 382 (1991). In fact, the record reveals that trial counsel offered one of the instructions about which appellate counsel now complains.
An examination of the record has been made in accordance with Ark. Sup. Ct. R. 4-3(h), and we have determined that there were no rulings adverse to appellant that constituted prejudicial error.
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Wood, J.
The appellant is a mutual fraternal benefit society duly incorporated under the laws of Nebraska, with its home office in Nebraska, and doing business in this iState. It issued to one Sam P. Pearson its certificate or policy insuring his life in the sum of $1,000 in favor of his wife, the appellee, who is named as beneficiary in the policy. Pearson joined the society on October 30,1905. He failed to pay his monthly installment of dues for the month of January, 1920, and in consequence thereof, under the by-laws of the society, which were a part of the contract of insurance, he became suspended February 1, 1920. On the 16th day of March thereafter Pearson paid to the clerk of the local camp at Crump, Arkansas, the sum of $10.35, the same being installments or dues for January, February and March. The clerk of the local camp issued receipts for these payments. On the 6th of April Pearson paid his April dues, and on May 17th paid his May and June dues, and receipts were issued for these months also. The local clerk sent the fund to the sovereign camp, except for the month of June. He withheld that because Pearson died on the 28th day of May, and the June installment was not due the Sovereign Camp. At the time the local camp clerk received the payments for the months of January, February and March, he knew that Pearson was in bad health. He had mailed Pearson a certificate to be signed showing that he was in good health, but Pearson never did return it. When Pearson failed to pay his dues, his name was left off of the list of beneficiaries, and the records at the Sovereign Camp showed that he was suspended. Pearson’s name was still left blank for the months of February and March. The local camp clerk remitted the payments for those months in April and the appellant accepted it. The local .clerk at that time did not send to the appellant the reinstatement showing that Pearson was in good health.
A section of the by-laws of the appellant provides as follows: “Should a member be suspended more than three and less than six months for any cause, in order to be restored to beneficiary membership it shall be necessary for him to present a certioate of good health from the camp physician. * * * He shall pay four monthly installments of assessments and dues to the clerk of the camp. Three installments of assessments shall be forwarded immediately by the camp clerk, with the certificate of good health, to the sovereign clerk. The fourth shall be placed to the credit .of the member as payment for the current month, and upon receipt and acceptance of said three monthly installments of assessments by the sovereign clerk, if the member shall remain in good health for the next thirty days following, his beneficiary certificate shall be in full force and effect.”
Another section provides as follows: “That, after the expiration of ten days, and within three months after the date of the suspension, the suspended member to reinstate must pay to the clerk of the camp all arrearages ■and dues and deliver to him a written statement and warranty, signed by himself and witnessed, that he is in 'good health 'at the time, and continue in good health for ‘thirty days thereafter, * * * as a condition precedent to reinstatement, and waiving all rights hereto if such written statement and warranty be untrue.”
Another section provides that “any attempted reinstatement shall not be effective for that purpose unless the member be in fact in good health at the time and continue in good health for thirty days thereafter, and 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.”
Another section provides: “No officer, employee or agent of the Sovereign Camp, or of any camp, has the power, right or authority to waive any of the conditions upon which beneficiary certificates are issued, or - to change, vary or waive any of the provisions of this constitution or these laws, nor shall any custom on the part of any camp or any number of camps, with or without the knowledge of any sovereign officer, have the effect of so changing, modifying, waiving or foregoing such laws or requirements.”
One of the laws of the appellant provides as follows: “On or before the twentieth day of every month he (sovereign clerk) shall mail a notice to the last known address of the counsel commander, clerk, banker and auditors of every camp from which no teport or remittance for the month has been received, stating the fact therein. As soon as the required monthly report has been received from a camp, he shall mail a notice to the last known address of every member reported suspended in said report, informing him of the requirements of the laws of this society to become reinstated, but the failure to send such notice shall in nowise affect the legal suspension of such members.”
It was in proof that Pearson never received notice from the appellant that he had been suspended. It was shown that it was the custom of Pearson to pay his dues each month if it was convenient, but the local clerk had established the custom of accepting dues from Pearson, when he was in arrears from thirty to sixty and ninety days, without any further requirement. This was perfectly agreeable and had always been the case as to the payment of dues by Pearson. The local camp clerk had been given authority to establish what was known as “home camp dues,” and after the local camp got strong enough and had money enough it would draw on that amount and send the dues of delinquent members in, and such member paid the local clerk at his own convenience. Sometimes the member would be a month behind and would pay for two months, that is, for the current month and a month or two ahead. The names of the members who were in arrears were left off in remitting to the head camp, and later, in a succeeding report, the arrears and dues for that particular month were included. No certificate of good health was furnished, and it was not required to be furnished by the Sovereign Camp. The appellant received and retained the payment of the dues for the particular member who had been in arrears and would issue its receipt for such dues. The local clerk was supposed to follow the directions of the head or sovereign clerk, and the sovereign clerk was supposed to furnish the local clerk with such blanks and papers as the local clerk was expected to use. The local clerk did not report to the sovereign clerk, when a member had, been suspended, whether or not the member had furnished him with a certificate of good health. When the member came and paid the dues in arrears, the local clerk would reinstate him, and would report that such-member was reinstated, to the sovereign clerk, and the appellant Wjould accept the money. The local clerk’s boobs showed that Pearson had been suspended and was reinstated on June 6,1919, by payment of back dues, and without his physician’s certificate of good health attached. The local clerk did not send the appellant a doctor’s certificate, but appellant received the dues, and such was the custom.
There was nothing in the constitution or by-laws of the appellant that required the local clerk to send to the sovereign clerk a doctor’s certificate showing good health of the member unless the member was suspended for more than three months. Pearson was not suspended for a longer period of time than ten days. All the records kept by the local camp were forwarded to the appellant, and the only record kept by the local clerk was a duplicate of the report made by the local clerk upon the forms furnished by the appellant. The appellant tendered to the appellee the sum of $20.40, the amount of all dues and moneys paid by Pearson after January, 1920, which she refused to accept. Upon the refusal of the appellant to pay the appellee the amount named in the certificate, she instituted this action thereon, setting up a full compliance on the part of Pearson at the time of his death with the terms of the contract of insurance, and praying judgment for the full amount of the policy.
The appellant defends on the ground that Pearson had not complied with the terms of the contract as to the payment of dues; that he had been suspended and was never reinstated as the laws of the society required, and that under these laws the contract at the time of Pearson’s death was void. At the commencement of the trial the appellant tendered to the appellee the further sum of $3.45, making a total of $23:85, the monthly dues that had been paid by Pearson after his suspension up to the time of his death, which the appellee refused. The cause proceeded to trial, and the facts as above set forth were developed. At the conclusion of the testimony each party requested a peremptory instruction. The court in structed the jury to return a verdict in favor of the appellee in the sum of $1,000, and from a judgment rendered in her favor for that sum is this appeal.
The judgment is correct. This case on the facts is ruled in principle by the doctrine of this court announced in the opinion on rehearing in the case of Sovereign Camp W. O. W. v. Newsom, 142 Ark. 158, where, quoting from 2 May on Insurance, § 361, we said: “Forfeitures are so odious in law that they will be enforced only where there is the clearest evidence that such was the intention of the parties. If the practice of the company and its course of dealings with the insured, and others known to the insured, have been such as to induce a belief that so much of the contract as provides for a forfeiture in a certain event will not be insisted on, the company will not be allowed to set up such a forfeiture, as against one in whom their conduct has induced such belief.” In that case we further said: “The clerk, through a period of years, had adopted the method set forth in the original opinion, which was clearly calculated to induce the belief on the part of Newsom that his dues had been paid according to the method adopted by the local clerk for collecting the dues and reporting the same, and that the society had accepted such payments and would therefore not insist upon a forfeiture because of the failure of the clerk to comply, in this respect, with its laws and constitution.
In the case of Sov. Camp W. O. W. v. Barnes, 154 Ark. 486, we held that the requirement o.f the by-laws concerning a certificate of good health as a condition precedent to the reinstatement of a suspended member is not waived by the retention for a time of a remittance and until after the death of the deceased. We also held that there was no waiver of the noncompliance with the provisions of the by-laws merely by the acceptance by a local officer of the dues and assessments.” Citing W. O. W. v. Jackson, 80 Ark. 419; Sov. Camp W. O. W. v. Anderson, 133 Ark. 411.
But in none of these oases was there any testimony to prove that the sovereign clerk continued to receive the payments of monthly dues after he had knowledge of the fact, or under circumstances which charged him with knowledge, that the delinquent member had not been reinstated. Here the testimony tended to prove that the local clerk followed the directions of the sovereign clerk; that the sovereign clerk was to furnish to the local clerk the form of the certificate for reinstatement, which was to be signed by the delinquent member; that no such blank certificate was ever furnished by the sovereign clerk to the local clerk. The only record kept by the local clerk was a duplicate of the report made by him upon the forms furnished by the appellant. Now, the local clerk, whose duty it was to collect the monthly dues and to report the standing of members to the Sovereign Camp, notwithstanding the fact that Pearson failed to pay his dues in January and was reported in February as suspended to the sovereign clerk, nevertheless thereafter collected the dues for January, February and March without a compliance on the part of Pearson with the requirements of the by-laws for reinstatement. The local clerk also reported to the sovereign clerk in April .showing that Pearson had been reinstated, but he did not accompany this report with the certificate showing that Pearson was in good health and had complied with the requirements of the by-laws for reinstatement, The sovereign clerk was thus advised that Pearson had not complied with the requirements of the by-laws and had not been properly reinstated. While the receipts given to Pearson by the local clerk show that the dues paid for January, February and March were held in trust until all the requirements of the society relative to reinstatement had been complied with, yet he forwarded these dues and receipts therefor to the sovereign clerk without any certificate of good health of Pearson, and the sovereign clerk, after being thus advised that the requirements had not been complied with by Pearson, did not promptly return these dues for January, February and March. On the 6th day of April Pearson paid his April dues, and on May 17th he paid his May and June dues, and the receipts issued by the local clerk for these dues did not show that they were held in trust awaiting the certificate of good health as required by the by-laws. The local clerk forwarded these dues for April and May and June to the sovereign clerk, and there was still no certificate of good health showing that the requirements as to reinstatement had been complied with, and the sovereign clerk had not sent any such blank or certificate to the local clerk for Pearson to sign. Instead of promptly returning these dues and advising the local clerk that the requirements as to reinstatement had not been complied with, and forwarding the necessary blanks for reinstatement, the sovereign clerk, who, under the circumstances, must be held to have had knowledge of all these conditions, retained the dues until after the death of Pearson, without any inquiry of the local clerk or Pearson as to why the requirements as to reinstatement had not been complied with. The sovereign clerk could not continue to accept and retain the payments of dues after he knew, or should have known, that Pearson was not re instated according to the laws of the order.
Furthermore, there was testimony sufficient to show that a general custom had béen established in the local camp of allowing its members who were in arrears to be reinstated by paying their delinquent dues without complying with the requirements, of the by-laws for reinstatement. The Sovereign Camp accepted and retained the dues in such cases, knowing that certificates of good health of the defaulting members had not been furnished. There was proof that the local camp had established a fund known as “home camp dues,” and when a member was delinquent for a month or two months the local clerk would draw on this fund 'and pay the delinquent dues, and give the member in default the privilege of paying at his own convenience. Authority was given under the by-laws and under the- direction of the head camp, to establish that fund, and the local camp was privileged to use- such fund to defray its expenses and in whatever manner it deemed proper. It will thus be seen that the facts of this case clearly differentiate it from the facts of the eases of Sovereign Camp W. O. W. v. Barnes, and W. O. W. v. Jackson, and Sov. Camp W. O. W. v. Anderson, supra.
Thus was established a course of conduct on the part of the local clerk which was acquiesced in and approved by the Sovereign Camp, which was calculated to mislead Pearson and cause him to believe that the Sovereign Camp was not insisting on the certificate of good health; and to cause him to make his payments believing that he was in good standing with the society. This conduct was such as to estop the appellant from insisting, under the doctrine of the Newsom case, supra, on the forfeiture of the policy because of the noncompliance with the bylaws as to reinstatement. See, also, Sov. Camp W. O. W. v. Richardson, 151 Ark. 231-236; Grand Lodge A. O. U. W. v. Davidson, 127 Ark. 133-139. Cases from other jurisdictions are cited to the same effect and relied on in appellee’s brief, but it is unnecessary to cite these, as the case is controlled by the doctrine of estoppel announced in Sov. Camp. W. O. W. v. Newsom, supra.
The judgment is therefore correct, and it is affirmed. | [
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McCulloch, C. J.
This is a suit against appellant on a benefit certificate, or policy of insurance, issued on the life of Arthur C. Meredith, the name of the beneficiary, Winnie E. Meredith, being designated in the application as the wife of the member, and there being a warranty of the truth of all statements contained in the application. Appellee claims that she was the lawful wife and is the widow of Arthur C. Meredith, and she seeks to recover from appellant the amount of the benefit on the ground that she was the person designated as the beneficiary, and that there was no breach of warranty with respect to her relationship to- Arthur C. Meredith, the member.
'On the first trial of the case the court directed a verdict, but the judgment was reversed by this court on the ground that there should have been a submission of the issues to the jury. Brotherhood of Railroad Trainmen v. Meredith, 146 Ark. 140.
Since the institution of the action appellee has remarried and appears now under her changed name. The facts in the case are fully recited in the former opinion. We decided, in substance, that there could only be a recovery upon proof of a lawful intermarriage of appellant with Arthur C. Meredith, but that there is a presumption in favor of the validity of any marriage which is shown to have been solemnized, and that the burden rested upon the insurer to prove that the marriage was invalid. Appellant attempted to do that, both in the first trial and the last one, by showing that Meredith had a former wife who was still living, and that there had been no divorce. Upon the remand of the cause it was tried again, and the issues were submitted to the jury upon instructions, some of which will be referred to later.
It is conceded that Meredith had a wife in the person of Nora C. Meredith, who is still living. Meredith and his wife, Nora, resided at Rector, Clay County, Arkansas, They were married in the year 1908, and according to the testimony of Nora C. Meredith, who was a witness in this case, she and Arthur 'C. Meredith lived together as husband and wife until the year 1912, and that she has continued to reside at Rector up to the present time. She testified that her husband moved to Jonesboro in the year 1912 and was engaged in railroad service, and moved from there to Amarillo,'Texas, in the year 1914. There is other proof tending to show the various places of residence of Arthur C. Meredith up to the time it is alleged he intermarried with the appellee. This proof was in addition to the testimony of Nora C. Meredith, mostly by the testimony of the records of railroad companies, in whose service Meredith was engaged, showing his headr quarters.
Appellee proved by her own testimony, and by the exhibition of a recorded marriage license that she was' married to Arthur C. Meredith in legal form at Amarillo, Texas, on November 19,1915. The license exhibited shows that it was issued by the clerk of the county court of Potter County, Texas, on November 19,1915, and there is a certificate attached thereto, purporting to be signed by an ordained minister, certifying that the ceremony was performed on the same day, and there is also a certificate of record purporting to have been signed by, the county clerk.
Appellant adduced testimony of the proper officers and custodians of records in all the places where there was proof tending to show that Meredith had lived up to the time of his alleged intermarriage with appellee, to prove that no decree of divorce had been granted to Meredith or to his former wife, Nora C. Meredith
Appellant contends that, though the burden was on it, according to our decision in the former appeal, to overcome the presumption of the legality of Meredith’s last marriage by showing that there had not been a divorce from his former wife, the fact that there had been no divorce granted was established by undisputed evidence, and that the court should have directed a verdict in favor of appellant.
We do not agree with counsel for appellant that the evidence can be treated as undisputed. The only proof adduced tending to establish the various places of resience of Meredith prior to his intermarriage with appellee was brought forward by the appellant, and appellant then showed by the proper custodians of records that there had been no decree of divorce rendered at any of those places of residence. But the burden being upon appellant to completely negative the fact that there had been a divorce before it can be said that the testimony is undisputed, it must have closed up every possible ave-, nue for the divorce having been' granted at some place other than that covered by the testimony adduced in the case.
The testimony undoubtedly warranted a finding that Meredith had only lived at the places covered by the proof which appellant introduced, but this proof was not undisputed and conclusive of the fact that Meredith had only lived at those places. For instance, the proof as to Meredith’s place of residence up to and including the year 1912 depended entirely upon the testimony of the former wife, who stated that she was interested in the litigation by reason of the fact that she herself was claiming to be the beneficiary under this policy, and her testimony covering that period of time cannot be treated as undisputed. The jury was not bound to accept it, as it came from a witness confessedly interested in the result of this litigation. Skillern v. Baker, 82 Ark. 86. The other testimony on this subject was mainly proof of the contents of the record of Meredith’s employment and period of service with the respective railroad companies showing his headquarters during such period. The jury was not bound to accept these records, conceding that they are admissible in evidence for that purpose, as conclusive evidence of the various places of residence of Meredith during those periods. It was a question for the jury to determine whether or not the evidence adduced by appellant was sufficient to overcome the presumption. The proof adduced by appellant on this subject was to be considered by the jury in connection with the presumption in favor of the validity of appellee’s marriage with Meredith, and it was within the province of the jury to determine the weight and sufficiency of the evidence. We cannot say that it was undisputed, and the court did not err in refusing to take the case from the consideration of the jury.
Appellee was permitted to prove by the testimony of witness Lindsey, introduced over appellaftt’s objection, that Meredith had stated to him, subsequent to his intermarriage with appellee, that he had been divorced from his former wife, Nora. Other similar declarations made by Meredith were admitted in evidence, over appellant’s objection. We are of the opinion that this testimony was incompetent and should not have been admitted. We decided on the former appeal that declarations and admissions of Meredith to the effect that he had not been divorced from his former wife, Nora, were not admissible against appellee as the beneficiary under the certificate. We are unable to conceive any rule upon which the declarations of Meredith would be competent evidence against appellant. The statements of Meredith were merely self-serving, and it necessarily follows that they were not admissible against the appellant as tending to show that there had been a divorce. The damaging effect of this inadmissible testimony is obvious, because if the jury were permitted to consider it at all, they doubtless gave it considerable weight. The erroj* in admitting this evidence calls for a reversal of the judgment.
The court, over appellant’s objection, gave the following instruction:
“1. If you find from the evidence that a marriage contract was, in form of law, solemnized, ceremonial in form, between the plaintiff and Arthur C. Meredith, either in that name or in the name of Charles A. Mere-, di'th, by an ordained minister, and that they thereafter lived together as husband and wife until said Arthur C. Meredith’s death, the law presumes that said marriage was valid, and this presumption being one of the strongest known to the law, can only be overcome by strong, distinct, satisfactory and conclusive evidence to the contrary. In other words, in this case, the defendant having attacked the legality of the marriage between plaintiff and said Meredith, the burden is upon the defendant to convince you that Arthur C. Meredith had not been divorced from his first wife, and, as before stated, the law requires a high degree of proof to establish this fact. If you find from all the evidence in this case that the defendant has failed to do this, to your satisfaction, then your verdict should be for the plaintiff. ” * * *
The objection to this instruction was general, and it is unnecessary to determine on this appeal whether or not that form of objection was sufficient to properly call in question the defects and errors in the instruction, but in view of another trial of the case we call attention to it for the benefit of the trial judge.,
The instruction is erroneous in that it places upon appellant the burden of too high a degree of proof in order to overcome the presumption of the validity of appellee’s intermarriage with Meredith. The instruct tion, in effect, constitutes one upon the weight of the evidence. The presumption of the validity of appellee’s marriage is a rebuttable one and may be overcome by a preponderance of the testimony, and the question of the weight and sufficiency of the evidence is, as in all other trials of issues at law, one for the jury.
■ On account of the error indicated above, the judgment is reversed and the cause remanded for a new trial. | [
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Wood, J.
The appellee instituted this action against the appellant to recover damages.for an alleged unlawful eviction and for maltreatment. Appellee alleged that on the 28th day of May, 1921, he was a passenger on appellant’s road from its station at Ashdown, Arkansas, to Orton, Arkansas; that while on the train as such passenger the auditor cursed, 'abused, and maltreated him, and used in his presence violent, profane and insulting language, and forcibly evicted him from the train at Bed Bluff station, three miles west of his destination; that said eviction and abusive and insulting language was unlawfully and wilfully done; that he suffered shame and humiliation from the cursing, which occurred'in the presence of other passengers on the train and in the presence of his young son, who was with him at the time, all to his damage in sum of $500, for which he asked judgment.
■ In its answer, the appellant denied specifically the allegations of the complaint. The testimony on behalf of the appellee was substantially as follows: He was a passenger on appellant’s train between Ashdown and Orton, Arkansas, on May 28,1921. He got on the train with his little boy, and gave the auditor his ticket. He had a sack of flour with him, and after he gave his ticket to the auditor the auditor asked him what he was going to do with the sack of flour, and why he didn’t give it to the baggage man. Appellee then detailed the conversation as follows: “He told me, ‘By God, the Frisco wasn’t running a charity train; there had been too much of that done on the Frisco line, parents running their- children through and not paying’ anything-; they all claim they are under five years old; you might have told the truth about the kid being six years old’ — I mean seven years old. I says, ‘I ought to know the kid’s age.’ He says, ‘That don’t make any difference. By God, you have got to pay for him!’ and I gave him a dime. He says, ‘I am going to put you off; that ain’t enough to pay the kid’s fare to Orton or Red Bluff, or not even to Long. ’ ' I says, ‘This is all I have got’; and John Machen and Ben Wright was sitting across the aisle from me. I asked John did he have any money that'I could pay my kid’s fare as far as Red Bluff anyhow. He said no, he didn’t have nothing only train fare himself, and Ben Wright told me he had a dime he -would loan me, and when he loaned me the dime the auditor came back and says, ‘By God, have you dug that money up yet?’ I says I have got part of it. What do I have to pay for the kid’s fare to Orton?’ He says 24 cents. He says, ‘What have you got?’ I says ‘Another dime.’ I handed it to him, and he says ‘I will let you and the kid go on to Red Bluff, and if you can’t dig up the rest of the fare you will sure as hell get off at Red Bluff.’ And about the time we got to Red Bluff the brakie hollered ‘Red Bluff,’ and he came to the door too and started in and asked me-so he came to the door — I was in the smoker — came to the door and told me he was going to put,the kid off. I says, ‘If you put the kid off I am going to get off with him; if you put the kid óff I will have to get off too'.’ I told him to give me part of my money back, ‘I ought'to have a little coming if you ain’t going to carry me on to Orton.-’ He' says,- ‘Give you hell if you look like you wanted it.’ He says, ‘You can ride on to Red Bluff or get off. ’ John Machen took hold the kid and says, ‘ Come on, son, yonr papa is liable to have a fight with the auditor. ’ I had some stuff in a sack and a sack of flour, and I picked up my stuff and got off, and I had to walk then in home about three miles ’. ’ ’
The appellee further testified that the language used to him by the auditor was humiliating; that he was crippled in one of his legs; was in poor health; had been sick, and came very near getting too hot walking from Bed Bluff to his home at Orton, a distance of about three miles. Besides the sack of flour, he had lard and a bucket of molasses in a sack, and also a pair of overalls.
A witness on behalf of the appellant testified that he was the auditor on the train on the occasion testified to by the appellee. Witness remembered that the man got on the train at Ashdown, and had a ticket for himself. He didn’t have any ticket for his child. Witness told the man to borrow the money from some of his friends on the train. Some one loaned the man some money. Witness didn’t remember how much. He collected the fare and cut the passenger a cash fare receipt and let them ride to their destination. He didn’t tell the appellee that he would have to get off at Bed Bluff, and did not curse him or use any profane and abusive language toward him. ,On cross-examination he stated that he didn’t remember whether he told appellee that he would have to get off. Witness presumed that if he collected the man’s fare and the child’s fare they would .get off at their destination. He denied telling the appellee that he would give him hell if he wanted his money back, and stated that he didn’t talk in a loud tone of voice* He didn’t remember taking up Smith’s ticket from Ashdown to Orton, and didn’t remember appellee having a sack of flour with him — couldn’t say whether he gave a cash fare slip to Smith or any one else.
Testimony of other witnesses who were on the train at the time corroborated the testimony of the auditor to the effect that he did not curse the appellee or use any profane or .abusive language in his presence.
The appellee testified, in rebuttal, that the auditor gave him a cash fare slip for his boy from Ashdown to Bed Bluff, and the auditor also gave him back two eents.
The court instructed the jury, at the request of the appellee, as follows: “No.4. You are instructed that, if you find that P. A. Smith purchased a ticket from the defendant, and boarded its train at Ashdown, Arkansas, and gave said ticket to the defendant’s auditor for transportation from Ashdown to Orton, then the relation of carrier and passenger existed, and it was the duty of the defendant to transport the plaintiff to Orton on its train; and if you further find from a preponderance of the evidence that the defendant’s auditor ejected the plaintiff from its train at Bed Bluff, and used insulting language toward him, then you should find for the plaintiff in damages such sum as will reasonably 'Compensate him for such ejection, inconvenience, insults and humiliation as he suffered therefrom, if any you may find, not to exceed the amount sued for.”
At the request of the appellant the court instructed the jury as follows: “No. 1. The court instructs you that, if you find from the evidence that defendant’s servant did not curse and abuse plaintiff, and the plaintiff voluntarily left the train at Bed Bluff, then the defendant would not be liable to the plaintiff, and you will return a verdict in its favor.”
The appellant objected generally to the instruction given at the request of the appellee, and also specifically as follows: “Because it authorizes the jury, in the event they should find for the plaintiff, to recover damages for mental anguish. * * * There is no physical ejection at all. If there is any ejection at all it is constructive purely. * * * Mental anguish is not recoverable for merely constructive ejection.”
The appellant, in its motion for a new trial, assigned as error the giving of appellee’s instruction No. 1, and also the general assignments that the verdict was against the evidence and against both the law and the evidence.
1. The appellee alleged that he was forcibly evicted from the train, and also that the eviction was unlawfully and wilfully done. Appellant denied that the auditor of its train forcibly evicted appellee, and denied that such alleged eviction was unlawfully and wilfully done. Thus the pleadings raised the issue as to whether or not the appellee was forcibly, unlawfully and wilfully evicted from the appellant’s train. In Hall v. Waters, 118 Ark. 427-432, we said: “Each and all of the material allegations of appellant’s complaint were specifically denied by the allegations of appellee’s answer. The denials were as specific as the allegations. This placed the burden upon the appellant to prove the allegations of his complaint. * * * So here the answer of the appellant challenged the allegations of the appellee’s complaint, and placed the burden upon the appellee to prove that there was an unlawful eviction. Such proof was essential to appellee’s cause of action for an eviction. The proof was directed to the issue as to whether or not there was an unlawful eviction, and the appellee’s instruction as well as the instruction for the appellant presented the issue as to whether or not the appellee was ejected from the appellant’s train, or whether he voluntarily left the same. ’ ’
The undisputed testimony shows that the appellee’s son was over five years of age; that the auditor demanded the fare for this child, the appellee did not pay the same, and the auditor informed the appellee that he would have to pay the fare for the child or he would put him off at Red BÍuff. When they reached Red Bluff the appellee still had not paid the fare of his son to Orton. Appellee had only paid twenty cents to Red Bluff, and the fare to Orton was twenty-four cents. At Red Bluff appellee and appellant’s auditor were in a controversy concerning the fare. Appellee wanted the auditor to pay him part' of the money back, which the auditor refused to do. John Machen, one of the passengers who was getting off at Bed Bluff, took hold of the appellee’s hoy and said, “Come on,” whereupon the appellee, according to his own testimony, picked up his stuff and got off the train. The auditor did not take hold of the appellee.
It thus appears from the undisputed testimony that the appellee got off the train at Bed Bluff because the auditor had refused to carry the appellee’s child to Orton, unless his fare was paid, which was not done. The question therefore is whether or not, under the above undisputed facts, the appellant had the right to require the appellee to leave its train because he had not paid his son’s fare from Bed Bluff to Orton.
Sec. 879 of C. & M. Digest authorizes railroads to charge one-half fare for children between the ages of five and twelve years, and sec. 881 authorizes the eviction of any person from railway trains who refuses to pay fare or toll, the eviction to take place at any usual stopping place the conductor may select. The father, having the custody and control of his minor child when he took same upon the train with him as a passenger,'was under the duty to pay his fare. Such was his duty as the natural guardian and protector of his child, and, upon his failure to do so, the appellant had the right to eject both father and child from its train. Philadelphia, etc., Ry. Co. v. Hoeflich, 62 Md. 300, and other cases cited in note, 10 C. J., sec. 1172, p. 733.
It follows from the undisputed evidence that no cause of áction in favor of the appellee against the appellant could be predicated upon an unlawful eviction, for there was none. The appellee contends that the question of whether or not he could recover if he refused to pay the fare of his minor son from Bed Bluff to Orton was not an issue in the court below and was not presented either to the court or jury. But we do not agree with the appellee in this contention. It was necessarily raised and was developed in the testimony on the issue as to whether or not there was an unlawful eviction of the appellee. It was incumbent on the appellee to prove that there was an -unlawful eviction, before he established his cause of action. One of the grounds of the motion for a new trial is that the evidence was insufficient to sustain the verdict.
The judgment is therefore reversed, and the cause is dismissed. | [
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Hart, J.,
(after stating the facts). In Wales-Riggs Plantations v. Pumphrey, 141 Ark. 565, and in numerous other decisions, this court has held that when an agent procures a person who is ready, able, and willing to purchase the property upon the terms under which the agent is authorized to negotiate the sale, and the owner refuses to convey, the agent is entitled to his commission. But the facts of this case do not bring it within the rule announced in the cases referred to.
In the instant case, after Feazor had died, the executor and devisees under his will offered to carry out the contract by conveying the property to Tiefel; but Tiefel, upon the advice of counsel, declined to complete his contract of purchase. So there was no default or failure upon the part of the owner to carry out the contract, and it cannot be said that the purchaser was prevented by any, act of the owner from acquiring the property. The purchaser himself declined to complete the contract upon the advice of his attorney. The contract between Feazor and Tiefel was a verbal one, and was not enforceable under the fourth section of our statute of frauds. Crawford & Moses’ Digest, § 4862.
The failure of Tiefel to carry out his verbal agreement for the purchase of the land prevented the contract from being completed. Hence Dallas does not make out a case for the recovery of commissions against the estate of T. B. Feazor, deceased, by showing that he secured a contract with a person ready, willing and able to perform the contract on his part.
The case was tried before the circuit court sitting as a jury, and the circuit court properly found the facts and declared the law to be in favor of appellee.
It follows that the judgment must be affirmed. | [
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Humphreys, .J.
Appellant was indicted in the Pope Circuit Court for murder in the first degree hy shooting and killing Hiram Golden with a shotgun, in said county, on the 8th day of December, 1921. He was tried upon said charge at the April term, 1922, of said court and found 'guilty of murder in the second degree. His punishment was fixed at imprisonment in the State Penitentiary for a period of ten years.
Prom the judgment of conviction this appeal has been duly prosecuted to this court. ■
The body of Hiram Golden was found by Richard Paucette on the’morning of the 9th of December, 1921, near the roadside, about a mile south of Atkins. It was lying partly in the branch, with the face downward. The shotgun wound was in the back of the head. .A 12-gauge shell “Peters Referee” was found by J. P. Spear in the road, twelve or fifteen feet from where the body was lying. Several days after the body was discovered, Dallas and Dual Reel and Eliott Howard reported that on their way to town they had observed a gun lying in the field near the scene of the tragedy. J. P. Spear went down there and found a twelve-gauge single-barrel shotgun, which had apparently been thrown over in Lafayette Younger’s field and was lying about fifty yards from where the body was found. The top side of the gun was rusty on account of exposure to the weather. On the examining trial of appellant it was admitted the gun belonged to him. Three other f<Peters Beferee” shells were found by the officers near the road, between the place where deceased was killed and Atkins. On the night deceased was killed, Oscar McLaren saw two men, between eight and eight-thirty o’clock, going toward Atkins, at the foot of the hill near the place where the Morrilton road turns off. The deceased had been in business with appellant and was indebted to him more than the sum of $1,000. In order to protect appellant, he carried a policy in his favor for $1,000. A short time before deceased was killed he made an application for a $10,000 policy in which appellant was the beneficiary. The State introduced testimony tending 'to show that appellant knew of this fact and inquired, over the ’phone, of the brother of the insurance agent, a few days before the murder, whether the policy had been received, who informed appellant that he thought it had, but would have the agent call him when he came in. The agent did not call appellant. The policy was never issued nor delivered, and was not effective until delivered.
Alta Curtis was the principal witness -for the State. He lived on appellant’s place near Atkins and looked after his stock. He was an accessory after the fact, and was therefore an accomplice, having admitted that he attempted to shield appellant by making false and misleading statements to the officers and others investigating the murder, and by swearing falsely in the examining trial. He testified in the examining trial, in substance, that Hiram G-olden borrowed appellant’s single-barrel shotgun and some shells, and left appellant’s home on the afternoon of December 8th; that witness, Holden, appellant, and himself had been drinking; that witness remained with appellant and spent the night in his home; that he and appellant occupied the same room; that appellant did not leave the house during the night. He testified-'-in the trial of this cause, in substance, to the effect that Hiram Golden came to the house of appellant during the afternoon of December 8, 1921, about two o’clock; that when he knocked at the door appellant asked him to come in; that Golden said he did not have time; that he came to tell him he thought the insurance papers had 'dome; that appellant went out on the porch and talked to him awhile; that afterwards Golden came in and the three of them began drinking; that Golden and appellant became intoxicated and went to bed; that later they got up and drank some more; that Golden remained until after supper, at the request of appellant, for the purpose of going down below town to get some more whiskey; that after supper the.three of them left together to get the whiskey; that appellant took his single-barrel shotgun and some “Peters Referee” shells with him; that they went about a mile south of town to the place where Golden was killed; that they stopped about fifty yards before they reached the place, and sat down to rest; that while sitting there Golden took the hiccoughs; that witness told him if he would get a drink of water it would stop it; that they went to the branch near the roadside to get a drink, and while Golden was stooping over to drink, appellant shot him; that witness turned and ran back toward town, and when he had gone about seventy-five yards, appellant overtook him; that appellant had disposed of his gun; that they walked up the road about three hundred yards toward town, at which point appellant took a handful of shells out of his pocket and pitched them over on the right-hand side of the road; that afterwards they walked on towards Atkins and met a man near the point where the Morrilton road turned off; that they returned to appellant’s house in Atkins and went to bed in the west room, occupying separate beds; that after they had retired, appellant got in bed with witness and asked him to say nothing about the killing and he would give him $500; that appellant rolled and tumbled all night, and remained in bed most of the time next day; that next morning some one ’phoned to the house that Golden had been killed; that witness remained at appellant’s home and in town until Saturday afternoon, when he returned to his own home; that he did not see appellant any moré during the next week; that appellant came to see him, and told him what to. swear at the examining trial.
The court submitted the issue of whether or not' Alta Curtis was an accomplice under the following instruction: “Our statute defines an accessory after the fact as follows: An accessory after the fact is a person who, after a full knowledge that a crime has been committed, conceals it from the magistrate, or harbors and protects the person charged with or found guilty of the crime. And the court charges you that an accessory after the fact is an accomplice within the provisions of the statute which provide that ‘a conviction cannot be had in any case of felony upon the testimony of an accomplice, unless corroborated by other evidence tending* to connect the defendant with the commission of the offense, and the corroboration is not sufficient if it merely shows that the offense was committed and the circumstances thereof.’ So, if you find from the evidence in this case that the witness, Alta Curtis, is an accomplice under the above instructions, then you could not find the defendant, Joe Cheek, guilty upon his testimony, unless you should find that the said Alta Curtis is corroborated by other evidence tending to connect Joe Cheek with the killing, and such corroboration is not sufficient if it merely shows that Hiram Golden was killed and the circumstances thereof. ’ ’
Appellant insists upon a reversal of the judgment because the court submitted that issue to the jury instead of instructing them that Alta Curtis was an accessory after the fact, according to his own admissions, and therefore an accomplice. Appellant requested two instructions, in substance, to the same effect as the instruction given by the court which is set out above. Both requests were refused because fully covered by the court’s instruction. Both requests, left it to the jury to say, from the evidence, whether Curtis was an accomplice. Appellant did not ask the court in either instruction, or in any other, to declare that Curtis was an accomplice under the undisputed facts in the case. Having asked the submission of this issue to the jury, appellant is not in a position to complain of the court’s action in submitting such issue upon his own motion.
Appellant’s next contention for reversal is that there was not sufficient testimony, independent of the testimony of the accomplice, to connect the defendant with the commission of the offense. Corroborating evidence to that of an accomplice is sufficient if independent and tending to connect the defendant with the commission of the crime. The law does not require it to be sufficiently strong within itself to support a conviction. In the instant case the record reflects that appellant’s shotgun Avas found near the scene of the tragedy. A shell of the size and make used by appellant for his gun was found in the road a short distance from where the body Avas found. Three other shells were found by the officers at the place Avhere the accomplice said appellant threw them. Oscar McLaren testified that he met two men going toA\rard Atkins at the place in the road where the accomplice said he and appellant met a man Avhen returning to town after appellant shot the deceased. As tending to establish a motive for the killing, the State introduced independent evidence tending to show that appellant was the beneficiary in the insurance policy carried by the deceased and in another for which deceased had applied. "We think the discovery of the gun and shells, the position of the body and the location of the wound, as well as the circumstance of meeting the two men in the road shortly after the killing, and the insurance transactions, were testimony independent of that of the accomplice, tending to connect appellant with the crime.
Appellant’s last contention for reversal is that the court erred in excluding, on its own motion, the testimony of appellant’s wife tending to establish an alibi for him. The testimony was clearly incompetent. A defendant cannot complain when incompetent evidence offered by him is excluded, even though the prosecuting attorney made no objection thereto.
No error appearing, the judgment is affirmed. | [
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McCulloch, C. J.
John Gunter and M. ~W. Pate, the appellants, owned a certain tract or lot of real estate in the city of Fort Smith, and they entered into a written contract with one of the appellees, Ludlam, for the sale of the property at the price of $1,000, of which $300 was to be paid in cash and the remainder in monthly installments. The contract was in duplicate, signed by each of the parties, but Ludlam only paid $200 of the cash consideration, and his copy of the contract was retained by appellants until the remaining' sum of $100 should be paid. Ludlam was placed in possession of the property, but failed to pay the said sum of $100 and defaulted in monthly installments. A clause in the contract provided for acceleration of the maturity of all installments in the event of default in payment of any installment. Ludlam erected a house on the lot and purchased material from the Bell Lumber Company, appellees, and other parties, who claim liens on the property for labor and material furnished in the construction of. the building. Ludlam borrowed the sum of $207.60 from appellant Gunter to use in paying for the foundation of the building.
This action was instituted by the two appellants, Pate .and Gunter, and they seek to foreclose their lien as vendor for the unpaid purchase price. Gunter also claims a mechanics’ lien by way of subrogation to the rights of the person who built the foundation of the house, and who,- it is alleged, was entitled to a lien. The suit was against Ludlam and his .wife, and also against the Bell Lumber Company and other parties asserting liens against the property.
On the hearing of the cause before the chancellor, there was a decree against Ludlam, in favor of the appellants, for the amounts claimed by them, respectively, and also a decree in favor of each of the parties asserting liens for labor and material furnished in the construction of the building, and the property was ordered sold to discharge the liens of the parties, but the court declared the liens of the appellee claimants superior to the liens of appellants, and an appeal has been duly prosecuted to this court.
The court was clearly in error in its decree subordinating the lien of -appellants to the lien of those who furnished labor and material for the construction of the building. Appellants, having placed Ludlam in possession under a contract of sale,- were in the attitude of vendors who had conveyed property and had accepted a mortgage back as security -for the debt.
The statute (Crawford & Moses’ Dig., sec. 6911) gives priority to liens for labor or material only against other incumbrances 'Created, after the commencement of the improvement, and in effect subordinates the lien to prior incumbrances by way of mortgage or otherwise.
The statute gives mechanics 'and furnishers of material liens on a building erected on land (Crawford & Moses’ Digest, sec. 6909), and provides that such liens may be enforced by sale and removal of the building, but appellees are not asserting a lien merely on the building, and the decree of the court did not so confine it. A superior lien of appellees was decreed against the land itself.
There is no element of estoppel in the present case which would bar appellants from asserting the superiority of their lien. Mere knowledge on their part that labor and material were furnished for the construction of the building, or even their consent thereto, in the absence of some affirmative act which indicated a willingness to subordinate their claim to that of the subsequent lienors was not sufficient to operate as an estoppel.
Ludlam was in possession of the property as a mortgagor and had an alienable interest upon which he could create a lien, therefore his construction of the building and the creation of a lien for labor and material was referable to his own interest in the property, and acquiescence on the part of appellants as mortgagees did not constitute such an affirmative act as would operate as an estoppel to the claim of a superior lien.
We are unable to discover' any grounds upon which appellant Gunter can assert a lien on the property for the amount loaned to Ludlam. He merely made a loan of money to Ludlam, and that did not constitute a lien nor operate as a subrogation on his part to the rights of the lienors whose claim was paid by the use of the funds borrowed.
The decree is therefore affirmed as to the separate claim of appellant Gfunter, but it is reversed as to the vendor’s lien of appellants, with directions to enter a decree declaring their lien superior to all others. | [
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Wood, J.
This is an appeal from a judgment of conviction on an indictment which charged that appellant “did unlawfully and feloniously sell and give away, and was unlawfully and feloniously interested in the selling and giving away of ardent, vinous, malt, fermented, spirituous, intoxicating, alcoholic and medicated liquors.”
The appellant contends that the court erred in failing to excuse two of the regular panel of the petit jury for cause. Appellant excused these jurors by peremptory challenge, and the record does not show that he exhausted his challenges. Therefore, it does not appear that the appellant was compelled to accept these jurors and that an objectionable juror was thrust upon him. In this state of the record the appellant cannot avail himself of the alleged error of the court in overruling the challenge of the jurors for cause. Benton v. State, 30 Ark. 328; Wright v. State, 35 Ark. 639; Holt v. State, 91 Ark. 576; Lewis v. State, ante, p. 205.
2. W. A. Garner testified that-he was a Federal prohibition agent having his office at Little Rock, Arkansas. It 'was his duty to make investigation of the amount of alcoholic liquors handled by druggists as well as individuals throughout the State of Arkansas. Over the objection of appellant the witness was permitted to testify that from January 5 to August 10,1921, a period that was ,covered by the indictment, the appellant had received about fifty-two gallons of alcohol. In explanation of the' amount of alcohol received by appellant during this period, he stated that his permit allowed him to receive this amount, and he thought he was within Ms rights in withdrawing it. Witness further- testified, over the objection of appellant, that the amount of alcohol during this period which was mentioned as withdrawn by the appellant. under his permit “is considerably in excess of the quantity used by a majority — say 85 per cent, .of the drugstores of this State of the same kind and character of towns the size of this.” The witness, over the objection of the appellant, was permitted to testify with reference to the regulations of the United States Government concerning the use by druggists of alcohol, showing that druggists were required to keep a daily record showing how the alcohol purchased was used, and to render reports on a certain form on or before the fifth of each month of all alcohol received and how disposed of by them during the preceding month. The witness stated that he was from time to time reporting the failure of druggists to comply with that regulation, and as a result of witness ’ report to the department the regulation of June 15, 1922, to which the wdtness referred, had been written by the prohibition' director. There was no record in the Model Drugstore, of which the appellant was the proprietor, showing the disposition of the alcohol, except appellant had the reports for probably two or three months, which stated as follows: “I used four gallons or ten gallons during this period.” Appellant did not state for what purpose it was used. At the conclusion of the witness’ testimony, the appellant moved the court to instruct the jury not to consider any of the statement with reference to what the Federal regulations required.
The court overruled the motion to exclude, with the following statement to the jury: “The only purpose of this is a circumstance showing whether or not the alcohol was used legitimately or improperly; that is the only purpose, and that is just simply a circumstance to guide you in the matter.” There was no error in the rulings of the court. The appellant himself admitted in his testimony that the quantity of alcohol which he had received under the regulations of the United States Government was the same as that testified to by Garner. Therefore, appellant was not prejudiced by the testimony of Garner as to the quantitv of alcohol appellant had handled during a certain period. Moreover, the indictment against the appellant included a charge of unlawfully and feloniously selling and, giving away alcoholic liquors. It was therefore competent and relevant for the State to prove what quantities of alcohol had been received by appellant and what disposition he had made of the same. Hanlon v. State, 51 Ark. 186; Gage v. State, 125 Ark. 256.
The duties of Garner as Federal prohibition agent required him to visit the drugstores throughout the State and make report of the amount of alcohol that was being used by druggists under the government regulation. He therefore had first-hand knowledge of the towns of the size in which appellant was doing business and what quantity of alcohol usually was handled under the government regulations by druggists engaged in the same kind of business and of equal size of that appellant was engaged in. The testimony of Garner therefore to the effect that the appellant used a quantity of alcohol greatly in excess of the quantity used by other druggists similarly situated was competent as a circumstance, in connection with the other circumstances, to be considered by the jury in determining whether or not the appellant was making lawful or unlawful use of the alcohol received by him. See Joyce on Intoxicating Liquors, §§ 66&-671.
One J. R. Pierce, the sheriff of Little River County, was permitted, over the objection of appellant, to testify that he had arrested people who were drunk and who had in their possession bottles of Lyko, Beef, Iron and Wine, Jamaica ginger, etc. He took these bottles of medicated liquors off the individuals and destroyed them. Three or four times he got a lot of them back of appellant’s store. He had discussed the matter of the sale of these liquors with the appellant two or three times. Appellant did not deny selling them, but he didn’t admit that they were medicated liquors.
The appellant offered to show that other1 stores in the town sold these liquors, but the court refused to allow such testimony. There was no error in this ruling of the court. The appellant himself testified that he sold Lyko, Beef, Iron and Wine, but he stated that these tinctures were commonly sold in drugstores; that he sold them as medicines. He stated that Beef, Iron and Wine contained 19 per cent, of alcohol, and tincture of Jamaica ginger contained about 95 per cent. He had not at any time handled or sold any drug that was contraband under government regulations. There was other testimony introduced on behalf of the appellant tending to show that Lyko, Beef, Iron and Wine were tonics, but were not intoxicating. Since the appellant admitted, and the undisputed testimony shows, that the appellant sold Beef, ■ Iron and Wine, and-Lyko, it was wholly immaterial whether other persons in the same town also sold the same liquors or not. Appellant did not deny the sale, but only denied that they were medicated liquors within the inhibition of the statute. The testimony tending to prove that Lyko, Beef, Iron and Wine, and Jamaica ginger were intoxicating, that persons were found in an intoxicated condition.with bottles containing these liquors upon their persons, was relevant to the issue as to whether or not the appellant sold the medicated liguors prohibited by law, as charged in the indictment.
B. D. Huskins, a witness, over the objection of appellant, testified that he was a druggist at DeQueen and had a permit to use alcohol in his drug business in the year 1921, but he didn’t use any alcohol in his business. The testimony thus elicited on direct examination by the State was wholly irrelevant and immaterial, and, if the examination had ended there, might have been prejudicial, as the jury might have inferred that if it was not necessary for another druggist of the same character of appellant to use alcohol in his business, neither was it necessary for the appellant to do so. But, after the examination for the State had closed, the appellant on cross-examination caused the witness to testify that he, witness, did not make his own tinctures in 1921, and that in compounding tinctures it was necessary to use alcohol as a preservative. The appellant here made the witness his own and proved by him that alcohol was used in com pounding a large number of tinctures; that the reason the witness did not use alcohol during the year 1921 was because, instead of making his own tinctures, he bought the drugs already compounded with alcohol in them. The irrelevant testimony of this witness elicited by the State was thus nullified and its prejudicial effect removed by the explanation of the witness ('brought out by appellant) to the effect that, if he had made his own drugs, it would have been necessary to use alcohol in compounding them.
The State again examined the witness as her own, and, over the objection of appellant, proved by him that he did compound his own tinctures in the year 1919-1920, and that he used that year four and seven-eighths gallons of alcohol. The witness thought it was a little cheaper for a druggist to compound his own tinctures than to purchase them from pharmaceutical houses. The witness stated, over the objection of appellant, that the percentage of alcohol in Jamaica ginger was pretty large. The appellant was not permitted to prove by this witness that alcohol was a necessary preservative in Lyko, Beef, Iron and Wine, Prickly Ash Bitters, Sarsaparilla, and patent medicines of that character. The court ruled that it was wholly immaterial whether alcohol was necessary to preserve them or not; that the only issue was as to whether they were such medicated liquors as were used as beverages. The appellant did not offer to prove and did not prove that the Lyiro, etc., -contained only such a percentag*e of alcohol as was necessary to compound and preserve them as medicines, and no more.
Bo-b Rowe, a witness for the State, testified that he bought a bottle of Lyko from the appellant last fall (1921). He did not drink it for intoxication. The appellant, on cross-examination, asked the witness “for what purpose he bought it?” The court sustained the objection to the question, stating “What purpose he used it for is the rule of law.” The -appellant was further permitted to show by the witness that he took the Lyko for constipation; that he bought it and used it for that purpose, and did not use it as a beverage.
The State was permitted, over the objection of appellant, to show that on certain occasions, within the time covered by the indictment, a man by the name of McFadden was arrested on the street for being drunk, and that two ¡bottles of Lyko were found on his person. McFadden testified that he purchased the Lyko from the appellant, and had not purchased it from any other place than the Model Drugstore. The State was also permitted to show that on another occasion the officers arrested one Charlie Jordan, in a drunken condition, in an alley back of the appellant’s store, and he had upon his person at the time a bottle of Lyko-, and also arrested another party who was drunk and had an empty bottle, which had contained Lyko, on his person. A witness for the State was permitted to exhibit to the jury a bottle of Lyko, the court announcing at the time that it was done for the purpose of showing the label and the liquid itself. The appellant offered to prove that this particular bottle of Lyko came from Phillips’ drugstore. The court ruled that it was immaterial where the bottle came from.
J. ~W. Ringgold, a witness for the State, was permitted to testify, over the objection of appellant, that he had been -a practicing physician for 29 years; that he knew the ordinary per cent, of alcohol in Jamaica ginger; that it contained 94 per cent, of alcohol, and that it could be used as a beverage.
There was no error in the rulings of the court in the admission of any of the above testimony. As we have seen, it was competent to prove by one who did a drug business about equal to that of the appellant that in the compounding of tinctures and the preservation of .drugs it was unnecessary to use the large quantities of alcohol shown to be used 'by the appellant between January 5 and August 10,1921. The testimony of R. D. Huskins tended to prove that fact, and it was relevant. As we have also shown, appellant did not deny that he sold Lykó. His sole defense was that it was not an alcoholic or medicated liquor within the meaning of the statute, and that it was sold hy him as a medicine. Testimony therefore tending to prove that Lyko, Jamaica ginger, and the other liquors sold hy the appellant contained alcohol, that they were intoxicating, were sold hy appellant, and used by the purchasers thereof as beverages, was relevant to the charge in the indictment.
3. The court instructed the jury, over the objection of the appellant, in effect that if they believed beyond a reasonable doubt that the appellant sold, or was interested in the sale of, alcoholic or medicated liquors as alleged in the indictment, they should convict him; that if the sale was made by the Model Drugstore, in which the appellant was interested, this would be sufficient. The court further instructed the jury that, under the law, any person who sells medicine containing alcoholic properties does so at his peril, and that if the jury believed beyond a reasonable doubt that the appellant sold medicated and intoxicating liquors that were used or intended to be used for beverage purposes, they should convict him. The court further told the jury that if the appellant sold medicated liquors it was no defense that same were sold in good faith as medicine; that if medicated and alcoholic liquors were sold and same were used as intoxicating beverages, the appellant would be guilty.
The appellant requested the court to instruct-the jury in substance that it was not unlawful to use alcohol for medicinal purposes or to sell the same when it was compounded with medicine for medical uses and purposes; and further, that it was lawful to use alcohol as a necessary preservative of certain drugs, tinctures, bitters and medicated liquors, and that, although the jury might find that the medicated liquors, tinctures and bitters sold by the appellant contained alcohol as a preservative thereof, the burden was on the State to prove beyond a reasonable doubt that the same was intoxicating and sold as a beverage.
Sec. 2 of act 30, approved February 6, 1915, sec. 6160, C. & M. Digest, provides as follows: “It shall be unlawful for any person, firm or corporation to manufacture, sell or give away, or be interested directly or indirectly in the manufacture, sale or giving away of any alcoholic, vinous, malt, spirituous, or fermented liquor, or any compound or preparation thereof, commonly called tonics, 'bitters, or medicated liquors, within the State of Arkansas.”
•Sec. 17 of act 87 of the Acts of 1919, sec. 6181, C. & M. Digestj provides in part as follows: “Nothing in this act shall make it unlawful * * * for any registered pharmacist or physician to have shipped and delivered to him such necessary quantities of alcohol as may be required in his business or practice.” These statutes are in pari materia and must be construed together to effectuate the purpose of the Legislature in enacting them.
Before the above laws were passed the inhibition was against selling liquors of the character mentioned “which are used and drunk as a beverage.” See sec. 5093, Kirby’s Digest. The present law contains no such exception. Therefore, it is a violation of the law now for any one to sell or be interested in the sale of the liquors mentioned in sec. 6160, iC. & M. Digest, supra, whether they are used, or intended by the seller or purchaser to be used, for beverage purposes or not. The statute is leveled against the selling or being interested in the sale of alcoholic, vinous, malt, spirituous, or fermented liquors, or any compound or preparation of these, commonly called tonics, bitters, or medicated liquors. While the lawmakers did not intend to prohibit the sale of drugs which contain only such a percentage of alcohol as is necessary to compound and preserve them as medicines, yet they did intend to prohibit the sale of the liquors named in the statute, or a compound or preparation thereof, under the guise of medicine, and as a subterfuge to cover the sale of the prohibited .liquors and medicated liquors mentioned therein. The exception- con tained in the statute shows that it was the intention of the lawmakers to allow pharmacists such necessary quantities of alcohol as may be required in their business, that is, in the art and science of compounding and preparing medicine. Druggists and pharmacists are prohibited from making or selling, or giving away, or being interested in the sale or giving away of bitters, or medicated liquors, where alcohol, or any one of the other liquors mentioned, is the dominating ingredient, or where the alcohol is used not merely for preserving the tincture or compound as medicine, but in such a way that it is fit to be used as a beverage. If drugs, containing only the necessary quantity of alcohol to compound and preserve them as medicines, are sold, then such sale is not ■unlawful because some one of abnormal appetite, depraved habits, or perverted taste, buys such medicine far use as a beverage.
As was said in Gostorf v. State, 39 Ark. 458, “tonics, bitters, and medicated liquors are within the operation of the prohibitory clause of the act, irrespective of the fact that they may be useful as medicine and not so desirable as beverages as if the medicinal properties were omitted. ’ ’
It will be observed that the instructions of the court were more favorable to the appellant than he was entitled to, because the court required the jury to find beyond a reasonable doubt that the appellant did sell medicated and alcoholic liquors, or medicated and intoxicating liquors that were used or intended to be used for beverage purposes. As we have seen, it is a violation of"the law to sell alcohol and the other liquors named, or any compound or preparation thereof, commonly called tonics, bitters, or medicated liquors, whether they are used or intended to be used for beverage purposes or not. If such liquors are manufactured, sold, or given away, containing an alcoholic or intoxicating ingredient fit to be used as a beverage, then such manufacture, sale, Or giving away is within the inhibition of the statute, whether such liquors are ever actually used, or intended to he used, as a beverage or not.
In one of its instructions the court told the jury “that the burden is on the State to prove to your satisfaction, beyond a reasonable doubt, that the Lyko, Beef, Iron and Wine or Jamaica ginger, which were sold, was an alcoholic, vinous, malt, spirituous, fermented, medicated, or intoxicating liquor.” There was testimony tending to prove that the appellant sold Jamaica ginger which contained ninety-four per cent, of alcohol and that he sold Lyko and other liquors which contained from twenty to fifty per cent, of alcohol, and that these liquors had an intoxicating effect upon those who drank them. The instruction correctly declared the law applicable to the facts. See Stelle v. State, 77 Ark. 441; Dollar v. State, 153 Ark. 14.
We find it unnecessary to comment upon the rulings of the court in the granting and refusing of each of the separate prayers for instructions. The instructions as a whole contained no error of which the appellant can complain. The record presents no reversible error in the rulings of the trial court. The judgment is therefore affirmed. | [
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Hast, J.
Charley Burns was indicted for the crime of murder in the first degree, charged to have been committed by killing Elijah Roberts by shooting him at his home in Newton County, Ark.
The defendant was tried before a jury, which fixed his punishment at imprisonment for life in the penitentiary, and he has duly prosecuted an appeal to this court.
The first assignment of error is that the evidence is not legally sufficient to support the verdict.
It appears from the record that Elijah Roberts was filled at his home in Newton County, Ark., on the night of September 10, 1921. According to the testimony of the wife of the deceased, she and her husband had gone to bed and were asleep. They were awakened by the barking of their dog. The husband thought that his mare was in the fodder at the bam, and told his wife that he would go out there and tie the mare up. He took his bridle and lantern and went tow;ards the barn. In a few minutes Mrs. Roberts heard her husband scream. She ran to the door and met her husband coming to the house. He said that he had been shot and killed. He asked her to go and get Alex Lewis and his wife, who lived about a quarter of a mile away. He said that he was going to die, and asked his wife to pray for him. She made a short prayer for him and then went for Mr. and Mts. Lewis. They immediately dressed and returned home with her. After they got back home she asked her husband, could it have been Roscoe Dixon that shot him? Her husband replied: “No.” The deceased had already stated a number of times that Charley Burns had done the killing. The deceased died the next morning after he was shot, at about seven o’clock. He realized that he was going to die, and stated to every one. who came in that he was going to die, and that Charley Burns had shot him.
Some one shot the deceased about the waist line on his right side, and this caused his death.
George Roberts, the father of the deceased, was notified of the shooting, and went to the home of his son. His son took him by the hand and said, “Pa, they have killed your boy.” The deceased was about twenty-five years old. The witness said, “Son, do you know who done it?” The deceased replied, “Yes, Charley Burns killed me. I heard the racket of my fodder rattling, and my dog kept barking, and I got up and lighted my lantern and went out there. ""When I got to the feed trough, and just as I stepped over it, I heard some one say, ‘Now,’ and then a gun fired and Charley Burns said, “God damn him, I got him’.” Again the witness said, “Son, couldn’t you be mistaken?” The deceased replied, “No; Pa, I know who killed me.’ ’ The deceased said that his “dying testimony” was that he knew that Charley Burns had killed him.
Other neighbors were witnesses in the case and testified that they went to the deceased’s house after he had been shot. The deceased told them that he was going to die, and that Charley Burns had killed him.
According to the testimony of Mrs. Sarah Simpkins,'' on the Sunday before Elijah Roberts was killed she saw Charley Burns and Leonard Cranford riding mules down the road. She saw that they Were drunk, and stepped out behind some bushes to permit them to pass. They were talking pretty loud, and Charley Burns said, ‘ ‘ God damn him, we’ll get him some night; we’ll fix him so he won’t be no witness against us.” She did not know to whom they had reference.
Another witness testified that on the Sunday preceding the killing of Elijah Roberts on Saturday night, she was at Hawley’s store, and that Charley Burns and Leonard Cranford came into the store and bought four cartridges. It was nearly dark at the time.
It also appears from the record that Elijah Roberts was a school director, and that the Cranfords had trouble with a young lady whom the directors had employed to teach school. The trouble between the teachei and the Cranfords resulted in breaking up the school. The deceased took the,part of the teacher. A short time before the killing the lady teacher and tne mother of the deceased had a difficulty with the Cranford girls at the schoolhouse. The defendant and some of the Cranford boys actively took the part of their sisters. The defendant encouraged them to carry on the difficulty. The father of the Cranford boys on several occasions stated that the Roberts were causing his family trouble, and threatened them in various ways.
Another witness testified that Leonard Cranford and Charley ‘Bums came to the home of one of the directors, where she was staying, after the school had been broken up, and wanted to know if school would begin the next Monday. Leonard Cranford said that he was not going to have anything to do with any of the teachers. Charley Burns did not say much of anything. The defendant was working for the Cranfords and staying at their home at the time the killing occurred.' Some time prior to this, however, he had lived at the home of the deceased and had worked for him. The above is the substance of the testimony introduced by the State.
The defendant was a witness for himself, and denied that he shot the deceased. He' stated that he was on good terms with the deceased and had no animosity toward him at all. He admitted that he was working for the Cranfords, but stated that he did not participate in any ill feeling that they might have towards the deceased.
His testimony was corroborated by that of the Cranfords, and several witnesses testified that the defendant was out hunting the night the deceased was shot, and was several miles away from the scene of the killing.
The main reliance of the State for a conviction was the dying declarations of the deceased. On this point t’he law is that the admissibility of such declarations is for the court to determine, and the weight and credit to be given them is for the jury. Freels v. State, 130 Ark. 189.
In determining whether the dying declarations were made under a sense of certain and impending death the court may consider all the facts and surrounding circumstances, such as the character of the wound itself, the declarations of the deceased himself that he could not live, and the fact that he died shortly afterward. Stewart v. State, 148 Ark. 540.
The undisputed evidence, shows that the deceased received a gunshot wound about ten or eleven o’clock in the night, and died as the result thereof the next morning at seven o ’clock. He realized that he was going to die, and so stated to a number of his neighbors who were called in after he was shot. Therefore the .evidence met all the requirements of the law with regard to the admissibility of dying declarations.
The circumstances under which the death occurred show that whoever killed the deceased was guilty of murder in the first degree. According to the evidence, the deceased heard a noise at his barn, and thought that his mare had got into the fodder. He went out there to see about it, taking with him a bridle and a lantern. A gun was heard fired, and the deceased came into his house, stating that he had been shot while at the barn. The deceased did not take his gun with him, so that it is certain that he was shot by some one else, and, as about stated, the attending circumstances show that the killing was done after deliberation and premeditation.
It is earnestly insisted that the deceased did not see who shot him, and that the defendant should not be convicted on the statement of the deceased to the effect that he recognized the defendant as the person who shot him, from hearing his voice. According to the dying declarations of the deceased, when he approached the bam some one cried, “Now!” and then a gun was fired and the deceased was struck ¡by the bullet from it. After the gun was fired some one said, “God damn him, I got him.” The deceased recognized the defendant as the person who shot him after hearing him, speak these words. The deceased had been well acquainted with the defendant, and it was possible for him to recognize him by his sense of hearing as well as by his sense of sight. A person may be recognized by his voice as well as by his appearance. Other evidence was introduced tending to corroborate the dying declarations of the deceased.
It appears that the deceased was a school director' and had taken the part of a lady school-teacher in a quarrel with the Cranfords, whose children were pupils at the school. This resulted in bitter feeling between the two families. While the defendant had formerly worked with the deceased and they had been good friends, at the time of the killing he was living with the Cranfords and working for them. He took sides with the Cranfords in their quarrel with the Roberts family. On the Sunday preceding the killing on Saturday night, a neighbor saw the defendant and one of the Cranford boys riding along the road, talking pretty lond. They appeared to be drunk, and the defendant said, “Cod damn him, we’ll get him some night; we’ll fix him so he won’t be no witness against us.” While the defendant did not state in this connection to whom he had reference, the jury might have inferred that he was talking about the deceased. Later on the same day the defendant and Cranford purchased some shells.
Therefore, the dying declarations of the deceased, together with the surrounding circumstances as detailed above, were sufficient to warrant the jury in finding the defendant guilty of murder in the first degree.
It is next insisted, that the court erred in admitting certain testimony relative to the quarrel between the mother of the deceased and the lady school-teacher on the one side, and the Cranford children on the other, which occurred a few days before the killing. The record shows that the defendant was present when this difficulty occurred and took sides with the Cranfords, and we do not think there was any error in admitting the testimony.
It is more earnestly insisted that the court erred in admitting testimony relative to another quarrel between the teacher and the Cranford, children at which the defendant was not present. We think this evidence was admissible upon the theory that the defendant and the Cranfords had conspired to kill the deceased. The proof of such conspiracy is a preliminary question to be passed upon by the court, and where the evidence offered is sufficient to make a prima facie showing of the existence of such conspiracy, then evidence of all the acts and declarations of each conspirator are admissible against his co-conspirator. Cantrell v. State, 117 Ark. 233. The evidence shows that bitter feeling had arisen between the Roberts family and the Cranfords on account of a quarrel between a lady school-teacher and the Cranford children. The deceased was one of the- school directors, and took the side of the lady teacher. The defendant at the time lived with the Cranfords, and took their side of the quarrel. The quarrel became so bitter that each side endeavored to have the other arrested, and the head of the Cranford family went so far as to state that he Would no longer try to keep peace between the two families, but would like to see some of the Roberts family killed. All these circumstances show the existence of a conspiracy and renders admissible the testimony alluded to. The testimony tended to establish a motive for the killing, and was admissible as acts and declarations leading up to the killing as a result of the conspiracy.
The next assignment of error is that the court could not lawfully proceed to judgment and sentence upon the verdict. The form of the verdict is as follows: “We, the jury, find the defendant guilty and place his punishment for life in the State Penitentiary.”
Reliance is placed by counsel upon the case of Banks v. State, 143 Ark. 154. There the defendant was indicted for murder in the first degree, and the jury returned a verdict of ‘ ‘ Guilty as charged in the indictment, ’ ’ without anything more. Following its previous decision, the court held that the verdict was fatally defective.' The reason given was that the statute expressly requires the jury to ascertain the degree in all cases of murder, and that its terms are imperative. The section of the statute referred to is 3205 of Crawford & Moses’ Digest. Sec. 3206 provides that the jury shall have the right in all oases where the punishment is now death by law to render a verdict of life imprisonment in the State Penitentiary at hard labor. This act gives the jury the right to fix the punishment of a defendant found to be guilty of murder in the first degree at life imprisonment instead of death. Before the passage of the act there was but one penalty for murder in the first degree, and that was death. The language of the act makes the punishment a part of the verdict. The statute gives the jury, and not the court, the right to reduce the punishment. The fixing of the punisment must necessarily, then, be a part of the verdict. See Webb v. State, 154 Ark. 67.
The indictment in this case was for murder in the first degree. It is true that the indictment contained a charge of all the lesser degrees of homicide, but the jury could only fix the punishment at imprisonment for life in the State Penitentiary for murder in the first degree. The defendant having been indicted for murder in the first degree and the statute having required the jury to find the degree of the offense, coupled with an express finding of the jury that the defendant was guilty and his punishment fixed at imprisonment for life in the State Penitentiary, showed that they found the defendant guilty of murder in the first degree and reduced his punishment to life imprisonment, as they had the right to do under the" statute. Therefore, this assignment is. not well taken.
The next assignment -of error is that the judgment should be reversed because the defendant was tried before the case of his codefendant was finally disposed of. The defendant and John Cranford were jointly indicted for the murder of Elijah Roberts. They elected to put John Cranford on trial first. This was done, and the jury in the Cranford case was discharged because it could not agree upon a verdict. The defendant was then put on trial over his objections. It is insisted by counsel for the defendant that under the statute he could not be placed upon trial. until the case against John Cranford had been finally disposed of.
The section .referred to is 3140 of Crawford & Moses’ Digest, which provides that-in felony cases defendants jointly indicted may elect the order in which their cases shall stand upon the docket for trial.
In Sims v. State, 68 Ark. 188, the court held that this statute does not contemplate that a defendant jointly indicted shall not go to trial until final disposition has been made of the case against his codefendant which stands first on the docket for .trial. The court said that the statute fixes only the order in which the cases of defendants jointly indicted shall be called for trial after they have severed. Therefore we hold that this assignment of error is not well taken.
Finally, it is insisted that the court erred in refusing to give certain instructions asked by the defendant. We have examined the instructions given by the court and think they fully and fairly submitted the respective theories of the State and of the defendant to the jury. The requests of. the defendants refused by the court were either covered by the instructions already given, or were argumentative in form. Therefore no error was committed by the court in refusing to give them, and we do not think it is necessary to set out the instructions and discuss them separately.1 ’
We find no prejudicial error in the record, and the judgment will be affirmed. | [
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Smith, J.
This appeal is from a judgment in appellee’s favor in a suit brought by her to recover damages for alleged malicious prosecution.
In support of her cause of action she testified as follows : She had a note outstanding for $590, due to the Citizens’ State Bank of McGehee, which she requested appellant to pay for her, and he did so. The note at the bank had been secured by the deposit of two diamond rings; and appellant took over this collateral from the bank when he paid the note, and she gave appellant a new note for the old one which he had paid the bank. On June 19th she received a check for $600 from her father at Bald Knob, drawn on a bank at that place; that she deposited the check for collection for her account at the McGehee bank, and a notation of this deposit was made in her bank book. On June 21th the cashier of the Mc-Gehee bank told her the check on the Bald Knob bank had not been paid, but had been returned marked “Not paid account insufficient funds.” She told the cashier she had given appellant a check for $590, and the cashier promised to hold that check for twenty-four hours to give her an opportunity to make arrangements to pay it, but the cashier advised her he could wait no longer than twenty-four hours. The check she gave appellant was dated June 21st. She did not make the arrangements, her check to appellant was not paid, and she came to Little Rock, where appellant caused her arrest, and she was carried to the jail and detained there for two hours and .a half, When appellant received her check, he delivered to her the diamonds which he had held as collateral. After she had been arrested she gave appellant back the diamonds to hold until the $590 was paid him, and she also.paid him $15 to eovér his expenses, -whereupon he procured her release, and she was discharged from custody, and the prosecution against her was dismissed. She had $145 on deposit in the bank at McGehee when she deposited her father’s check, and she drew all of this 'money out of the bank except a small sum on June 24th, which was the day she left McGehee. She supposed the check of her father would be collected, and, had it been, she would have had funds to pay her check to appellant. She left McGehee on June 24th, and came to Little Rock, from, which place she went to visit her sister at Bald Knob, and she returned to Little Rock on the 28th and was arrested at the Union Station on the 29th. She was about to return to Bald Knob to see about the payment of her check to appellant, but she had not so advised appellant until after her arrest.
The affidavit for the warrant of arrest was sworn out by appellant before a justice of the peace on June 27th, and charged appellee with having drawn a check on the bank with no funds in the bank to pay it, and the affidavit appears to have been made after a conference between appellant, the justice of the peace and a deputy sheriff, to whom appellant related all the details.
Appellant lived at Palmer, in Monroe County, and after being advised that the check to him had not been paid for the want of funds, .he called Isadore Friedman, a brother-in-law, who lived in McGehee, over the telephone, on June 27th, and asked Friedman to look the matter up. Friedman testified that he did so and found appellee had left town and had expressed her belongings to Bald Knob and to Little Rock, and he so advised appellant.
The cashier of the bank testified that a check dated June 21st, to the order of appellant for $590, was presented at the bank by appellant, but was not paid on account of insufficient funds. On that date appellee had to her credit the sum of $141.47, and to the date of trial had made no further deposits. It was not. the custom of the bank to credit on its books items received for col lection until the collection was made, and as the check on the Bald Knob bank was never collected it was never credited on the books to the account of appellee. On August 15th appellee’s balance was $7.20, and the account was closed by the cashier sending her a check for that amount.
The court instructed the jury, and numerous exceptions were saved to the instructions and are discussed in the brief; but we do not consider these exceptions, for the reason that, in our opinion, a case was not made for the jury.
We do not set out the testimony of appellant containing his explanation of his actions.
The statute under which appellee was arrested, quoting the applicable portion thereof, reads as follows: “It shall hereafter be unlawful for any individual * * * to make or give any check or draft on any account in any bank or trust company * * * on which the said individual # * * shall not have full authority to check or draw such draft or check, or, having such authority, to make any check or draft upon an account in any bank, savings bank_ or trust company, when there shall not be sufficient funds therein to cover the same, unless they shall have made prior arrangements with said bank, savings bank, or trust company for said check or overdraft; provided, however, that if any individual * * * shall, when notified of such draft or cheek, immediately make a deposit to cover same, they shall not be subject to the provisions of this act; provided, further, that checks or drafts given where said individual * * * shall have had no checking account in said bank, shall not come under the provision of this act.” Sec. 743, 'C. & M. Digest.
This court has several times held that the existence of probable cause is a complete defense to actions of this character. A late case is that of Keebey v. Stifft, 145 Ark. 8. We there quoted from prior cases of this court approved definitions of probable cause, one of them being as follows: “Probable cause is such a state of facts in the mind of the prosecutor as would lead a man of ordinary caution and prudence to believe or entertain an honest and strong .suspicion that the person arrested is guilty.”
We think, under the case made by appellee, as stated above, that appellant had probable cause for believing that appellee had violated the statute quoted. Appellee may have believed, when she drew the check in question, that it would be paid out of the proceeds of the check of her father which she had deposited for collection; but the question is, did appellant have probable cause for believing appellee was guilty of a violation of the statute quoted? We think so. Appellee knew, on June 24th, that her check to appellant had not been paid, and would not be paid, and after being so advised she drew out of the bank the principal part of the deposit which she did have. She did not communicate with appellant, as she could easily have done, and he was furnished no explanation by her. Upon the contrary, she left McUehee the day. she was advised her check had not been paid, and shipped her belongings out of town, and after three days of waiting and inquiry appellant, on June 27th, swore out the warrant as has been stated.
In the case of Keebey v. Stifft, supra, we said: “In Whipple v. Gorsuch, 82 Ark. 252, we held that: ‘Where the facts relied upon to constitute probable cause are undisputed, the question is one of law for the court to determine, and should not be submitted to the jury.’ Now, applying these familiar principles to the facts of this record, however innocent Keebey may have been (and we assume that he was entirely innocent), nevertheless he was the victim of unfortunate circumstances from which, it occurs to us, all reasonable minds must conclude that Stifft believed and had grounds for entertaining ‘honest and strong suspicion’ that Keebey was guilty of receiving stolen property knowing that same was stolen.” See also Scott v. Pennington, 151 Ark. 26.
So here, even though appellee may not have been guilty of drawing a worthless check as charged (which we do not decide), her own conduct afforded appellant “honest and strong suspicion” that she was guilty; and the judgment below ¡must therefore be reversed, and the cause will be dismissed. | [
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Smith, J.
Appellant was convicted under the following indictment:
“The grand jury of Miller County, in the name and by the authority of the State of Arkansas, accuse Peyton Wrig’ht of the crime of setting up a distillery, committed as follows, to-wit: The said Peyton Wright, in the county and State aforesaid, on the 5th day of June, A. D. 1922, did unlawfully, wilfully and feloniously set up and keep in possession a certain still and stillworm to be used and operated as a distillery for the purpose of making and manufacturing alcoholic, vinous, malt,, spirituous and fermented liquor, without registering same with the proper United States officer as required by law.”
There was a demurrer to the indictment on the ground that it charged two offenses, which was overruled; and a motion was filed to require the State to elect, which was also overruled.
The indictment in the case was based on § 2 of act 324 of the Acts of 1921 (General Acts 1921, page 372), and appellant contends the demurrer and the motion to require the State to elect should be sustained on the authority of the case of McIntire v. State, 151 Ark. 458, in which that section was construed. We there said that § 2 created two offenses, the first that of keeping in one’s possession a stillworm or still without registering it with the proper officer of the United States; and the second that of setting up, to be used as a distillery, any stillworm or substitute therefor.
The first paragraph of this § 2 is directed against the mere keeping of a stillworm or still in one’s possession without registering it. One may not have in his possession a stillworm or still, even though it is not set up, without registering it with the proper United States officer; and if he sets it up, or sets up any substitute therefor, for the purpose of using the same, or which, after being so set up, may be used for the production of distilled spirits, he commits the second offense there denounced; and it is immaterial, so far as this second offense is concerned, whether the still or stillworm is registered or not.
The indictment set out above in fact charges the second offense. It does this with unnecessary particularity. For instance, it alleges the still was set.up without having been registered with the proper United States officer; but, as has been said, the omission to register it is unimportant if the still is set up for the purpose of using it, or was susceptible, to use in producing distilled spirits.
It is argued that the allegation that appellant “did set up and keep in possession” a certain still and still-worm shows an intent to charge the commission of both offenses. The effect of the language quoted is to allege unnecessarily that appellant kept in his possession a still which he had set up for the purpose of producing distilled spirits. The offense was completed when he set the still up for the purpose of producing distilled spirits; and the keeping of it, set up, in his possession, added nothing to the offense.
Having alleged that appellant set up a still and still-worm for the purpose of producing distilled spirits, it was unnecessary to allege that, he thereafter kept the still and stillworm in his possession, or had failed to register it with the proper United States officer; but these unnecessary allegations detracted nothing from the essential allegation that appellant had set up a still for the purpose of producing distilled spirits.
The instructions of the court conformed to the views here expressed and told the jury that, if they found that appellant did unlawfully and feloniously set up and keep in possession a still or stillworm, to be used and operated as a distillery, lie should he convicted; and this was a correct declaration of the law.
What we have just said disposes of most of the objections to the State’s testimony, the objections being in line with appellant’s contention that the indictment was bad in that two offenses were charged in a single count.
The evidence fully sustains the verdict; and in our opinion no error was committed in admitting or excluding testimony. Three deputy sheriffs made a raid on a distillery, which was not only set up but was in actual operation,- and when appellant was first seen he was in the very act of replenishing the fire under the boiler. Whiskey was running from the stillworm, and several jugs of new whiskey were found near by. A gun was found near the still, and appellant admitted to the officers that he, and he alone, was engaged in making whiskey at that place, although he denied that he owned the. still, or had set it up.
Objection was made to the testimony showing the things found around the still and appellant’s admissions. But we think the testimony was competent as showing that the crime charged had been and was being committed and appellant’s connection therewith. The still had been set up by some one. Appellant denied he had any partner in the crime. He was actually operating the still when discovered, and this testimony sufficiently supports the allegations of the indictment, and the judgment must be affirmed. It is so ordered. | [
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Wood, J.
The appellant instituted this action against the appellees. The. appellant alleged that the GHllett Lumber Company was the owner of Spanish grants Nos. 2358 and 2407, and that on the 12th day of August; 1919, said company, by written contract, sold to the appellant all the merchantable timber located and growing on said land, except the pecan and hackberry, for the sum of $6,000; that S. S. Colvin, S. R. Williams and J. L. Williams claimed interest in the merchantable timber purchased by the appellant, under a contract entered into between them and the Gillett Lumber Company; that the alleged purchase was subsequent to, and with full knowledge of, the purchase of the timbér by the appellant and after notice of lis pendens which had been duly given by the appellant. Appellant prayed for specific performance of the contract and for damages on account of tin! - her cut and removed by the acts of the appellees.
The appellees answered, denying all the material allegations of the complaint, and denying the existence of any contract to sell the timber to appellant. Appellees, Colvin and Williams, set up that they purchased the land in good faith from the Gillett Lumber Company upon a valuable consideration, and without any notice whatever of appellant’s alleged purchase.
B. C. Tully, who was secretary of the Anderson-Tully Lumber Company, testified that he conducted the negotiations for his company with one Cal Balmer, who was the secretary -and treasurer of the Gillett Lumber Company. Appellant received a letter from Balmer on July 10,1919, offering for sale the timber on the land in contróvesy. On the 10th of August thereafter the appellant wired Balmer, “Accept your proposition of $6,000 cash for all merchantable timber.” On the same day Balmer wired appellant, “O. K. timber sold, will forward abstract to DeWitt at once. Letter follows.” On August 13th Balmer wrote appellant affirming telegram of the 10th, and stated in the letter that he had instructed Swineheart, president of the company, to deliver the abstract to W. N. Carpenter for examination, and directing the appellant to close the deal with Swineheart. In the letter Balmer requested the reservation of certain timbers. Appellant replied on August 25th stating that it would be satisfactory to reserve the timbers mentioned, and also stating that it was instructing its agent to make reservations in the deed. On August 27th Balmer wrote appellant stating that Carpenter, appellant’s agent, had been'instructed to close the deal, and requested appellant to signify the size of the trees to be classed as merchant-' able. On September 12th Tully received a letter from Balmer, canceling all previous communications with him, and' advising appellant to take the matter up with Swine-heart, president of the Grillett Lumber Company, since his (Balmer’s) authority had ceased. On September 17th appellant wrote to Balmer acknowledging receipt of his last letter, and stating that appellant had sent its representative to see Swineheart, and that Swineheart had advised appellant that Balmer' had charge of the sale, and that appellant would have to deal with him, and also advising Balmer that it had accepted his proposition for the sale and purchase of the timber on the terms proposed by him in all good faith, and had expended time and money in making the negotiations, and that, as soon as its attorney approved the title, proper deed, with draft attached, would be forwarded for the lumber company to execute. The appellant, through its agent Carpenter, had the title examined and approved, and forwarded a deed to the bank at Bluffton, Ohio, with its certified check, and also with instructions to the bank to deliver the deed to Balmer, and upon execution of the same to pay over the purchase price agreed upon. The deed was not signed by the Grillett Lumber Company, nor was the purchase price of $6,000 paid to it, but the appellant tendered and was ready to pay that amount at any time upon the execution of the deed.
Tully further testified as to the quantity and value of the timber removed from the land after the appellant’s purchase and as to the damages sustained by reason thereof. The witness stated that Balmer’s correspondence was not written on the stationery of the Grillett Lumber Company, but that Balmer was the secretary of that company and had authority to act for it, according to in formation contained in his letters. Witness understood that he was dealing with the authorized agent of the Gillett Lumber Company; that Swineheart, the president of the companjr, had indirectly about the same time offered to appellant the timber for the same amount. Other witnesses testified on behalf of the appellant, and their testimony tended to prove that Swineheart had made an offer of the timber to the appellant upon the same terms as those made by Balmer. It was shown that Swineheart had offered the timber in controversy to other parties for $6,000, and had stated that he had authority to sell the same.
On behalf of the appellees, Colvin testified that he and the Williamses were in the cooperage business. They purchased the timber on the land in controversy. The contract for the purchase was entered into in writing on September 15, 1919. This contract was introduced in evidence. Witness stated that they had paid $32,500 on the contract; that at the time they entered into the contract for the purchase of the timber they had no knowledge or information of any claim of appellant to the timber. They first heard that appellant claimed some interest in the land about October 1,1919. Witness stated that he had-been negotiating’ for the purchase since September 12, 1919; that neither he nor the Williamses were interested in the Gillett Lumber Company. Their purchase was made in good faith. They purchased the timber from H. A. Strode, who conducted the negotiations for the Gillett Lumber Company. The deed which the contract of purchase called for was executed and delivered between the 1st, 2nd and 3rd of October, and the cash payment of $32,500 was -made at the time of the delivery of the deed. Before the cash payment was made witness had heard rumors to the effect that the appellant had filed suit against the Gillett Lumber Company in regard to the purchase of the timber. Witness made no effort to verify the rumors, as he and his associates knew nobody in the transaction except the Gillett Lumber Company. Witness, at the time he made the first deposit, knew that the appellant was making a claim, but they did not know of any claim of the appellant to the timber in controversy before entering into the contract for the purchase of the same. The contract was not fully executed and the same delivered until after October 1st, but witness considered the deal fully consummated before then, except the delivery of the deed.
The testimony of S. R. and J. L. Williams on behalf of the appellees was substantially to the same effect as the testimony of Colvin. The written executory contract for the purchase of the timber was introduced in evidence, showing that the same was executed on the 15th day of September, 1919, and was signed by Strode, as agent for the Gillett Lumber Company, and by Colvin 'and the two Williamses.
Witnesses who were directors and stockholders of the Gillett Lumber Company testified to the effect that there was never any resolution of the board of directors of the company, a corporation, authorizing its secretary and treasurer, Balmer, or the president, Swineheart, to sell the timber in controversy; that there had 'been no meeting of the stockholders or the board of directors for the purpose of considering the sale of timber in controversy to the appellant. The corporation was under the control of five directors; that the last meeting of the directors was held in 1919 for the purpose of surrendering the charter of the company and closing up the business; that the last meeting prior to that time was in February, 1918.
Swineheart, the president, among other things, testified that Balmer, the secretary and treasurer, who lived at Bluffton, Ohio, had written him to the effect that he was offering the timber for sale. At first he did not protest, but after he found what Balmer was trying to do he did protest. He called on Carpenter, the agent of the appellant, on- August 27th, with the abstract and intended, to leave it yith hipa, but ub soon as he found opt the terms upon which Balmer had offered the timber he would not sign such a contract; that Strode, a real estate man, sold the timber to Colvin and the two Williamses. He stated that Balmer had never discussed with him the sale of. the timber. He testified that the sale of the land to Colvin and the two Williamses was in good faith, and the contract was not the result of conspiracy between the Gillett Lumber Company and them to cheat and defraud the appellant. -
Balmer testified that he was not authorized by resolution of the board of directors to enter into a contract for the sale of the merchantable timber to the appellant, and that he never discussed the matter with any of the members of the board. He and two of the directors lived at Bluffton, Ohio, and Mr. and Mrs. Swineheart, the other two directors, lived at Gillett, Arkansas. He stated that Wise and the other directors did not have any knowledge of the letters and telegrams that passed between witness and the appellant. He denied that there was ever any conspiracy between the directors of his company and Colvin and the two Williamses to cheat and defraud appellant in the sale of the timber. Witness had never seen Colvin or the Williamses. The sale was made to them in good faith. Witness had made an offer to sell the timber to other parties beside the appellant, but none of the directors knew about it. Other directors testified substantially corroborating the testimony of Swineheart and Balmer to the effect that there was no meeting ,of the directors to authorize either the president or the secretary to sell the timber in controversy, and their testimony was also to the effect that Balmer had never discussed the contemplated sale of the timber to the appellant with any of them. Their testimony shows that there was a meeting of the directors and a resolution passed by the ¡board September 22, 1919, authorizing the president to employ H. A. Strode to make the sale of the land in controversy, and also a resolution authorizing the president and secretary to make a deed conveying the timber in controversy to Colvin and the two Williamses, and there was still a third resolution of the board on the first of October, 1919, authorizing the president and secretary to execute a corrected deed to the same parties.
Upon substantially the above facts, the court found that Balmer had no authority to sell the timber and no authority to execute the contract which .appellant seeks to have specifically performed; that the letters and telegrams upon which the appellant relies to prove the con-» tract were sent by Balmer without the knowledge and consent and without the authority of the board of directors of the Gillett Lumber Company; that such company was not bound by the acts of Balmer. The court found further that the contract entered into between the Gillett Lumber Company and Colvin and- the two Williamses was a good and valid contract, entered into without any knowledge on the part of Colvin and the Williamses of the letters and telegrams that had passed between Balmer and the appellant; that Colvin and the Williamses had fully performed their contract. The court thereupon entered a decree dismissing the appellant’s complaint for want of equity, from which is this appeal.
1. The appellant contends that the appellees have not, in their separate answers, specifically raised the issue that the secretary and treasurer of the Gillett Lumber Company was-without authority to enter into the contract for the sale of the timber in controversy; nor have they specifically raised the issue that the Gillett Lumber Company, a corporation, itself had not decided upon and authorized a sale of its timber. Appellant contends, that, before proof could be made upon these issues, it was necessary for the answer to specifically set them up. Appellant relies upon the cases of Simon v. Caffe, 80 Ark. 67, and Winer v. Bank of Blytheville, 89 Ark. 435, to sustain its contention. But the facts of those cases clearly differentiate them.from this case.
In Simon v. Caffe, a corporation was sued -on a note indorsed by it. There was no denial of the existence of the corporation, and no denial of the indorsement, and we merely held that where a business corporation is sued upon an indorsement by it of a promissory note and seeks to avail itself of the plea of ultra vires, or want of power on the part of the corporation or its officers or agents to make such indorsement, then it is necessary to set up in its answer that the corporation had no power to make such indorsement and that its officers or agent acted without power in making the same. In discussing this question in Simon v. Caffe, supra, we said: “But a corporation cannot avail itself of a want of power or lack of authority of its. officers to bind it unless the defense is made on such grounds. ’ ’ Citing Thompson on Corporations, 7617, 7619. These citations are repeated in Winer v. Bank of Blytheville, supra, and in the latter case what the author stated is quoted and the quotation clearly shows that the author was discussing the defense of ultra vires. That is what this court had in mind in the case above mentioned, and the words “or lack of authority,” used by Chief Justice Hill in Simon v. Caffe, supra, were used synonymously with the words “want of power.”
The powers of a business corporation are derived from the State by compliance with the laws of its incorporation and the receiving of its charter. The power of its officers is derived from the corporation itself through the action of the stockholders and managing board. Sec. 1717, C. & M. Digest. The powers of the corporation itself and of its officers must not be confused with the authority of its officers or agents. In City Electric Street Ry. Co. v. First National Exchange Bank, 62 Ark. 33-41, we held that “whatever power the president and secretary of business corporations have to act for the corporation in business matters must be delegated and special. The ministerial affairs of a corporation “are presumptively special, and the directors are the only general agents when acting as a board. The officers of a corporation, as such special agents, have no power to bind it except within the limits prescribed by the charter and by-laws; and persons dealing with such officers are charged not only with notice of the authority conferred, but also of the limitations and restrictions contained in the charter and by-laws.” 2 Thomp. Cor., sec. 1600.
Now, if a corporation seeks to avail itself of the defense of ultra vires, or a want of power to make a contract, it must plead that special defense; but if a corporation seeks to avail itself not of the defense of a want of power, but that it did not enter into the contract upon which it is sued, and that therefore there was no such contract, it may avail itself of such defense by denying the existence of such contract and pleading in its answer that it did not enter into any such contract. Such answer raises the issue that there was no contract, and places the burden upon the plaintiff to prove it, and when the issue is thus joined the corporation may show the lack of authority upon the part of its officer or agent to enter into such contract.
This is' the second appeal in this case (see 143 Ark. 97). On the first appeal we held that the complaint stated a cause of action for a specific performance, and that such a decree could be awarded if the proof showed that Balmer had authority to bind the Gfillett Lumber Company 'by his letters and telegrams to the appellant. On the former appeal we said: “It is true, the exhibits to the complaint do not disclose who Balmer is, nor what authority he had to act for and bind the defendant. But that is a matter of proof. The complaint alleged a valid contract for the sale of the timber, and the exhibits do not conflict with that allegation. When the case has been developed, these exhibits may or may not prove sufficient to bind the defendant. That will depend on Balmer’s authority tQ act for it.”
At the trial from which this appeal comes the proof as to Balmer’s authority to bind the Gillett Lumber Company was fully developed, and we are convinced that -a decided preponderance of the evidence shows that Bal mer had no authority to bind such company. The preponderance of the evidence, indeed, the undisputed evidence, shows that Balmer, on his own motion, without the knowledge or consent of the other directors, issued and sent the letters and telegrams upon which appellant relies to prove a binding contract between it and the Gillett Lumber Company for the sale of the timber in controversy. These letters and telegrams were not signed by Balmer as secretary of the company, and were not on the company’s stationery. There is an utter absence of proof on the part of the appellant to show that Balmer had any authority to make the sale in controversy, except as might be gathered by what Balmer himself did and said in the premises.
But no principle is better established than that one dealing with an agent is .bound to ascertain the extent of his authority. Oliver Construction Co. v. Erbacher, 150 Ark. 549. “One dealing with an agent not clothed with general authority, nor with authority to act, is bound to discover whether the agent had authority to bind his principal.” Pierce v. Fioretti, 140 Ark. 306. A secretary of a corporation has no authority, by virtue of his office, to sell the property, the corpus of the corporation. That must be done by authority of the directors and stockholders. If Balmer, therefore, had any authority to make the sale of the timber in controversy, it must have been special authority conferred upon him by the stockholders and the board of directors. It was incumbent upon the appellant to ascertain the extent of his authority to make the contract upon which it grounds its action. City Elec. Ry. Co. v. First Nat. Exchange Bank, supra; Grant v. Burrows, 139 Ark. 16. Appellant could not prove Balmer’s authority as special agent by his acts and declarations in the premises. The fact that he assumed to act does not show that he had authority to act, and there was no testimony other than his own statements in the letters and the assumption by him of authority to act in the negotiations.
The undisputed testimony shows that Balmer was not authorized by the stockholders or board of directors to sell the timber in controversy. There was no testimony to prove that the Gillett Lumber Company clothed him with apparent authority to make such a contract. There was no testimony in the record to prove ratification by the Gillett Lumber Company of the unauthorized contract between Balmer and the appellant. The testimony is to the contrary. Therefore let the- decree be affirmed. | [
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LARRY D. VAUGHT, Chief Judge.
| TEugene Thomas III was convicted by an Ashley County Circuit Court jury of aggravated robbery and commercial burglary. He was sentenced to twenty years’ imprisonment for the aggravated-robbery conviction and five years’ imprisonment for the commercial-burglary conviction, to be served concurrently. On appeal, he challenges the trial court’s (1) refusal to give a jury instruction on the lesser-included offense of attempt to commit aggravated robbery; (2) admission of evidence at sentencing of his participation in a prior robbery; and (8) denial of his motion for mistrial. We affirm.
On September 24, 2010, a man entered the Dollar General Store in Crossett, Arkansas, just before closing and hid in an employee-only storage room. Two Dollar General employees — Whitney Bridges and Nicole Wattman — testified that they saw the man enter the store. Because they did not see him exit, they walked around the store looking for him but did not find him. They began closing procedures, which included locking the front door and counting the money in the registers. When Watt-man was locking the front door, she saw a dark | PDodge Caravan parked outside the store. She testified that the driver of the van told her that he was waiting for someone who was not inside Dollar General. Minutes later, Bridges saw the man who had entered the store earlier suddenly run out of the storeroom. He was wearing a red baseball cap on his head, a bandana over his face, and was carrying a gun. She screamed and ran toward the front door, falling on the way. Bridges testified that she saw the man point his gun at her and heard him yell to Wattman to stop. Hearing Bridges scream, Wattman unlocked the front door and ran outside. She testified that she heard the man yell to her, “Stop or I’m going to shoot.” The man ran out of the store and into the Dodge van that was parked outside. The suspect was later arrested and identified as Thomas. During his police interrogation, Thomas was shown surveillance video from the store. He admitted that he was in the video and gave a detailed confession.
Thomas argues three points on appeal. The first point is that the trial court erred in refusing to give the lesser- included-offense jury instruction of attempted aggravated robbery. We have stated that it is reversible error to refuse to instruct on a lesser-included offense when there is the slightest evidence to support the instruction. Taylor v. State, 2009 Ark. App. 627, at 3, 331 S.W.3d 597, 598. We have further made it clear that we will affirm a trial court’s decision not to give an instruction on a lesser-included offense if there is no rational basis for giving the instruction. Id., 331 S.W.3d at 598. Where there is no evidence that calls into doubt an element of the greater offense, a trial court is not required to give an instruction on a lesser-included offense. Davis v. State, 97 Ark.App. 6, 10, 242 S.W.3d 630, 634 (2006). An appellate court will |snot reverse a trial court’s decision regarding the submission of such an instruction absent an abuse of discretion. Taylor, 2009 Ark. App. 627, at 3, 331 S.W.3d at 598.
A person commits the offense of aggravated robbery if he commits robbery, and the person is armed with a deadly weapon, represents by word or conduct that he or she is armed with a deadly weapon, or inflicts or attempts to inflict death or serious physical injury upon another person. Ark.Code Ann. § 5-12-103 (Repl.2006). A person commits the offense of robbery if, with the purpose of committing a felony or misdemeanor theft or resisting apprehension immediately after committing a felony or misdemeanor theft, the person employs or threatens to immediately employ physical force upon another person. Ark.Code Ann. § 5-12-102(a) (Repl.2006).
An offense is a lesser-included offense if it consists of an attempt to commit the offense charged. Ark. Code Ann. § 5-1-110(b)(2) (Supp.2011). Arkansas Code Annotated section 5-3-201 (a)(2) (Repl.2006) provides that a person attempts to commit an offense if he or she purposely engages in conduct that constitutes a substantial step in a course of conduct intended to culminate in the commission of an offense whether or not the attendant circumstances are as the person believes them to be. The comments to section 5-3-201 state that subsection (a)(2) is primarily directed at situations where substantial steps not amounting to completed courses of conduct have been taken, but have not culminated in the commission of the object offense. Original Commentary to Ark. Code Ann. § 5-3-201 (Repl.2006).
In the case at bar, Thomas claims that the trial court abused its discretion by refusing to give the lesser-included-offense jury instruction of attempted aggravated robbery because there was a factual question for the jury as to whether he employed or threatened to immediately | ¿employ physical force. He argues that there was disputed testimony about whether he yelled to one of the employees “stop or I’ll shoot” or just “stop.” He further contends that the evidence did not demonstrate that he chased the employees, but that he was frightened, was merely trying to get out of the store, and ran in the opposite direction of the employee who exited the store. According to Thomas, this evidence provided the trial court a rational basis to give the lesser-included instruction on attempted aggravated robbery. We disagree.
Contrary to Thomas’s argument, the evidence he relies on simply does not support attempted aggravated robbery. Assuming Thomas did only yell “stop” to Waltman and that he ran away from her as he exited the store, this is not evidence of the offense of attempt, i.e., evidence that constitutes a substantial step in a course of conduct intended to culminate in the offense of aggravated robbery. Also, there was no factual question as to whether he employed or threatened to immediately employ physical force. The evidence was undisputed that Thomas stormed out of the back stockroom brandishing a gun and pointed it at the Dollar Store employees. This was more than a substantial step intended to culminate in aggravated robbery; this was conduct that actually completed the commission of that greater offense.
Because all the evidence in this case supports Thomas’s completion of the greater offense of aggravated robbery, there was no rational basis for giving the lesser-included-offense instruction of attempt to commit aggravated robbery. Therefore, the trial court did not abuse its discretion when it refused to give that instruction, and we affirm on this point.
For his second point on appeal, Thomas argues that the trial court erred in admitting evidence at sentencing of his participation in a prior robbery. The State sought to introduce evidence of Thomas’s involvement in the robbery of another Dollar General store (located in IsLake Village, Arkansas) eight days prior to the robbery giving rise to this appeal. The State’s evidence was that on September 16, 2010, around 8:00 p.m., Thomas waited outside the store in a vehicle while his brother, Spearman, entered the store and hid in the stockroom in the back. Later, Spearman, wearing a bandana and a red baseball cap, came out of the stockroom, brandished a gun, forced the employees into the stockroom and onto the ground, made them crawl to the front of the store to retrieve and give Spearman $3000, and then ordered them back to the stockroom. Spearman left the store in the vehicle waiting outside driven by Thomas. Thomas’s confession regarding his involvement in the Lake Village robbery was also a part of the evidence sought to be introduced by the State.
Thomas moved in limine to exclude this evidence, but the trial court denied the motion. He argues that this was error. Specifically, he contends that his involvement in the Lake Village robbery is not relevant because, while he has been charged in that crime, he has not been convicted. He also argues that the evidence concerning the Lake Village robbery is irrelevant because it lacks sufficient similarity to the Crossett robbery. In the former robbery he waited in the vehicle, while in the latter he entered the store.
A trial court’s decision to admit evidence in the penalty phase of a trial is reviewed for an abuse of discretion. White v. State, 2012 Ark. 221, at 4, 408 S.W.3d 720, 723. Our supreme court has made clear that the rules of evidence apply to evidence introduced at the sentencing phase; however, certain evidence is admissible at sentencing that would not have been admissible at the guilt phase of the trial. Id., 408 S.W.3d at 723. Arkansas Code Annotated section 16-97—103 (Repl.2006) provides that evidence of character and aggravating circumstances are relevant at sentencing.
|fiWe first hold that it is of no consequence that Thomas had not yet been convicted of the Lake Village robbery. If relevant, evidence of the Lake Village robbery may be admitted during sentencing. Brown v. State, 2010 Ark. 420, at 14, 378 S.W.3d 66, 74 (rejecting Brown’s argument that trial court erred in admitting evidence of an alleged sexual assault that occurred thirty-four years prior and for which he was never charged or convicted; holding that evidence of prior assault in Brown’s sentencing for his sexual-assault conviction was relevant and admission of same was not an abuse of discretion).
As for relevance, the fact that Thomas was an active participant in two robberies, just days apart and committed in nearly the same fashion, is relevant character evidence and is evidence of aggravating circumstances showing his propensity to engage in similar criminal conduct. Brown, 2010 Ark. 420, at 14, 378 S.W.3d at 74 (holding that evidence of prior or subsequent uncharged criminal conduct can be admissible at the penalty phase of a trial if it is relevant evidence of the defendant’s character or as character evidence or evidence of an aggravating circumstance); Crawford v. State, 362 Ark. 301, 306, 308, 208 S.W.3d 146, 149, 151 (2005) (holding that evidence of subsequent drug activities, introduced during the sentencing phase of Crawford’s trial for possession of drug paraphernalia with intent to manufacture, was relevant character evidence and demonstrated his propensity to engage in illegal conduct in the future and was thus relevant as an aggravating circumstance). Therefore, we affirm on this point.
For his final point, Thomas argues that the trial court erred in denying the motion for mistrial. During the closing arguments of sentencing, Thomas’s counsel told the jury that Thomas should receive the minimum sentences for his crimes because he “fully cooperated” with authorities. Counsel stated that Thomas did not fight extradition to Arkansas, and instead |7of invoking his rights to remain silent and have representation, he gave a full confession to police. In response to that argument, arguing that the jury should give Thomas the maximum sentences, the State told the jury:
Prosecutor: I find it interesting that [Thomas’s counsel] could get up here and say that a person who has committed two aggravated robberies whether he was the driver in one or not, deserves the minimum. I find it interesting that you say, well, he cooperated, therefore he deserves the minimum particularly where he didn’t admit his guilt to you today. We spent the whole day here finding him guilty. That’s what we’ve been doing.
At this point, counsel for Thomas moved for a mistrial, contending that the State’s argument was improper because it was a comment on Thomas’s Fifth Amendment right not to testify. The trial court denied the motion for mistrial, but it granted Thomas’s counsel’s request for an admonishment. The trial court stated to the jury, “I’m going to ask you to disregard the statement by the prosecution when it made the statement to the effect that [Thomas] did not admit to his guilt. And it is the statement of the defense that [the comment] is a violation of the rules.”
On appeal, the only “argument” made by Thomas on this point is that the trial court erred because the State’s remark was an improper comment on his right to not testify and was an “outright criticism of [him] for not pleading guilty.” There is no legal citation or convincing argument — just conclusory statements. Where it is not apparent without further research that the argument is well-taken, our supreme court has made it clear that we will not address those arguments that are presented without citation to authority or convincing argument. N.D. v. State, 2012 Ark. 265, at 10, 411 S.W.3d 205, 211; MacKool v. State, 2012 Ark. 287, at 5, 423 S.W.3d 28, 32.
| ^Moreover, any prejudice suffered by Thomas by the denial of the motion for mistrial was cured by the admonition that his counsel requested at trial and that was given to the jury. An admonition to the jury usually cures a prejudicial statement unless it is so patently inflammatory that justice cannot be served by continuing the trial. Hudson v. State, 85 Ark.App. 85, 98, 146 S.W.3d 380, 388 (2004) (affirming the denial of a motion for mistrial because the cautionary instruction given to the jury helped to cure any preju dice resulting from the admission of objectionable Rule 404(b) evidence); Kemp v. State, 335 Ark. 139, 144, 983 S.W.2d 383, 386 (1998) (holding that trial court’s admonition to the jury cured any prejudice from prosecutor’s remarks in closing argument). Therefore, we affirm this final point.
Affirmed.
ROBBINS and ABRAMSON, JJ., agree.
. The van was being driven by an accomplice, Thomas’s brother Dewayne Spearman. | [
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English, C. J.
The transcript returned upon certiorari from this court to the clerk of the circuit court of Logam county, shows substantially the following facts.
On the 21st April, 1882, C. T. Perrin filed an affidavit before a justice of the peace of Logan county, charging H.. W. Luman with maliciously wounding a mule, the property of Rebecca E. Glover. Whereupon a warrant was issued) by the justice, under which Luman was arrested, and gave-bail for his appearance on the twenty-fifth of April. On thatdáy Luman appeared, there was a trial of the charge, and the-jury failing to agree upon a verdict, were discharged, and by agreement of parties, the case was set for trial again on the second of May, 1882.
Meantime, on the twenty-ninth of April, 1882, Perrin, the prosecutor, filed a bond for costs in the case, with Rebecca E. Glover and W. L. Cravens as sureties.
The dates in the justice’s transcript are not in harmony, but it is probable that the case was tried on the second of May, the time agreed on by the parties. The jury found the defendant, Luman, guilty and assessed his punishment at a fine of $20 and the damage done by him to the mule at $10 and judgment was rendered in favor of the state for the- 'fine and costs, and in favor of Mrs. Glover, the owner of the mule, for the treble damage assessed by the jury.
On the eleventh of May, Luman prayed an appeal to the circuit court, and upon his giving bond with security, approved by the justice as required by section 7 of the act of March U2d, 1881, (Acts of 1881, p. 151), the justice granted the appeal, and a transcript of the proceedings before the justice, together with the original papers, including the appeal bond and cost bond, was filed in the office of the .clerk of the circuit court on the third of July, 1882.
At the following September term of the circuit court, to which the appeal had been taken, both parties appearing, ■and announcing themselves ready for trial, the case was submitted to a jury ; and the jury failing to agree upon a ver■dict, were discharged by consent of parties, and the case ■continued to the next term.
At the next term (March, 1883,) both parties announced •themselves.ready for trial, the defendant entered his plea of not guilty, the case was submitted to a jury, the defendant was acquitted, and the court rendered judgment that ■defendant, Luman, be discharged, “and that the state of Arkansas have and recover of and from C. T. Perrin, principal, and Rebecca E. Glover and W. L. Cravens, securities in the cost bond of said C. T. Perrin, all her costs herein laid out and expended, and that she have execution thereof.”
It is to this judgment of the circuit court upon the bond for costs, that Perrin and his sureties sued out the certiorari' from this court, and upon its return have submitted that the judgment should be quashed as null and void.
court. That regardless of the result of the appeal, tüey were discharged from all liability on the bond by Luman’s conviction before the justice. I. It is submitted for the relators, that they were only bound upon the cost bond for the costs of the prosecution iof Luman before the justice of the peace in the event of his .acquittal, and that he having been convicted before the jus■tice, they were thereby discharged from further liability on the bond, though he was acquitted, on appeal, in the circuit
Where a prosecutor gives bond for costs (under sec. 2020, Gantt’s Dig., in a prosecution for a misdemeanor before a justice of the peace, he and his sureties are liable-for all costs which may accrue in the prosecution, in the event of the acquittal of the accused. Their liability on the bond does not cease on the conviction of the accused before the justice of the peace ; he has the right of appeal,, and if acquitted on appeal,- the prosecutor and his suritiesare liable on the cost bond for the costs of both courts.
It was so ruled in Taylor et al v. State, 39 Ark., 291.
n. It is further submitted for the relators that the cir-court acquired no jurisdiction of the case on the appeal °f Luman, and therefore could render no judgment on the-for costs — that the justice of the peace had no power to grant the appeal — that the power was in the clerk of the: circuit court, and was not exercised by him.
Under section 2104 of Gantt’s Digest, when a person-convicted of a misdemeanor before a justice of the peace-desired to take an appeal from'the judgment of the justice,, he was required to obtain from the justice a copy of the-warrant, &c., and the judgment and a statement of the costs, and file them in the office of the clerk of the circuit court, and cause to be executed, by good security, to be approved by the clerk, a covenant to pay the costs of the? appeal in the event of the affirmance of the judgment.
The clerk was required to do nothing to perfect the appeal except to approve the covenant for costs, and that being done, it was his duty to docket the appeal, and issue a certificate of appeal, lb., sec. 2105.
But if appellant desired to suspend the collection of the-judgment, he was required to file with the clerk a further-covenant to pay the judgment which might be rendered against him on the appeal, and thereupon the clerk was authorized to issue a supersedeas, lb., Sc,
Such was the mode of appeal provided for in Gantt’s Digest,
But the second section of the act of March 15th, 1879, (Acts of 1879, p. 84), which was held in Morrison v. State, 40 Ark., 448, to be subject to no constitutional objection, though the first section was, provided: “That any person who shall be convicted of any misdemeanor by a justice of the peace shall have the right of appeal to the circuit court by complying with the law now in force in reference to appeals in criminal cases from the judgment of justices of the peace to the circuit court, and upon the appellant executing bond with approved security in double the amount of the fine and costs, conditioned that the appellant will prosecute his appeal without delay, and if on such appeal the judgment of the justice is affirmed, or if on trial anew judgment is given against appellant, he shall satisfy the judgment, or if his appeal is dismissed he shall satisfy the judgment of the justice with all costs ; and no appeal shall be allowed until the execution and approval of such bond.”
It was said in Morrison v. State, supra, that under this section, appellant had to file a transcript of the judgment etc., of the justice in the office of the clerk of the circuit court as under section 2104 of Gantt’s Digest, but he could not obtain the allowance of an appeal, or a supersedeas, until he executed bond, with approved security, in double the amount of the fine and costs, conditioned as provided ; and that the clerk had to take and approve the bond and issue supersedeas.
The clerk was required to do nothing to perfect the appeal except to take and approve the appeal bond, and that being done, it was his duty to docket the appeal, and issue supersedeas to the justice.
But by section 7 of the act of March 22d, 1881, (Acts 1881, p. 151), the clerk was deprived of authorit3r to take and approve the appeal bond, and the justice rendering the judgment is required to take and approve the bond, the substance of which is prescribed, and transmit it to the appellate court. '
Nor, under this act, is there any need for the clerk to a supersedeas. The appeal bond when executed and approved by the justice, stays the judgment appealed from. If execution has not been issued, none can be issued. If execution has been issued, the justice can recall or sujmrsede it.
In Morrison v. State, supra, it was decided that air appeal bond taken and approved by the clerk, after the passage of this act was invalid, and no judgment could be entered upon it by the appellate court.
But it would be absurd to construe the act to mean that the justice should transmit nothing to the appellate court but the appeal bond. It was no doubt intended that he should transmit with the appeal bond, and other original papers, an authenticated transcript of his docket entries, as was done by the justice in this case.
This makes a simple and convenient mode of appeal from the judgments of justices of the peace in prosecutions for misdemeanors, and is similar to the mode of appeal from their judgments in civil cases.
III. It is further submitted that the appeal in this case n°t taken within the time prescribed by the statute; and therefore the circuit court did not acquire jurisdiction of the case, for that reason, and had no power to render judgment on the bond for costs against the relators.
Section 2103 of Gantt's Digest, provides that, “No appeal shall be taken from a'judgment of a justice’s court after it has been paid or collected, nor after sixty days from the rendition of the judgment.”
No doubt under the code mode of appeal from judgments •of justices of the peace m criminal cases, of which this section was a part, when the appellant had to take the appeal by filing in the clerk’s office a copy of the judgment, warrant, statement of costs, etc., and execute a covenant for the costs of the appeal, etc., as above shown, the appeal had to be taken in that mode within sixty days from the rendition of the judgment.
And no doubt now, under the changed mode of the appeal, the appellant should not only take the appeal before the justice within sixty days from the rendition of the judgment, but he shonld see that the transcript of the docket entries, and the original papers, are transmitted by the justice to the appellate court within the sixty days.
In this case, the judgment seems to have been rendered on the second day of May, 1882, and the appeal was taken •on the eleventh of the same month, which was in time, but the transcript, etc., was not filed in the clerk’s office until the third of July, 1882, which was in time for the appeal term, but was not within the sixty days from the rendition ■of the judgment.
Had the State moved to dismiss the appeal because not perfected in time, and had appellant shown no sufficient ■excuse for the delay, the court might have sustained the motion. But no such motion was made. On the contrary, at the appeal term both parties announced themselves ready for trial on the merits, the case was submitted to a jury, they failed to agree on a verdict, and by consent of parties, were discharged, and at the next term appellant was tried, and acquitted as above shown.
Upon all the facts, the circuit court had jurisdiction of the case on the appeal, and the appellant having been acquitted the relators were liable on the bond for the costs ■of the prosecution, and judgment therefor was properly rendered against them.
We notice a fee bill made out by the clerk, and included in the transcript returned on the certiorari, in which the costs are taxed at $205.35. If there are any illegal or exhorbitant items charged in this fee bill, the remedy of the relators is to make application to the court below to retax the costs.
The judgment on the cost bond is affirmed. | [
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OPINION.
criminal Practice: Removal 5$¿“íorn1' 1. Though information is a common law mode of crim_ inal accusation, and though the common law has always been in force in this State, with some limitations, yet this mode of accusation was never in use in this State prior to the adoption of the present constitution, because the former constitutions, and statutes passed under them, required criminal prosecutions in the circuit court to be by presentment or indictment.
Section 8 of the present Declaration of Rights provides that; “No person shall be held to answer a criminal charge unless on the presentment or indictment of a grand jury, except in cases of impeachment or cases such as the general assembly shall make cognizable by justices of the peace and courts of similar jurisdiction, oreases arising in the army and navy of the United States, or in the militia when in actual service in time of war or public danger. ”
But section 27 of Article 7 of the present Constitution provides that: “The circuit court shall have jurisdiction upon information, presentment or indictment, to remove any county or township officer from office for incompetency, corruption, gross immorality, criminal conduct, malfeasance, misfeasance or nonfeasance in office.”
The terms information, presentment and indictment are used in the constitution in their known technical common law sense. An indictment is a written accusation of one or more persons of a crime or misdemeanor, preferred to, and presented upon oath by a grand jury.
A presentment is the notice taken by a grand jury of any offense from their own knowledge or observation without any bill of indictment laid before them at the suit of the government, upon which the prosecuting attorney must afterwards frame an indictment. State v. Cox, 8 Ark., 436; Eason v. State, 11 Ib., 482; Straughan v. State, 16 Ib., 43.
A criminal information is an accusation in the nature of an indictment, from which it differs only in being presented by a competent public officer on his oath of office, instead of a grand jury on their oath.
This proceeding by criminal information comes from the common law without the aid of statutes ; and is allowable by the common law in a great variety of cases, the rule appearing to be that it is a concurrent remedy with the indictment for all misdemeanors, but not permissible in any felony.
The right to make the information is, by the English law as it stood when our forefathers imported it to this country, in the attorney general, who acts upon his own official discretion without the interference of the court; or, if the office of attorney general is vacant, it is in like manner in the solicitor general.
I11 the American States the criminal information should deemed to be such, and such only, as, in England, is presented by the attorney or the solicitor general. This part 0f English common law has plainly become common law with us. And as, with us, the powers which in England are exercised by the attorney general and the solicitor general are largely distributed among our district attorneys, whose office does not exist in England, the latter 'Officers would seem to be entitled, under our common law, to prosecute by information, as a right adhering to their office, and without leave of court. And such is the doctrine extensively if not universally acted upon in our •States, though in some of them it is more or less aided by statutes. 1 Bishop on Criminal Proceedure, sec. 143 to 145.
The section of the constitution above copied is the only provision for the use of information as a mode of criminal accusation, in the common law sense, in this State, and no ¡statute has been passed to regulate the practice in prosecutions by information under the constitutional provision. 'The act of March the 9th, 1877, (Acts of 1877, p. 64), applies only to prosecutions for removal from office by presentment or indictment. Until a practice act is passed, prosecutions by criminal information, in the circuit courts, tor removal from office, under the constitution, must be •conducted according to the common law as modified by our ¡system of jurisprudence.
II. The form of information adopted by the prosecuting •attorney, in this case, follows as near as may be, except in the particular grounds of the incompetency alleged, an English precedent. See I Bishop Crim. Proc., (3d Ed. ), sec. 146.
On what particular ground the court below sustained the •demurrer to the information as amended, does not appear, the demurrer being general, and the defendant in error not being represented by counsel here. Possibly the court below was of opinion that the provision in the constitution, for the removal of officers by information, could not be executed or administered until a practice act should be passed. But this, as we have seen, is not essential.
It is unfortunate that the subject of thé informaton was a man afflicted with epileptic fits, and entitled to sympathy. The prosecuting attorney himself seems to have been im_ pressed with the idea that he had undertaken a delicate task, and gives as an excuse for it, that he had been petitioned to do so, by a number of the electors, citizens, residents and tax-payers of Beech Creek township, and he appends to the information a petition signed by twelve persons and a letter from a physician relating to the character of the disease of the defendant in error and the effects upon his mind.
It may be that the electors of the township elected the defendant in error to the office of justice of the peace through sympathy, hoping that he might be enabled to live by its fees, discharging its duties in the intervals of the paroxysms of his disease. Perhaps a subject for the information might have been found equally incompetent, though not subject to fits, and less entitled to commiseration. Be this as it may, we see no clear ground on which we can affirm the judgment of the court below, sustaining the demurrer to the information.
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Smith, J.
This action was brought to recover damages for the negligent killing of a horse by a railway train. The verdict was for the plaintiff and the circuit court refused to disturb it for alleged misdirection of the jury and insufficiency of the evidence.
The plaintiff proved that the animal had escaped from his enclosure at night and was found next morning dead and mangled, near the railroad track; and after proof of its value, rested.
The defendant then proved that the train left Fort Smith at 4 :15 a. m. ; that the night was dark and foggy, but the engine had a bright head-light, which lighted up the track sufficiently for the engineer to see an object of the size of a man’s body lying across the track for the distance of one hundred yards ahead; that the train was running twelve or fifteen miles an hour and could have been stopped within the distance of one hundred feet; that the horse was in a stock gap, three or three and a half feet deep, just outside of the corporate limits of Fort Smith, and when the engineer first discovered him the engine was not more than sixty or eighty feet from the gap : that he instantly whistled down brakes and reversed his engine, but the train struck the horse and carried his body one hundred yards below, and that it was impossible to stop the train, after the horse was seen, in time to avoid the injury.
The presiding judge signed a bill of exceptions, certifying that the foregoing testimony was produced at the trial, but refused to certify that the engineer had stated in his evidence “that he kept a watch-out ahead from the time the train left the station until the locomotive struck the horse.” 'Thereupon the defendant procured the signatures of by-standors attesting the truth of the exceptions as prepared by its counsel, as provided by Sec. 4698 of Gantt’s Digest, and the same was. filed as part of the record ; but the truth thereof was maintained and controverted by affidavits and countei'-affidavits.
The court at the instance of plaintiff, gave the jury the following directions, to which an exception in gross was reserved:
1. The killing of stock on any railroad track in this State shall be prima facie evidence that it was done by the train, and the onus to prove the reverse will be on the railroad company.
2. If you find that the horse in question was killed by the train, the presumption is that it resulted from a want of due care on the part of defendant, and that it is such a killing as would entitle the plaintiff to damages equal to the value of the horse at the time it was killed.
3. A railroad company is not liable for an unavoidable accident, even under our statute, in relation to stock. If with every reasonable precaution, proper look-out, and proper speed and proper attention, an unavoidable damage ensue, the company which has by law the right, under such precaution, to run its trains, is not responsible. The presumption is against the road, and the proof, under our law, must be made that there was no negligence or want of ordinary care.
The defendant moved the two following instructions which were given:
1st. That if the jury find from the evidence that the plaintiff’s horse was in a stock-gap when the defendant’s locomotive struck him; that it was a dark night and a part only of the animal appeared above the surface of the road, but so that he could not have been seen or discovered by the engineer on the locomotive until it was impossible to stop the train in time to prevent the killing of the horse, and that the stock-gap was properly constructed, as stock-gaps-usually are, and every effort was made to stop the train after the animal was first seen in the gap, they should find-for the defendant.
2d. That to entitle the plaintiff to recover, it must appear to the satisfaction of the jury from the proof that the killing of the plaintiff’s horse was occasioned, by or was the. result of, the neglect or unskillfulness of the defendant’s agents or employes, or of a defect or improper construction of the stock-gap.
The defendant has no cause to complain of the charge of the court. It fairly presented the law of the case. And. as to the evidence, giving the defendant the benefit of the statement in the second bill of exceptions — that the engineer was on the look-out — there yet remained some small discrepancies in the engineer’s story which might fairly have discredited him with the jury. Thus, if the head-light illumined the track for one hundred yards ahead and the engineer was watching out, why should he have failed to see the horse sooner ? True he swears that it was impossible to do so on account of the darkness. But that was a question for the jury, and they might well have found that there was no such impossibility. It was proved that the track was straight for two or three hundred yards before coming to the stock-gap.
In L. R. & Ft. Smith R'y. v. Finley, 37 Ark., 563, this court held that, although stock be wrongfully on the track, yet the engineer must use ordinary care and diligence to discover it and avoid injury to it; else the company will be liable. And in L. R. & Ft. Smith R’y. v. Holland, 40 Ark., -, we defined ordinary care in this class of cases to mean practically that the company’s servants must use all reasonable means to avert injury after the animal is seen, or might have been seen, on or near the track.
Again, the testimony was that the train might have been ■stopped within one hundred feet,, and although the conductor testifies that the brakes were promptly applied in response to the alarm whistle, yet the train actually ran one .hundred and twenty yards before it was stopped.
The burden was upon the defendant to show by a fair preponderance of evidence that it exercised due caution in the premises and we do not interfere with verdicts, where the law has been properly charged! unless the jury has disregarded either the law or the evidence.
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OPINION.
The statute under which the suit was brought provides r
“It shall be the duty of the owner or association owning any telegraph lines, doing business within the State, to-receive dispatches from and for other telegraph lines and associations, and from and for any individual, and on payment of their usual charges for individuals for transmitting, dispatches, as established by the rules and regulations of such telegraph line, to transmit the same with impartiality and good faith, under the penalty of one hundred dollars for every neglect or refusal so to do, to be recovered with costs of suit, in the name and for the benefit of the person sending, or desiring to send, such dispatch, &c.” Gantt’s Dig., sec. 5721.
The agent of the appellant company, at Little Rock, received the dispatch in question, and promptly it appears, sent it to the agent at Conway, who received it, and returned the usual receipt. So far no negligence is imputed to appellant. But the dispatch was not delivered, to Riley, although he called for it several times, and the agent could, or did render no excuse for his failure to deliver it. It seems he could recollect nothing about it. The delivery of the dispatch was part of the duty of transmission, which appellant assumed.
The court found, upon the agreed facts, that appellant, failed to deliver the dispatch, through the negligence of its employe at Conway, and the finding was warranted by the facts agreed on.
While telegraph companies are not insurers and do guarantee the delivery of all messages with entire accuracy, and against all contingencies, they do undertake for ordinary care aud vigilance in the performance of their duties, and to answer for the neglect and omission of duty of their servants and agents. Baldwin v. United States Telegraph Co., 45 New York, 751; Hubbard et al. v. Western Union Telegraph Co., 33 Wisconsin, 565.
In a common law action against a telegraph company for negligence in failing to transmit or deliver a message, inal damages only can be recovered, unless actual are alleged and proved, lb.;1 Sutherland on Damages p. 10.
But in a suit under the above statute no actual need be alleged or proved. The statute fixes the amount or penalty to be recovered, whether the actual damage be great or small.
By the statute of several of the American states, penalties are imposed upon telegraph companies for failure in the discharge of many of the duties resting upon them in respect to the transmission and delivery of messages; as for example, in respect to failure to transmit the message with impartiality and good faith; failure to send the message in the order of time in which it is received for transmission ; disclosure of contents of message by the agents and servants of the company; failure to transmit and deliver the message, etc.
In other states many of these violations of duty are made criminal, and punished with fine and imprisonment. See a collection of such statutes in Law of Telegraphs, Scott <& Jarnagan, secs. 419-446.
Counsel for appellant submit that the statute being penal, and therefore to be strictly construed, there can be recovery under it unless the negligence complained of be intentional.
The court below was not asked to make any special declaration of law construing the statute, but to declare in general terms that the law upon the agreed facts was for appellant, which was refused.
Conceding it to be true, for the disposal of this case, without deciding it, that a recovery can be had, under the statute, for intentional neglect to transmit or deliver a message, only when the plaintiff proves alleged negligence, must he go farther and prove that it was intentional on the part of the telegraph company, or its agents, or is the bur-then upon the defendant to prove that it was accidental, and not wilful ?
The authorities are that negligence being shown by plaintiff, the burthen is shifted to defendant to excuse it. Western Telegraph Company v. Ward, 23 Indiana, 377; Central Law Journal, vol. 2, p. 748—9.
In this case it was proved or agreed, that the agent at Conway received the telegram, but did not deliver it to Riley, although he called for it several times, and nothing is shown to account for or excuse this negligence. The court below was warranted, therefore, in assuming that the negligence was intentional on the part of the agent, or a gross disregard of duty.
On a charge of murder at common law, it is. a familiar rule that the fact of killing being proved, the law implies malice, and thebui’then of proving circumstances of excuse, mitigation or justification is upon the accused.
In the administration of penal stututes, it is perhaps a general rule that where the wrongful act is proved, it devolves upon the defendant to show that it was unintentional, accidental, excusable or justifiable.
In Russell v. Irby, 13 Ala., 131, the case relied on by counsel for appellant as in point, the plaintiff brought debt under a penal statute against defendant for cutting and removing timber from the plaintiff’s laud. We take it that if nothing had been proved in that case but the fact that defendant’s servants cut and hauled trees from plaintiff’s land, the coui’t would have decided that plaintiff was entitled to recover the statute penalty in the action. But it was proved, by defendant no doubt, that he directed his servants to cut timber on his own land, and pointed out as well as he could, his line, but that the servants unintentionally, in cutting timber, passed over defendant’s line, and cut and removed a few trees from plaintiff’s land. The court held, upon the whole evidence, that iuasmuch as the trespass was shown to have been accidental, and not intentional, plaintiff could not recover the statute penalty, but would have to resort to a common law action for actual damage — the value of the timber.
Affirmed. | [
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English, C. J.
At the March term, 1883, of the circuit •court of Dorsey county, A. J. Cathey was indicted for selling liquor without license. The indictment alleged in substance that said Cathey on the fifteenth day of March, 1882, in the county of Dorsey, did unlawfully sell onp pint of whiskey, when he had not previously procured license from the county court of said county, as provided by law, authorizing him to sell intoxicatiug liquors in quantities less than a quart, etc.
■ The defendant filed a loosely drafted plea in abatement, intending no doubt to allege that the offense charged in the indictment, if committed at all, was committed within three miles of the academy of New Edinburgh, Dorsey county, after the county court of said county had made an order prohibiting the sale of spirituous liquors, etc., within three miles of said academy, under the act of March 2d, 1875. The plea made an exhibit of an authenticated transcript of the record of the order of the county court referred to. The order was made at the October term, 1877, of the county court, and prohibited the sale or giving away of any vinous, spirituous or intoxicating liquors, etc., within three-miles of the academy of New Edinburgh. The same order, and the constitutionality of the act of March 2d, 1875, under which it was made, were before the court in Boyd v. Bryant, 35 Ark., 70, where the act is copied.
The plea in abatement was submitted to, and sustained by the court, and the indictment dismissed, and the state, appealed.
The indictment was manifestly drawn under the act of March the 8th, 1879, which, taking the allegations of the-, plea to be true, was not in force at the time the alleged offense was committed, within the area mentioned in the-order of the county court, where the offense was committed* The order of the county court displaced that act and put into operation within that area of territory the act of March. 2d, 1875, under .which the indictment should have been, drawn. For form for such indictment, see Wilson v. State,.. 35 Ark., 414.
On principle, DeBois v. State, 34 Ark., 381; and State v. Orton, ante., are applicable to this case.
Affirmed. | [
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Smith, J.
William St. John Hubbard died in the year 1878. Just before his death he made his will, which was afterwards duly proved, and which is in the words following:
“I bequeath and leave unto my brother, Edward L. Hubbard, the full amount of his indebtedness to me and the remainder of my property, both personal and real, to my sister, Mrs. Sarah L. Fitzhugh, after paying all of my debts and my sister to administer without bond.”
In point of fact Edward L. Hubbard was not then indebted to the testator. He had formerly owed the testator a debt of $4221.61, which was evidenced by note and secured by deed of trust upon real estate. But this debt had been transferred eight months before the execution of the will, to Mrs. Sarah L. Fitzhugh. The deed of trust contained the usual power of foreclosure by advertisement and sale upon default in payment. And in case of the refusal of the trustee to act, the sheriff of Phillips county was empowered to execute it.
Cage, the trustee, who was also the draftsman of the will, did refuse to sell the property, alleging as his reason that the debt had been satisfied by the provisions of the will. Whereupon the services of the sheriff were called into requisition. After due notice he sold and conveyed the lands to Mrs. Fitzhugh, who brought' ejectment. The defendant set up as an equitable defense that the deed of trust under which the plaintiff claimed title, had been can-celled and the debt, which it was intended to secure, .had been released to him by virtue of said will. The cause was transferred to equity. Testimony was taken on both sides. And at the hearing the court required Mrs. Fitzhugh to elect whether she would affirm the will and accept the devise to her, or renounce the same and assert a right to the debt due by Edward L. Hubbard. She elected to take under the will. The court thereupon dismissed her complaint, set aside the trustee’s sale and conveyance and cancelled Edward L. Hubbard’s note and deed of trust. Mrs. Fitzhugh has appealed. And the main question is whether this is a proper case for the application of the doctrine of election.
“An election, in equity, is a choice which a party is com- . pelled to make between the acceptance of a benefit under an instrument and the retention of some property, already his own, which is attempted to be disposed of in favor of a third party, by virtue of the same instrument. . The doctrine rests upon the principle that a person claiming under an instrument shall not interfere by title paramount, to prevent another part of the same instrument from having effect according to its construction; he cannot accept and i’eject the same instrument. It is a doctrine which is principally exhibited in cases of wills. ******
“The most common instance which is put of a case of an election is, where a testator gives money or lands to A and by the same will gives something of A’s to B. Here A must elect. He must either give effect to the will by allowing B to have the -property which the testator intended should go to him ; or, if he chooses to disregard the will and retain his own property, he must make good the value of the gift to the disappointed beneficiary.” Bishpam Brine. Eg., sec. 295; see also Sto. Eq. Jur., sec. 1076 a seq-, 1 Bead. Gas. Eq. 342.
Here the testator has undertaken to dispose of a debt which belonged to Mrs. Fitzhugh. But he has given her the whole of his own estate. Her conscience is therefore affected by the implied condition annexed to the testator’s bounty, that, while availing herself of the will in one direction, she shall not defeat its operation in another.
The ultimate question in all such cases is this : Hid testator intend that the devisee, upon accepting the benefit conferred upon him, should acquiesce in the donation of devisee’s own property to another? Hence it becomes important to determine how far parol evidence is receivable to manifest such intention. Cage and other witnesses were sworn to prove declarations of the testator that in using the language “indebtedness to me,” he referred to the debt which had been assigned to Mrs. Fitzhugh. In Robinson v. Bishop, 23 Ark., 378, this court expressed its preference to construe wills from their own terms, rather than to take the deposition of the scrivener as to what the testator meant by particular clauses.
Parol evidence is admissible, in this class of causes, to the same extent as in other cases, in aid of the construction of written instruments, and no further. You may show condition of the subject matter and the surrounding circumstances so as to place the court in the position of the testator. But his purpose to put the devisee to his election must appear from the will itself. 2 Redf. on Wills, 745.
But as it was in proof that Edward L, Hubbard owed the testator no other debt, the will can have no reasonable construction without including Mrs, Fitzhugh’s debt.
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OPINION.
At common law no creditor, who had not acquired a lien, could maintain an action against one who had combined and colluded with his debtor. Assumpsit would not lie, for there is neither an express pomise to pay the creditor’s debt, nor any privity from which the law will imply such a promise. Case could not be supported, because the creditor having no special title in or to his debtor’s property, the damages are too contingent and remote.
This action then must be bottomed on the following provisions of Gantt’s Digest:
“Sec. 1376. Every person who shall be a party to any conveyance or assignment of any real estate, or interest. in any real estate, goods or choses in action, or any rents or-profits issuing therefrom, or to any charge upon such estate, with intent to defraud any prior or subsequent purchaser, or to hinder, delay or defraud creditors or other-persons, shall be deemed guilty of a misdemeanor, and on conviction, shall be tinea in any sum not less than five hundred dollars.
“Sec. 1378. Any person who shall violate any of the provisions of the two last preceding sections shall, in addition to the fine to be assessed in the criminal prosecution,, pay to every person so by him injured or defrauded, by any of the means therein mentioned, double the damages sustained by him, to be recovered by proper action.”
It is argued that no action lies on this statute before conviction. But the statute does not make the right of tion dependant on the previous conviction of the grantee in a fraudulent conveyance. And the legal analogies are all against this proposition. At common law, a party could not sue for damages arising out of a felony, until after a trial upon a criminal prosecution; “the excellent policy of; that law preventing the person injured by the trespass from' seeking his own redress, until it should be first ascertained, and determined by the proper tribunal what the justice of the state requires of the accused for the deed. Otherwise-it was supposed that persons injured would often obtain, compensation for such trespasses, upon an agreement not-to complain of the public wiong; and reparation would be made for the civil injury to escape the justice of the country.” But the rule never extended to misdemeanors ; and. even in regard to felonies our legislature has changed it. The civil injury is no longer merged in the felony. Sec.. 4765 of Gantt’s Digest; Brunson v. Martin, 17 Ark., 270.
Wherever a statute gives a right, the party by consequence shall have his action to enforce it. So that the novelty of the particular complaint is no objection, provided an injury cognizable by law be shown to have been inflicted on the plaintiffs. They had no control over the •criminal prosecution and are not responsible for its non-in■stitution or its miscarriage.
We do not regard the statute which gives the right of action as penal in its character, but as remedial. The action provided for is not a qui tarn action to recover a penalty for being a party to a fraudulent conveyance, like the Vermont •statute which is construed in Slack v. Gibbs, 14 Vt., 357; Colgate v. Hill, 20 Id., 56, and Aiken v. Peck, 22 Id., 255. But it more resembles the English statute giving double damages to a landlord against a stranger for assisting a tenant to carry off and conceal his goods, whereby the plaintiff was prevented from dis-training for his rent; or the Maine statute which declares that any person who assists a debtor to defraud his creditor by making a fraudulent concealment or transfer of his property shall be answerable under a special action on the case, to any creditor, in double the amount so fraudulently concealed or transferred. The two statutes last mentioned have been decided to be purely remedial. Stanton v. Whardon, 9 Price. 301 ; Quinby v. Carter, 20 Me., 218; Philbrook v. Handley, 57 Id., 53; Thacher v. Jones, 31 Id., 528 ; Frahock v. Patten, 38 Id., 103.
Reed v. Northfield, 13 Pick. 94, was an action against •a town for an injury to the plaintiff, caused by a defect in a highway, under a statute giving double damages. Shaw, •C. J., in delivering the opinion of the court, said : “The action is purely remedial and has none of the characteristics •of a penal prosecution. All damages for neglect or breach ■of duty operate to a certain extent as punishment, but the ■distinction is, that a penal action is prosecuted for the purpose of punishment, and to deter others from offending in like manner. Here the plaintiff sets out the liability of the town to repair, and an injury to himself from a failure to perform that duty. The law gives him enhanced damages ; but they are recoverable to his own use, and in form and substance the suit calls for indemnity.” See also Suffolk Bank v. Worcester Bank, 5 Pick. 106.
The next point is : What proof must the creditor to entitle him to recover in an action brought upon this statute? It devolves upon him to show: 1, that he has just debt; 2, that his debtor has fraudulently transferred his property to the defendant; 3, that that property was liable to be taken on execution or attachment; 4, that the defendant has knowingly aided the debtor to defeat the right of his creditors; and 5, the amount of the plaintiff s damages. Quinby v. Carter, supra.
Upon the first proposition the present case presents no difficulty ; but upon the remainder the evidence is wholly insufficieut. Granting that theEmericks are now insolvent and that the plaintiffs are unable to collect their debt,there is no proof of fraud in the concoction of the transfer and none of any circumstances from which fraud might be inferred. A conveyance is not necessarily fraudulent because its effect is to hinder and delay creditors, unless it was a contrivance for that purpose and the grantee participated in the design. And the difficulty in demonstrating the intention from the overt acts and conduct of the parties furnishes no reason for courts to assume that a transaction is infected with fraud from vague suspicions of its nature and character, unassisted and uncrontrolled by any certain or fixed rules. Hempstead v. Johnson, 18 Ark., 123, Bump on Fraud. Con., 605.
The fact that the price paid approximated the value of property is a potent argument of the good faith of the parties. Here was no gross inadequacy of consideration, imparting to the sale a dubious aspect. Daniel & Strauss did not buy it for a song, but paid probably as much as if it ■had been sold under the hammer by virtue of their deeds of ’trust. They are not proved to have any knowledge of the ■plaintiff’s claim or of any other debt due by the Emerichs, nor to have had or exercised any undue influence over them. And they had the right to make the best bargain they could ■for themselves, without considering what effect it might have on others. The Emerichs probkbly assented to the arrangement'because it was the best they could make. They were at the mercy of Daniel & Strauss.
It is unnecessary to determine whether the transaction was a conditional sale or a mortgage. We incline to the opinion that it was the former, and in giving Emerich a ■limited time within which to repurchase, time was made of the essence of the contract. But whether it was the one or ■the other, the circumstance that the Emerichs were allowed to retain ¡possession for the rest of the year, does not constitute fraud, if the transaction was in other respects unobjectionable. The instruments of transfer, were placed of record. Feild v. Simco, 7 Ark., 269 ; Stone v. Waggoner, 8 Id., 204.
But we will not pursue the subject. This is a case of novel impression in this State. It occurs to us that in actions based on this statute, great embarrassment will be felt both by courts and juries in arriving at the extent of the injury and quantum of damages. For, suppose it to be proved that the debtor has conveyed away his property, without receiving any equivalent for it, with intent to evade the payment of his debts, and that the creditor has no other means of obtaining payment; what is the measure of damages? Not the whole amount of his debt, for that might oxceed the value of the property conveyed; nor yet the value of the property, for to that he has no better claim than other creditors. The only loss which could be shown would be that he has been deprived of a chance or possibility ■of being paid out of that property. The loss would not even foe so great as this, for in many cases he might still reach the property in the hands of a fraudulent holder. The value of such a chance is not readily to be estimated by any •data or table that we are acquainted with. Bump on Fraud, Conv., 528.
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Battle, Special Judge.
William A. Fatherly executed his promissory note, bearing date the eighth day of July, 1878, and thereby promised to pay, ninety days after the date thereof, to his own order, the sum of sixteen hundred- and fifty dollars, and ten per centum per annum interest thereon from the maturity of the note until paid,, and. Francis' E. Ashley and A. G. DeShon endorsed it. The-note was executed and endorsed for the purpose of borrowing money. After Ashley and DeShon endorsed the note, William D. Blocher gave Fatherly his check on the German bank for the sum of sixteen hundred and eight dollars and seventy-five cents, and Fatherly endorsed and delivered the note to Blocher... Fatherly collected the check and paid Blocher the sum of ten dollars. Blocher transferred the note to the German bank and received a credit on his account with the bank for the sum of sixteen hundred and eight dollars and seventy-five cents. After this, DeShon delivered' to the bank the sum of four hundred dollars. The bank brought suit on the note against Fatherly, DeShon and Ashley.. DeShon answered, setting up usury and claiming a set-off for- the four hundred dollars, and the bank replied,, denying the set-off. The other defendants did not answer. A trial was had and a verdict was returned in favor of DeShon against the bank for the sum of four hundred dollars.
The court below instructed' the jury, at the instance of DeShon, substantially, as follows:-
That contracts for a greater rate of interest than ten percentum per annum are void as to principle and interest. That the paying and receiving of ‘ a greater rate of interest than ten per centum per annum on a loan of money isprima facie evidence of a corrupt agreement, notwithstanding the parties to the loan acted-in ignorance of the law. That a note payable to the order- of the maker has its inception when it is delivered by the maker to some one for-value or as evidence of a contract and not before, and the-person to whom it is so- delivered for the first time is the payee, although not named in the note. That if Blocher gave Fatherly his check for sixteen hundred and eight dollars and seventy-five cents,, and' upon tlie delivery of the check, received the- note for sixteen hundred and fifty dol ■lars, and the check was paid, and Fatherly, afterward, under an agreement between himself and Blocher, made previous to the receiving of the check and the delivery of the ■note, paid to Blocher the sum of ten dollars or any other sum in addition to the sum of forty-one dollars and twenty-five cents already received in the discount of the note, and these sums of money amounted in the aggregate to more than ten per centum per annum interest for the time the money was •loaned, and the same was knowingly done, the note would 'be void because of usury, although the parties to the transaction in so doing, acted in ignorance of the law; and was void in the hands of the German bank, notwithstanding it became the owner thereof, by paying a valuable consideration before maturity, and without notice of the usury.
That if they believed from the evidence, that the note • sued on was usurious in its inception, and that DeShon deposited with the German bank the sum of four hundred dol•lars under a special agreement; that the contingency and •purpose for which the deposit was made had not happened ; ■ and, that under the terms of the deposit, DeShon is entitled to a return of the same, they should find for DeShon in the ¡sum of four hundred dollars.
And the court on its own motion, instructed the jury, among other things, “that if Blocher negotiated the-note to 'the bank, as the agent of Fatherly, and took a commission for his trouble in making the negotiation, that such commission could not. be added to the interest so as to constitute usury ; but if Blocher gave Fatherly a check and took the note as his property, and afterwards negotiated it to the bank on his own behalf, it would make him the first payee ■of the note and would not constitute him the agent of Fatherly,”
Is there any error in these instructions ?
The thirteenth section of article nineteen of the constitution of this State declares that l‘all contracts for a greater rate of interest than ten per centum per annum shall be void as to principal and interest.” This section is clear and unambiguous. With the wisdom and policy of it the courts have nothing to do. It is their duty to carry it into effect according to its true intent, to be gathered from its own words, without regard to the hardships incident to the faithful execution of such laws.
The note sued on was executed and endorsed for avowed purpose of borrowing money. It was payable to the order of the maker, and did not become an operative^ contract and binding on the maker and endorser until it was negotiated by Fatherly. Until then it did not become a promissory note and was not a subject of sale. The person to whom he endorsed and delivered it became the payee therein, and the money advanced thereon, less whatever sum the maker agreed, before the delivery thereof, to pay, and thereafter paid to such payee, if any, for advancing, became the consideration thereof, and it accomplished its purpose by becoming a note for borrowed money. If consideration was less than the principal of the note and the difference was greater than ten per centum per annum on such consideration, from the date of the note to the maturity thereof, and the parties to the loan intended to pay and receive a greater rate of interest than ten per cent, per annum, the note would be void for usury. If, for example, Blócher gave his check for sixteen hundred and eight dollars and seventy-five cents to Fatherly with the understanding, at the time, that Fatherly would return or pay to him ten dollars and transfer to him the note, and Fatherly, thereupon, transferred the note to him and, thereafter, collected the check and paid the ten dollars to him, with the intent aforesaid, the whole transaction was usurious, and the note was void as to principal and interest, because there was intentionally reserved — paid and received, a greater rate of interest than ten per centum per annum on the money actually loaned. Scull v. Edwards, 13 Ark., 24 ; Howe v. Potter, 61 Barb., 356; Young v. Wright, 1 Camp., 139 ; Ashland v. Pearce, 2 Camp., 599 ; Wilkes v. Roosevelt, 3 John. Cases, 66; Whitten v. Hayden, 7 Allen, 407; Tufts v. Shepperd, 49 Me., 312; Sylvester v. Swan, 5 Allen, 134; Bossange v. Ross, 29 Barb., 576; Aeby v. Rapelye, 1 Hill, 9 : Cockey v. Forrest, 3 Gill and John., 482 ; Bynum v. Rogers, 4 Jones (N. C.,) L., 399; Ruffin v. Armstrong, 2 Hawks, 411; Dowe v. Schutt, 2 Denio, 621 ; Wallace v. The Branch Bank of Mobile, I Ala., 565; Sauerwein v. Brunner, 1 Harris & Gill, 48.3; Jones v. Hake, 2 John. Cases, 60; Munn v. Commission Co., 15 John., 44; Farris v. King, 1 Stewart, (Ala.), 255; and Richardson v. Scobee, 10 B. Mon., 12.
Like the note, the endorsement of Ashley and DeShon had no binding force and did not become a contract until the note was negotiated, when it became a contract on the part of Ashley and DeShon with the person to whom it was passed, by which they undertook, among other things, to pay the nóte to such person, or other holder, provided the same was duly presented and was not paid by Fatherly, and due and reasonable notice was given to them of the dishonor. In the transfer and delivery of the note and endorsement, Fatherly represented himself and the endorsers, and by the same contract negotiated the note and endorsement, and made the consideration of each of these contracts the same. If the consideration of the note is usurious, sois that of the endorsement; if one be a contract for a greater rate of interest than ten per centum per annum, so is the other ; and if one is void for usury, so is the other. The note and the endorsement of the accommodation endorsers are so intimately connected that they must stand or fall together ; and the endorsers were entitled to make the same defenses the maker could have made. Story on Promissory Hotes, sec., 129; Rey v. Simpson,
NOVEMBER TERM, 1883. 339 German Bank v. DeShon. 22 How. ( U. S.), 341; Good v. Martin, 5 Otto, 90; Ross v. Jones, 22 Wall., 589; Satoyers v. Chambers, 44 Barb., 42; Wilkie v, Roosevelt, supra; Gaillard v. LeSeigneur & LeRoy, 1 McMullan, 229, and authorities above cited. To constitute the corrupt agreement said to be necessary3- Usx,,g^ to constitute usury, it is not necessary that there be an g?eementl actual intent to violate the statute or constitution. Where parties to a contract for a loan knowingly agree to pay and receive more than ten per centum per annum for the use of the money borrowed, this, in the sense of the law, is a corrupt agreement. If it be the real intention of the parties . to receive or reserve a given rate of interest, and that rate proves to be usurious, the contract will be void for usury, whether the parties knew the interest to be usurious or not. Ignorance or mistake in relation to the law, in such a case, will and does not afford protection against the consequences of usury. New York Firemen’s Insurance Co. v. Fly, 2 Cowen, 678; McGill v. Ware, 4 Scam, 29; and Metcalf v, Watkins, 1 Porter, 96. If the note in question was transferred and delivered by 4. void in-J liands of Eatherly to Blocher, in consideration of money loaned, and^^ll31*' it was-void on account of usury in the hands of Blocher, it was likewise void in the hands of the German bank, notwithstanding it was transferred to the bank for a valuable consideration before maturity, and without notice of the usury. It is true, as a rule, that a bona fide holder, who has received negotiable “paper in the usual course of business,” as said by Mr. Daniel in his work on negotiable instruments, “is unaffected by the fact that it originated in an illegal consideration, without any distinction between cases of illegality founded in moral crime or turpitude, which are termed mala in se, and those founded in positive statutory prohibition,' which are termed mala prohibita.. The law extends this peculiar protection to negotiable!
instruments, because it would seriously embarrass mercantile transactions to expose the trader to the consequences of having the bill or note passed to him impeached for some ■covert defect.” But there is one exception to this rule, :and that is, when a statute declares a contract void, it gathers no vitality by its circulation in respect to the parties •executing it, but it and the instrument evidencing it are void in the hands of every holder. 1 Daniel on Negotiable Instruments, sec. 197; Young v. Berkley, 2 N. H., 410; Young v. Wright, supra ; Howe v. Potter, 61, Barb., 356; Ackland v. Pearce, supra ; Wilkie v. Roosevelt, supra ; Bridge v. Hubbard, 15 Mass., 95 ; Sauerwein v. Brunner, 1 Harris & Gill, 477 ; Gaillard v. LeSeigneur, supra; Solomon v. Jones, 3 Brevard, 54; Hackney v. Sprague, 10 Wend., 114 ; Lloy v. Scott, 4 Pet., 228 ; Thompson v. Berry, 3 John. Chy., 394; Fleckner v. U. S. Bank, 8 Wheat., 354; Bowyer v. Bampton, 2 Stra., 1155; Townsend v. Bush., 1 Conn., 262; Metcalf v. Watkins, 1 Porter, 57; The City of Aurora v. West, 22 Ind., 88 ; and Dewing v. Perdicaries, 96 U. S. Rep., 196.
But it is said that the general assembly of this state, in 9*section four of an act entitled “an act regulating interest defining usurious contracts,” approved February 9, 1875, enacted that no bill of exchange or promissory note, void in its inception on account of usury, shall be void “in the hands of an endorsee or holder who shall have received the same in good faith and for a valuable consideration, and who had not, at the time of discounting or receiving such bill or note, or paying such consideration for the same, actual notice that such bill or note had been originally given for a usurious consideration or upon a usurious contract.” But is this section constitutional? We think not. The language of the constitution is broad and eomprehen«ive. It says : “All contracts for a greater rate of inter•est than ten per centum per annum shall be void, as to principal and interest, and the general assembly shall prohibit the same by law. ” ‘■‘•All contracts” include bonds, bills, notes and all other contracts, verbal and written,, whereby a rate of interest greater than ten per centum per annum is reserved, taken or secured, or agreed to be taken, or reserved, as fully and completely as if they had been severally and particularly enumerated in the constitution and declared void. The legal effect of this provision of ■ the constitution was to make bills, notes, and all other contracts tainted with usury void in the hands of every holder. The constitution made no exception as to persons, holders,., or contracts, and the legislature had no power or authority to do so. So far from having power or authority, the constitution expressly makes it the duty of the general assembly to prohibit all such contracts by law.
The instructions of the court below to the jury are substantially correct. We see no error in them prejudicial to the rights of appellant.
Was the verdict of the jury contrary to law and evidence?" The jury evidently found, first, that the note sued on was transferred and delivered to Blocher by Fatherly in consideration of a loan of money ; secondly, that Fatherly paid. Blocher the sum of ten dollars in part consideration of the money loaned, and that in the discount of the note and the. ten dollars there was paid to and received by Blocher, pursuant to an agreement coeval with the loan, more than ten. per centum per annum interest for the use of the money loaned ; and thirdly, that four hundred dollars was deposited by DeShon with the German Bank on conditions which, were never performed.
As to the first of'these facts found by the jury, Fatherly testified that he presented the note to Blocher and requested, him to borrow money for him on it; that Blocher said he had no money of his own, but that ho knew where he could., get twelve hundred dollars ; that he supposed Blocher was. his agent; that Blocher was to raise him some money ; that -on the next day after the conversation related he saw Blopher and Blocher told him he could let him have the money and gave him his check therefor on the German bank for $1,608.75 ; that he gave Blocher the note in question; that he collected the check and then paid Blocher ten dollars for his trouble ; and that he paid Blocher altogether $51.75 for the money advanced on the note.
Blocher testified he was not the agent or broker of Fath•erly ; that he purchased the note with his own money and ■on his own account' and gave his. check on the German bank for $1,608.75 ; that he does not know how much he received from Fatherly as commissions, certainly not more than ■$8.75, or that he received anything, but thinks he did not; and that the note was his and he sold it t© the German bank at ten per cent, discount.
C. T, Walkerj the cashier of the German bank, testified, "that on the ninth or tenth day of July, 1878, - Blocher presented the note to th,e German bank, and the bank discounted it at less than ten per cent, per annum; and that the bank paid Blocher $1,608.75 for it, and credited that •amount on Blocher’s account.
As to the second fact found by the jury, the note, on its face, was notice to Blocher that it had no validity or operative force or effect as a note, when it was first presented to •him, and that any money advanced upon it would be a loan. In fact, Fatherly testified, that it was presented to Blocher, with the request that he borrow money on it. In addition to this fact he further testified, that Blocher said he could let him have the money, and gave him his check on the 'German bank for $1,608.75, for the note ; and that he collected the check and paid Blocher ten dollars. Why did he .pay Blocher this ten dollars? For his trouble? There was no evidence that Blocher was at any trouble. He had. discounted the note $41.25, and in that way had already re ueived a fair remuneration for the use of his money. Why did he receive an additional compensation? Could the jury come to the conclusion other than that the ten dollars was paid and received as a part of the consideration for the loan of $1,608.75, pursuant to an agreement coeval with the loan? There was.certainly some evidence to support the jury in coming to this conclusion, and they were the sole judges of the weight that should be attached to it. Hammett v. Tea, 1 Bos. and Pull., 143; Catlin v. Gunter, 1 Kernan, 372; New York Firemens’ Insurance Co. v. Ely, 2 Cowen, 706; Andrews v. Pond, 13 Pet., 65, 80; Wright v. Wheeler, 1 Camp., 165; Towslee v. Durkee, 12 Wis., 480; and Price v. The Lyons Bank, 33 (N. Y.), 55, 57, 60.
As to the third fact found by the jury, DeShon testified, that he proposed to the cashier of the German bank, to deposit the full amount of the note, if the bank would sue Mrs. Ashley on the note, and that the bank should have the dejcosit if it failed to collect of Mrs. Ashley the amount of the note ; that the cashier agreed to this ; that thereupon he •deposited with the bank four hundred dollars, and was proceeding to make another deposit, when the cashier informed him that the bank would not sue Mrs. Ashley ; that no one had any authority to credit the four hundred dollars on the *note ; and that he did not hear the cashier tell Thompson to credit the four hundred dollars on the note, and did not know that it was so credited until after the institution of the suit.
C. T. Wa'lker, the cashier, testified that DeShon did not offer to deposit the amount of the note with the bank if plaintiff would sue Mrs. Ashley; that he understood the four hundred dollars to be paid as a credit on the note, and handed it to Thompson, who credited it on the note in De-Shon’s presence.
This was substantially the evidence before the jury. It was within their peculiar province to w_eigh it and determine the facts in the case. They returned a ver diet as before stated. The court who heard the evidence, 'and is therefore presumed to be better qualified to pass upon its weight and the credibility of the witnesses in the case than we are, refused to disturb it. It was sustained by evidence. It is not for us t,o decide whether we would have returned a like verdict or believe the evidence properly weighed.
The judgment of the court below is, in all things, affirmed. | [
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' English, C. J.
EL F. White was charged before the mayor of Russellville with keeping a hotel or place of public ■entertainment within the limits of the town without obtaining license as required by an ordinance of the town council.
He admitted that he kept a hotel without license as alleged, but denied the power of the town to pass the ordinance 1‘equiring hotel keepers to obtain license. The mayor fined him $10, and he appealed to the circuit court, where a demurrer was sustained to the charge, and he was discharged and the town appealed.
The seventeenth section of the act of March 9, 1875, gives to municipal corporations organized under the act, power to regulate hotels and other houses for public entertainment.
It has been decided that the power to regulate includes the power to license as a means of regulating. Allerton v. Chicago, 20 Am. Law Register, 473 and notes; Chicago Packing and Provision Co. v. City of Chicago, 88 Ill., 221, and cases cited.
Reversed and remanded with instructions to the court below to overrule the demurrer to the charge, and for further proceedings, etc. | [
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English, C. J.
In September, 1882, David Brundage- and David Thomas were charged with larceny before a justice of the peace of Baxter county.
On the day set for trial (ninth of October, 1882) the defendant moved that James Lingo, the prosecutor, be required to give bond for costs, and the justice so ordered. Whereupon Lingo filed an affidavit that he was unable to-give bond to prosecute the case, and that he had been injured in his personal property. Thereupon the justice ordered a jury and proceeded with the trial; defendants were found guilty, and the verdict and judgment were that each of them be fined $25 and imprisoned in the county jail for twenty-four hours. They prayed an appeal to the circuit-court, which was granted by the justice.
At the next term of the circuit court, to which the appeal was taken, Brundage appeared in person, but Thomas failed to appear otherwise than by attorney. The attorneys for ■defendants renewed the motion made before the justice, ■that Lingo, the prosecutor, be required to give bond for cost, and that on his failure to do so, or to make the affidavit required by the statute, the prosecution be abated. The court overruled the motion as to Thomas, behaving failed to appear personally to prosecute his appeal, but sustained the motion as to Brundage, with leave to James Graves, the alleged owner of the stolen property, to .execute bond for costs, and- he declining to give bond, or make affidavit of his inability to do so, the court rendered judgment abating the prosecution as to Brundage and discharging him with costs.
Thomas was then called, failed to appear, and the judgment of the justice as to him was affirmed with costs, and execution awarded.
° Whether the court below erred in abating the prosecution as to Brundage is not before us, the State having taken no appeal.
On appeal from a judgment of a justice of the peace to . , ... . the circuit court, m a criminal prosecution-, the case stands trial de novo. The statute does not authorize an affirm-°f the judgment on failure of the appellant to appear. Gantt’s Dig., sec. 2,109,
The court, in its discretion, may order appellant brought in on a warrant, or dismiss the appeal, and award a mandate to the justice to execute his judgment.
Reversed and remanded for further proceedings. | [
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Mehaffy, J.
This action was begun by the appellee in the Jackson Circuit Court. The complaint stated that on April 18, 1931, the appellee, purchased from the Cash Service Station, Newport, Arkansas, a bottle of Coca-Cola which had been manufactured and delivered to said Cash Service Station by the appellant. It was alleged that, instead of being wholesome and fit for human consumption, said bottle of Coca-Cola so purchased had been negligently bottled by the appellant, and was unwholesome, poisonous, and wholly unfit for use, in that it contained a decomposed foreign substance, poisonous and deleterious, which had been negligently permitted to enter and remain in said bottle by the appellant. Appellee then alleged that he drank a portion of the contents of the bottle, and he became sick, and was permanently injured.
The appellant filed a motion to require the appellee to make his complaint more definite and certain, and this motion was sustained by the court.
Thereafter, the appellee filed an amendment in which it was stated: “that said bottle of Coca-Cola contained some kind of poisonous matter, foreign matter', and unwholesome matter, which has changed the color and appearance of same, giving it the. appearance of being murky and cloudy with heavy dark dregs and settlings in same, the chemical analysis of which is unknown to the plaintiff.”
The appellant then filed a supplemental motion to require appellee to make his complaint more definite and certain. This supplemental motion was overruled by the court, and appellant filed answer denying all the material allegations of the complaint and alleging contributory negligence.
There was a verdict and judgment for $3,000, and the case is here on appeal.
The appellant contends for a reversal on two grounds only, first, that the court erred in refusing to compel the appellee to conform to the motion to make more definite and certain, and in overruling appellant’s supplemental motion; second, that the verdict is excessive.
The original complaint was sufficient without any amendment. The court probably sustained the first motion to make more definite and certain under the belief that appellee could state what substance was in the bottle. When the amendment was filed, it contained the statement that the chemical analysis was unknown to the appellee.
Section 1183 of Crawford & Moses’ Digest provides:. “The pleadings are the written statements by the parties of the facts constituting their respective claims and defenses.” Section 1187 of Crawford & Moses’ Digest, in stating what the complaint shall contain, among other things, said: “A statement in ordinary and concise language, without repetition of the facts constituting the plaintiff’s cause of action.”
We think the original complaint is a compliance with the provisions of the. statute. It is a statement, in ordinary and concise language, of the facts constituting the plaintiff’s cause of action.
The appellant relies on the case of Rapp v. Parker, 128 Ark. 236, 193 S. W. 535. That was a suit for slander, and the court said among other things: ‘ ‘ The sole question in the case, is whether, in charging slander, it is necessary to set out the defamatory words.” The defamatory words were not set out, the court sustained a motion to make more definite and certain, and the plaintiff refused to amend and the complaint was dismissed. The court also said in that case: “Unless the words used were set out, it would be impossible for judge or jury to properly construe them.”
In the instant case the appellee amended his complaint in compliance with the order of the court.
In the case of Dorr, Gray and Johnston v. Fike, 177 Ark. 907, 9 S. W. (2d) 318, the court said: “It is well settled in this State (and no citation of authorities is necessary to support the position) that all a pleader is required to state is the facts upon which he relied for a recovery, where general damages are claimed.”
Many complaints of this kind have been before this court and other courts, and it has never been required to set out the facts with more certainty than they are set out in the complaint in this case.
It is next contended that the verdict is excessive. Section 1305 of Crawford & Moses’ Digest is as follows:
“When by the verdict, either party is entitled to recover money of the adverse party, the jury in their verdict must assess the amount of recovery.” Section 1311 provides that a new trial may be granted for excessive damages appearing to have been given under the influence of passion or prejudice.
“While the discretion of the jury is very wide, it is not an arbitrary or unlimited discretion, but it must be exercised reasonably, intelligently, and in harmony with the testimony before them. The amount of damages to be awarded for breach of contract, or in actions for tort, is ordinarily a question for the jury; and this is particularly true in actions for personal injuries and other personal torts, especially where a recovery is sought for mental suffering.” 8 R. C. L. 657, § 199; Olson v. St. Paul & D. R. Co., 48 N. W. 445; Colgate Co. v. Bross, 107 Pac. 425; Christy v. Elliot, 74 N. E. 1035.
This court said: ‘ ‘ The principal error assigned is in the amount of the recovery. Verdicts are set aside for this cause only when they are not supported by proof, or when they are so excessive as to indicate passion, prejudice, or an incorrect appreciation of the law applicable to the case.” Texas & St. L. Ry. Co. v. Eddy, 42 Ark. 527; Kelly v. McDonald, 39 Ark. 387.
“The amount of recovery in a case of this sort should be such, as nearly as can be, to compensate, the injured party for his injury. The suit is for compensation, and compensation means that which constituted or is regarded as an equivalent or recompense; that which compensates for loss or privation, remuneration.” M. P. Ry. Co. v. Remel, 185 Ark. 598, 48 S. W. (2d) 548.
The evidence shows that the appellee was forty years old, that he became violently sick, vomited, and suffered pain, and was unable to eat the things he had formerly eaten, and was under the care of a physician for a long while. Appellee’s physician testified that his injury was permanent; that he would suffer as long as he lived.
The extent of the injury and the amount of recovery were questions of fact for the jury, and there is nothing in this case to indicate passion, prejudice, or an incorrect appreciation of the law applicable to the case. This court, as was said in Texas & St. L. Ry. Co. v. Eddy, supra, cannot set aside a verdict if it is supported by proof, and when there is nothing to indicate passion, prejudice, or an incorrect appreciation of the law applicable to the case.
The jury were correctly instructed; they saw the witnesses; heard them testify; were able to observe their demeanor on the witness stand, and also had an opportunity to see the appellee himself, and they are therefore better judges of the. extent of the injury and amount necessary to compensate appellee than this court is, and for that reason the jury is the judge of the credibility of the witnesses and the weight to be given to their testimony.
The judgment is affirmed. | [
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Butler, J.
This action was begun by Anderson and certain other persons to enforce a laborers’ lien upon crops grown by J. L. Kestle on lands owned by the Winooski Savings Bank. At the conclusion of the testimony a judgment was directed for the plaintiffs over the objection of the defendants, which action of the court is assigned as error.
The lease agreement under which Kestle operated was executed on March 29,1930, between A. W. Campbell, agent, as lessor, and J. L. Kestle, as lessee. By this agreement the lessor leased for the crop year of 1930 certain lands in Arkansas County for the purpose of the lessee raising a crop of rice thereon. The lessee agreed to prepare the soil for planting, to plant, irrigate and harvest the crop, furnish all necessary work for said purposes, and for the threshing of the crop and hauling the same to market. He was also to furnish all necessary implements and to pay all other expenses incident to making the crop, including binder, twine, etc. The lease further stipulated that, “in consideration of lessor’s leasing said lands to the lessee, lessee agrees to deliver for the account of the lessor one-half of the rice grown on said lands to the cars or mill at Almyra, DeWitt, or Stuttgart, at the option of the lessor.” The lessor agreed to furnish the seed rice, electric power for the irrigation plant, to make necessary repairs thereon, to keep said plant in good working order during the year, and was to furnish lessee a “reasonable” amount of money with which to make the 1930 crop.
There is practically'no conflict in the evidence. It was proved that the plaintiffs performed the work for Kestle in thrashing the rice, and that he was due them the amounts claimed, payment for which had not been made. It was admitted by them that they had no dealings with the Winooski Savings Bank or with its agent, Campbell. It is also undisputed that the appellants furnished reasonably sufficient money with which to make and gather the crop, and that, after the proceeds derived from Kestle’s half of the crop has been credited to his account, there remains a considerable balance still due.
The contract, the substance of which has been set out, establishes the relation between the Winooski Savings Bank and Kestle of landlord and tenant under the rule announced in Hammock v. Creekmore, 48 Ark. 264, 3 S. W. 180, followed and restated in Barnhardt v. State, 169 Ark. 567, 275 S. W. 909. From the terms of the. contract, it is apparent that Kestle was not to receive a part of the crop from the landlord as wages for his work, but that he had dominion over the lands and controlled the processes of agriculture unhampered by interference on the part of the landlord, and was to pay one-half of the crop grown for the seed, use of the land and irrigation equipment, using his own farm equipment and furnishing the labor.
“If the share-cropper raises a crop for the landlord, and is to receive a part of the crop from the landlord as wages for his work, the title to the crop grown vests in the landlord, and the share-cropper has a lien thereon for his labor. If the share-cropper is to pay one-half the crop for the use of the land, with the tools and team and feed therefor, then the title to the crop is in the tenant, and the landlord has a lien thereon, and, in addition, the landlord has a lien for any necessary supplies of money or provisions to enable the tenant to make the crop, but the title to the crop is in the tenant.” Barnhardt v. State, supra.
The statutes give a landlord a lien on crops raised by his tenant or employee for the rent of the land and for advances of money, or other supplies necessary to enable the tenant or employee to make and gather the crop. Section 6864, Crawford & Moses’ Digest, which is § 1 of act No. 35 of the Acts of 1895, gives laborers an absolute lien on the thing, material, or property upon which they have performed work for the amounts due for such work, subject to the landlord’s liens for rent and sup plies. The respective rights and conflicting claims of landlords for rent and advances made and those who perform work for a tenant or share-cropper in making or gathering a crop is discussed in Burgie v. Davis, 34 Ark. 179. In that case it appears that one Armistead was a laborer on the farm of Burgie. He was to make and gather the crop furnishing only his labor, food and clothing, and was to receive one-half the crop as his wage. Burgie was to, and did, furnish the supplies necessary to make the crop for which Armistead was to pay out of his half. The latter made a contract with others to work for him for which work he was to pay out of his half of the crop a certain part thereof. Burgie took possession of the crop when gathered, and Armistead’s laborers brought suit to recover the value of the cotton agreed to be paid to them by Armistead as wages. It was held that they had a lien upon Armistead’s half of the crop, but that it was subordinate to that of the owner for supplies furnished.
In Cotton v. Chandler, 150 Ark. 368, 234 S. W. 165, it was held, quoting headnote that: “Where a landowner employed a share-cropper to raise a crop on land, and made advances to him' to be repaid out of his share of the crop, the landowner’s right to a lien for such advances is superior to the rights of third persons who assisted the sharecropper in making the crop under an agreement with the latter that they should receive onetliird of the latter’s crop.”
From the undisputed evidence in this case, with the statutes and decisions cited supra applied thereto, it is evident that the trial court erred in any view of the case in directing a verdict for the plaintiffs, but should have directed a verdict in favor of the defendant as requested by it. The judgment is therefore reversed, and the case is dismissed. | [
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McHaney, J.
This case is similar in some respects to those of Freeman v. Jones, ante p. 815, and Snodgrass v. Pocahontas, ante p. 819, this day decided. The city of Hot Springs proposes to issue 4 per cent, bonds to the amount of $175,000 to enlarge certain parts of the main sewers built by improvement districts in 18-84 on Central and Park avenues, and which have been rebuilt twice since by the city with its own funds; to construct two sewage disposal plants outside the city; and to extend the main sewers to the disposal plants. Authority so to do is claimed under Amendment No. 13 to the Constitution. An election was called and held pursuant to ordinance on December 5, 1933, in which a large majority of the qualified electors voting approved the bond issue and the levy of a special tax on the real and personal property to pay said bonds.
The total cost of doing the. proposed work is in excess of $300,000. The city has made a contract with the Public Works Administration of the United States, whereby the Government will buy said bonds at par for cash, and, in addition, will make a free grant to the city of $43,000. The Department of the Interior will donate $82,000, making a total of $300,000. The plans prepared by the city engineers and approved by the city council, call for an estimated expenditure, in constructing the two disposal plants and in extending the. main sewers to said plants, of $261,471, and for enlarging those parts of the main sewers on Central Avenue from Superior Bath House to Arbor Street and on Park Avenue from Arbor Street to Mt. Yalley Street, the estimated cost is only $39,295, or a total estimated cost of $300,766.
Appellant brought this action to enjoin the issuance of said bonds and the levy of a tax on his property, claiming “that there is no authority under Amendment No. 13 for a city to issue bonds and levy a tax to pay for constructing the sewers and disposal plant to connect with and dispose of the sewage from or for enlarging parts of sewer mains built by improvement districts and not by the city itself, and that therefore said bonds and tax levy are void.”
Appellees answered asserting power and authority and the reasons for the necessity of the improvement, to which a demurrer was interposed and overruled. Appellant elected to stand on his demurrer, and his complaint was dismissed for want of equity.
The questions presented by this appeal, as stated by counsel for appellant, are “whether the city of Hot Springs has the authority to issue bonds and levy a tax for constructing sewers and disposal plants to connect with and dispose of the 'sewage from the sewer mains built by improvement districts and for enlarging parts of main sewers built by the improvement districts.” It is conceded that the city could make these improvements to a sewer system owned by the city. The question is: Can the city make these improvements to a system built by improvement districts?
As to that part of the proposed improvements consisting of the construction of two disposal plants and the laying of new sewer mains connecting all the old mains in the city (built by improvement districts) with such disposal plants, the case is ruled by the. decision of this date in the Searcy case, Freeman v. Jones, No. 3690, ante p. 815; The cases are identical in this regard. Only the method or manner of raising funds to retire the bonds is different. There a monthly service charge is made. Here the electors by vote have levied a tax. As to that part of the proposed improvement consisting of laying additional or new mains alongside of the old mains on Central and Park avenues, there can be no question about the power of the city to do so. As shown above, these particular sewers were constructed in 1884 and were taken over by the city to maintain and operate. The city has twice rebuilt them with its own funds. To all intents and for all purposes, the city is the owner thereof and may operate, improve and reconstruct them so as to serve the best interests of the people of the city. See act 349 of Acts of 1927, p. 1107. There is nothing in the case of McCutcheon v. Siloam Springs, 185 Ark. 850, 49 S. W. (2d) 1037, that militates against this holding. While the sewers were built by improvement districts, the city is the actual owner now, and it is required to operate and maintain them.
The city has literally complied with Amendment No. 13 to the Constitution, and this amendment specifically confers power on cities of the first and second class “for the construction of sewers and comfort stations,” and for the issuance of bonds to pay therefor and the levy of a tax to retire the bonds. Here the. city is constructing sewers, and it can make no difference that the sewers so constructed tie into sewers theretofore built by improvement districts.
Let the decree be affirmed. It is so ordered. | [
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Humphreys, J.
Appellee brought suit in the circuit court of St. Francis County against appellant for damages resulting from a fall which was caused by negligently operating a street car which had a worn, slick steel plate across the platform, near the door for passengers to step upon as they entered the car.
Appellant denied that the plate inset in the platform for passengers to step upon as they entered the doorway of the car was worn or slick or that the condition of the plate rendered the entrance of the car unsafe. As an additional affirmative defense, appellant pleaded contributory negligence on the part of appellee in failing to exercise proper care for her own safety and in failing to keep a proper lookout while boarding the car.
The cause was submitted to a jury upon the issues joined, the evidence adduced, and the instructions of the court, which resulted in a verdict and consequent judgment against appellant for $10,000, from which is this appeal.
• The first contention for a reversal of the judgment is that the evidence is insufficient ,to support the verdict.
A statement, in substance, of the evidence in its most favorable light to appellee is as follows:
On April 22, 1932, appellee attempted to board a street car at 5th and Main streets in Little Rock. She got on the step and put one foot on the platform, and, in attempting to lift the other foot to go in, she slipped and fell on her back and would have fallen on the pavement if she had not been caught by her brother-in-law, Mr. Cain, who was behind her. A number of witnesses saw her fall and attributed the cause to the worn and slick condition of the steel plate upon which she stepped with one foot as she attempted to board the car. Her own witnesses were not in perfect accord as to the exact manlier in which she fell, but all agreed that she slipped and fell as she was attempting to get on the platform from the step and that the steel plate upon which she was compelled to step was worn and slick.
Appellant contends that, on account of contradictions in the testimony of each of the witnesses and the conflicts between their several testimonies, they are all discredited to such an extent that their testimony should have been disregarded by the court and that he should have peremptorily instructed a verdict for it. Tn reading the testimony of each witness, we do not find con tradictions therein which render the testimony of each wholly and entirely unbelievable, nor do Ave find such a contradiction between the several witnesses upon material matters that we can say as a matter of law that there is no truth in what any of them said concerning the unsafe condition of the steel plate and that she slipped and féll because of its worn and slick condition. Most, of the contradictions relate to the Avay or manner in which she fell or AAdiether there AVas a center rod in the doorway or one on each side thereof and as to what was said or done by her immediately after the fall and after she AAras seated in the car. The jury was the sole judge of the credibility of the witnesses and the AVeight to be attached to the evidence of each. There Avas sufficient substantial evidence introduced on behalf of appellee to submit the issues joined to the jury. The court did not err in refusing to instruct a verdict for appellant.
Appellant objected to the court’s instruction No. 3 on the alleged specific ground that it made it the insurer of the safety of appellee as she entered the car as a passenger and that on account of this inherently erroneous instruction, the judgment should be reversed. The instruction is as follows:
‘ ‘ The jury is instructed that it is the duty of a common carrier of passengers by street car to exercise such degree of care which may reasonably be expected of intelligent and prudent persons employed in that business, in view of the instrumentalities employed and the danger naturally to be apprehended, to see that every appliance connected Avith its car is kept in repair and in a safe condition for the protection of passengers.”
Our interpretation of the instruction is that it told the jury that it was appellant’s duty to exercise that degree of care Avhich may reasonably be expected of intelligent people to see that its car was kept in repair and in a safe condition consistent Avith the practical operation thereof. This instruction, as thus construed, Avas more favorable than appellant was entitled to, for the law imposes the highest degree of skill and care upon common carriers, consistent with the. practical operation of their cars, to furnish their passengers a safe place to get on and oil. Prescott & Northwestern Railroad Company v. Thomas, 114 Ark. 56, 167 S. W. 486; Beech v. Eureka Traction Company, 135 Ark. 542, 203 S. W. 834, and cases therein cited.
The same, specific objection was made to instruction No. 4 given by the court, but we find nothing in the instruction which told the jury directly or by reasonable inference that the appellant was the insurer of the safety of appellee, as she entered the car.
Appellant also specifically, objected to instruction No. 4 because it submitted the issue of assumed risk on the part of appellee to the jury as an abstract, proposition of law to be determined by them. No prejudice resulted to appellant on this account, for it was not entitled to the defense of assumed risk. No contractual relation existed between appellant and appellee. This is a suit based on tort and not growing out of contract.
Appellant also specifically objected to the court’s instruction No. 6 on the measure of damages because it permitted a recovery for the loss of earnings after the injury and up to the trial of the cause, the diminution of appellee’s earning capacity in the future, and for medical, hospital, and doctor bills. It is arg-ued that no evidence was introduced in support of these items of damage. We cannot agree with learned counsel for appellant in this contention. The record contains ample evidence in support of these, alleged items of damage.
Lastly, appellant contends that the verdict is excessive. It is true, as argued by learned counsel for appellant, that appellee had little, or no earning capacity in dollars. She was a housekeeper and earned her living in that way. She was able before her injury to work and earn small amounts, as she was strong and healthy. On account of her injury, she was incapacitated to do hard work or to work long at a time. She was 47 years of age when injured, and had an expectancy of 23.08 years. She received a very serious and painful injury. Her left sacroiliac was sprained and fractured and a contusion formed in same. Her left knee was sprained and fractured. She was placed in a cast and kept there eight weeks with a weight upon her foot, and a tumor formed on her 'back, necessitating a surgical operation. Her suffering was intense and after two years she still suffers much pain. The result is she is crippled so that she is compelled to walk with a cane. Her deformity will remain with her. Dr. Carrnthers ’ bill alone was $250. He testified that she still has a spasm and rigidity of the left knee and in the left sacroiliac region and advises that she have a bone graft at her sacroiliac joint. Her hospital bill was $50 and her medicine hill $15. Considering the loss of her small earning capacity, the extent of her injury, her very intense suffering during the early months after her injury and the suffering she still endures and will likely continue, to endure, the amount she has already expended for medical, hospital, and doctor hills, and the operation yet to be had and the probable expense thereof, we think the amount of the recovery was not excessive.
No error appearing, the judgment is affirmed. | [
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Baker, J.
This is an appeal from the circuit court of Pope County, in a cause wherein a controversy has arisen between appellants and Nora Phillips, appellee, as to the right of appellants to adopt a child, Dolores Sulzer, whose parents, Joseph Sulzer and Myrtle Phillips Sulzer, are both dead; the said Dolores Sulzer being a niece of appellants and a grandchild of Nora Phillips.
The cause originated in the probate court of Pope County, in which county the appellants filed their veri fied petition, therein stating that Dolores Sulzer was born on March 30, 1928, of Joseph Sulzér and Myrtle Phillips Sulzer; that Myrtle Phillips Sulzer has predeceased her husband by several months. Joseph Sulzer died March 5, 1933, at Harlingen, Texas. His wife, the mother of Dolores, had been in the hospital for several months prior to her death, and Nora Phillips, the grandmother of the child, had cared for it a larger part of the time since its birth, and particularly during the period the child’s mother was confined to the hospital. Prior to the death of the mother of the child, it is alleged in the proof that the mother and father -both had asked the appellee to take the child and rear it, and prior to the death of Joseph Sulzer, but after the death of his wife, he had written several letters and sent telegrams to his sister, Catherine Fries, requesting that she come and get the child and take it to her home in California.
The Fries lived within about four blocks of her father and mother, William Sulzer and wife, who were also the father and mother of Joseph Sulzer. The Sulzers and Fries were ordinarily well-to-do people, having good homes and pleasant surroundings.
An older child of Joseph Sulzer and his wife, a boy, had been given to the father and another of Joseph Sulzer and Mrs. Fries, and had been taken by them to California and was living with them. It was the intention of the appellants herein to adopt Dolores and take her to their home in California, and they had left their home and had gone to southern Texas for the purpose of getting the child, but found'that the appellee had left her husband in Texas and had taken the child to Pope County.
After getting to Pope County, the appellee, Mrs. Phillips, had taken the child to the home of her brother and mother, who lived a few miles from Russellville. Mrs. Phillips’ mother, the child’s great-grandmother, is an old lady about eighty-two years of age, receiving a Federal pension of $50 a month. The brother of Nora Phillips is on a small tract of land, is not indebted in any amount, except for taxes, and the four of them are living together in a small four-room house.
A younger 'brother of Mrs. Phillips had. been working for some, of the governmental agencies and had but recently returned to this home, living there at the time the trial was had in the circuit court.
At the time Mr. and Mrs. Fries filed the application to adopt the child in probate court of Pope County, the. probate judge made an order fixing the date for the hearing and directed the sheriff to bring the child to probate court on a day fixed in the order.
At the time of .the hearing, Mrs. Nora Phillips, the appellee, filed a response to the application of Mr. and Mrs. Fries, denying the right of Mr. and Mrs. Fries to adopt the child and praying that she be permitted to adopt it. The probate court made an order permitting Mr. and Mrs. Fries to adopt Dolores. An appeal was prayed to the circuit court by the appellee herein. In the circuit court the matter was submitted to a jury, and the jury returned its verdict in favor of Mrs. Phillips, the appellee. Upon this verdict the court rendered judgment, with findings of fact as follows:
“That the child is a minor, five years of age, and the daughter of Myrtle Phillips Sulzer, who died July 11,1932, and Joseph Sulzer, who died March 5,1933'; that the said child, Dolores Sulzer, is a resident of Pope County, Arkansas; that Catherine Fries, sister of Joseph Sulzer, deceased, and her husband, Xavier Fries, are residents of Oakland, California, and that Mrs. Nora Phillips, mother of Myrtle Phillips Sulzer, deceased, and grandmother of Dolores Sulzer, is a resident of Pope County, Arkansas. The court further finds that the minor, Dolores Sulzer, is now and has been, of necessity, continuously since her birth, in the care and custody of petitioner, Mrs. Nora Phillips, the appellee herein, and that it is to the best interest of the minor, Dolores Sulzer, that she remain with petitioner, Mrs. Nora Phillips, until further orders of the court.”
The court then ordered and adjudged that the petition of Catherine. Fries and Xavier Fries, be denied, and that petition of Nora Phillips for adoption also be denied, but that Mrs. 'Nora Phillips have custody of the minor, Dolores Sulzer, until further orders of the court, and retained jurisdiction of the case to make such further orders as might he proper.
Considerable testimony was taken, touching- largely upon the proposition of the desires of the father and mother of the child, as to what person should have its care and custody. This evidence was conflicting, and, presumptively, the court submitted to the jury whatever questions it was thought expedient to be settled by the jury. The instructions are not brought forward in the abstract. Therefore, necessarily, we must further presume that whatever instructions were given, correctly submitted each point in controversy.
Motion for a new trial was filed and overruled. The appeal was prayed and granted. The motion for new trial, however, is not brought forward in the abstract. Three matters, however, are argued in the brief as reasons why we, as a matter of law, should reverse the case.
First is the asserted desires of Joseph Sulzer, father of Dolores, that his sister and brother-in-law have custody of Dolores for the purpose of rearing- her. The love of the father for the child is earnestly argued, but the evidence, as abstracted, as to his conduct toward the child, and also as to what his desires were, we find, is conflicting, and the jury’s verdict upon that question is conclusive. We deem -it unnecessary to set out this testimony.
The next, or main question, that is argued is that the welfare of the child should be the controlling factor in the rendition of the decision. We have already stated sufficient facts concerning Mr. and Mrs. Fries; and it has already been shown that the appellee, Mrs. Fora Phillips, had the custody of this child and has practically reared it. The appellants would have us infer that she most probably left southern Texas and made her trip to Pope County in order to avoid having the child taken from her upon the arrival of Mr. and Mrs. Fries, who went from California to Texas for that purpose. The inference may be a correct one, and we are willing to assume that it was, but, if so, it tends to prove at least that Mrs. Phillips had a very strong affection for her grandchild, and that she was willing to suffer almost any discomfort or inconvenience in order that she might have the child with her and under her control.
It is forcefully presented that the two children should be brought up together, but it was the father who brought about their separation and whose own conduct made it impossible for them to be together. The children do not know each other, and the condition of each is now, and probably has been, far from ideal, but the courts must deal with conditions as they find them at the time causes are presented.
It is argued we should be controlled by the order of the probate court, as in the case of Deffenbaugh v. Roden, 182 Ark. 348, 31 S. W. (2d) 406. The question there decided was whether or not the appellee had a right to appeal from an order of adoption made by the probate court, the appellee not being a party to that proceeding but having filed another and independent petition for adoption of the same children. The appellee also appealed from an order denying the right of adoption upon her application, and the circuit court overruled a-motion filed by the appellants to dismiss appellee’s appeal from the probate court, because of the fact appellee was not a party to appellant’s proceeding in the probate court. The court decided that one question and also made comment on the fact that the probate court, being acquainted with the facts, most probably, was right in permitting the appellants to adopt the two children.
The case here presents a different condition. Mrs. Phillips made herself a party to the proceeding’ by filing a response to appellants’ petition to adopt, and she also prayed for the adoption on her own behalf. By making 'herself a party, she had a right to appeal and to a trial in the circuit court upon this appeal.
Upon conflicting and controversial testimony, properly submitted, we cannot, and do not, find any error in the trial court. It is unnecessary to set forth the evidence adduced at that trial, or to argue the same, for the reason that in this court we cannot try the case de novo.
The judgment of the circuit court is such that, the trial judge has retained jurisdiction, so as to control the custody of the child. We are impelled to defer to the discretion and judgment of that court.
The judgment of the circuit court is therefore affirmed. | [
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Smith, J.
Richard M. Moore owned at the time of his death a farm known as the old Marshall farm, situated on the right bank of Spring River in Lawrence County. He was survived by his widow, Mrs. M. C. Moore, and three sons, whose initials were N. R., J. C. and B. M. Moore, respectively. After the death of his father, N. R. Moore borrowed $1,500 from J. S. Pruitt, and gave Pruitt a note for that amount, which was signed by N. R. Moore and Pearl Moore, his wife. This note created a lien upon the maker’s interest in his father’s farm. Pruitt, the payee named in the note, died, and Wells, his administrator, brought suit to enforce the lien there granted in payment of the. note. The Bank of Ravenden and J. C. and B. M. Moore, the two brothers of the maker of the note, filed an intervention in this suit, and also a demurrer to the original complaint, which was sustained, but upon an appeal to this court it was held that the demurrer should have been overruled, and the decree of the lower court was reversed, and the cause was remanded with directions to overrule the demurrer. ;See Wells v. Moore, 163 Ark. 542, 260 S. W. 411. No directions were given upon the reversal and remand of the cause except to overrule the demurrer, and the present appeal arose out of subsequent proceeding's.
In this intervention filed by the bank and J. C. and B. M. Moore, it was alleged that N. R. Moore, while acting as cashier of the bank, had been found short in his accounts with the bank to the admitted extent of $3,750, and to make the shortage good N. R. Moore had conveyed his interest in the lands which he had inherited from his father to his brothers, J. C. and B. M. Moore, who assumed the payment of the shortage, and, by way of security therefor, mortgaged to the bank the interests which they had inherited and also the interest which they had acquired in the deed from their brother, N. R. Moore. It was not then certain that the full amount of N. R. Moore’s shortage had been determined, and the mortgage was drawn to cover any other shortage which might later be discovered, and it was subsequently determined that the total shortage approximated $7,000.
J. C. Moore died and was survived by four minor children and by his widow, Mary Ellen Moore, who subsequently married Charles Goode, and she is referred to throughout the record and in the briefs as Mrs. Goode. The widow of Richard M. Moore, who had joined in the execution of the mortgage to the bank to secure the payment of the shortage of her son, N. R. Moore, was made a party defendant to the cross-complaint which the bank filed along with its intervention to foreclose the. mortgage against her and against her surviving sons, N. R. and B. M. Moore, and against the widow and minor heirs of J. C. Moore. These cross-defendants were all properly served with process upon the filing of the cross-complaint, and D. L. King was employed as an attorney to represent the cross-defendants.
Without tracing the progress of that litigation, it may be said that it eventuated in a decree ascertaining and adjudging the amount of N. R. Moore’s shortage to the bank, and directing the foreclosure of the mortgage given to secure its payment.
Much of the testimony contained in the record now before us was devoted to an attempt to show that King had been unfaithful to his clients and had conspired with the bank and its representatives to improperly present certain defenses which could and should have been offered in the foreclosure suit. These were, first, that the execution of the mortgage had been secured through coercion by threats to send N. R. Moore to the penitentiary if it were not executed, and that the mortgage was finally executed for the purpose of compounding a felony, and that, through and in consideration of the execution of the mortgage, a felony was compounded, and N. R. Moore was not prosecuted for his crime as he would otherwise have been. The second defense which it is insisted King should have, made — but did not make — is that there were certain credits to which N. R. Moore was entitled and which would have been allowed, had they been properly asserted.
We will not review the testimony on these issues of fact, but are content to say that the testimony utterly fails to establish either contention.
After the rendition of the decree, and subsequent to the sale thereunder, an attempt was made, which appears to have been in the utmost good faith, to borrow the money to pay the. judgment rendered in the decree of foreclosure. It may be said that a settlement had been made of the original suit brought by Wells, administrator, to foreclose the lien created by the note from N. R. Moore, to Pruitt. The terms and details of that settlement are not disclosed, but we regard this as unimportant. The fact remains that an apparently valid decree has been rendered, in which all interested persons had been made parties, upon proper and sufficient service, including the four minor children of J. C. Moore. This decree determined the sums secured by the mortgage and ordered its foreclosure.- It was rendered June 24, 1925, and pursuant to its provisions the land described in the mortgage was ordered sold, and it was advertised to be sold on October 24, 1925. In the meantime futile, efforts were being made to borrow the money to pay the judgment. These failing, King personally agreed to pay the judgment, and he. took an assignment thereof to himself as security for the loan which he proposed to make. The fact is established beyond the possibility of doubt that King advanced from his personal funds the money for this purpose, six thousand dollars of which were derived from the sale of Government bonds which he then owned. The debt secured by the mortgage bore interest at the rate of ten per cent., as did also the judgment. King actually advanced $8,986.25 in cash, which he paid to the- bank, and at the time of payment took an assignment from the bank of its judgment for the debt and of the decree declaring the lien and ordering its foreclosure. It is equally certain that at that time King had no intention of acquiring the title, to the land, and made the advance for the benefit of his clients and at their request.
The sale as advertised was not held, but was indefinitely postponed, and the sale- which was later had under the decree of foreclosure did not occur until Decem■ber 18, 1926. During this interval the attempts to finance the proposition were, continued, but it was found that, an inaccurate description of the land in the mortgage, which had been carried forward into the decree, was an objection which rendered this more difficult. It was shown that in the preparation of the mortgage the land described had been copied from a tax receipt, which was supposed to embrace all the lands comprising the Moore farm, and which included also forty acres, a part of the farm, which Mrs. M. C. Moore, the mother of N. R. Moore, and the widow of Richard M. Moore, owned individually7, and which was therefore not conveyed by the deed from N. R. Moore to his brothers, J. O. and B. M. Moore. Much testimony was offered to the effect that this forty-acre tract, although a part of the Moore farm, had been fraudulently7 included in the mortgage to the bank in the execution of which Mrs. M. C. Moore had joined. There are two answers to this contention. The first is that. the. testimony7 does not show any7 frauck or deception or mistake in the inclusion of Mrs. M. O. Moore’s own individual forty7 acres in the mortgage. The second is that the question is concluded by the decree of foreclosure to which she had properly been made a party.
It was thought advisable and necessary, and to the interest of all parties to correct the description of the land as it appeared in the decree, and a' petition was filed in the court which rendered it for that purpose. This petition appears to have been supported by the affidavits of N. E. Moore and B. M. Moore and Mrs. M. C. Moore, their mother, which were made on March 30, 1926, which was three weeks prior to the rendition of the decree of correction made pursuant to the prayer of their petition. This petition recites that when, on January 30, 1922, the Moores executed the mortgage to the bank, “they agreed with the said Bank of Eavenden to execute said mortgage covering all the lands owned or in which any of the parties grantor of said mortgage had an interest lying in sections 6 and 7, township 18 north, range 2 west, known as the Moore lands, should be according to said agreement and ought to have been embraced and covered in said mortgagee.
The decree correcting the description contains the following recital as to the appearance of the parties:
“Now on this day, this cause being reached on regular call of the docket, comes the petitioner, David L. King, in person, and also come N. E. Moore, P. G. Moore, his wife, M. O. Moore, Ellen Moore, widow of J. C. Moore, deceased, in person, and also Ellen Moore as guardian and curator of James Franklin Moore, Mary Catherine Moore, Johnnie Ellen Moore and Louise Moore, minors and heirs at law of J. C. Moore, deceased, regularly appointed by the probate court of the Western District of Lawrence County and acting as such guardian and curator.
“And the court further finds that at this time all parties in any way interested in the subject-matter of this action are all before the court in person, and being duly represented by attorney and guardians as required by law.”
Concerning the error in the description the decree contains the following recital:
“It is shown to the court here at this time from the oral testimony of Ellen Moore and L. B. Poindexter, taken in open court, and the depositions of Mahala C. Moore, B. M. Moore and N. E. Moore, that there is a defect and misdescription of the. lands in the original mortgage executed to the Bank of Eavenden.”
The testimony in the record before us makes clear the fact that there, was an erroneous description, and that the decree as corrected now accurately describes the land which the mortgage was intended to cover. ■ The increase in acreage under the corrected decree was less than an acre more than that described in the original decree, and this increase resulted from the fact that some of the tracts of land there described did not contain an even and exact number of acres but some contained the fractional part of an acre.
It is very earnestly insisted that this correction decree is void for the reason that it appears, from the face thereof, that it was rendered at a term of court subsequent to the rendition of the original decree of foreclosure, and was done without service of process upon the minor defendants, and without the appointment of a guardian ad litem to represent them for the purpose of requiring the showing to be made that the amendment was not to their detriment but was to their advantage. It is stated also that the petitions and affidavits of the Moores were a forgery of their names by N. E. Moore, but this contention does not appear to have been made until long after the death of N. E. Moore, and was not sustained by the evidence.
It does appear that this decree was rendered without service of notice of the filing of the petition; but it will also be noted that this petition was not filed against the minors, but was filed for them along with the other Moore heirs in the case in which they were all parties, made so by proper service of process, and the. recitals of the decree indicate that the court made inquiry into and a finding upon the petition of their guardian and others that the correction of the description was a proper order to make, and not prejudicial to the minors to make under the circumstances. The power of the court to correct such an error in a proper case has been adjudged in many cases.
The lands were first advertised to be sold oil October 24, 1925, but, pending the efforts to refinance the loan and to correct the description as a means to that end, the sale did not actually occur until December 18, 1926, at which time a sale of all the lands was made to W. A. Bowman, who was Mrs. Goode’s uncle. At that time neither N. E. Moore nor Mrs. M. C. Moore had any interest in the lands, as they had conveyed their interests to J. C. and B. M. Moore, who had executed the mortgage to the bank which had been ordered foreclosed under the decree of the chancery court. Bowman was unable to pay the purchase-money note which he gave to the commissioner making the sale, and to avoid another sale it was agreed that Bowman should convey the land to Dr. E. N. F. Sullivan, who should convey to King, who would accept the conveyance in satisfaction of the decree. It does not appear why Sullivan should have intervened, but it does appear that the arrangement was known and assented to by B. M. Moore and Mrs. Goode, who actively participated in that transaction by signing receipts to the commissioner and by taking from King an option to buy the lands on terms which were equivalent to a redemption.
It is insistéd that the conveyance to King was void for the reason that he was without power to purchase because of his relation as an attorney in the case. Nothing is better settled than that the relation between an attorney and client is one of trust and confidence, requiring a high degree, of fidelity and good faith; but it is not the law that they may not make valid contracts with each other with reference to the subject-matter of litigation in connection with which the attorney was employed. The rule is stated in 6 C. J., title, Attorney and Client, § 211, page 687, as follows: “There is no necessary incapacity for dealing between client and attorney, and, although transactions between them will be closely scrutinized, yet those which are obviously fair and just will be upheld. To entitle the client to relief from a contract or agreement entered into with his attor ney, it must be shown that the client has suffered some injury through an abuse of confidence on the part of his attorney.” See also Lytle v. State, 17 Ark. 608; Drennen v. Walker, 21 Ark. 539; Thweatt v. Freeman, 73 Ark. 575, 84 S. W. 720; McMillan v. Brookfield, 150 Ark. 518, 234 S. W. 621; Swaim v. Martin, 158 Ark. 469, 251 S. W. 26.
We think King’s relation to and his contract with his clients passes this test. It appears that he has represented them for a number of years in a lawsuit against which his clients had no valid defense, and that he has never been paid a dollar either as a fee or for his expenses.
As we have said, King did not intend to acquire the title to this property when he advanced the money to save it from sale, and his subsequent conduct indicates great'forbearance, and it is our opinion that the deed to him above-mentioned conveyed the title and did not constitute a mortgage or create a trust. However, pursuant to his agreement so to do, when he thus acquired the title, King executed a contract, which the court below construed to be a lease with an option to purchase, wherein B. M. Moore and Mrs. Goode were given three years to repurchase this land. This contract reads as follows:
“This agreement and contract, made and entered into on this 29th day of December, 1927, by and between D. L. King, party of the first part, and Mary Ellen Moore and Benoni Moore,- parties of the second part. Whereas the party of the first part has this day purchased from Dr. E. N. F. Sullivan, for a consideration of $8,986.25, the same amount paid by the said Sullivan to W. A. Bowman, for a certain tract of land of about 386 acres, lying in sections six and seven, in township 18 north, range 2 west, known as the Moore farm and lands in the Western District of Lawrence County, which lands were sold by R. B. Warner, as commissioner in .chancery, by decree of the chancery court to satisfy a certain judgment in favor of the Bank of Ravenden, assigned to D. L. King, which sum with interest to date amounts to said sum of $8,986.25.
“The said Sullivan has this day by his warranty deed sold and conveyed said lands and premises to the said D. L. King for said sum.
“Now the said parties of the second part being-desirous to purchase said farm, land and premises, the said D. L. King hereby gives and grants to said parties of the second part the privilege to repurchase said lands at any time within three years from this date by paying to the said party of the first part or his assigns the said sum of $8,986.25, with interest thereon at the rate of eight per cent, per annum. The parties of the second part to remain in possession of said lands and premises during said time or until some deal shall be made in regard thereto. And to pay the taxes on said lands and keep up the repairs on the farm.
“The parties of the second part in consideration of the premises above stipulated and agree to comply therewith.
“It is further stipulated and agreed that rents from said farm shall be used from year to year to pay the interest on said sum agreed upon by the parties hereto.
“It is further agreed by the parties that in the event the said parties of the second part should negotiate a deal to sell or transfer said lands and premises, the said D. L. King agrees that, upon the full payment of said sum of money paid out by him with 8 per cent, interest per annum, that he will make warranty deed thereto to any person whomsoever the parties of the second part may designate.”
Payments amounting only to $375 were made to King-under this contract, and this payment was made in 1928. No payments were made in 1929, and King attached a portion of the crop for the rent of that year, claiming as rent a sum equal to the interest on the purchase money. The attached crop was sold under the orders of the court, and it was ordered that the proceeds of the sale be applied to the payment of the rent. The complaint filed in that cause prayed also the cancellation of the contract of sale upon the ground that the parties had refused to perform it and had renounced it as a binding-contract.
An answer and cross-complaint was filed by Moore and Mrs. Goode, which raised the issues we have recited, along with a number of others a statement of all of which would protract this opinion to an interminable length. This cross-complaint charged King with infidelity and corruption, and also that through a betrayal of his trust he had apparently acquired the title to the land, and it was prayed that all the proceedings under which he had apparently done so be canceled and set aside. In the alternative it was prayed that judgment be rendered against King for $12,000, the present value of the land, as damages for his betrayal of his trust as an attorney.
There was a general finding in favor of King on all the allegations of the cross-complaint filed against him. The chancellor construed the contract set out above between King and B. M. Moore and Mrs. Goode as creating an option to purchase, which, until the option had been exercised, was a lease for an annual rental equal to the annual interest on the purchase money, the repairs and the taxes on the lands, and upon this finding sustained the attachment for the rent and rendered judgment accordingly. It was further decreed that, inasmuch as B. M. Moore and Mrs. Goode had refused to perform the option contract,- and had denied its binding effect and their liability thereunder, the same should be canceled and held for naught, and the present appeal is from that decree.
We think the court correctly construed the contract between King and B. M. Moore and Mrs. Goode. Such contracts are not unusual, and have been frequently upheld and enforced. The third headnote in the case of Thomas v. Johnston, 78 Ark. 574, 95 S. W. 468, reads as follows: “A landowner may agree with another that the relation of landlord and tenant shall subsist between them until it shall be changed into the relation of vendor and vendee by payment in full of certain amounts named.” See also Ish v. Morgan, 48 Ark. 413, 3 S. W. 440; Quertermous v. Hatfield, 54 Ark. 16, 14 S. W. 1096; Carpenter v. Thornburn, 76 Ark. 578, 89 S. W. 1047; Levy v. McDonnell, 92 Ark. 324, 122 S. W. 1002; Smith v. Berkau, 123 Ark. 90, 184 S. W. 429.
We are also of the opinion that the cross-complaint against King was properly dismissed for the want of equity. The undisputed facts are that the lands were about to be sold, and they would, no doubt, have been permanently lost to the Moores, had they been sold. Four days before the date set for the sale King advanced his own money to pay the judgment under which the sale had been ordered. This was done October 24, 1925, and the second sale was not had until December 18,1926, at which time Bowman bid in the lands for $9,000, and executed a note therefor. He paid no part of the note, yet by consent of all parties the commissioner made Bowman a deed on February 12, 1927, which was approved by the court. Further indulgence was extended by King until December 28,1927, at which time Bowman conveyed to Sullivan, who, in turn, conveyed to King, and on December 29, 1927, the contract between King and B. M. Moore and Mrs. Groode was executed, with a reduction in the rate of interest provided for in the foreclosure decree.
The conduct of King appears uberrimae fidei, and the decree in his favor is therefore in all things affirmed. | [
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Humphreys, J.
This is an appeal from a judgment for $2,000 obtained by appellee against appellant in the circuit court of Crawford County for an injury to his wrist caused by the alleged negligence of fellow servants while engaged in loading the front truck of a bus, consisting of an axle, and spindles, onto a wrecker.
Appellant filed an answer to the complaint denying the allegations of negligence and interposing the affirmative defenses of contributory negligence and that appellee was a volunteer and not an employee of appellant at the time he received his alleged injury.
Appellant contends for a reversal of the judgment on account of a lack of sufficient evidence to support the verdict. The evidence, when viewed in its most favorable light to appellee, is, in substance, as follows:
Appellant, a corporation, was engaged in transporting passengers in buses from Little Bock to Fort Smith. On the........... day of March, 1933, about two o’clock p. m., one of its passenger buses was wrecked in the east part of Van Burén in Crawford County on Highway 64. The passengers were transported in a car belonging to appellee to Fort Smith, and he was employed to remain with the wrecked bus over-night, and was engaged the following morning to assist other employees of appellant in loading the bus onto a wrecker, which came from Little Bock. The wrecker was in charge of a foreman, who directed the employees engaged in the work how to lift and load the injured bus onto the wrecker. The lifting was done by means of two hand booms fastened to the wrecker, which could be lifted up and down and to which cables were attached long enough to take, hold of the object to be lifted and drawn onto the wrecker. The body of the injured bus had been placed on the wrecker, leaving enough room, thereon for the front truck of the bus. Appellee was directed to stand near the wrecker with a pick bar in his hands to guide the front truck of the bus into the space left for it after being lifted up to a sufficient height to swing into the vacant place. Fellow servants were directed to take hold of the truck, which weighed about 400 pounds or more, for the purpose of letting it swing slowly into place, but some or all of them let loose, their hold on same without notice to appellee and allowed it to swing in so rapidly and with such force that, in his effort to guide it into place, appellee’s hand was caught between the truck and wrecker, and his wrist was fractured before he could get his hand out of the way.
The testimony was in conflict as to whether the fellow servants of appellee or some of them released their hold on the truck without notice to him so as to let it swing toward the wrecker with such force as to catch his hand between them and fracture his wrist, and also in conflict as to whether appellee was an employee or volunteer; but, notwithstanding the conflict, there is ample evidence in the record to support the finding of the jury that appellee was an employee of appellant when injured, and that his injury resulted from the negligence of his fellow servants.
Appellant also contends for a reversal of the judgment on the ground that appellee was guilty of contributory negligence resulting in his injury, and on that account could not recover any amount from appellant, even though appellant was guilty of negligence. It requested instructions to that effect, which the court refused to give. We find no evidence in the record tending to show contributory negligence on the part of appellee, but, even if there is, such negligence would not be a complete defense to the alleged cause of action against a corporation not engaged in interstate commerce at the time of the injury. It is provided by §§ 7144 and 7145 of Crawford & Moses ’ Digest that in actions for personal injuries by employees against such corporations, contributory negligence shall not bar a recovery but will have the effect of diminishing the damages in proportion to the amount of negligence of the respective parties. Under the provisions of these statutes, this contention of appellant cannot be sustained, and the requested instructions were properly refused.
Appellant also contends for a reversal of the judgment on the ground that under the law it cannot be held liable in damages to any one injured by a fellow-servant. In support of this contention, it cites the case of Walsh v. Eubanks, 183 Ark. 34, 34 S. W. (2d) 762. In that case the fellow-servant doctrine applied because a recovery was sought against a partnership. In the instant case it does not apply because appellant is a corporation. It is provided by § 7137 of Crawford & Moses’ Digest that corporations of every kind and character shall be liable to respond in damages for injuries or death sustained by an employee resulting from the omission of duty or negligence of any other servant or employee of the employer. Instructions requested by appellant and refused by the court in support of its theory in this respect were properly refused.
It is also suggested by appellant that the judgment should be reversed because the appellee assumed the hazards incident to his employment. Appellee could not have known in advance that his fellow servants would release their hold on the. truck and allow it to come down on him, so he did not assume the risk of their negligence in this respect as one of the hazards incident to his employment.
The court refused to give certain instructions requested by appellant relative to whether appellee was an employee or a volunteer, and whether he assumed the risk. These instructions were properly refused as the court had covered the issues in other instructions. The court was not required to duplicate instructions.
Appellant also contends that the verdict was .excessive and urges the excessiveness thereof as a reason for reversing the judgment. As a result of the injury, appellee’s arm was placed in a plaster cast for 31 days, hut the ends of the bones never healed, and he has never been able to use his hand. If he takes hold of anything, it drops. He is a mechanic, and his work requires the use of both hands, so he is compelled to hire a mechanic to do the work he formerly did in conducting his business at an expense of from $1.50 to $7 a day. He suffered intense pain, so that he was unable to sleep for three or four weeks immediately after the injury and during the time his hand and arm were in the cast. His doctor’s bill was $75. We do not think $2,000 an excessive judgment, considering the nature and extent of the injury, and the pain and suffering he endured.
Ño error appearing, the judgment is affirmed. | [
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Humphreys, J.
This is an appeal from a decree for $522.48 rendered in the chancery court of Randolph County against appellants on a simple account comprising debits alone, some fifty-two in number, for the commissions on unearned premiums on fire insurance policies written by appellant Ben Johnston for appellee on farm property and which policies were cancelled by appellee when it decided to withdraw its farm department from the State of Arkansas on May 15, 1931.
The complaint filed by appellee alleged, in substance, that appellant Ben Johnston entered into a contract with it in 1921 to write fire insurance policies for it on farm property in Arkansas and to refund his commissions on unearned premiums in case it should cancel any of the policies; that it canceled all of the policies in force on farm property in Arkansas on May 15, 1931; that a bond was executed by appellant Ben Johnston and his co-appellants conditioned that he would refund all the commissions he had received on unearned premiums resulting from the cancellations of said policies; that the bond was for $1,000, which fully covered the commissions he was to refund, and that appellant Ben Johnston had failed and refused to return his commissions on the unearned premiums which were collected.
The complaint also contained the following allegation:
“By reason of the number of transactions, the large number of the policies involved, and the course of dealing over a period of years, it will require an accounting to determine the exact amount of the indebtedness due and owing plaintiff (appellee). Plaintiff (appellee) has no plain and adequate remedy at law, and this suit is brought in equity for the purpose of stating an account between the parties.”
Appellants filed a motion to transfer the cause to the circuit court, in form as follows:
“Defendants (appellants) state that under the allegations of the complaint plaintiff (appellee) has stated a cause of action at law and not one in equity, and that, if plaintiff (appellee) is entitled to recover at all, it should be in an action at law, and the defendants (appellants) move the court that the cause of action alleged in the complaint be transferred to the circuit court.”
The motion was overruled, over the objection and exception of appellants; whereupon appellants filed an answer denying each and every allegation in the complaint and incorporated therein a motion to transfer the cause to the circuit court. The motion was again overruled, over the objection and exception of appellants.
The trial court then appointed a, master, over the objection and exception of appellants, to state an account between' the parties, who filed a report in accordance with the account attached to the deposition of one of appellee’s witnesses. The account contained debits but no credits and was simple and could easily have been understood by a jury. There were no complications in it whatever.
Appellants contend for a reversal of the judgment because the chancery court had no jurisdiction over the cause of action, insisting that they were entitled to a trial ¡by jury in a court of law. In this contention they are correct. The general rule as stated in 1 B. C. L., 223, is that “equity will not take jurisdiction in matters of account which are not complicated where there is no other ground for equitable jurisdiction.”
This court, following the general rule thus announced, has said, in substance, in the cases of Trapnall v. Hill, 31 Ark. 345, and Dennis v. Tomlinson, 49 Ark. 568, 6 S. W. 11, that, before a court of equity will take jurisdiction of an action on an account, it must be mutual, it must be a running account, and involve complications. The complaint must show that the account is mutual, and it must allege facts which clearly show that the account is complicated.
On account of the error indicated, the decree is reversed, and the cause is remanded with directions to sustain appellants’ motion to transfer the cause to the circuit court. | [
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Mehaffy, J.
The primary election was held on August 14, 1934. In Arkansas County there were several candidates for sheriff, and no one of them received a majority of all the votes cast in said primary election for sheriff and collector, and the Democratic Central Committee, on August 15, 1934, decided that C. C. Mc-Callister and Lloyd LaFargue had received the highest numbers of votes cast in said primary election for said office, and they were each declared to be eligible as candidates for the nomination to said office in the run-off primary which was held on August 28, 1934. After the run-off primary the Arkansas County Democratic Committee canvassed the returns and certified that LaFargue had received 2,102 votes and McCallister 2,037 votes, and declared LaFargue the nominee of said primary election.
On September 4, 1934, C. C. McCallister filed a complaint against Lloyd LaFargue in the Arkansas Circuit Court to contest said election and the certificate of nomination. He alleged in his complaint that the plaintiff and defendant, together with J. A. McKay, W. C. Wood-son, Eddie Hughes and Abbott Trice were candidates on August 14, 1934, for the Democratic nomination for the office of sheriff and collector of Arkansas County; that neither of the above-named persons received a majority of all the votes cast in said primary election, and, this fact having been ascertained by the Democratic Central Committee, and the committee having- ascertained that plaintiff and defendant had received the highest number of votes cast in- said primary election for said office, they were by said committee declared and certified to be eligible as candidates for the nomination to said office in the run-off primary to be held subsequently. Plaintiff and defendant were candidates in said run-off primary held on August 28, 1934. On August 31, 1934, the central committee canvassed the returns and declared that defendant had received 2,102 votes, and that the plaintiff had received 2,037 votes, and declared the defendant the nominee, and so certified him to be the nominee. Plaintiff denied that defendant was the nominee; denied that he had received 2,102 votes, and alleged that in one township 125 qualified electors each cast his ballot for the plaintiff, and that each of said ballots were counted for the defendant. The list of names of these 125 voters was attached as exhibit A to the complaint, and made part thereof. Plaintiff alleges that numbers of other persons voted for the defendant who were not qualified electors. He also alleges irregularities in the handling of the vote of Keaton Township. Irregularities are also alleged in the primary election in the town of DeWitt, and it is alleged that illegal votes were cast and counted for the defendant. It is also alleged that persons living in Prairie Township voted in DeWitt, and voted for the defendant. It is further alleged that of the total number of votes cast in said primary election, plaintiff received 2,237, and the defendant not more than 1,838, giving the plaintiff a majority of 399 legal votes, and he asked that the returns of the election be purged of all illegal votes, and that he be declared the nominee. The complaint was supported by more than ten persons, each of whom swore that he was a reputable citizen of Arkansas County, a member of the Democratic party, and qualified elector of Arkansas County.
On September 10, 1934, an amendment was filed by plaintiff, naming'the persons whom he alleges voted for the defendant who were not qualified electors. He alleges that plaintiff is a resident of, and qualified elector' in Arkansas County, and is and was at the time of the voting, qualified to hold the office of sheriff and collector.
On September 12, 1934, the defendant filed a demurrer to plaintiff’s complaint, in which, he stated, first, that the complaint fails to state facts sufficient to constitute a cause of action; second, that the complaint fails to state facts sufficient to confer jurisdiction on the court to grant any relief to plaintiff. On the same day, September 12, defendant filed a motion to dismiss, in which he set up the same grounds that he did in his demurrer, and, in addition to these, that the complaint was not verified as required by law, and that the amendment to the complaint was filed after the expiration of ten days.
Thereafter, on 'September 17, 1934, the defendant filed an amendment to his motion to dismiss, setting up numerous grounds in addition to what he had already alleged.
On September 21st the court overruled the demurrer and also overruled the motion and amendment to motion to dismiss, and held that the court had jurisdiction to proceed to a hearing and determination of the case. Thereupon the defendant announced that he would apply to this court for a writ of prohibition, and on September 21st filed his petition for a writ of prohibition against W. <7. Waggoner, circuit judge, and C. C. Mc-Callister, prohibiting the circuit court from exercising jurisdiction.
The parties have filed lengthy briefs, and we will not undertake to review all the authorities to which attention has been called by the parties.
It is earnestly contended that act No. 38 of the Acts of 1933 does not provide for any contest. It is true that it does not say anything about contesting the run-off primary, but the sole purpose of the original law authorizing a contest is to secure the certification and nomination of the person who has received the highest number of legal votes. Before the passage of act 38 the person receiving the highest number of legal votes in a primary election was declared the nominee and certified as such, 'although he might not have received a majority of all the votes. There might be so many candidates in the race for any particular office that the one getting the highest num ■ber of votes would have a very small per cent, of the total vote, and it was to remedy this condition that the Legislature passed act 38, the purpose being to certify no one as the nominee of the party unless he had received a majority of all the legal votes cast. The purpose of the primary election law is to enable, a political party to hold a legal election and certify the person as nominee who receives the greatest number of legal votes. Act 38 was passed to correct the evil above-mentioned, and is a part of the system providing for primary elections, and must be construed with the original act authorizing primary elections. While the act does not say so in so many words, this is an amendment of the primary election law. Prior to the passage of this act, the law provided for contesting the election.
“In the construction of amendments to statutes, the body enacting the amendment will be presumed to have had in mind existing statutory provisions and their judicial construction, touching the subject dealt with. The amendatory and the original statute are to be read together in seeking to discover the legislative will and purpose, and, if they are fairly susceptible to two constructions, one of which gives effect to the amendatory act, while the other will defeat it, the former construction should be adopted. ” 25 E. C. L., 1067.
Statutes must have a rational interpretation to be collected, not only from the words used, but from the policy which may be reasonably supposed to have dictated the enactment, and the interpretation should be rigorous or liberal, depending upon the interests with which it deals.” 25 E. C. L. 1077.
It would be unreasonable to suppose that the Legislature intended to provide for a run-off primary and prohibit a contest, because, if it prohibits one at all, it prohibits, no matter how much fraud might be practiced in the run-off primary. The purpose of the primary law and the provisions for contesting is to secure fair elections, and the nomination of the candidate who receives the highest number of legal votes. Under the original law, as we have already said, one receiving a plurality, no matter how small, was declared the nominee. It was evidently the intention of the Legislature to remedy this particular evil, and to amend the general law in that respect. It provides that no person shall be declared the nominee of any political party at any primary election unless such person has received a majority of all the votes cast at such primary election, and that is the only difference between act 38 and the law as it was before.
Act 38 also provides that the second primary election shall be conducted according to the law prescribed for conducting the general primary election, and we think this means that the law prescribed for conducting the general primary election governs in every respect, except that the candidate, in order to get the certificate of nomination, must get a majority of all the votes cast.
The original act provides not only for the election to be held on a certain day, but it also provides that special primary elections may be called to fill vacancies, and that this law shall govern the same as far as applicable. There is nothing in the section providing for special primaries about a contest.
Section 12 of the initiated act provides that a right of action is conferred on any candidate to contest the certification of nomination or the certification of the vote.
There is a well-established principle of law which applies to the construction of constitutions as well as statutes, and that is that a statute extends by inference to cases not originally contemplated, when it deals with a class within which a new class is brought by later statutes. Taaffe v. Sanderson, 173 Ark. 970, 294 S. W. 74; Nations v. State, 64 Ark. 467, 43 S. W. 396.
Act 165 of the Acts of 1909 makes primary elections legal elections. The initiated act of 1917 was amended by act 19 of the Acts of 1919, fixing the time to hold the general primary election. This amendment, however, provided for special primary elections to fill vacancies, but nothing was said about a contest. Yet this court has held that the law applies to special elections.
In the case of Terry v. Harris, 188 Ark. 60, 64 S. W. (2d) 80, the court said: “It is true the election here con tested is a primary specially called to nominate a single candidate, and is not a general primary election; bnt this fact does not alter the law of the case. The statute must receive the same interpretation in either case.”
"We have repeatedly held that the statute providing for contesting elections should be liberally construed, the purpose of the contest being to determine which candidate received the greatest number of votes. To hold that a contest could not be had in the run-off primary would defeat the very purpose of the law providing for a contest.
The law provides: “A right of action is hereby conferred on any candidate to contest the certification of nomination or the certification of vote as made by the county central committee.” That necessarily means any candidate and in any primary election.
Act 38 provides that the second primary shall be conducted according to the law prescribed for conducting the general primary election, and that the candidate receiving the majority of all the votes cast shall be declared the nominee.
“Statutes in pari materia are those which relate to the same person or thing, or to the same persons or things, or which have a common purpose; and, although an act may incidentally refer to the same subject as another act, it is not in pari materia if its scope and aim are distinct and unconnected. It is a well-established rule that in the construction of a particular statute, or in the interpretation of its provisions, all statutes relating to the same subject, or having the same general purpose, should be read in connection with it, as together constituting. one law, although they were enacted at different times and contain no reference to one another. The endeavor should be made, by tracing the history of legislation on the subject, to ascertain the uniform and consistent purpose of the Legislature, or to discover how the policy of the Legislature with reference to the subject-matter has been changud or modified from time to time. In other words, in determining the meaning of a particular statute, resort may be had to the established policy of the Legislature as disclosed by a general course of legislation. With this purpose in view therefore, it is proper to consider, not only acts passed at the same session of the Legislature, but also acts passed at prior and subsequent sessions, and even those which have expired or have been repealed.” 59 C. J., 1042.
Manifestfy the intention of the Legislature, in enacting the primary election law, was to make the primary election legal, prevent fraud and corruption in elections, to see that the people’s choice in the election should have the office, and to provide for a contest wherever charges of fraud or mistake in elections change the result. We think there can be no doubt that it was the intention, in passing act 38, to secure the rights above mentioned, and not to prevent a contest in order to determine whom the people had elected.
It is next contended that the complaint did not state facts sufficient to constitute a cause of action or to give the court jurisdiction. As we have already said, the statute confers a right of action on any candidate. Crawford & Moses’ Digest, § 3772.
Section 3773 of Crawford & Moses’ Digest provides, among other things: “If the complaint is sufficiently definite to make a prima facie case, the judge shall, unless the circuit court in which it is filed is in session or is to convene within 30 days, call a special term,” etc.
We have set out above substantially the allegations in the complaint for contesting the election. The petitioner contends that the court has no jurisdiction, first because it is- said the complaint is not verified. The statute provides not that the plaintiff shall verify his complaint, but that the complaint shall be supported by the affidavits of ten reputable citizens. This was done.
It is argued that the complaint is not sufficient to give the court jurisdiction because the plaintiff did not set out the number of votes received by each candidate in the general primary election, but the complaint does state that plaintiff was a candidate in the general primary election held on August 14, 1934, and names the other candidates for the office of sheriff and collector in that election, and states that neither of the candidates received a majority of all the votes cast. This conld mean but one thing, and that is that neither of them were nominated in the primary election on August 14. Then he alleges that the committee found that neither of them had received a majority, and also stated and certified that plaintiff and defendant received the highest number of votes in the general primary, and certified each of them as eligible candidates in the run-off primary.
We have held that there is a presumption that the election officers performed their duty, and they therefore would not have certified plaintiff and defendant as candidates in the run-off primary if they had not been éntitled to be so certified.
It is also contended by the petitioner that McKay, Woodson,-Hughes and Trice were necessary parties to the contest. Neither of these persons were candidates in the run-off primary. It is true that in the original complaint plaintiff did not allege that he was a member of the Democratic Party, but the allegations in the complaint clearly show that he must have been, because he alleges he was a candidate in the general primary, and that the Democratic Central Committee certified him as a candidate in the run-off primary. •
There are numerous other grounds set up in defendant’s motion to dismiss plaintiff’s complaint, which we do not deem it necessary to take up and discuss separately. All the questions raised by defendant in his motion to dismiss were questions that the. trial court had a right to inquire into and determine. The trial court had a right to determine the question of its jurisdiction; and wherever the jurisdiction of the trial court depends upon facts, the question must be decided by the trial court, from which decision either party may appeal to this court.
“It is well settled that, if the existence or nonexistence of jurisdiction depends on contested facts which the inferior court is competent to inquire into and determine, a writ of prohibition will not be granted, although the superior court should be of the opinion that the claims of fact had been wrongfully determined by the lower court, and, if rightfully determined, would have ousted the jurisdiction.” Merchants’ & Planters’ Bank v. Hammock, 178 Ark. 746, 12 S. W. (2d) 42; Roach v. Henry, 186 Ark. 884, 56 S. W. (2d) 577; Crow v. Futrell, 186 Ark. 926, 56 S. W. (2d) 1030.
The questions raised by defendant’s demurrer and motion to dismiss were questions for the lower court, questions where the jurisdiction of the. court depended upon contested facts. The original complaint stated facts sufficient to constitute a cause of action; and if a motion to make more definite had been filed by the defendant, it is entirely probable that the court would have required the plaintiff to make his complaint more definite and certain, and plaintiff could amend his complaint after the ten days. '
This court has several times held that the statute providing for contesting elections should be. liberally construed. The purpose of the contest is to determine what candidate received the greatest number of- votes; and if there are sufficient facts stated to give the other party reasonable information as to the grounds of contest, then the case should be tried on its merits. If the complaint was indefinite and.uncertain, the court should require amendments to make it more definite and certain.
The pleadings in an election contest case should be sufficiently specific to give reasonable information as to grounds of contest. The statute provides that the contest shall be begun within a certain number of days, and this court has repeatedly held that, after the time for filing a contest has expired, the. contestant cannot so amend his complaint so as to set forth a new cause of action. He can, however, after the time has expired, amend his complaint by making it more definite and certain, as to any charge in the original complaint, and, if a motion to make more specific is filed, it would be his duty to make the amendment. Robinson v. Knowlton, 183 Ark. 1127, 40 S. W. (2d) 450.
• We have also said in Robinson v. Knowlton, 183 Ark. 1133, 40 S. W. (2d) 450: “ Since such contest is generally held not to be a civil action, subject to rules of pleading in actions at law, but to be a special statutory proceeding, varying in its. nature as well as in the sufficiency of the pleadings, according to the statutes of the different States, the same strict, technical accuracy in pleading is not usually required as in civil actions inter partes. 20 C. J., 235.”
It has been said with reference to the pleadings that the rule must not be so strict as to afford protection to fraud, by which the will of the people is set at naught, nor so loose as to permit the acts of sworn officers, chosen by the people, to be inquired into without an adequate and well-defined cause. Bland v. Benton, 171 Ark. 805, 286 S. W. 976; Gower v. Johnson, 173 Ark. 120, 292 S. W. 382.
We have also said in a recent case: “The statute does not require supporting affidavits of the citizens to these permissible amendments. These amendments may be made without the supporting affidavits and after the expiration of the original ten days, when unreasonable delay in the trial of the cause will-not result therefrom.” Robinson v. Knowlton, supra; Cain v. McGregor, 182 Ark. 633, 32 S. W. (2d) 319; Wilson v. Caldwell, 186 Ark. 261, 53 S. W. (2d) 438.
The court of South Dakota, in passing upon the sufficiency of pleadings in an election contest, said among other things: “While the notice does not, in so many words, allege that plaintiff had been a candidate for the disputed office and that his name appeared on the printed ballot as such candidate, it does allege that he is a duly, qualified elector of said county and duly qualified to act as county auditor of said county; that the canvassing-board had made certain mistakes in counting- and canvassing- the vote; and that, had it not been for such errors in counting the ballots and other errors and irregularities set forth in said notice of contest, the said election would have resulted in a majority vote for plaintiff, and he would have been declared county auditor of Hanson County. From these facts but one inference can be drawn, and that his name was on the ballot. Otherwise he could not have received any votes at all.” Dobson v. Lindekugel, 38 S. D. 606, 162 N. W. 391; Hadley v. Gutridge, 58 Ind. 302; Rounds v. Smart, 71 Maine 380.
The court also said in the same case: - “The statute should receive a liberal interpretation to the end that such matters may be determined on their merits.”
Our conclusion is that the complaint stated a cause of action, and that defendant’s remedy was by motion to make more definite and certain.
The writ of prohibition is a discretionary writ. It is never granted unless the inferior tribunal has clearly exceeded its authority, and the party applying for it has no other protection against the wrong that will be done-by such usurpation. Pacific Mutual Life Insurance Company v. Toler, 187 Ark. 1073, 63 S. W. (2d) 839; Macon v. LeCroy, 174 Ark. 228, 295 S. W. 31; United Mine Workers v. Bourland, 169 Ark. 796, 277 S. W. 546; Metzger v. Mann. 183 Ark. 40, 34 S. W. (2d) 1069.
It follows that the writ must be denied, and it is so ordered. | [
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Johnson, C. J.
On July 17, 1931, appellee was engaged in (service as a brakeman on one of appellant’s freight trains operating between Poplar Bluff, Missouri, and North Little Rock, Arkansas. This train carried interstate shipments, and was therefore engaged in interstate commerce. In making a stop of the train at Hoxie in this State for the purpose-of setting out certain freight cars which contained freight consigned to Hoxie, and was being transported in interstate commerce, appellee received the injuries here complained of. This suit was instituted by appellee against appellant under the Federal Employers ’ Liability Act to compensate, his alleged injuries. In effect, the complaint alleged that the engineer on said train carelessly and negligently made only one application of the air with full force in effecting the stop at Hoxie, when the usual and ordinary manner of effecting such stops should have been to apply the air gradually, causing the front of the train to suddenly stop, and the rear cars in said train to jam and violently run into and upon the cars ahead. That appellee was riding upon the rear platform of the caboose, in a place where his duties required him to ride, and the sudden and violent stop of the train caused the caboose upon which he was riding to come to a violent and sudden stop which threw appellee against the end thereof and upon certain metal attachments upon the rear platform thereof, in such manner to cause his injuries.
The testimony in behalf of appellee tended to show that, upon arrival of the train at Hoxie, and while it was running at a rate of speed of eight or ten miles per hour, the engineer caused to be made one application of the air instead of making a gradual application thereof, which caused the front cars of the train to suddenly stop, and the rear cars and caboose to suddenly and violently jam into the cars in the front of the train, which train consisted of approximately one hundred cars. That the impact was of sufficient force to tear the bunkers loose from the sides of the caboose; that the water barrel was dislodged from its fastenings to the side of the caboose, and was thrown to the floor with such violence as to burst it into pieces; that the coal bin was torn from, its fastenings and scattered the coal therein contained over the floor of the caboose. Appellee testified that, by the force of the shock and jar of the sudden and violent stop, he was thrown from his standing position on the rear platform of the caboose against the end wall thereof, and against and upon certain metal attachments thereto, and was injured thereby. He further testified that he had been engaged in railroading for the past twenty-five years, and knew the proper and customary manner in effecting such stops with similar trains, and that this train should have been stopped by leaving the throttle open and applying the air gradually or about five to seven pounds at intervals, but that this was not done by the engineer.
We shall not detail the testimony in reference to appellee’s injuries or the compensation awarded therefor, as no question is presented in reference to the amount awarded if liability exists. Appellant contends that the evidence adduced in appellee’s behalf is insufficient to support a verdict of liability. The evidence, in effect, is not dissimilar in any material respect from that reviewed by us in Missouri Pacific Railroad Company v. Montgomery, 186 Ark. 537, 55 S. W. (2d) 68, wherein we determined that it presented a question of fact for the consideration of the jury as to whether or not there was liability predicated upon such facts. The Montgomery case, supra, was presented to the Supreme Court of the United States by an application for certiorari, and a review thereof was denied. 289 U. S. 747, 53 S. Ct. 690.
A number of cases are urged upon us for consideration which are contended impair our holding in the Montgomery case, among which are Gulf, M. & N. R. Co. v. Wells, 275 U. S. 455, 48 S. Ct. 151, and Chicago, M. St. P. Ry. Co. v. Coogan, 271 U. S. 472, 46 S. Ct. 564. It may be said that the Montgomery case and the instant case may easily be distinguished from the cases cited, and it would serve no useful purpose to undertake a detailed discussion of the facts and merits of the respective cases. We believe the doctrine announced in the Montgomery case, supra, is sound and are not inclined to impair its effect.
To the same point appellant contends that appellee’s injury, to-wit: hernia, was not caused by the sudden and violent impact of the cars; therefore it is not liable for this injury. Appellee testified that, prior to the sudden impact of this train, he was a stout, and able-bodied man, capable of doing, and did do manual labor without inconvenience, and that immediately after this impact he became nauseated and suffered severe and excruciating pain until the protrusion appeared in his abdomen a day or two later; that he was bruised across the lower part of his abdomen and in the groin by reason of the impact, and was forced to undergo an operation just a few days thereafter to correct the hernia produced thereby. Dr. Parmley testified that hernia is sometime caused by direct trauma. True, eminent physicians for appellant controverted this testimony, but this made only a question for the jury’s consideration, and its findings thereon are binding upon this appeal.
Next, it is urged that appellee assumed the risks of his alleged injuries. This contention is based primarily upon the testimony of appellee to the effect that he knew that the engineer made rough stops. On this phase of the case, the court gave to the jury, upon appellant’s request, instructions number 10 and 12, as follows:
Instruction No. 10 reads as follows: “The court instructs you that, while the brakeman does not ordinarily assume the risk of injury on account of negligence on the part of his employer or fellow-servant, yet, in this case, if you find from the evidence that the engineer was in the habit of making violent and sudden stops while operating the train on which plaintiff was employed, and if you further find from the evidence that the plaintiff had knowledge of this fact, and that with this knowledge continued in the employment of the defendant with said engineer, then you are instructed that he assumed the risk of being injured on account of such violent and sudden stops as may have been made by the engineer, unless you further find that the said jar or jerk was extraordinary and unusual for said engineer to make.”
Instruction No. 12 reads as follows: “The jury are instructed that, when the plaintiff entered the employment of the railroad company as a brakeman to do and perform such work as was required by him as such employee, then, in accepting such employment, he assumed all of the risks and danger incident to and connected with 'such employment, and, if you find from the testimony that the plaintiff’s injury was occasioned from the operation of a freight train, and that the same was operated with ordinary care, and as such trains are usually handled and operated, then your verdict will be for the defendant.”
In reference to the contention here made, we have stated the rule to be that assumed risk is predicated upon the knowledge of the employee of the risks to be encountered and his consent to be subject thereto. Negli gence on the part of a fellow-servant is not an incident of the employment; and the servant does not assume the risks thereof, unless they are obvious and patent. Chicago, Rock Island & Pacific Ry. Co. v. Allison, 171 Ark. 983, 287 S. W. 197. The testimony here shows that appellee had no warning to judge of the danger to which he was exposed by reason of the negligent act of the engineer in making only one application of the air with full force. At any rate, this was a question of fact for the jury’s consideration, and their adverse finding thereon is conclusive upon this appeal. ■
Lastly, it is urged that reversible error was committed in the giving and refusing to give certain instructions. We have carefully considered all the instructions requested, granted, and refused, and it is our conclusion that the case was properly submitted under instructions which conform to previous opinions of this court.
The verdict of the jury, being supported by substantial testimony, must be affirmed. | [
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Smith, J.
This suit was brought by appellants to recover damages to compensate personal injuries alleged to have been occasioned by the reckless and negligent driving of an automobile by appellee in which appellants were riding as guests of appellee at the time of their injury. During the progress of the trial the answer was amended, over the objection and exception of appellants, to allege that the plaintiffs, appellants here, were guilty of contributory negligence, and in the submission of that question to the jury an instruction numbered 13 was given over the objection and exception of appellants. This instruction reads as follows: “You are instructed that, if you find from all the evidence that the plaintiffs, Dovie Beason and Homer Beason and the deceased, Ruby Ger-lain Reason, were of such age as to appreciate danger, and in possession of all their mental faculties, and that, at the time of the accident complained of, they were riding in an automobile driven by the defendant at a dangerously high rate of speed and being zig-zagged from one side of the highway to the other, and that they had been riding in said automobile for a sufficient distance prior to the time of. the accident for them to know, and they did know and realize, that said automobile was being driven at a high and dangerous rate of speed and in a careless and negligent manner, and knew defendant persisted in so doing, and, after possessing that knowledge, they had a reasonable opportunity to abandon said car without injury to themselves, but, instead of so doing, continued to ride with the defendant while the automobile was being operated in that manner after such discovery, if any, had been made by them, then they were guilty of contributory negligence, and they cannot recover in this action.”
There was a verdict for the defendant, upon which a judgment was rendered, from which is this appeal, and for the reversal of that judgment error is assigned in permitting the answer to be amended and in giving the instruction set out above.
Appellee insists that the errors assigned are such as may be brought upon the record only by a bill of exceptions, and he filed a motion to dismiss the appeal for the want of a bill of exceptions, which was overruled. Now that the case has been submitted on its merits, this motion was renewed.
It is true, as contended by appellee, that a bill of exceptions is necessary to bring the alleged errors into the record, and that they may not otherwise be considered ; but we think it is also true that a sufficient bill of exceptions was prepared and filed to present the questions later discussed. The bill of exceptions as filed does not purport to set out all the testimony heard at the trial from which the appeal comes, and, this being true, the presumption must be indulged, in accordance with well-settled rules of practice, that the verdict and judgment accorded with the testimony.
Neither the statute nor the rules of this court require a transcription of all the oral testimony into a bill of exceptions. It is not essential that we be furnished all the testimony to consider specific assignments of error.
The statute provides (§ 1318, Crawford & Moses’ Digest) that the party objecting to a decision must ex- oept at the time the decision is made, but may be given time to reduce the exception to writing, but not beyond the next succeeding term of court. No particular form of exception is required, except that: “The objection must be stated, with so much of the evidence as is necessary to explain it and no more, and the whole as briefly as possible.” Section 1319, Crawford & Moses’ Digest. It is further provided that: “ WRere the decision is not entered on the record, or the grounds of objection do not sufficiently appear in the entry, the party excepting must reduce his exception to writing and present it to the judge for his allowance and signature. If true, it shall be the duty of the judge to allow and sign it; whereupon, it shall be filed with the pleadings, as part of the record, but not spread at large on the order book. * * *” Section. 1321, Crawford & Moses’ Digest.
Rule XY of this court (163 Ark., page XXXII) reads, in part, as follows: “Bills of exceptions, except in cases of felony, shall be so prepared as only to present to the Supreme Court the rulings of the court below upon some matter of law; and shall contain only such statements of facts as may be necessary to explain the bearing of the rulings upon the issues or questions involved; and, if the facts are undisputed, they shall be stated as facts, and not the evidence from which they are deduced; and if disputed, it shall be sufficient to state that evidence was adduced tending to prove them instead of setting out the evidence in detail, but if a defect of proof be the ground of ruling or exception, then the particulars in which the proof is supposed to be defective shall be briefly stated, and all the evidence offered in any wise connected with such supposed defect shall be set out in the bill of exceptions.”
In the ordinary trial many exceptions are saved, during its progress, to various rulings of the presiding judge, and the practice has become quite general to have trials reported stenographically and to have transcriptions made of all the stenographic notes. This is done to more fully reproduce and reflect the incidents of the trial in their continuity so as to more fully explain the objections to the overruling of which the exceptions were saved. But neither the statute nor the rules of court require this to be done, as appears from the rule and the statutes from which we have quoted. An appeal might be taken upon a bill of exceptions which presented only a single exception saved at the trial, provided so much of the proceedings at the trial were recorded as was necessary to sufficiently explain it.
Chief Justice Cockrill discussed the functions of a bill of exceptions in the case of McKinney v. Demby, 44 Ark. 74. In that case the bill of exceptions did not show that it contained all the evidence adduced at the trial, and for that reason he said that the sufficiency of the evidence to support the verdict would not be considered. In that case he said also that an objection that a certain instruction should not have been given would not be considered for the reason that there might have been testimony which made the instruction proper, and that in the case stated every intendment would be indulged in favor of the action of the trial court, and that this court would presume that every fact susceptible of proof that could have aided appellee’s case was fully established, the salutary rule being-applied that every judgment of a court of competent jurisdiction is presumed to be right unless the party aggrieved will make it affirmatively appear that it is erroneous.
Pleadings may be amended, and in some cases will be treated as amended, even during the progress of a trial, proper conditions being imposed to prevent surpris_e and injustice in the particular ease, but, as there is no showing of the conditions under which the answer of appellee was amended, it will be conclusively presumed that no error was committed in permitting that action.
Now a judgment would not be reversed where the bill of exceptions showed only the refusal of the court to give a proper and correct instruction. This is true because the presumption would be indulged that other and correct instructions were given which made the giving of the particular instruction unnecessary or superfluous. But a judgment would be reversed when the bill of exceptions showed only the giving of,an erroneous instruction, and its relevancy to the points in issue, provided it was so inherently erroneous that it could not be cured by other instructions explanatory of it. If it could be, the presumption would be indulged that it had been.
Applying this well-known rule to instruction numbered 13, set out above, we conclude that the instruction is not so inherently erroneous as to require the reversal of the judgment. We said, in the case of Graves v. Jewell Tea Co., 180 Ark. 980, 23 S. W. (2d) 972, that while the negligence of the driver of an automobile cannot be imputed to one riding with him as a guest, it is the duty of the guest to exercise ordinary care for his own safety, and that the failure to exercise such care which contributed to his injury constituted contributory negligence and defeated a recovery. See also Carter v. Brown, 136 Ark. 23, 206 S. W. 71; Pine Bluff Co. v. Whitlaw, 147 Ark. 152, 227 S. W. 13; Miller v. Ft. Smith L. & T. Co., 136 Ark. 272, 206 S. W. 329; Itzkowitz v. P. H. Ruebel & Co., 158 Ark. 454, 250 S. W. 535; Arkansas P. & L. Co. v. Heyligers, 188 Ark. 815, 67 S. W. (2d) 1021.
Instruction numbered 13 declared the duty of the guest to leave the car where the driver had ignored protests to cease his reckless driving, and stated this duty to be to leave the car if afforded reasonable opportunity to do so. Other instructions may have defined reasonable opportunity.
In the chapter on Guest and Passenger, vol. 5-6, of Cyclopedia of Automobile Law (Huddy) (9th ed.), § 145 subhead, “Remaining in machine after protest,” it is said: ‘ ‘ The circumstances may be such as to charg’e the occupant with negligence as a matter of law, where he unreasonably remains in the machine after adequate opportunity is offered for alighting, or, at least, where he fails to insist on leaving the car. But this duty is not absolute, the question whether a failure to leave the vehicle is a want of ordinary care being dependent on the circumstances of the particular case.”
It is easily conceivable that cases might arise where it would not be negligence for the guest to remain in the car after making futile protest against the recklessness or negligence of. the driver. The case of Krause v. Hall, 195 Wis. 565, 217 N. W. 290, was snch a case, and the Supreme Court of Wisconsin there said: “The jury might well have believed that the ordinary person would have taken chances on remaining in the car rather than be let out on a highway many miles from home on a dark night. It seems fairly plain that in every respect the question of plaintiff’s contributory negligence was for the jury, and that their finding with reference thereto cannot be disturbed.” See also Klopfenstein v. Eads, 143 Wash. 104, 254 Pac. 854; Archer v. Bourne, 222 Ky. 268, 300 S. W. 604; Shields v. King, 207 Cal. 275, 277 Pac. 1043; Trotter v. Bullock, 148 Wash 516, 269 Pac. 825.
Other instructions may have explained when it was the duty of the guest to leave the car, reasonable opportunity being afforded to do so, and we cannot therefore say that the instruction was so inherently erroneous as to require reversal of the judgment.
As no error appears, the judgment must be affirmed, and it is so ordered. | [
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Butler, J.
Prior to August 1, 1927, Tliad Branch, the appellant, was appointed guardian of Bert Branch, an insane person. The guardian took possession of the estate of his insane ward which was derived from the Federal 'Grovernment through the Veterans’ Administration on account of services rendered by Bert Branch as a member of the military forces of the United States during the World War. The guardian had in his hands surplus funds not needed for the support and maintenance of his ward and, on August 1, 1927, filed a petition with the probate court for authority to loan the sum of $3,000, alleging that the security proposed was one hundred acres of land favorably located in the Osceola District of Mississippi Oonnty, in a high state of cultivation and worth $100 per acre, but which was then incumbered by a mortgage in the sum of $3,000 due the Southwest Mortgage Company. On the same day the court granted the prayer of the petition and made and entered an order finding that the security was adequate and authorizing the guardian to lend the money taking as security a mortgage on the land subject to that of the mortgage company.
In November, 1931, the. guardian filed his settlement in which he credited himself with the aforesaid loan of $3,000 and two other loans made by him as guardian, one to O. P. Whitson in the sum of $250 and one to R. C. Allensworth in the sum of $125. To this settlement exceptions were filed by the Veterans’ Bureau. The probate court sustained the exceptions, holding that the loan of $3,000 made to one Isadore Branch was not made on the security provided by law, that the two small loans mentioned were without any authority of the court having been obtained, and that the guardian had further failed to account for a sum of $272.58. The court adjudged him to be liable for all of these sums with interest thereon at six per cent. On appeal to the circuit court the action of the probate court in sustaining the exceptions was sustained, from which judgment this appeal has been prosecuted.
The appellants contend that, since the statute regulating the guardianship of insane persons places the management of their estates under the control of the probate court, that court had jurisdiction to make the order of A/ugust 1, 1927, authorizing the guardian to make the $3,000 loan to Isadore Branch, from which no appeal was ever prosecuted, and that, as the judgment of the probate court cannot be attacked collaterally, it protects the guardian in the loan made.
The finding of the probate court that the loans to Whitson and Allensworth, aggregating $375, were unauthorized does not appear to be contested. It is insisted, however, that the finding that the sum of $272.58 has not been accounted for is not supported by any evidence and that the judgment finding the guardian liable for this sum should he reversed, and this contention is conceded hy appellee.
It is the contention of the appellee that § 5061 of Crawford & Moses’ Digest limits the power of the probate court to make an order authorizing the loan of an insane ward’s money, and that, since the loan was not made on the security named in that section, the order of the probate court was corain non judice and so may be attacked in a collateral proceeding. Section 5061, supra, is as follows: “Guardians and curators shall loan the money of their wards at the highest rate of interest prevailing in the community that can be obtained on unincumbered real estate security, and then not more than to the extent of one-half of the value thereof. The interest in all cases shall be paid annually, and if not then paid shall become part of the principal and hear interest at the same rate.” The order of the probate court of August 1, 1927, shows on its face that the security was not on unincumbered real estate, but it is the contention of the appellants that the statute quoted has no application. In this we find the appellants to be correct. The section is a part of chapter 78 of Crawford & Moses’ Digest relating to guardians of minors and prescribing how a guardian shall administer their estates. The statute relating to insane persons providing how guardians shall handle the estates of such is wholly independent and distinct from that relating to the guardianship of minors, and has been since the earliest legislation in this State on those subjects. In 1838 the Legislature dealt with both subjects. In chapter 72 of the Devised Statutes the Legislature dealt with the subject of minors and their guardians, which statute was approved February 14 of that year. On February 20 following, chapter 78 of the Devised Statutes, dealing with insane persons and the guardianship of their persons and estates, was adopted and approved. That act remains unchanged except in some unimportant details and now appears as chapter 92 of Crawford & Moses’ Digest.
In 1873 the Legislature considered anew the subject of minors, the appointment of their guardians and the administration of their estates, and enacted a compre hensive statute relating to this subject, being act No. 78 of that 3ear, without, however, repealing or altering parts of chapter 72 of the Revised Statutes which now with that act is chapter 78 of Crawford & Moses’ Digest. Section 40 of that act provided for the lending by the guardian of the money of his ward. That section was digested in Gantt’s Digest as § 3076', and was amended by act No. 69 of the Acts of 1879 which became § 3514 of Mansfield’s Digest. This section was further amended by act No. 73 of the Acts of 1893' and is now § 5061, Crawford & Moses’ Digest. As a reason for reading § 5061 into the statute dealing with the estates of insane persons, counsel for the appellee suggests: “Some parts of the original act No. 78, approved April 22, 1873, concerned only estates, of minors, whereas other sections of that act concerned the administration of estates of both minors and insane persons, and as the major part of said act concerned minors, the Digester brought forward act No. 78 of 1873 to form a part of chapter 78 of Crawford & Moses ’ Digest, which probably was the proper place for act No. 78; however, the fact that the Digester placed it in that manner does not in any way change the provisions of that law or the intent which the lawmaking body had, as it is not an uncommon thing for our lawmaking body to incorporate as a part of a measure, a provision which, although it is related to the subject-matter, does not in fact strictly come under the general subject of the measure as enacted.” Counsel does not point out the sections of the act which, in his opinion, relate to insane persons and the estates of such, and we cannot agree with him that any such exist. A careful reading of that statute leads to the inescapable conclusion that it relates to minors and the guardianship of their persons and estates, and to these alone.
This court in the case of Fleming v. Johnson, 26 Ark. 421-438, had under consideration the original acts contained in the Revised Statutes — one relating to minors and their guardians and the other relating to insane persons, drunkards, spendthrifts, and their guardians, and held the two acts to be independent of each other. In that case, a father had been appointed guardian of his son, a minor child, and, acting- under the order of the court as such, sold to the appellee, Johnson, a parcel of land which was the property of said minor. Shortly afterward, the mother was appointed guardian of the minor on account of his insanity and brought an action to set aside the conveyance of the first-named guardian. In passing on the points thus raised, this court held that the probate court had jurisdiction of the subject-matter when it made the order for the sale of the real estate, and that it was not subject to collateral attack. The court said:
“Another point raised by the appellants is, that the court erred in excluding the proof that the ward of the guardian was insane from the time he was six years of age down to the time, of the trial. It appears that the appellant, William Warren Fleming, was born April 14, 1842. His father, William W. Fleming, was -duly, appointed guardian by the probate court on the 15 of January, 1856, when he, the son, was under the age of fourteen years. The order for the sale of the lot was made at the same term of the court, and the report of the sale was made, approved, and the sale confirmed at the April term following.
“The matter in issue on the trial was the validity of the sale; and it was immaterial and irrelevant whether the appellant was sane or insane, when his father was appointed his guardian, or when the order of sale was granted, or when the sale was made, confirmed, etc., he being all the while, an infant. The probate court appoints a guardian for an infant, solely because of the infancy, and no inquiry is made as to sanity. The law regards the infant, whether sane or insane, as incapable of acting for itself, and provides for it to be placed under a guardianship, which continues until it is of age, and then this guardianship ceases. Gould’s Digest, chap. 83, p. 570. The law also provides for the appointment of guardians for adult persons, when found, upon proper inquest, to be insane, etc., Gould’s Digest, chap. 89, p. 605. The two kinds of guardianship are as distinct as the two statutes which provide for them. The latter begins where the former ends, after the infant is of age.”
■ In Baker v. Loveland, 174 Ark. 262, 295 S. W. 20, a daughter was appointed guardian of her aged and mentally incompetent mother. During the last two years of the mother’s life she was an invalid and required much attention. The daughter guardian nursed her mother under a tentative agreement with the other members of the family that she Avould be compensated for her services. After the death of the insane ward, the guardian filed her claim in the probate court for the sum of $1,037 as compensation for her services. This was found to be reasonable and the claim allowed. After disposing of other questions in favor of the claimant, the court said: “Neither do we find any merit in appellant’s contention that the claim for services rendered could not be allowed against the estate of the deceased, under the statute (§ 5058, Crawford & Moses’ Digest) providing that the guardian shall not be alloAved in any case, for the maintenance and education of the ward, more than the clear income of the estate, unless upon an order first made permitting such expenditure. This statute has no application to the guardianship or estates of insane persons.” Thus it will be seen that we have held the íavo statutes distinct, both before and after the passage of the Acts of 1873 and the amendments in 1879 and 1893, and held the provisions governing the guardianship of minors has no application to the guardianship and administration of the estates of insane persons.
It is well settled that a guardian of an insane person at common law had no power except to hold intact and preserve the estate of his ward. Since the power to invest the insane ward’s money does not exist at common law and is not given by § 5061, supra, if it exists at all, it must be found in the statute dealing with insane persons and the administration of their estates. This is the point which presents the greatest difficulty. We find no express grant to the probate court of the power to order the lending by a guardian of money belonging to his insane ward. The sections which deal with the administration of an insane person’s estate are §§ 5852 and 5853 of Crawford & Moses’ Digest, which are §§ 43 and 19 of chapter 78 of the Re vised Statutes. Section 5853 impowers the probate court, where an insane person is committed by it to guardianship, to make the necessary orders with respect to the person of. the ward, and “for the management of his estate and the support and maintenance of his family and the education of his children out of the proceeds of his estate.” Section 5852 places in the court the control of the guardian in the management of the person and estate of the ward and the settlement of his accounts, with power to enforce its orders in the same manner as a court of chancery.
We are of the opinion that the authority given the court to make orders for the management of the estate of an insane person and to control the guardian of such in the management of the estate by necessary implication confers the authority to make all necessary orders affecting the surplus money of the ward which, in the judgment of the court, would be to the best interest of the ward and of his estate. Therefore, the court is authorized to order a guardian to lend the surplus money of his ward.
The conclusion reached is supported by decisions construing the term “management of estates, property, etc.,” as used in conveyances, wills and statutes. “Management” is defined as government, control, superintendence, physical or manual handling or guidance — the act of managing by direction or regulation, or administration, as the management of a family, or of a household, or of servants, or of great enterprises, or of great affairs. In re Sanders, 53 Kan. 191, 36 Pac. 348, 23 L. R. A. 603.
A statute giving the management of a certain fund to a certain commission implies the power to control the fund. “It allows the exercise of discretion. It could not be managed without the power to do so and by requiring the one the other was conferred.” Commissioners of Sinking Fund v. Walker, 7 Miss. 143, 38 Am. Dec. 433.
A will constituting certain persons trustees of the estate * * * and directing that said trustees have the entire management of the estate * * means the control of the property to the end that income and profit should be derived from it such as leasing, investing, securing, collecting, etc. Watson v. Cleveland, 21 Conn. 538-41.
“Management,” within the statute giving finance commissioner management of city finances, means control, superintendence, or physical handling or guidance. Topeka v. Independent Indemnity Co., 130 Kan. 650, 287 Pac. 708.
A power of attorney, after mentioning certain specific powers, authorized the agent to act generally in the sale and management of the principal’s personal property. This impowered the agent to execute in his principal’s name a note for the price of corporate stock purchased by him for the principal, and did not limit the agent’s power in executing notes to execute notes for indebtedness existing at the time the powers were executed, since to take entire management of an estate necessarily implies the power to invest the income and collections, and to manage money means to employ or invest it. Keyes v. Metro. Trust Co., 220 N. Y. 237, 115 N. E. 455.
In Sencerbox v. First National Bank of Idaho, 14 Idaho 95, 93 Pac. 369, in construing a statute giving to the husband the management and control of the separate property of the wife during the continuance of the marriage, the court held that the words “management” and “control” have a well-defined meaning, that the power to manage implies the power to control, and that to manage money is to employ or invest it.
Sections 5853 and 5852, supra, therefore, impliedly authorize the court to order the investment by the guardian of surplus funds of a ward. The terms upon which a loan may be authorized and the security required is left to the. discretion of the court, the presumption being that no improvident loans will be made or such as would not be well secured. In dealing with the estates of insane persons, the court ought never to authorize a loan except where there can be no reasonable doubt that the security is such that out of it payment could be secured without delay, and in the case at bar the court abused its discretion in authorizing a loan secured by property al ready incumbered with a mortgage which could, and would, have been corrected on direct appeal. However, probate courts are superior courts within the limits of their jurisdiction, and where, as in this case, jurisdiction is had of the subject-matter, a judgment of such court is impervious to collateral attack. This doctrine is so well settled by numerous decisions of this court that a citation of authorities is deemed to be unnecessary. .
In view of the conclusions reached, it follows that the trial court erred in sustaining the exceptions as to the $3,000 loan. As heretofore noted, it appears that the action of the court in sustaining the exceptions as to the loans of $250 and $125 is not questioned. Indeed, this could not be, for the duty rests upon the guardian to administer the estate of his ward under the orders of the court and to affirmatively show that any loan made by him was so authorized.
The judgment of the lower court is therefore affirmed as to the $250 and $125 items, and reversed as to the $272.58 item, and, as to the “loan to Isadore Branch of $3,000,” the cause is remanded with directions to overrule the exceptions as to those items, and certify its action to the probate court.
McHaney, J., dissents. | [
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WAYMOND M. BROWN, Judge.
|! This appeal arises from the termination of appellant Travis Cotton’s parental rights as to his daughter, B.C. (DOB 10/28/08). Appellant’s attorney filed a motion to withdraw as counsel and a no-merit brief in accordance with Linker-Flores v. Ark. Dep’t of Human Servs. and Arkansas Supreme Court Rule 6 — 9(i). Appellant filed pro se points, but failed to make any legal argument or cite to any authority. We find no meritorious grounds for an appeal, and therefore affirm the circuit court and grant counsel’s motion to withdraw.
Background
B.C. was taken into emergency custody by the Arkansas Department of Human Services (DHS) on June 2, 2010, after she was found naked and wandering half a mile from 12her home. She was one-and-a-half years old at the time and had been left in the care of her grandparents by her mother, Nicole Pierce. When the police returned B.C. to the home, the grandparents were found to be intoxicated and were arrested for child endangerment. Ms. Pierce’s other child, M.C. (DOB 5/4/10) was also taken into custody at that time. DHS filed a petition for emergency custody of both children on June 4, 2010, alleging inadequate supervision by Pierce. The petition was granted that day. The affidavit attached to the emergency-custody petition reflected that, at the time the children were removed, it was believed that appellant was the biological father of both. The affidavit also indicated that there was an open DHS case with the family involving substance abuse and inadequate supervision, and that there had been two 2009 reports involving the same allegations, both of which were found to be true. Both Pierce’s and appellant’s addresses were listed on the affidavit, and appellant was listed as a defendant in the emergency-custody petition.
An order of probable cause was entered after a hearing on June 8, 2010, at which the parties stipulated to probable cause for continuing DHS custody. The court set the case goal as reunification with Pierce, and both parents were ordered to maintain safe and stable housing; maintain stable employment and income sufficient to support B.C. and M.C.; complete parenting classes; attend all scheduled visitation; submit to random drug screens; keep DHS informed of any address or telephone number changes; cooperate with DHS; and undergo drug-and-alcohol assessments. The court also ordered appellant to establish paternity.
|sThe circuit court adjudicated B.C. and M.C. dependent-neglected after a hearing on July 27, 2010, kept reunification with Pierce as the goal of the case, and ordered DHS to continue providing services to the family. Appellant established paternity of B.C. on August 20, 2010, at which time DHS offered him weekly visitation. On November 30, 2010, a review hearing was held. The circuit court found that both appellant and Pierce had failed to comply with the case plan or the orders of the court in that neither of them had stable living arrangements or jobs, both had refused drug screens or failed to appear for drug screens, neither had completed parenting classes, and Pierce had left drug treatment without successful completion.
On May 25, 2011, a permanency-planning hearing was held and the circuit court found that changing the goal of the case to termination of parental rights (TPR) and adoption was in the best interests of B.C. and M.C. The court gave DHS permission to file a petition for TPR as to the rights of appellant, Pierce, and Timothy Knight, who had been determined to be M.C.’s biological father. The court found that DHS had provided appropriate services but that both appellant and Pierce had continued to be noncompliant with the case plan or the orders of the court.
On July 7, 2011, DHS filed a TPR petition as to both children and all three parents (appellant, Pierce, and Knight), alleging that TPR was called for under Ark. Code Ann. §§ 9-27-341(b)(3)(B)(i)(a), 9-27-341(b)(3)(B)(ii)(a), and 9-27-341(b)(3)(B)(vii)(a). Appellant’s TPR hearing was held on November 23, 2011. At the opening of the hearing, appellant’s counsel requested a continuance because appellant was in rehab “getting his life together” and wanted |4more time, and also because counsel had been appointed to the case two months prior and did not have adequate time to develop a defense. The circuit court denied the motion for continuance and proceeded with the hearing.
The only witness at the TPR hearing was Sonji Cline, the family’s DHS caseworker. Cline described her efforts to work with appellant, but cited his frequent address changes and transportation issues as an obstacle to services. She also testified that DHS made three referrals for drug-and-alcohol assessments, but appellant missed all three of the assessments. Cline said that when appellant established paternity of B.C., DHS offered weekly visitation, and while appellant did exhibit a bond with B.C., she did not know he was her father. The DHS report entered into evidence showed that appellant attended only twenty-one of the forty-eight visits scheduled since August 2010. Cline also testified that appellant failed to complete court-ordered parenting classes until entering rehab on September 26, 2011; never maintained a stable address; and on August 19, 2011, was arrested and jailed for second-degree battery, fleeing on foot, possession of a controlled substance, tampering with evidence, disorderly conduct, and resisting arrest.
Appellant offered no evidence to show that he had a job or any means to support himself and B.C., and Cline testified that appellant would not complete rehab until October 2012, almost a full year from the TPR hearing (and over two years after B.C. was removed from her mother’s custody). Cline testified that appellant did not make a diligent effort toward reunification until he was incarcerated and facing criminal charges, and although the rehab services did offer an opportunity for him to change, DHS recommended TPR.
IsCline testified that B.C. and M.C. had stayed in the same foster home since September 2010, that the children had not exhibited any behavioral issues or other problems, and that they had no developmental, medical, or other issues that would prevent them from being adopted. Cline testified as to factors in favor of adoption, such as the children having been together and in the same foster home since September 2011, and opined that adoption was likely to occur, noting that the children’s present foster home was an adoptive one.
On January 3, 2012, the circuit court entered an order terminating appellant’s parental rights as to B.C. A timely notice of appeal was filed on January 20, 2012. Appellant’s attorney filed a motion to withdraw as counsel and no-merit brief on April 25, 2012. Appellant filed pro se points for reversal on May 15, 2012.
Standard of Review
This court reviews TPR cases de novo. DHS must prove allegations by clear and convincing evidence, or proof that will produce in the fact-finder a firm conviction as to the allegation to be established. We will not reverse unless the circuit court’s findings are clearly erroneous, giving due regard to the court’s opportunity to judge the credibility of the witnesses. A finding is clearly erroneous when, although there is evidence to sup port it, the reviewing court is left on the entire evidence with a definite and firm conviction that a mistake has been made. Parental rights will not be enforced to the detriment or destruction of the health and | [^well-being of the child.
Discussion
I. Appellant’s Pro Se Points
Appellant filed a letter setting forth pro se points for reversal on May 15, 2012. In the letter, appellant argues that he has accepted Christ as his personal savior, feels sorrow about B.C. and his history as “less than a responsible parent,” and asks this court to keep the case open until he can prove that he is a changed person who can responsibly parent B.C. Perhaps appellant is sincere, but his request does not present any legal argument or cite any legal authority. It is well established that when an appellant does not cite authority or make a convincing legal argument, and where it is not apparent without further research that the point is well taken, we will affirm. Nevertheless, because appellant’s counsel has filed a no-merit brief and motion to withdraw, we undertake a full review of the record, regardless of whether or not the appellant identifies the trial court’s errors. Therefore, although appellant’s pro se points raise no meritorious grounds for an appeal, we proceed to an examination of all adverse rulings against him.
II. Adverse Rulings
A. Denial of Motion for Continuance
A motion for continuance shall be granted only upon a showing of good cause. We will not reverse the denial of a motion for continuance absent an abuse of discretion that |7amounts to a denial of justice. A circuit court abuses its discretion when it acts improvidently and without due consideration.
We agree with appellant’s counsel that no abuse of discretion occurred here. The TPR hearing had been set since July 2011 and appellant’s attorney was appointed two months prior to the hearing, yet counsel waited until the day of the hearing to make an oral motion for a continuance, based partly on lack of preparedness. A movant’s failure to exercise diligence is a factor to be considered by the circuit court in deciding whether or not to grant a continuance. In fact, a lack of diligence alone is sufficient cause to deny a continuance. Additionally, an appellant must show prejudice from the denial of the continuance.
Although appellant’s counsel told the court that she had only a limited time to prepare a defense, she did not file an affidavit or otherwise inform the court how additional time would have helped appellant, such as witnesses that might have been called, what those witnesses might have said, or how their testimony would have affected the hearing. As such, there is no basis for this court to find that appellant was prejudiced by the circuit court’s denial of his motion for continuance. In light of this and appellant’s lack of diligence, there is no meritorious argument to reverse the circuit court’s denial of appellant’s motion for a continuance.
1SB. Admission of DHS Court Report
During the TPR hearing, appellant objected to the introduction by DHS of the court report prepared for the case, on the ground that the report contained inadmissible hearsay. The circuit court admitted the report but said that it would not consider any hearsay contained in it.
Evidentiary rulings by a circuit court are reviewed for abuse of discretion. Sonji Cline, the caseworker who prepared the report, testified at the TPR hearing and was cross-examined by appellant’s attorney. Cline essentially testified to all of the contents of the report, so at most, the report was cumulative. However, because the contents of the report were included in Cline’s testimony, appellant would not be able to demonstrate prejudice from the admission of the report, and we will not reverse without such a showing: prejudice is not presumed. Thus, the admission of the report does not give rise to any meritorious argument for reversal.
C. Denial of Motion for Directed Verdict and Grant of TPR
After Sonji Cline testified, DHS rested and appellant’s counsel moved for a directed verdict on the grounds that no evidence of potential harm to B.C. had been adduced. The court denied the motion, finding that B.C. could not be safely placed in appellant’s custody because he was in an inpatient rehabilitation facility and had criminal charges pending against jdiim. The record reveals no non-frivolous argument that the evidence presented was insufficient to support the circuit court’s decision to grant TPR.
The purpose of TPR is to provide permanency in the child’s life where their return to the family is contrary to their health, safety, or welfare and it appears that return cannot be accomplished in a reasonable period of time as viewed from the child’s perspective. A court may order TPR if it finds there is an appropriate permanent placement plan for the child, and there is clear and convincing evidence that TPR is in the child’s best interest, taking into consideration the likelihood of adoption and the potential harm to the child’s health and safety if she were returned to the parent. There must also be clear and convincing evidence to support at least one ground set forth at Arkansas Code Annotated section 9-27-341(b)(3)(B).
Clear and convincing evidence of adoptability is not required; rather, the circuit court need only to consider the likelihood that the child will be adopted. Cline’s testimony that B.C. was adoptable was not challenged by appellant. B.C. was young, had no special needs or behavioral problems, and had been living with a pre-adoptive family since September 2010. Consequently, there is no meritorious chal lenge to the circuit court’s finding of adoptability.
Likewise, there are no non-frivolous arguments to reverse the circuit court’s finding that |inB.C. faced potential harm if she were placed in appellant’s custody. In assessing the potential-harm factor, a court is not required to find that any actual harm will result or to identify a particular harm; instead, the harm analysis is to be conducted in broad terms. Here, the court focused on the undisputed facts that during the fifteen months the case was pending, appellant had never obtained stable housing or employment, did not appear for several scheduled drug assessments, and began cooperating with DHS only after he had been arrested and had entered a year-long residential drug-rehabilitation facility, well after the May 25, 2011 permanency-planning hearing. A parent’s lack of stable housing or employment can demonstrate potential harm to a child, as can a parent’s refusal to obtain drug assessments when, as in this case, there is evidence that drug use may be an issue.
Moreover, appellant had just begun the residential drug-rehabilitation program at the time the TPR hearing was held. Even assuming he would complete the program successfully, B.C., who had already been in foster care for fifteen months, would have to remain there for another year. This, and evidence that appellant had only started to work on resolving his issues long after the permanency-planning hearing (and not until he faced criminal charges), support the circuit court’s finding that B.C. could not be placed in appellant’s custody within a reasonable period of time as viewed from her perspective.
|17As for statutory grounds, in its order, the circuit court stated that it was basing its grant of TPR on Ark.Code Ann. § 9—27—841(b)(3)(B)(i) (a), which authorizes TPR when
a juvenile has been adjudicated by the court to be dependent-neglected and has continued to be out of the custody of the parent for twelve (12) months and, despite a meaningful effort by the department to rehabilitate the parent and correct the conditions that caused removal, those conditions have not been remedied by the parent.
Had this been the only statutory ground alleged in the TPR petition, there would be a meritorious argument that the evidence was insufficient to support TPR, because B.C. was not removed from appellant’s custody. However, because the TPR petition alleged an additional statutory ground for TPR — the “subsequent other factors” ground at Ark.Code Ann. § 9-27—341(b)(3)(B)(vii) (a) —this court may affirm if there was sufficient evidence of that ground in the record. Here, the evidence of appellant’s lack of compliance with the case plan and court orders, including his failure to submit to drug screens and testing positive for drugs, as well as his failure to obtain stable housing, employment, or income, supports a grant of TPR under the “subsequent other factors” ground. Accordingly, there is no meritorious argument that there was insufficient evidence to terminate appellant’s parental 112rights.
In conclusion, we find no non-frivolous grounds for an appeal in this case, and therefore affirm the circuit court and grant counsel’s motion to withdraw.
Affirmed; motion to withdraw granted.
WYNNE and GLOVER, JJ., agree.
. 359 Ark. 131, 194 S.W.3d 739 (2004).
. Nicole Pierce’s parental rights as to both B.C. and M.C. were terminated after a hearing on September 12, 2011.
. Hune v. Ark. Dep’t of Human Servs., 2010 Ark. App. 543, 2010 WL 2612681.
. Causer v. Ark. Dep’t of Human Servs., 93 Ark.App. 483, 220 S.W.3d 270 (2005).
. Williams v. Ark. Dep’t of Human Servs., 99 Ark.App. 95, 257 S.W.3d 574 (2007).
. Moiser v. Ark. Dep’t of Human Servs., 95 Ark.App. 32, 233 S.W.3d 172 (2006).
. Blanchard v. Ark. Dep’t of Human Servs., 2012 Ark. App. 215, 395 S.W.3d 405.
. J.T. v. Ark. Dep’t of Human Servs., 329 Ark. 243, 947 S.W.2d 761 (1997).
. J&J Bonding, Inc. v. State, 330 Ark. 599, 955 S.W.2d 516 (1997).
. Sweeney v. State, 69 Ark.App. 7, 9 S.W.3d 529 (2000).
. Butler v. Ark. Dep’t of Human Servs., 2010 Ark. App. 570, 2010 WL 3422456.
. Smith v. Ark. Dep’t of Human Servs., 93 Ark.App. 395, 219 S.W.3d 705 (2005).
. Henderson v. Ark. Dep’t of Human Servs., 2010 Ark. App. 481, 2010 WL 2186438.
. See Butler, supra; Smith, supra.
. Davis v. State, 345 Ark. 161, 44 S.W.3d 726 (2001).
. Green v. State, 354 Ark. 210, 118 S.W.3d 563 (2003).
. Sparkman v. Ark. Dep’t of Human Servs., 96 Ark.App. 363, 242 S.W.3d 282 (2006).
. Cheney v. Ark. Dep’t of Human Servs., 2012 Ark. App. 209, 396 S.W.3d 272.
. Ark.Code Ann. § 9-27-341(a)(3).
. Ark.Code Ann. § 9-27-341(b)(1)(A).
. Ark.Code Ann. § 9-27-341(b)(3)(A).
. Dority v. Ark. Dep't of Human Servs., 2011 Ark. App. 295, 2011 WL 1495988.
. Dowdy v. Ark. Dep’t of Human Servs., 2009 Ark. App. 180, 314 S.W.3d 722.
. See, e.g., Hall v. Ark. Dep’t of Human Servs., 2012 Ark. App. 245, 413 S.W.3d 542.
. See Landis-Maynard v. Ark. Dep’t of Human Servs., 2011 Ark. App. 673, 386 S.W.3d 641; Carroll v. Ark. Dep’t of Human Servs., 85 Ark.App. 255, 148 S.W.3d 780 (2004).
. See Ark.Code Ann. § 9—27—341 (a)(4)(A); Camarillo-Cox v. Ark. Dep’t of Human Servs., 360 Ark. 340, 201 S.W.3d 391 (2005).
. See Lewis v. Ark. Dep’t of Human Servs., 2012 Ark. App. 154, 391 S.W.3d 695.
. This provision allows TPR when "subsequent to the filing of the original petition for dependency-neglect, other factors or issues arose which demonstrate that return of the juvenile to the family home is contrary to the juvenile’s health, safety, or welfare and that, despite the offer of appropriate family services, the parent has manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate the parent’s circumstances which prevent return of the juvenile to the family home.”
. See Allen v. Ark. Dep’t of Human Servs., 2011 Ark. App. 288, 384 S.W.3d 7.
. Appellant refused drug screens in June, August, November, and December 2010; tested positive for THC and benzodiazepines in January 2011; and tested positive for THC in February 2011. | [
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Eakin, J.
This is a suit by Freed, to foreclose a mortgage, executed by Brown, to secure a note for $215, due ■January 1st, 1878. The whole description of the property in the mortgage is as follows : “The following described land, situated in Yell county, Arkansas, to-wit: A portion ■of the northeast quarter of section twenty-two, in township six, range twenty, containing twenty acres.” There are no ■expressions in the instrument, nor references to other documents, natural ■ objects, artificial monuments, or adjoining lands, by which, with the aid of extrinsic evidence, the particular lands meant to be conveyed can be identified. If there were, the case would present no difficulty, as we •know officially from the public surveys, that in Yell county ■all the ranges are west and the townships north.
In explanation of the uncertainty, the complainant 'alleges that defendant owned, in said northeast quarter of 'section twenty-two, only a tract of land containing within •a fraction of forty-three acres, which he sets forth by metes and bounds. It would be apparent to a surveyor, from the metes and bounds, that the land lay in an oblong tract, very nearly in the middle of the quarter section, having the same eastern boundary, and extending westward past ■the north and south line dividing the forties, and with the ■east and west line dividing the forties running nearly through the middle. It would further appear to him, upon •calculation, that the portion of defendant’s tract lying north •of this last mentioned line, contained just twenty acres, lacking less than the fiftieth part of an acre, or, practically, an even twenty. Complainant alleges that it was this portion, on which defendant’s house was situated, which he meant to convey, and says the description was not made more definite at the time of the execution of the mortgage, because neither of the parties had then in his possession the metes and bounds of defendant’s tracts from which a description might be drawn; but he says it was expressly ■understood and agreed between them at the time of the ■loan, and the execution of the note and mortgage, that the twenty acres lay on the north side of the division of defendant’s tract in said quarter section, and upon which the house was situated.
Prayer for reformation of the instrument to accord with the intention for foreclosure as to said northern portion containing twenty acres, and for general relief.
The defendant, besides setting up a homestead, which under the present constitution is no defense, admitted that he was the owner of the land as described in the complaint,, but denies that he executed “a certain deed of mortgage conveying the plaintiff twenty acres of the forty-three acres-described” in the petition and exhibit, “being twenty acres lying on the north side of said forty-three acre tract for the purpose of securing, etc.” He makes no response whatever to the allegations regarding intentions,, or the circumstances which prevented a more definite description of the land. He does not deny the mortgage as executed, nor the justice of the debt. Nor does he deny that he intended,, and plaintiff expected, a security on the twenty acres designated in the complaint. Nor does he allege any reason why the selection of that twenty acres would be injurious to him more than any other twenty acres; nor say what twenty acres he did intend. Indeed, the answer amounts only, in effect, to a square stand on the invalidity of the instrument actually executed, and a denial that he executed any other. There was no demurrer, however, to the answer, nor motion to make it more specific, and the cause went to hearing on the pleadings and depositions.
The chancellor simply held the complainant not entitled to the relief prayed and dismissed the bill. Pie appeals.
First as to the specific relief of reformation, and execution of the trust as reformed. The answer of the defendant is vague and evasive. In his deposition, he disclaims any recollection of a mutual understanding between himself and complainant, that the mortgage should apply to the; particular twenty acres now sought to be charged. The complainant in his deposition says, that at the time of the execution of the instrument defendant stated, “that he did not have the exact metes and bounds of the land mortgaged, but that it was twenty acres of his cleared land, lying west of his house, and upon which he was then under the impression that his residence stood.” The proof shows that the residence does stand on the particular twenty acres claimed, and that the main body of it does lie west of the house. It is moreover evident that noportion of the twenty acres, including the house, and lying westward of it, except the one in question, could be laid off out of the forty-three acre tract-without mutilating the land in a manner which we cannot suppose the parties intended. Doubtless, both parties actually had the special twenty acre portion in view, and contemplated it as the portion to which the mortgage was to apply.
Upon the other hand there is no proof as to fraud. Nor is there any pretence that the instrument, as executed, contained any expressions, or omitted any, contrary to the intentions of the parties. They deliberately executed it, and the complainant took it as it was. Nor is there any proof that the parties intending to describe one tract of land described another, or intended to include any matter omitted. The case does not come within the principle under which courts of equity permit written instruments to be varied by parol proof. If there was any mistake, it was as to the legal effect of the instrument as executed, and of their right to show by parol proof what they really intended. Equity will not aid such mistakes against a recusant, by importing expressions into the instrument which he did not intend to use, where it is not necessary for the correction or the prevention of fraud. This would wholly contravene the policy of the statute of frauds, which requires that the intention of parties, deliberately expressed in writing, shall be ascertained from the writing alone, by the aid only ■of such extrinsic facts and circumstances as the instrument may refer to. The danger of parol testimony gave rise to the act. The exceptions in chancery are in aid of the policy of the act, and not in antagonism. When not for the correction of mistake or fraud they are more seeming than real, For instance, an absolute deed may be shown to have been intended as a mortgage. But this does not ■contradict or vary its terms. The legal estate is allowed to pass in accordance with the terms, but upon that a court of ■equity will impose a trust in the hands of the grantee, that it shall be held subject to redemption. Otherwise, he would have obtained the title by fraudulent promises, upon which the grantor relied.
In the case of Hunt v. Rousmanier’s Executors, 8 Wheaton, 174, it was held that a power of attorney which was given to a creditor to make a sale of a ship, under the advice of counsel that it would be as good a security as a mortgage, and under the impression and intention of all parties that it should be so, and although it was made irrevocable during the life of the grantor, was, nevertheless, not a mortgage, but expired with the life of the grantor. This is a leading case on the subject.
With regard to reformation by parol evidence, in case of agreements within the statute of frauds,the supreme court of Massachusetts, in the case of Glass v. Hurlburt, vol. 102, p. 31, says : “When the proposed reformation of an instrument involves the specific enforcement of an oral agreement within the statute of frauds, or when the term sought to be added would so modify the instrument as to make it operate to convey an interest or secure a right, which can only be conveyed or secured through an instrument in writing, and for which no writing has ever existed, the statute of frauds is a sufficient answer to such a proceeding.” Of course he speaks of cases without fraud or mistake in the terms used, or the property described. '
In this case the parties intended to use no other description of the land than was used. They thought that sufficient to give Complainant a right to a security on a particular portion of twenty acres, to be ascertained by parol proof. There is no equity for the specific prayer of reformation. The complainant must stand on the instrument as it is.
If have not been able to find any case unaffected by fraud, accident or mistake, in which the courts-have allowed a patent ambiguity in a ' conveyance to be cured by parol evidence, when the-instrument itself affords no direction, by reference or otherwise, to something, to which parol evidence may be applied. Such things, for instance, as natural objects, artificial monuments, former ownership, or former occupation, or other grants, or contiguous boundaries or something, like that. This instruj ment on its face is hopelessly uncertain, affording no clue for the application of parol evidence to indicate what the parties had in view. There is no reference to any characteristic, or position, or shape of the twenty acres, or anything else to give a clue to it. No residence is mentioned, nor line, nor point of the compass, nor cleared land, nor anything to require the aid of parol evidence. The maxim, “Id cerium esi,quod cerium, reddi potest” does not authorize parol evidence to show mere understandings of the parties, not expressed nor indicated by anything in writing. Parol evidence cannot import terms into an instrument. It can only be used to explain or show the things to which the instrument refers by the terms it uses, so as to make the terms certain when understood.
The instrument is void upon its face for uncertainty.
No issue was made on the validity of the note, however, and as the defendant did not move to have it transferred to the law side of the court,and there were only equitable issues considered, the majority of this court are of opinion that the chancellor should have given a decree for the amount against the defendant.
Reverse and enter the proper decree here. | [
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Eakin, J.
This is an action commenced in the circuit •court by Gray, in the name of the state, against Guise, a constable, on his official bond. It is founded on the act of March 28, 1871, concerning exemptions, being section 2641 ■of Gantt’s Digest, This act provides that the officer levying upon goods allowed1 as’exempt, after a schedule should have been filed, and supersedeas issued, could take no indemnifying bond, and proceed with the sale of any property in the schedule. It made if a high misdemeanor in him to do so, punishable by a fine of from one hundred to five hundred dollars, and by imprisonment for a term not less than
• one nor more than two months. “And furthermore,” provided that he should “be liable on his official bond to the defendant in twice the amount of damages, by such defendant incurred.” (Gantt's Dig., sec. 2641.) The provisions regarding exemptions from execution were changed by the constitution of 1874. The benefit was still limited to residents of the state, but was diminished in amount, and a distinction as to amount was made in favor of those who wei’e married or heads of families. By act of March 9, 1877, some of the provisions of the former act of 1871 to •carry into effect the constitutional right of exemption were changed. Instead as formerly, of making a schedule only of the property claimed as exempt, the claimant was .required to file one on oath of all his property, specifying the particular property he might desire to retain as exempt. Upon this the cleik or justice was required to issue a super- • sedeas, staying any further proceedings against the property ;in such schedule described and claimed as exempted. The .provisions of section 2(541 were not repealed.
The complaint sets forth the official character of the •defendant and the execution of his official bond, in the pen•alty of five hundred dollars. It proceeds to state that in 1881 he held an execution against plaintiff issued by a justice of the peace, in favor of J, L. West, under which he ■levied upon the following personal property of plaintiff, to-wit: One hundred and fifty pounds of bacon, eight bushels of corn, and forty bushels of cotton seed, the whole value of all of which was thirty-four dollars and seventy-live cents. That on the first of July plaintiff filed before ¡the justice a schedule of all his personal property, which he claimed as exempt, including that levied on, and that he* obtained a supersedeas and the property was released. That afterwards, in 1882, defendant levied another execution upon the same property, upon the same ' judgment ;* took from West an indemnifying bond, and sold it against the objections of plaintiff, the justice having refused to* allow him to file a schedule on the second levy. He alleges that he has been damaged in the sum of thirty-four dollars- and seventy-five cents, and prays judgment for double such* damage, and also for the sum of five hundred dollars, the* penalty of the constable’s bond, A general demurrer to this complaint was overruled, and the defendant answered admitting his official character, the execution of his official bond, the sale of the bacon, corn and cotton seed, and the taking of the indemnifying bond from the plaintiff in the-execution. He says, however, in regard to this property, that no supersedeas bond had ever been issued ; claiming the fact to be, that a former levy had been made upon a spring* wagon and a cow and calf, which had been claimed as-exempt, and had been given up upon supersedeas.
The evidence as' shown by bill of exceptions discloses substantially the following case. The judgment in favor of Wert was for eight or nine dollars, rendered earty in 1881. The execution was levied on a spring wagon, and a cow andi calf.
Gray filed before the justice a schedule of all his proper-J J x 1 amounting to his own estimate of values, to $445.25., It is simply a sworn schedule. The property is not claimed ag either altogether or any particular part. It included the spring wagon, cow and calf, which had been-levied on, and also other things, amongst which was Some* hogs, “nine acres of corn,” and “four acres of cotton.”' Thereupon the justice issued a supersedeas, which was* obeyed, commanding him to desist from any sale, or further proceedings, regarding the wagon, cow and calf. They were returned to plaintiff Gray. Early in 1882, another •execution was issued, which was levied on the bacon, corn and cotton seed, which were shown to be the products of *the hogs and crops scheduled. The plaintiff applied for no ••supersedeas, but still claimed the property as exempt. . The property was never taken from the possession of plaintiff Gray. At the sale it was purqhased by his father, who left it with him. The whole brought $22.50.
The court upon its own motion, and without objection, in•-structed the jury that a schedule for exemption, once filed, was good ¿gainst subsequent executions on the same judgment; that the schedule protected the property in its. ■changed condition ; and that the measure of damage was the value of the property sold. The jury found for the plaintiff, and fixed damages at $31.50. The judgment was for double this sum and costs.
The grounds of the motion for a new trial are, 1st, error in instructions. 2nd, excess of damages in the verdict, and in the rendition of the verdict. 3d, that of jurisdiction. 4th, because the verdict is without evidence, and contrary to law. These were overruled and Guise appeals.
Waiving all other questions, it suffices to say that the ver•dict was without sufficient evidence to support it. No prop•er schedule, no claim of the property exempt, had ever ■been made. Nor does it in any manner appear that ■ the ¡plaintiff was entitled to any. The transcript does not show whether he was a resident of the State, nor does it show whether he was married or the head of a family. It does ■not show that he designated any of the property as claimed ¡under the exemption law. The schedule is fatally defective.
Reversed and remanded. | [
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English, C. J.
On a day of October, 1880, Calvin Williams, a colored man, disappeared from his home in Drew ■county.
On the 4th of June, 1883, Charles Allstock was breaking up a piece of newly cleared land, a quarter of a mile from Calvin’s house, which was an old deadening and dense ■thicket when he disappeared, and turned up an old shoe with his plow, which contained some foot bones of a man5> and on looking down where the shoe came from, he discovered the ankle bones of a man projecting out into the furrow, Some of the neighbors were sent for, and among them a magistrate. They dug up the ground, and in a hole about three feet long, they found the disjointed and fleshless skeleton of a man, which, from indications not material to be stated, they probably identified to be the remains of' Calvin Williams. The back of his skull was broken in, as-if by a blow from a blunt instrument, and some of his ribs-appeared to have been broken or cut.
Suspicion fell on William Johnson and Caesar Pitts, two- . colored men who lived at Calvin’s house when he disappeared, and upon his wife Matilda. The two former were indicted and convicted on a charge of murdering him, and sentenced to be hanged.
Matilda Williams was separately indicted as an accomplice in this case, the indictment charging in apt words, that William Johnson and Caesar Pitts murdered Calvin Williams with an axe, and further that Matilda Williams, at the time the murder was committed, was present, standing-by, and then and there, unlawfully, feloniously, wilfully,, and of her malice aforethought, and with premeditation and deliberation, did aid, abet and assist the said William Johnson and Caesar Pitts to do and commit the murder in manner and form aforesaid.
She was tried on plea of not guilty, found by the jury, to-be guilty of murder in the first degree, refused a new trial,, sentenced to suffer the death penalty, took a bill of exceptions, and obtained an appeal to this court.
On the trial, after the evidence was closed, his honor, the-presiding judge, refused tbree instructions asked for the-State, and ten moved for the prisoner, and gave four of his-own motion, the first of which was :
“If the jury believe from the evidence, beyond a reason able doubt, that William Johnson and Caesar Pitts did kill and murder the deceased Calvin Williams, as charged in the-indictment, and that Matilda Williams, the defendant, stood by, aided, abetted, or assisted, or that not being present, she procured, encouraged, counseled or advised the same to be done, then she is guilty and the jury will so find.”
The third was: “If the jury believe from the evidence that the defendant was not present aiding, abetting, assisting, and neither encouraged, advised, counseled or procured the commission of the crime, they will find her not guilty.”' The prisoner excepted to the giving of these instructions, and made the exception ground of the motion for a new-trial.
The first and third instructions moved for the prisoner were, in effect, that the evidence must support and be in conformity to the allegations made in the indictment, and show that the accused was present, standing by, aiding,, abetting and assisting at the time of the alleged killing, &c.
There was not a particle of evidence that the prisoner was actually or constructively present when Calvin Williams was murdered, as charged in the indictment. The jury must have found her guilty, under the chargé of the court, upon some slight, vague and unsatisfactory testimony that, though not present, she advised and encouraged the perpetration of the crime.
By common law definitions, principals are either in the-first degree, or in the second degree. He who actually commits the offense is said to be principal in the first degree he who is present aiding and abetting him in doing it, is said to be principal in the second degree.
So by the common law, an accessory before the fact is one who, being absent at the time of the commission of the offense, doth yet procure, counsel or command another to commit it. Absence is indispensably necessary to constitute an accessory; for if he be actually or constructively present. when the felony is committed, he is an aider and abetter, and not an accessory before the fact.
An accessory was defined by the Revised Statutes to be “he who stands by, aids, abets, or assists, or who, not being present aiding, abetting or assisting, hath advised and encouraged the perpetration of the caime. Rev. Statutes, ch. 44, p. 248; Gantt’s Rig., sec. 1237. And it was declared that: “He who thus aids, assists, abets, advises or encourages, shall be deemed in law a principal, and punished accordingly.” Rev. Stat., same chap, and page; Gantt’s Rig., sec. 1238.
In this definition, the distinction between accessories before the fact and principals in the second degree, as observed in the common law definition as above given, is lost sight of.
But in the act of seventeenth December, 1838, modifying the penal code to correspond with the establishment of a penitentiary, it is declared that, “All persons being present aiding and abetting or ready and consenting to aid, abet in any of the offenses mentioned in this act, etc., shall be deemed principal offenders and indicted and punished as such. Gantt’s Rig., sec. 1240. See Freel v. State, 21 Ark., 219.
Accessories before the fact are punishable as principals but must be indicted as accessories.
g0 it was held in Boze Smith v. State, 37 Ark., 274, that one who advises or encourages the commission of a felony, but is not actually or constructively present when it is committed, cannot be convicted under an indictment charging him as principal in the crime.
It is only persons who are present, aiding and abetting, or ready and consenting to aid and abet in a felony, who can be indicted hs principals.
Appellant was indicted as a principal, and without proof that she was pi’esent, but on slight, vague and unsatisfac tory testimony that she advised and encouraged the commission of the crime, she was convicted, under an erroneous-charge of the court.
A number of witnesses testified that during the whole of the day on which Calvin Williams disappeared, she was with-them picking cotton in a field, except at the dinner hour, when she was at her house.
Other errors are assigned but it is deemed of no importance to notice them.
Reversed and remanded for a new trial. | [
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Smith, J.
Massey sued Ward in an action ex delicto. His complaint contained two paragraphs — one for assault and battery, and the other for malicious prosecution in having him arrested. After the issues had been made up, the plaintiff died. Mr. Blackwood qualified as his administrator and the action was revived in his name and proceeded to a trial, which resulted in a verdict against Ward for two thousand dollars damages.
Ward excepted to the revivor in the name of the personal representative, and afterwards moved the court to arrest the judgment and to grant him a new trial for this alleged error.
The first question, therefore, which confronts us is, whether such" an action can be prosecuted to recovery by the administrator of a deceased plaintiff.
At common law no action for a tort survived the death, either of him who inflicted, or of him who received it. “No action,” said Lord Mansfield, “where in form the declaration must be quare vi et armis et contra pacem, or where the plea must be that the testator was not guilty, could lie against the executor; upon the face of the record the cause of action arises ex delicto, and all private criminal injuries or wrongs, as well as all public crimes, are buried with the offender,” Cowper, 375.
So an action would not lie for the personal representative. “Executors and administrators are the representatives of the temporal property; that is the debts and goods •of the deceased, but not of their wrongs, except when those wrongs operate to the temporal injury of their person•al estate.” (Chamberlain’s Admr. v. Williamson, 2 Maule & S., per Lord Ellenborough.
But our statute has changed the common law. Sec. 4760 ■of Gantt’s Dig. provides: “For wrongs done to the person or property of another, an action may be maintained against the wrong doers and such action may be brought by the person injured, or, after his death, by his executor or •administrator, against such wrong doer, or, after his death, against his executor or administrator, in the same manner and with like effect in all respects as actions founded on •contracts.”
And sec. 4768: “Where one of the parties to an action dies, * * * before the judgment, if the right of action suiwives in favor of or against his representatives ■* * * the action may be revived and proceed in their names.”
The language of the statute includes every action, the substantial character of which is a bodily injury, or damage of a physical character, but does not extend to torts which •do not directly affect the person, but only the feelings or reputation, such as malicious prosecution. Smith v. Sher man, 4 Cush. 408; Nettleton v. Dinehart, 5 Id., 543; Norton v. Sewall, 106 Mass., 143.
The court- committed uo error in permitting the action to proceed upon the first count; but it should have required ■the plaintiff to strike out the count for malicious prosecution. That was not a wrong either to the person or property of Massey. A trial upon that issue would have involved an inquiry into the personal character of a dead man and his innocence or guilt of a criminal offense. Such an ■action does not survive.
The court gave the following direction to the jury :
“If the assault was committed without fault on the part of the plaintiff in a wanton and willful manner, and under .circumstance of outrage, cruelty and oppression, or with malice, they will be warranted in finding vindictive or exemplary damages by way of punishment and for public example.”
And it refused to give this : “If you find from the evidence that Massey was employed by or forWard, for the purpose of guarding convicts, and that some of them escaped through the carelessness or negligence of said Massey, or through his connivance, and that Ward believed he had so acted, although said belief or opinion will not justify the assault, it may be considerd in mitigation of damages. ”
The action of the court in these particulars was excepted to and was urged in support of the motion for a new trial. And it was also claimed that the damages were excessive. The defendant was the lessee of the penitentiary. The plaintiff was employed as a guard, and was especially in.-structed to be vigilant and never permit a convict to come nearer him than twenty-five yards. Pie was not a man of •strong constitution and was in rather feeble health. He ■seems to have fallen asleep on his post about 10 o’clock an the mornino- and three convicts, taking advantage of his condition, disarmed him and made good their escape. They were fired upon by the other guards, and in the midst of' the commotion, the defendant came into the yard and being-enraged at the escape of the convicts, seized a clapboard and struck the plaintiff three or four times over the shoulders and back.
This does not impress us as a proper case for the infliction of exemplary damages or smart money. An employer-who, in a fit of passion, assaults his servant for a neglect of duty, thereby commits a breach of the peace and an actionable^ wrong. But if, making due allowance for the infirmities-of human temper, the defendant has a reasonable excuse,, arising from the provocation or fault of the plaintiff, but. not sufficient to justify entirely the act done, then damages-ought not to be assessed by way of punishment and the circumstances of mitigation should be'considered.
For the public offense, Massey swore out a warrant, upon which Ward was arrested, arraigned, pleaded guilty, was fined $10 and costs and paid the same.
For the private injury this action is prosecuted. And the-elements of damages are, the personal indignity involved in the assault, the plaintiff’s bodily pain and suffering, loss of time and labor, and diminished capacity to work from the-date of the assault to Massey’s death, and the expenses of' medical and surgical attendance during his injuries consequent -upon the injuries received.
Cushman v. Waddell, 1 Baldwin, 59, was an action by a schoolmaster against a parent for a severe beating. The-plaintiff had punished one of his pupils for some offense.. The father went to the plaintiff’s boarding-house, attacked and beat him savagely, accompanied by very intemperate and vindictive language and other circumstances of aggravation The court held that no provocation could excuse-the defendant from making compensation for all the injury the plaintiff 'had suffered by the unlawful attack. But if' ■the jury were satisfied that, without any previous malice towards the plaintiff, or any deliberate design to injure him in person or in the estimation of the public, the defendant acted in the heat of passion, caused by the appearance and account of his son, it was a circumstance which ought to •operate powerfully to reduce the damages to such as were •compensatory.
In the case under consideration, there was no evidence of ■previous malice, nor of deliberate cruelty, only of hot blood and a certain recklessness. Ward had never seen Massey before. And Massey was very far from being free from fault.
Eor the errors above indicated, the judgment is reversed -and a new trial is awarded. | [
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English, C. J.
The substance of the indictment in this case follows:
“The grand jury of Dorsey county, etc., etc., accuse N. H. Robinson of the crime of gaming, committed as follows, to-wit: The said N. H. Robinson, in the county aforesaid,
on the twenty-fourth day of December, 1882, did unlawfully hut money, to-wit, one dollar in good and lawful money of the United States, on a certain game then and there played at and with cards, called seven-up, contrary to the statute,” etc.
The defendant demurred to the indictment on the ground that the charge that he “but” money on a game of cards was meaningless and'unintelligible. The court overruled the demurrer.
On the trial, the court proved by Sam. Baggett that on the twenty-fourth of December, 1882, in Doi-sey county, he saw the defendant and Buck Scott, John Barnes and Harper Waldrop engaged in playing a game of seven-up with cards, and saw some money on the board, at one time as much as one dollar. Some of the parties were playing for money and betting on the game; but he did not see defendant put up or bet any money. There was as much as one dollar bet on the game, and Buck Scott and defendant were partners in the game. Several other witnesses for the State testified substantially the same as Baggett did, but none of them saw defendant put up or bet any money on the game.
The defendant then introduced Buck Scott as a witness, who testified substantially that he played in the game of seven-up referred to by Sam. Baggett and the* other wits nesses for the State, and that he, witness, and John Barnedid all the betting that was done; that John Barnes and himself got up the game, and requested the defendant and Harper Waldrop to play merely for the purpose of making it a four-handed game. Neither the defendant nor Harper Waldrop bet any money or anything else on the game. The defendant not only did not bet, but refused to bet, and was not at all interested in the game. He was the partner of witness in playing the game, but was not directly nor indirectly interested in the betting — got none of the'money and paid out none, etc. Witness lost all the money in the game, and John Barnes won and got it.
Witness was indicted for the same gaming, convicted, and had paid the fine and costs.
The above being all the evidence introduced at the trial, the court, of its own motion, excluded the testimony of the witness Buck Scott from consideration by the jury, and directed the jury not to consider the same, because said witness played in the same game with defendant, and was therefore an interested party — to which ruling defendant excepted.
At the request of the defendant the court instructed the jury as follows:
“Before the jury can convict in this case, they must be lieve from the evidence that the defendant bet money, or something representing money, or some valuable thing, on the game played, or was interested in the betting.”
The jury found the defendant guilty, and assessed a fine of ten dollars against him. He filed motions for a new trial and arrest of judgment, which were overruled, and he took a bill of exceptions and appealed.
1. The objection to the indictment is frivolous. The charge was for gaming, and it was manifest from the face of the indictment that “but” was intended for bet, and a mere clerical error.
2. The court erred in deciding that Buck Scott was an competent witness, and excluding his testimony from jury. He was not included in the indictment against appellant, and was in no way a party to, or legally interested in the result of this prosecution. We have no law, statute or common, that renders a man infamous, even after conviction, for betting at seven-up, which is not a felony, but a misdemeanor only.
Reversed, and remanded for a new trial. | [
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OPINION.
It is manifest that if appellant had taken a rule upon Justice Garland to produce the original papers sooner than she did, it would have been fruitless.
It is also clear that the failure to prosecute the appeal with more diligence was the fault of the clerk in misplacing and forgetting the papers, and not the fault or negligence •of appellant or her attorney.
In Smith et al v. Allen, 31 Ark., 268, and Hughes v. Wheat, 32 Ib., 292, relied on by counsel for appellee, the parties taking the appeals were shown to have been negligent in prosecuting them, and hence it was held that their -dismissal was no abuse of discretion.
Upon the final showing in this case, we think the court ■below should have set aside the order dismissing the appeal, ¡and permitted the case to proceed to a trial de novo on its merits.
Note. — This and the next two cases should have heen printed in the; May Term, but were overlooked by the printer. — Rep.
The judgment dismissing the appeal must be reversed, and the cause remanded to the court below for further proceedings. | [
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Eakin, J.
This is an appeal from a decree in chancery,. foreclosing a mortgage executed by Mickel and wife of lands partly her own and partly her husband’s. The sole defense relied on here was in the supposed defectiveness of' her acknowledgment of the deed.
It was in all respects a carefully drawn certificate, showing that the required privy examination had been made, and. that she had acknowledged her voluntary execution of it,, without compulsion, etc. It fails to state, however, that- ■she “voluntarily” appeared before the officer.
The statute prescribes that the conveyance of a married -woman’s real estate shall be effected by her “voluntarily” -appearing before the proper court or officer, and in the absence of her husband declaring that she had of her own free will executed the deed, etc., for the purposes therein •contained and set forth 4 4 without compulsion or undue influence of her husband. ” Gantt’s Dig., sec. 849. It is further prescribed that the officer taking the acknowledgment “ shall grant a certificate thereof” to be endorsed •on the instrument.
The appearance is no part of the acknowledgment, and need only be recited to show that the woman was there to make the acknowledgment. The doing of that is the essential thing to be certified, and the manner of it and terms of it. The appearance must, in fact, be voluntary, and, unless as against innocent parties, a forced appearance with a valid acknowledgment would convey nothing. But the officer is not required by the statute to make inquisition of the modes by which she is induced to come. Certainly any officer who should see a woman come before him, impelled by force •or fear, should refuse his certificate of acknowledgment, although she might say with her lips that it was voluntary. But he cannot, generally, know that she comes voluntarily, whatever the appearances may be, and his certificate that ■she so came is generally formal — certainly not essential.
I know of no case directly in point, and counsel cite none. The principle, however, is illustrated in the case of Stephens v. Henry, 6 Blackford, Indiana Reports, 475. That case arose under a statute requiring an officer taking an acknowledgment of a married woman to examine her separately and to read or otherwise make known to her the contents of the instrument. He was required to certify the acknowledgment which she then made under his hand and seal.
The officer’s certificate in that case set forth the privy-examination, and that she acknowledged the instrument apart from her husband to be her voluntary act and deed,, but failed to show that the officer read it to her or made known its contents.
The court said it was the officer’s duty to read it to her or make known its contents, but that the statute did not require him to certify that he had done so, or to show anything more on the subject than the declaration or acknowledgment of the wife that she had voluntarily executed the deed.
Whilst our statute requires the certificate to show the acknowledgment, in the prescribed or equivalent terms, and that it was separate from the husband, it does not, in terms- or by grammatical construction, require it to show that she-voluntarily came.
Affirm. | [
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JOSEPHINE LINKER HART, Judge.
|, In this one-brief case, Tammie Marcel-lus (Marcellus) appeals from an order denying her petition to have her appointed guardian over her paternal grandson, L.M. On appeal, she argues that the trial court’s denial of the guardianship petition was clearly against the preponderance of the evidence. We affirm.
Appellee Dayna Manning Mays (Mays) is the mother of L.M., born May 2, 2009. She is currently married to Thomas Mays. Mays has three other children, all under the age of six, who were fathered by Mays’s ex-husband, Danny Lee. L.M.’s biological father, Mason G. Marcellus, by his own statement, impregnated Mays during a “one night stand.” It is undisputed that the child suffers from various skin rashes and respiratory problems.
Initially, the relationship between Mar-cellus and Mays was cordial — Mays appreciated that Marcellus babysat L.M. while she worked. However, the relationship deteriorated. On June 14, 2010, Marcel-lus filed in the probate division of Scott County Circuit Court a |2petition styled, “PETITION FOR EMERGENCY APPOINTMENT OF A GUARDIAN.” In it, Marcellus asserted that L.M. was “in an unsafe, unwholesome environment and is being medically neglected and physically abused.” Marcellus further asserted that she “fears for the safety and well being” of L.M. Marcellus also successfully moved, ex parte, for custody. However, after a hearing, custody was returned to Mays.
At the hearing on Marcellus’s guardianship petition, Marcellus testified that she had been in “constant contact” with thirteen-month-old L.M. since he was born. She claimed that in several months, she kept the child more days than Mays did. Marcellus asserted that when she would get L.M. “back” from Mays, the child was “almost always sick.” She introduced several photographs showing diaper rash and the presence of red pimple-like spots on the child’s abdomen. She claimed that the blisters were diagnosed as a staph infection. Marcellus claimed that Mays asked her to lie to the doctor treating L.M. for his respiratory illnesses, to hide the fact that Mays had not been giving the child the prescribed treatments. She also claimed that Mays disregarded Dr. Louay Nassri’s instructions to keep L.M. away from cigarette smoke and allowed her mother to smoke in the presence of the children. Marcellus also claimed that before she got an ex parte order giving her custody, L.M. routinely had diarrhea, but under her care, he had improved. Marcel-lus also claimed that in the time she had custody of the child, he had gained two pounds.
Marcellus further criticized Mays by noting that Mays had male guests overnight while L.M. was present. She asserted that one guest was a “Level I sex offender.” Marcellus claimed that during L.M.’s lifetime, Mays’s “average relationship” with the men in her life had | pasted “about four weeks and five days.” Marcel-lus also noted that two of Mays’s children “had a sample of beer.” Further, she claimed that Mays disciplined her children with a paddle; Mays’s family let the children eat “dog treats”; Mays’s father was a “convicted drug felon”; Mays lets the “other children” visit with their father then worries that he is “out drunk”; and Mays lets the children sleep on pallets on the floor. Marcellus also opined that L.M. was not being properly fed or hydrated.
A court-ordered psychological evaluation was performed by Dr. Donna M. Van Kirk and submitted into evidence. The report noted that Mays had suffered from postpartum depression after L.M.’s birth, which was apparently successfully treated with medication and counseling. It further stated that Mays’s depression did not recur after the birth of her fourth child. The report also noted that some of the test results were called into question because of Mays’s responses on the validity scale and in other questions which suggested that she was trying to portray herself in a much more positive light. Mays’s “most likely diagnosis” is “Mixed Personality Disorder.” This conclusion was based on “test-taking behavior that produced improbably positive results; Mays’s denial of all symptoms of mental, emotional, social, and behavioral problems or distress; noncompliance with medical advice (her own and [L.M.’s] medications); poor judgment (brief marital relationships); unstable home life (four male co-parents in five years); and immaturity (poor family planning, poor choice of partners, etc.).”
April Revis, an Advanced Practical Nurse employed by the Scott County Hospital, testified that L.M. was a patient of hers whom she saw every couple of months. She stated |4that Mays’s children were clean and only suffered from “routine chronic illnesses.” She recalled that L.M. had chronic ear infections. Referring to the pictures that Marcellus introduced into evidence, Revis stated that the rashes could be staph infections or MRSA, and that others were probably yeast infections. While she conceded that poor hygiene could cause a skin rash, she noted that antibiotics could also cause rashes.
Revis testified that when L.M. was born, Mays suffered from postpartum depression, but no longer suffered from it and posed no danger to herself or her children. According to Revis, she referred L.M. to Dr. Nassri for respiratory problems. She noted from her records that Mays had “sometimes” not filled prescriptions, but had corrected the problem after seeking Revis’s opinion. Revis noted that she had seen L.M. “a lot” and that she was aware that the child had also been seen by Dr. Nassri and the emergency room “a lot.” Nonetheless, Revis expressed no concern that L.M. was in imminent danger of harm if he remained with his mother. Revis stated that, as far as she could tell, Mays was taking good care of L.M., and she received a report from an immunologist who said that L.M. was “progressing” and outgrowing normal childhood illnesses.
Revis was questioned about the report issued by the court-appointed psychologist, Dr. Van Kirk. She agreed that the report suggested that Mays had “honesty problems.” However, Revis stated that she never felt that Mays had been dishonest with her and had always “been compliant with me or my office.” She also noted that L.M. had some problems with diarrhea, but stated that it could be caused by giving the child milk or by his antibiotics. |fiRevis stated that Mays brings L.M. to his followup appointments, and she reiterated that she was not “concerned” over how Mays cared for her child.
Dr. Nassri testified that he diagnosed L.M. with “persistent bronchitis.” He expressed concern with L.M.’s long-lasting skin rashes. Dr. Nassri suspected that the child might have a deficient immune system, but, of the four tests he administered, three were “normal” and one was “questionable.” He further noted that successive tests of the bacteria in L.M.’s airways revealed different strains each time, which was not consistent with his mother failing to provide appropriate care, but suggestive of an immune deficiency. Dr. Nassri. no ted that Marcellus had complained to him that Mays was not giving L.M. his medicine, and he “fussed” at Mays about it. He noted that there was a time when Mays was “not compliant” with his treatment instructions, but over the last year, she had been “compliant.”
Psychiatrist Dr. Gerald Stein testified that he had appeared as an expert witness in court between twenty-five and fifty times. He conducted a two-hour interview with Marcellus, a one-hour interview with Mays, and reviewed the medical records. He expressed concern with Mays’s mental health. He noted that Mays had a “major depressive episode,” that Dr. Van Kirk’s concluded that Mays had a personality disorder, that Mays had answered her test questions in a misleading way, and that, in his one-hour interview with her, Mays was “very slick” about how she responded to questions to make her appear more psychologically healthy than she was. Dr. Stein also expressed concern about the thickness of L.M.’s medical records, which he concluded was because Mays was non-compliant with Dr. Nassri’s prescribed treatment. He further concluded that despite Mays having significant problems, she was | ¿resistant to treatment.
Mays largely denied all of Marcellus’s allegations. She stated that the children were adequately housed and fed. She noted that the Arkansas Department of Human Services had been sent to her house three times in the last year and that each time they failed to find any significant problems. Mays asserted that she was properly medicating her child. She acknowledged that L.M. had diaper rash, but she claimed that she properly treated it with Boudreaux’s Butt Paste at every diaper change. Likewise, she acknowledged that in the past she had not given L.M. certain medications, but asserted that she long ago corrected that problem. She also denied being promiscuous.
Mays’s mother, Michelle Harris, testified that Mays was an “excellent mother.” She denied smoking in the presence of the children. Harris also denied giving her grandchildren dog treats, but recalled a single incident where one of the children took a single bite out of a dog treat. She stated that she immediately took the rest of the treat from the child.
At the conclusion of the hearing, the trial court denied Marcellus’s guardianship petition. It nonetheless awarded Marcel-lus extensive visitation. Marcellus timely filed a notice of appeal.
On appeal, Marcellus argues that the trial court erred in dismissing her guardianship petition. While she acknowledges the preference in the law for a natural parent, she asserts that, pursuant to Crosser v. Henson, 357 Ark. 635, 187 S.W.3d 848 (2004), “determining which party is the one with whom the child would be better off is ‘precisely1 what courts should decide.” Marcellus contends that the trial court erred in refusing to appoint her |7guardian because Mays had been involved with “over nine men” since L.M. had been born and had given birth to a subsequent out-of-wedlock child. Further, Marcellus asserts that there was “substantial proof’ that Mays had neglected L.M.’s medical needs. Finally, she argues that Mays has an “established pattern of deceit” that is a “significant negative influence on the child.” We find this argument unconvincing.
We review probate proceedings de novo, but we will not reverse a finding of fact by the circuit court unless it is clearly erroneous. Munn v. Hudson, 2011 Ark.App. 775, 2011 WL 6226117. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake has been made. Id. When reviewing the proceedings, we give due regard to the opportunity and superior position of the probate judge to determine the credibility of the witnesses. Id.
We note that Crosser was overruled by Graham v. Matheny, 2009 Ark. 481, 346 S.W.3d 273. In so doing, the supreme court acknowledged that it had erred in not following the dictates of the probate code. Significantly, with regard to the case-at-bar, the probate code clearly states that “The parents of an unmarried minor, or either of them, if qualified and, in the opinion of the court, suitable, shall be preferred over all others for appointment as guardian of the person.” Ark.Code Ann. § 28-65-204(a) (Repl.2012). The trial court did not find that Mays was unfit, and we hold that the trial court did not err in failing to make this finding.
|RWe acknowledge that Marcellus presented considerable evidence about Mays’s shortcomings as a mother. However, this evidence was largely controverted by Mays and Harris. While it is not disputed that, at one time, Mays failed to give L.M. certain medications, Mays testified, apparently credibly, that she had rectified this problem. Her testimony was corroborated by Revis and Dr. Nassri. As noted previously, we defer to the trial court on issues of credibility. Munn v. Hudson, supra. Likewise, while we acknowledge that a parent’s sexual relationships can have a significant effect on the children in the household, we note that, at the time of the final hearing, Mays was married, and there was no evidence presented to suggest that her marriage was not stable.
Finally, while we agree that providing false information to a doctor or other healthcare professional could have adverse, if not disastrous, consequences for a patient, there is no basis for us to conclude that the trial court failed to adequately consider and weigh the evidence of Mays’s alleged deceptiveness. Both Dr. Nassri and Revis noted a general improvement in L.M.’s health, conclusions that are inconsistent with Mareellus’s allegations that these healthcare providers were being misled and that deception adversely affected the child’s treatment.
Affirmed.
GRUBER and GLOVER, JJ., agree.
. This is an acronym for "Methicillin-resistant Staphylococcus aureus.”
. The child that Marcellus refers to was fathered by her ex-husband, Danny Lee, but after she had divorced Lee. | [
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Butler, J.
In the case first styled, the appellants, who allege that they are owners of real estate in the city of Dermott, brought suit against the mayor and recorder and members of the city council of Dermott, and against A. Prothro, as the only surviving member of the Board of Waterworks Improvement District No. 1 and of Light District No. 1 of the city of Dermott, to enjoin the performance of a contract between the city of Dermott and the Federal Emergency Administration of Public Works in Washington, D. C.
On the same day the complaint was filed, the appellants filed an amendment thereto, and to the complaint as amended appellees demurred. The demurrer was sustained, and the appellants, electing to stand on the allegations of their complaint, have appealed.
The substantial allegations admitted by the demurrer to be true are these: In 1903 the city of Dermott granted to W. H. Lephiew an exclusive franchise to construct a water and light system within its borders, and on the 15th day of January, 1908, for value, the city procured the cancellation of the franchise and took over the equipment and distribution system constructed by Lephiew to furnish water and light to the city. In the same year two improvement districts were organized each including the entire area within the corporate limits of the city, styled respectively, Water Improvement District No. 1 and Light Improvement District No. 1. Assessments of benefits were levied to construct each improvement, and in 1909 bonds were issued and sold by the districts in the aggregate sum of $23',000. A small part of the assessments was collected, the exact amount of which it is impossible to ascertain. However, there could have been not more than one annual assessment of benefits collected, as the city took over the improvements in 1909, since which time no other assessments have been collected.
On the 13th day of March, 1929, the city purchased six acres of land, the conveyance being made to the “Incorporated Town of Dermott, its successors or assigns.” On this property the city dug the wells and erected the tank for the storing of water to be distributed to its citizens and built a brick building for housing the light plant. The purchase money for the Lephiew franchise, the equipment installed by him, and the six acres of land was derived from, and paid out of, the general revenue. of the city. Since 1909 the city has operated both the water and light systems as municipal enterprises without objection from any source and without collecting further assessments of benefit and has paid the bonded indebtedness and all other obligations of the districts out of the general revenues of the city. Beginning with the year 1909, and since that year, the city applied the income derived from the water and light systems to the general revenues of the city, and as it grew it extended the facilities of both plants commensurately, so that now these systems are worth in excess of $100,000, and, since 1909, the improvement districts have not attempted to function in any particular.
The city of Dermott, on November 29, 1926, entered into a lease agreement with the Arkansas Power & Light Company to maintain and operate the light plant and to furnish the service for which it was designed. This contract is now in force, and the light plant is being operated under the provisions of this lease.
From these allegations, it appears that the city of Dermott is not operating the water and light systems as trustee for the improvement districts, but as owner, and such it appears to be in fact.
The city applied to the Federal Emergency Administration of Public Works at Washington, D. C., for a loan from the proceeds of which it is proposed to construct a city hospital. The application for the loan has been approved, and it was required of the city that it enact an ordinance embodying therein the terms of the contract upon which the loan was to be made. Pursuant to this requirement city ordinance No. 442 was duly enacted, which recites at length the terms of the loan and the manner of its disbursement and repayment. Upon the question of the security therefor, the contract, as it appears in the city ordinance above referred to, contains the following recital: ‘ ‘ (h) Security. Special obligations of the borrower, secured by a first lien upon, and payable from, a first pledge of the gross revenues of the municipal waterworks system, after deduction of reasonable operation, maintenance, and repair expenses, and additionally secured by a first pledge of the lease rentals from the municipal electric light system.”
Plaintiffs seek to enjoin the erection of the hospital under the provisions of the ordinance, and question the power of the city to make the contract which it evidences, or to give the pledge for the repayment of the loan recited above. The complaint praying that relief recites the fact that, since taking over the two plants and discharging their obligations, the city has used for its own purposes the revenues derived from the plants in excess of the cost of maintenance and operation, and that it is proposed to devote and pledge this excess to the repayment of the Federal loan.
It may be said that it is the city’s duty to 'see that these plants are maintained and operated, and that it may not apply to any other municipal purpose any of the revenues derived from these, plants, or either of them, required for the purpose of maintenance and operation. But it may also be said that the loan agreement and the. city ordinance recognize this obligation and pledge only-the excess revenues “ after deduction of reasonable, operation, maintenance, and repair expenses” of the waterworks system. The. lease of the light plant imposes these charges on the lessee, Arkansas Power & Light Company, as a part of the consideration for that lease, so that no sum is pledged until these charges have been first paid.
It is also alleged in the complaint that the city has been using, and proposes to use, as a part of its general revenue, the profits derived from the operation of these plants after maintenance has been provided for. We know of no constitutional or statutory objection to this being done.
In the case of Bourland v. Southard, 185 Ark. 627, 48 S. W. (2d) 555, it was alleged that a city improvement district of the city of Fort Smith had improved a ¡street in that city with the proceeds of a bond sale. The city commissioners were ex-officio commissioners of the city improvement district in that city, and had taken over the maintenance of the street as a part of their statutory duty. All the obligations of the district had been paid, including the bonds which it had issued, and there remained on hand about $1,200 which had been derived from, the collection of betterment assessments against the real estate located in the city improvement district. The. city was using this money along with the general revenue for general city purposes, and the owners of property within the improvement district brought suits for an accounting of the revenues of the district and to restrain their diversion. In granting the relief prayed it was there said that the propérty owners in a local improvement district have an interest in the funds of the district, and that it is an impairment of their vested rights to divert the betterment assessments which had been collected to uses other than for the benefit of the owners, and that “the commissioners cannot therefore lawfully expend any of the money of the improvement district for general expenses of the city or for paying employees or officers of the city. If they could require the improvement district to pay any part of the- expenses of the city, they could require it to pay all. The taxpayers of the district can be required to pay the assessments only because their property is benefited equal to the amount they have to pay.”
We have before us an entirely different question in . the instant case. There is involved here no issue of the improper diversion of betterment assessments, as no assessments of betterments are being collected against the-property in the district and none have been for a number of years past. In the discharge of the. duty to maintain and operate, the city has a discretion as to the manner in which that duty shall be discharged. If the plants are operated ah a loss after the city has taken over their operation, it must bear that loss. If a profit is derived after maintenance and operation ^expenses have been paid, it may use that profit for its general purposes. This profit may, therefore, be treated ais a part of the city’s income. It was expressly held in the case of Cumnock v. Little Rock, 154 Ark. 471, 243 S. W. 57, that a city has the power to erect a city hospital, and it may use this general revenue to pay the expenses incurred in that behalf.
We conclude, therefore, that it is not beyond the power of the city to enter into a contract to erect a hospital and to segregate the revenues arising from the water and light systems and to pledge these excess revenues for that purpose. But this power may not be exer eised in violation of Amendment No. 10 to the Constitution. Any contract which the city makes in regard to uncollected revenues from any source must be construed with reference to this amendment. Parties cannot, by pleadings or stipulations of any kind, abrogate this amendment which will be read into any contract which the city may make. This amendment provides that the fiscal affairs of counties, cities and incorporated towns shall be conducted on a sound financial basis, and that no allowance shall be made “for any purpose whatsoever in excess of the revenues from all sources for the fiscal year in which said contract or allowance is made. ’ ’ Beyond this inhibition there is a lack of power to contract.
We have considered this amendment as applied to a great variety of questions, and it will serve no useful purpose to review these cases. In one of them — that of Polk County v. Mena Star Co., 175 Ark. 76, 298 S. W. 1002 — we considered the question of the priority of a county’s obligations where it was unable to pay them all, and we there held, in effect, that those expenses must be first paid which were incurred in the discharge of the essential functions of the county government. We there said that such expenses as assessing and collecting taxes, holding courts, and feeding and keeping prisoners, and certain other obligations which are authorized and imposed by statutory mandate, must be paid before other expenses, even though permissible — if the county could pay for them — but which are not indispensable, may be paid for.
And so also with the cities of the State. They cannot contract away their right to exist and to perform the essential functions for which they do exist. These essential expenses must first be paid. When they have been paid, other revenues not exceeding the total annual revenues may be devoted to other public purposes — such as erecting a hospital.
In this connection it may be said that the complaint alleges that the city has a contract for the maintenance of the hospital after its erection without cost to the city, but the city does propose to borrow money for the purpose of erecting the hospital and to repay it in the manner indicated. It has this authority provided in so doing it does not impair its power to perform the essential functions of its government and existence.
Upon the assumption that the city will have the revenue under the allegations of the complaint which the demurrer filed thereto admits, the decree, overruling the demurrer is sustained.
What Ave have just said disposes of the appeal in the case of Parker v. Little Rock. That case involves the application of the city of -Little Rock, a city of the first class, for a Federal loan with Avhich to construct and equip an airport and the suit, in that case, sought to enjoin the city from entering into a contract with Federal Emergency Administration of Public Works to obtain a loan for that purpose.
Act No. 135 of the Acts of 1929 (Acts of 1929, page 705) authorizes cities of the fifist class to own, maintain, and operate airports in the maimer therein provided. The city of Little Rock appear® to have availed itself of the provisions of this act, and now proposes to borrow money, as above stated, for use in the proper equipment of its airport. To repay this loan, the city proposes to pledge the earnings of the airport and to transfer money from its g’eneral revenue fund to an airport fund in the event the revenue of the municipal airport will not be sufficient to pay the expenses of operation and maintenance, and also- to pay $3,800 per annum from its general revenue fund, or so much thereof as may be necessary, to repay the proposed loan. The city may do this, but in the eAmnt only, as herein previously stated, that it has this money after 2Daying the expenses of its municipal government incurred in the performance of its essential statutory functions.
Subject to this limitation, the decree in each case is affirmed. | [
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Smith, J.
This suit was brought in the name of the State for the use and benefit of Birdie Fossett, to affiliate a bastard child of which she alleges appellant was the father. It was adjudged both in the county court and in the circuit court on appeal that appellant was the father of the bastard child, and he was required by the judgment of the circuit court, pronounced upon the verdict of a jury, to make monthly payments provided for by the statute under which the proceeding was had.
An appeal has been duly prosecuted from that judgment, and for its reversal it is insisted that the court erred in admitting certain testimony, and in excluding certain other testimony. These are assignments of error which can be reviewed only upon a motion for a new trial filed in the cause below calling the attention of the court to the errors complained of.
It has been several times decided that, although a bastardy proceeding is in the name of the State, it is of a civil nature. Wimberly v. State, 90 Ark. 514, 119 S. W. 668; Belford v. State, 96 Ark. 274, 131 S. W. 953; Chambers v. State, 45 Ark. 56; Pearce v. State, 55 Ark. 387, 18 S. W. 380.
It was held in the case of Van Hook v. Helena, 170 Ark. 1083, 282 S. W. 673, which was an appeal from a misdemeanor conviction, that where the offense charged is a misdemeanor, we are not required, as in felony cases, to explore the record to see whether error was committed, but are only required to consider the assignments of error properly presented under the rules of the court.
It was held in the very recent case of State v. Neil, ante p. 324, 71 S. W. (2d) 700, that a motion for a new trial is essential to a review of alleged errors not apparent on the face of the record. The improper admission or exclusion of testimony is not an error apparent on the face of the record, but is one which must be brought upon and into the record by a proper bill of exceptions after a motion for a new trial has been filed calling the attention of the court to the alleged error.
If there was a motion for a new trial, it has not been abstracted, and the alleged error has not been called to our attention as the rules of this court require, and it is not, therefore, properly presented for our consideration.
As no other assignments of error are suggested, the judgment must he affirmed, and it is so ordered. | [
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Baker, J.
H. ft. F. Goode, clerk of the chancery court of Union County, filed this suit in the circuit court of Union County challenging, first, the legality of Union County Salary Act, and, second, praying for fees, emoluments and commissions alleged to have been earned by him as clerk of the two chancery courts of Union County, which fees he claims accrued during the year of 1933. The case was presented to the court upon an agreed statement of facts, and upon the testimony of the appellant.
The agreed statement of facts set out that Goode was the duly elected, qualified and acting circuit clerk and ex-officio recorder of the two divisions of the circuit court of Union County, Arkansas, and had been since January 1,1931. Also that he was the duly elected, qualified and acting chancery clerk of Union County, and had been since January 1,1931; that the claim involved in this action represents fees and commissions earned and received by the clerk of the two divisions of the chancery courts of Union County, Arkansas, from January 1, 1933, to December 1, 1933, inclusive; that the sums were paid by the appellant to the treasurer of Union County monthly, under protest, and that the amount of such fees and commissions so paid was $2,591.
It is further agreed that the claim involves the construction and interpretation of what is known as act No. 1 of Union County, Arkansas, which act was filed and made a part of the record, and it was stipulated that in a former cause testing the validity of said Initiative Act No. 1, styled Dozier v. Ragsdale, in which the opinion of the Supreme Court was delivered on December 5, 1932, as reported in 186 Ark. 654, 55 S. W. (2d) 779, in which said initiative act was held valid, that the question as to whether the said act affected the fees, commissions and emoluments of the clerk of the chancery court was not raised in the court below nor in the Supreme Court, and the purpose of this suit is to determine whether' said Initiative Act No. 1 applies to the clerk of the chancery court of Union County.
The parties agreed to waive the right of trial by jury, and also that other evidence might be offered in addition to the stipulation.
Goode testified that he is the chancery clerk; that during the year of 1933 he had collected $1,036.45 as such elerlc of the second division of the Union Chancery Court, and $755.55 from the first division of that court; that he had received as commissioner in chancery during the year 1933 the sum of $640; that he earned fees for making transcripts of records, in cases on appeal, the sum of $162; that this money was paid into the treasury of Union County. There were, perhaps, some other fees not necessary to include here. He was paid the salary of $2,700 according to Initiative Act No. 1, the salary act of Union County.
The trial court held that the duties of the chancery clerk, first and second divisions of Union County, devolved upon the appellant by reason of the fact that he was the duly elected circuit clerk of that county; that the law imposed upon the circuit clerk of the county the duties of the chancery clerk, and that the salary fixed in the Union County Initiative Act No. 1 of $2,700 a year was full compensation that he had a right to receive for all of the duties he performed as circuit and chancery clerk.
We think'this decision was a correct announcement of the law.
Section 15 of article 7 of the Constitution of 1874, provides: “Until the General Assembly shall deem ex pedient, the circuit court shall have jurisdiction in matters of equity, subject to an appeal to the Supreme Court in such manner as shall be prescribed by law.” The clerk of the circuit court, of course, performed all of the duties of what was then generally spoken of and called “the chancery side of the docket.”
Section 10 of act 166 of the Acts of 1903, provides: “The clerks of the circuit courts in the several counties shall be clerks of the chancery courts and ex-officio masters and commissioners thereof in each of the said counties * * *.” This was not an imposition of new or additional duties imposed upon circuit clerks, for they had prior to that time, as circuit clerks, performed all of the duties devolving npon them in all equity cases that arose, and were tried in chancery by the circuit judges.
Upon the establishment however of the. separate chancery courts, the clerks continued, as under § 10 of said act, to perform the same duties, and render the same services they had prior to that date rendered in the circuit court. There has been no change in that general law of the State since that date, as to the rendition of the duties by the circuit clerk for the separate chancery courts, and clerks of the chancery courts are such by reason of the fact that they are regularly elected as circuit clerks. Upon election they become ex-officio clerks of the chancery courts. So long as the fee system prevailed, they received the fees, emoluments and commissions accruing to them by reason of their services in the chancery court in the same manner that they did those, in the circuit court.
"Whatever may be said about the separate or distinct duties as clerk of the circuit court or as clerk of the chancery court, those duties are performed by one officer, though that officer may act, in the performance of his several duties, as clerk of the circuit court in the one instance, as recorder in another, or as clerk of the chancery court.
In the case of Durden v. Sebastian County, 73 Ark. 305, 83 S. W. 1048, this court said: “It is clear that the Legislature intended to provide in this act for the compensation of all the officers of Sebastian County, and not simply for some of them. The Legislature fixed the salary of the ‘judge of the county court.’ Nothing was said about an extra salary or additional compensation for the judge of the probate court. Why? Because the judge of the county court is ex-officio judge of the probate court, and in providing the salary of the ‘judge of the county court’ the Legislature intended to include compensation to him for whatever services he might perform as judge of the probate court. So, likewise, the ‘clerk of the county court’ for his services as ‘clerk of the probate court,’ and the ‘treasurer’ for his services as treasurer of the common school fund. And the ‘ clerk of the circuit court’ for his services as recorder. It is clear that the Legislature intended, for the purpose of fixing salaries, at least, that these various officers (except the sheriff) having ex-officio duties should receive but one salary for all the duties performed. The Legislature intended that there should be but the one salary or compensation in the cases mentioned, even if it could be said that there were in each case named two offices and two officers in one. ”
In the case of State ex rel. Poinsett County v. Landers, 183 Ark. 1138, 40 S. W. (2d) 432, this court said: “While it is true that the sheriff, under the 'Constitution (art. 7, § 46) holds two separate and distinct offices (Ex parte McCabe, 33 Ark. 396; Falconer v. Shores, 37 Ark. 393), and must give a separate bond for each office, it does not follow that he becomes two officers. We think that he is necessarily only one officer, but holding two separate and distinct offices, until such time as the Legisture sees fit to separate them. ’ ’
In the Landers case, from which the above quotation is taken, Landers was claiming that he was entitled to retain for his own use the compensation of $5,000 for each office, sheriff and tax collector. The court held, however (p. 1142), “The collection of such taxes being a duty imposed by law, it is difficult to perceive on what theory he would be entitled to retain the compensation therefor in excess of $5,000 net compensation for these and all other duties performed.” Citing the case of Durden v. Sebastian County, above.
It must follow that, since the appellant in this case is the circuit clerk and ex-officio clerk of the chancery court, his compensation as clerk, as fixed by the salary act of Union County is the full compensation he is entitled to receive. It has been repeatedly held by this court that the imposition of extra duties on an officer entitled him to no additional compensation unless such compensation is expressly provided for such services.
The question is also raised here, for the first time, as to the sufficiency of the ballot title of the Union County Salary Act. It is unnecessary to argue this proposition. This question was settled, adversely to appellant’s contention here, in the case of Coleman v. Sherrill, ante p. 843, and also in the case of Blocker v. Sewell, ante p. 924.
It follows therefore that this case should be affirmed.
Affirmed. | [
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Humphreys, J.
This is a proceeding by mandamus brought in the Second Division of the circuit court of Pulaski County to compel the mayor of Little Bock to call a special election on a petition, and an amendment thereto filed on August 29, 30,1934, seeking to change the form of government of said city under the provisions of act 311 of the Acts of the Legislature for the year 1931.
A response was filed to the petition, and an intervention was filed by a taxpayer attacking the constitutionality of said act. A demurrer to the intervention was filed.
The trial court heard the case upon the pleadings and agreed statement of facts, resulting in a dismissal of the intervention and a granting, of the petition for mandamus.
Both the respondent and intervener have duly prosecuted an appeal to this court. The agreed statement of facts appears in appellant’s abstract as follows:
“It is agreed that petitioner herein is a taxpayer of the city of Little Bock.
“That respondent is mayor of the city of Little Bock.
‘ ‘ That on August 29, 1934, a petition signed by 107 qualified electors of the city of Little Bock, Arkansas, was presented to respondent under the provisions of act 311 of the Acts of Arkansas for the year 1931, requesting and asking’ him to call an election at which the electors of the city of Little Bock should be permitted to vote upon the question of changing their form of government to the so-called city manager-commission form, and upon the question of naming seven qualified electors proposed in said petition as a charter committee whose duty it would be, among other things, to draft a new charter and system of laws for said city in case the said city manager-commission form of government should be adopted, and said charter committeemen should be elected at said election, upon a ballot containing two lines, Aor home rule’ and Against home rule/ and naming* the said seven proposed charter committeemen to he voted npon.
“That on the next day, Angnst 30, 1934, an additional and supplemental petition was presented to said respondent in the same language and proposing the same seven charter committeemen, before any action had been taken by said respondent upon the petition first presented, and before any similar petition had been presented to him, signed by 144 qualified electors of the city of Little Eock, or a total of 242 such signatures upon the whole petition.
“That at the time said petition was filed the law required the signatures of only 70 qualified electors.
“That said respondent has failed and refused to call an election responsive to said petition, and to issue a proclamation setting the date thereof as required by law; that the persons proposed in said petition for an election mentioned as a proposed charter committee are qualified electors and landowners within the city of Little Eock, and that an exact copy of said first and supplemental petition mentioned in said petition for mandamus is attached hereto Exhibit A.
“ It is also agreed that subsequent to the filing of the petition on August 29, 30 the respondent publicly called, at-the request of interested citizens, a mass meeting for the purpose of causing the circulation of another petition under act 311 of 1931, containing different names of proposed charter committeemen; that between the call for said mass meeting and September 4, 1934, respondent was active in securing the assent of persons to be placed upon said new petition as proposed charter members; that said meeting was held in the city of Little Eock on the evening of September 4, 1934, at which it was voted by parties attending to circulate such other petition, and seven qualified persons, some of whom had assented at the request of respondent to the placing of their names on such petition and ballot as proposed charter committeemen, were elected as such. The respondent attended said meeting and was active in the same, and aided in accomplishing its object.
“Tliat, as a result of this meeting, a petition was circulated between the 4th and 7th of September, 1934; that it contained the signatures of 108 qualified electors of the city of Little Rock, but that it contained the names of a proposed charter committee different from those proposed in the first petition already on file with the respondent in all but two instances.
“That said petition was filed with respondent on September 7,1934, and that on the same date the Pulaski Chancery Court, at the complaint of the petitioner herein, issued a temporary injunction, which was served upon respondent the same day, enjoining him from calling an election responsive to said petition or issuing his proclamation fixing the date thereof, and that said action is still pending.
“That the petitioners who signed said last mentioned petition are not the same persons who signed the first petition.
“That a bond for costs of holding an election, if granted, was filed with the last-mentioned petition and certificate of genuineness of signatures accompanied said last-mentioned petition.
“That an extra copy of said last-mentioned petition with signatures omitted is attached hereto marked Exhibit B.”
The constitutionality of the act is assailed by the intervener on the ground that it is a special or local act because it provides for a change of the form of government in cities only that have 50,000 or more inhabitants. Reasonable classifications based upon population in the enactment of laws do not offend against the amendment to the Constitution prohibiting the Legislature from passing special or local laws. If the classification is reasonable and prospective, the law is general, but, if unreasonable and arbitrary, the law is special or local. In the cases of Childers v. DuVall, 69 Ark. 336, 63 S. W. 802, and Montgomery v. Little, 69 Ark. 392, 63 S. W. 993, classification based on population in the enactment of valid laws was recognized, and both cases were cited with approval in the recent case of Blytheville v. Ray, 175 Ark. 1089, 1 S. W. (2d) 548, the latter case having been decided more than a year subsequent to the passage of ■Amendment No. 14. We find nothing’ in this record indicating that the classification contained in act 311 is unreasonable or arbitrary. The Legislature may have ascertained that the commission form of government was not workable or practicable in cities of less than 50,000 inhabitants. In classifications as a basis for the enactment of laws, the Legislature must be allowed a wide latitude of discretion and judgment. Bollinger v. Watson, 187 Ark. 1044, 63 S. W. (2d) 642.
We find nothing in the Initiative and Referendum Amendment to the Constitution limiting the power of the Legislature to pass an act authorizing a city to change its form of government at a special election to be called by its mayor on petition of a certain number of voters therein.
Said act 31J. of 1931, being a general and valid law, is wholly independent of the provisions of the Initiative and Referendum Amendment to the Constitution, and is not and cannot be aided by it, for said act is complete within itself. Act 311 of 1931 sets out its own procedure for putting it into operation, which is entirely different from the procedure provided in the Initiative and Referendum Amendment.
Respondent also contends for a reversal of the judgment because it was within the alleged discretion of the mayor to call the election upon either of the petitions before him. We cannot agree with respondent. It was his duty to call the election upon the first legal petition filed before him. The petition filed with him on August 29, 30, 1934, complied with said act 311 in all respects, and it was his bounden duty to call the election on said petition, and not on the petition filed before him at a later date. Lenon v. Tunnah, 174 Ark. 765, 297 S. W. 819.
Respondent contends that the petition filed on August 29, 30, 1934, was fatally defective because not verified and because no bond was filed obligating the petitioners to pay the costs of the special election. Said act 311 makes no such requirements. It does however obligate the petitioners for the expenses incident to the special election, and they must deposit a sufficient sum to defray the expenses of the special election with the election commissioners prior to the date thereof; also no election can be held for the want of funds.
No error appearing, the judgment is in all things affirmed.
Mehafby; J., not participating. | [
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Butler, J.
The basis for appellant’s petition for mandamus is set out therein and abstracted in an opinion of this court, West Twelfth Street, etc., Dist. v. Kinstley, 188 Ark. 77, 63 S. W. (2d) 980. Reference is made to that opinion for a statement of the facts, and such other facts as are necessary for an understanding of the issues involved will he hereafter stated.
In that opinion we said: “In support of the action of the circuit court sustaining the demurrer, the appellee contends that the orders of the county court upon which the petition was based were void for the reason that such orders were made without any appropriation having been made by the county levying court. It is argued that the petition of appellant does not show that there was ever an appropriation made by the quorum court for the county court to enter into any kind of contract with .the appellant district by which the county should assume the payment of 25 per cent, of the outstanding bonds of the district.”
In discussing that contention, it was held that the county court was dealing with a subject within its jurisdiction, and therefore it must be presumed, in an absence of a showing to the contrary, that all necessary steps were taken in the exercise of its jurisdiction; and, if an appropriation must have first been made by the levying ccrurt to confer jurisdiction upon the court to make the order giving aid to the Improvement District, that this was done where there was nothing in the record or proof adduced showing to the contrary. We also called attention to the allegation of the petition that the question involving the validity of the orders of the county court had been settled by a final judgment of the circuit court of Pulaski County.
One of the contentions in support of the action of the lower court on demurrer was that from an exhibit to the petition, which, was a decree of the Pulaski County Chancery Court rendered October 30, 1931, there was-then due by District No. 30 to Pulaski County the sum of $17,750 less $3,232.76, and adjudged a recovery by the county for that amount. This court held'that the decree of the chancery court was conclusive only of the fact that the indebtedness named • existed at that time, but not, as contended, that it remained unpaid.
We held that all the questions above mentioned were such as must be determined by the proof, and reversed the judgment sustaining the demurrer and remanded the case for further proceedings. On remand evidence was adduced by petitioners and respondent, upon considera tion of which the court rendered judgment, which, omitting formal parts, is as follows:
“(1) That the petition of the plaintiff, West 12th Street Road Improvement District No. 30, be, and the same is, hereby dismissed, to which action the plaintiff, West 12th Street Road Improvement District No. 30, saves its exceptions and causes same to be noted of record.
“ (2) That the plaintiff, Annex No. 1 to West 12th Street Road Improvement District No. 30, Pulaski County, Arkansas, do have and recover of and from the defendant, Roy E. Kinstley, as treasurer of Pulaski County, Arkansas, a judgment in the sum of $1,475; that the defendant, Roy E. Kinstley, is hereby commanded and directed to pay said judgment, together with such portion of the costs as may hereinafter be adjudged to be due by the defendant as treasurer of Pulaski County, out of funds now in his hands to the credit of the Pulaski County Road District, to which judgment of- the court for plaintiff, Annex No. 1 to West 12th Street Road Improvement District No. 30, the defendant saves his exceptions and causes same to be noted of record.”
The parties have properly prosecuted their appeals to this court.
At the hearing, the petitioners introduced in evidence the original orders of the county court made by Judge Sibeck on May 18, 1931, granting aid to Improvement District Annex No. 1 of District No. 30, and on June 15, 1931, in aid of District No. 30; the orders of the count]7 court made by Judge Lawhon, October 4, 1932, revoking and setting aside as invalid the aforesaid orders. Petitioners further introduced two judgments of the Pulaski Circuit Court, rendered May 26, 1933, on appeal from the order' of the county court, revoking the orders made in May and June, 1931. The judgment relating to District No. 30, omitting the style, is as follows:
“On this day this cause comes on to be heard, and, the same having been reached upon call of the calendar, and the appellant, West 12th Street Road Improvement District No. 30, appearing* by its attorney, John D. Shackleford, and the appellee, R. A. Cook, County Judge of Pulaski County, Arkansas, successor to Ross L. Law-hon, appearing by his attorney, Carl E. Bailey, Prosecuting Attorney, and interveners, Austin-Western Road Machinery Company et al., appearing by7- their attorneys, Barber & Henry, and all parties announcing ready for trial, the cause is submitted to the court de novo upon the pleadings, records, agreed state of facts, and oral testimony of John D. Shackleford, and county court records as exhibits to his testimony;
“And the court, being well and sufficiently advised as to all matters of fact and of law, and the premises being fully seen, doth find:
“(1) That on June 15, 1931, the county court of Pulaski County made an order pledging Pulaski County to the payment out of the county’s road revenues of 25 per cent, of the principal and interest maturities on each of two bond issues of West 12th Street Road Improvement District No. 30, Pulaski County, Arkansas, one for $93,000 and the other for $66,000, which said order was in due course properly recorded by the clerk of the county court and a certified copy transmitted to the county treasurer of Pulaski County as provided for in said order;
“(2) That on October 4, 1932, the county court of Pulaski County made an order providing for the annulment of the order made by said county court on June 15, 1931;
“(3) That said order made .by the Pulaski County •Court on October 4, 1932, is coram non judice and therefore null and void and without force or effect.
“It is therefore considered, ordered and adjudged by the court that the intervention, of the interveners be, and the same hereby is, dismissed, and the aforesaid order made by said county court on October 4, 1932, attempting to vacate and annul the aforesaid order of the county court made on June 15,1931, be, and the same hereby is, annulled, set aside, and for naught held; and the clerk of this court hereby is ordered and directed to transmit a certified copy of this judgment to the clerk of the county court of Pulaski County to be by said clerk entered upon the records of the county court of Pulaski County as and for judgment of said county court.
The judgment relating* to Annex No. 1 is identical with that relating to District No. 30, except the first paragraph, which is as follows:
“ (1) That on the 18th day of May, 1931, the county court of Pulaski County made an order pledging* Pulaski County to the payment out of Pulaski County’s road revenues of 25 per cent, of the principal and interest maturities on bonds issued by said Annex No. 1 to West 12th Street Road Improvement District No. 30, which said order was in due course properly recorded by the clerk of the county court, and a certified copy thereof transmitted to the county treasurer of Pulaski County as provided in said order.”
On the part of the respondent there was offered in evidence the decree of the chancery court heretofore referred to and proof was made that the indebtedness therein adjudged to be due by District No. 30 to Pulaski County remained unpaid. It was further proved by respondents, and admitted by the petitioners, that there had been no appropriation by the levying court for the aid of the improvement district prior, or subsequent, to the orders of the county court of May 18, and June 15, 1931, granting aid to the same.
The defenses by respondents to the petition for mandamus set up in their answer and relied upon here are, (1) as to both districts, that no appropriation having been made prior, or subsequent, to the order of the county court which are relied upon by petitioners as the basis for the relief prayed, said orders were and are void and subject to attack in a collateral proceeding; and (2) as a further defense to the claim of District No. 30 that it is indebted to Pulaski County in a sum in excess of any funds in hands of the respondent due in any event to said District, and therefore, for that reason, it is not entitled to the relief prayed.
Referring* to the first point raised by respondent as a defense to the petition for mandamus, the petition ers contend that the judgment of the county court, being of a court of superior jurisdiction having jurisdiction of the subject-matter, is entitled to the same credit as judgments of a superior court of general jurisdiction, and its judgments are conclusive on collateral attack where no want of jurisdiction is apparent of record. The respondent contends that the appropriation was the ground on which the jurisdiction rests, and, that being wanting, the judgment was a nullity, and that this might be shown as a defense to any action based on the void judgment.
We pass the questions presented in the first proposition above stated for the reason that these are not now properly before us. These matters have been concluded by the judgments of the Pulaski 'Circuit Court made on May 26, 1933, set out heretofore at length. No appeal was takbn from those judgments, and they have now become final.
Appellee (respondent) makes the argument that these judgments do not make the question res judicata, because, in making the orders of October 4, 1932, revoking those formerly made, “no notice was given the petitioners * * * and the county court in 1932 simply had no jurisdiction,” and that “the validity of the orders made by Judge Sibeck in 1931 could not be determined by Judge Lawhon. Respondent asserts that the merits of the case or the validity of the orders made in 1931 were not before the county court in 1932, and that the court was not a court of competent jurisdiction in passing upon those orders.” The recitals of the judgments of the circuit court do not support the assertions made or the argument quoted supra. On the contrary, they show affirmatively that the court had all the parties interested before it and tried the questions “de novo” and determined the same on the “pleadings, records, agreed statement of facts, oral testimony of John D. Shackle-ford, and county court records as exhibits to his testimony.” The validity of the Sibeck orders made in 1931 was properly a question within the issue, whether formally litigated or not.
The settled rule of this jurisdiction supported by the weight of authority is that a judgment of a court of competent jurisdiction is conclusive of all questions, legal or equitable, which were raised in the cause or which, being within the scope of the issue, could have been interposed. Church v. Gallic, 76 Ark. 423, 88 S. W. 979; Fourche River Lbr. Co. v. Walker, 96 Ark. 540, 132 S. W. 451; Howard, etc. District v. Hunt, 166 Ark. 62, 265 S. W. 517; Newton v. Altheimer, 170 Ark. 366, 280 S. W. 641; Akins v. Heiden, 177 Ark. 392, 7 S. W. (2d) 15.
The fact that the validity of the Sibeck orders (May and June, 1931) may not have been formally litigated in the cause resulting in the judgments of the circuit court does not prevent those judgments from being res judicatae. That proceeding was a direct attack upon the Sibeck orders in which each party was bound to make the most of his case or defense, “bringing forward all his facts, grounds, reasons or evidence in support of it on pain of being barred from showing such omitted matters in a subsequent suit.” Ederheimer v. Carson D. G. Co., 105 Ark. 488, 152 S. W. 142, and Newton v. Altheimer, supra.
As an additional defense to the. petition for mandamus of District No. 30, respondent alleged and proved that the district was indebted to Pulaski County in a sum much greater than that demanded of the county in the present proceeding. The appellant district argues that this fact was no concern of respondent and could only be asserted by the county, and, since it did not intervene, that question cannot be raised. We do not agree to this. The treasurer is the custodian of the county’s money and as such was clothed with the duty to see that the same was not improperly expended, and he therefore, with propriety, could raise the question as to whether or not he should be required to pay to the district the sum demanded when the district was in fact indebted to the county in a greater sum. To raise this question, the formal intervention of the county through its county judge was unnecessary, since for that pur pose the treasurer is to be deemed agent of the county and acting in that capacity.
From.the views expressed it follows that the judgment of the trial court should be and is affirmed, both on appeal and cross-appeal.
Humphreys, Mehapey and McHaney, JJ., concur. | [
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Butler, J.
C. T. Fincher, trustee for the Farmers' Bank & Trust Company, brought suit in the Columbia Chancery Court to recover judgment on two promissory notes, one for $500 made on August 25, 1931, by the appellants, J. Gr. Hendrickson and Frances M. Hendrickson, his wife, and the other in the sum of $6,100 executed by J. Gr. Hendrickson on November 7, 1930. It was alleged that a certain mortgage, executed by the appellants on August 25, 1931, conveying to the appellee, trustee, certain property situated in the town of Magnolia, was made to secure the payment of both notes, and foreclosure was prayed with order of sale, etc. The mortgage declared on was exhibited and made part of the complaint. Summons was duly issued and served upon the appellants, and, upon their failure to appear or plead, decree was rendered by default in accordance with the prayer of the complaint. This decree was rendered on September 22, 1933, at a day of the regular July term of the court.
On January 10, 1934, after the lapse of the term at which the decree was rendered, the appellants filed a pleading setting up the proceedings heretofore mentioned and asked that the decree be opened and modified so as to restrict the foreclosure of their equity in the properly covered by the mortgage to the payment of the $500 note only. The ground upon which this prayer for relief was based was that the property was the homestead of the appellants, and the mortgage was not intended to, nor did it in fact, secure the payment of any indebtedness save the $500 note jointly executed by the appellants, and that “at the time the decree was obtained, counsel for plaintiff, by the complaint filed in said cause and by word of mouth, represented to the court that the deed of trust did include the $6,100 and did then and there obtain said foreclosure decree for said $6,100, when in fact said deed of trust was no lien against their homestead for said sum. If the court had been properly advised as to the execution of this note, the court would not have rendered such decree. The commissioner has advertised the lot to be sold on the 13th day of January,- 1934; by these statements plaintiff’s counsel practiced fraud upon the court and obtained the decree herein mentioned. ’ ’
The complaint and exhibits in the former action were exhibited with this pleading.
Appellants’ pleading, with the response of the appellee thereto, came on for hearing “upon the motion and complaint to set aside the decree filed on January 12, 1934, with exhibits thereto, and the. response of the Farmers ’ Bank & Trust Company filed on January 22, 1934, both sides announcing that they do not desire to introduce any evidence, but desire that the question be submitted on the record and pleadings.” The court thereupon treated the pleading of the appellants as a petition to vacate and modify the decree under § 6290, Crawford & Moses’ Digest, subdivision 4. The court found that no fraud was perpetrated upon it, “but that, if an error was made in declaring a lien for the entire amount of the judgment, the same was an error of law; that the petitioners, J. G-. Hendrickson and Frances M. Hendrickson, were negligent in failing to respond to the summons and complaint in said original suit and make defense thereto; that, had they made defense to said action, they could have put in issue the question of a lien, and, had they been aggrieved by the action of the court thereon, might have perfected their appeal to the Supreme Court. The court, upon this hearing, does not decide the correctness of the original decree, but holds that any error of law in the decree upon an issue that might have been raised upon the trial of the original suit must be raised by appeal and not by motion to vacate the decree after the expiration of the term at which such decree was rendered.” The prayer of the petition was thereupon denied, and petitioners have appealed.
The court below properly denied the motion to open and modify the decree. The term of the court at which the decree was sought to be modified had lapsed, and, while the court might have amended its judgment after lapse of the term to make it speak the truth, it has no power to correct its mistakes or errors or to make its judgment or decree conform to what should have been, but was not, done. Kelley Trust Co. v. Lundell Land & Lbr. Co., 159 Ark. 218, 251 S. W. 680.
It is contended by the appellants that a proper construction of the mortgage makes it a security only for the $500 specifically mentioned therein and subsequent debts contracted by the mortgagor and cannot be extended so as to make it security for antecedent debts. Counsel for the appellee placed a contrary construction on the mortgage, insisting that it was security for antecedent debts, which view the court adopted, is the fraud suggested.
It is unnecessary to set out the recitals in the mortgage upon which the contention of the appellants is-based, namely, that they did not render it security for antecedent debts. It is sufficient to say that the import of the language used is of such character as to create a reasonable difference of opinion as to its correct meaning, and the error committed by counsel and court, if any, consisted in a mistake of law. If the decree of foreclosure was not correctly responsive to the allegations of the complaint as controlled by the mortgage, which was the basis of the suit and a part of the complaint, this error might have been corrected by appeal from the default decree, and this was appellants’ remedy. Estes v. Lucky, 133 Ark. 97, 201 S. W. 815; Old American Ins. Co. v. Perry, 167 Ark. 198, 266 S. W. 943.
The fraud for which a decree will be canceled must consist in its procurement and not merely in the original cause of action. It is not sufficient to show that the court reached its conclusion upon false or incompetent evidence, or without any evidence at all, but it must be shown that some fraud or imposition was practiced upon the court in the procurement of the decree, and this must be something more than false or fraudulent acts or testimony the truth of which wa.s, or might have been, in issue in the proceeding before the court which resulted in the decree assailed. James v. Gibson, 73 Ark. 440, 84 S. W. 485; Johnson v. Johnson, 169 Ark. 1151, 277 S. W. 535; Boynton v. Ashabranner, 75 Ark. 415, 88 S. W. 566, 1011, 91 S. W. 20.
The mere fact that the security of the mortgage was erroneously extended so as to include a debt for which it might not have in fact been security is not sufficient to show that the judgment was procured by fraud (Estes v. Lucky, supra), but constituted a mistake of law which could have been corrected by appeal, and the court correctly held that it was not authorized to reopen or set aside its decree for errors of law committed bv it. Stewart v. Wood, 86 Ark. 504, 111 S. W. 983.
A great part of the briefs, both of appellants and appellee, is devoted to a discussion relative to the correct construction and interpretation of the terms of the mortgage foreclosed. This question is not properly before us, and we are precluded from deciding it because no ap peal from the decree of foreclosure was ever taken in the trial court or granted by this court. The appeal from the order overruling the- motion , to vacate does not serve to bring up for review the decree of foreclosure. Bradley v. Ashby, 188 Ark. 707, 67 S. W. (2d) 739, and cases there cited.
The decree is affirmed. | [
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Smith, J.
Appellant brought suit in ejectment to recover the possession of the southeast quarter of the southwest quarter of section 35, township 20 north, range 4 east, and pleaded as the source of his title a deed from the -State based upon a tax sale to the State for the nonpayment of the 1926 taxes thereon. Before the trial he amended his complaint to allege the ownership of the southwest quarter of the southwest quarter of the same section under a deed to him from M. S. Smith and wife.
The transcript does not contain the answer filed in the cause, but it does contain a pleading entitled “amendment to the answer,” and it contains also an answer to the cross-complaint filed by the defendant, but it does not contain the cross-complaint itself. The case is briefed, however, as if all the questions herein discussed had been put in issue by proper pleadings, and we shall so treat them.
As to the tract of land last described in the amended complaint, the following facts were developed. Smith had mortgaged the land to Henry Lepp, and, while Smith was confined in the State penitentiary, suit was brought against him to foreclose the mortgage. A decree of foreclosure was rendered as prayed, pursuant to which the commissioner appointed to execute the decree sold the land to Lepp, the mortgagee, and upon the confirmation of the report of sale a deed was executed to Lepp, which was duly approved by the court.
Attack was made on this foreclosure proceeding, and the deed executed pursuant to it on the ground that the decree had been rendered upon improper and insufficient service. We do not discuss the facts upon which that contention-is based, for the reason that the court found that no defense against the foreclosure, suit was shown. Smith admitted that he owed the debt which the mortgage was given to secure, and the court therefore properly refused.to vacate the decree of foreclosure and the proceedings thereunder. This action must be affirmed, as the rule is well established that, before one many question the service upon which a .judgment or decree was rendered, he must show the existence of a defense to the suit which terminated in the judgment or decree. More- land v. Youngblood, 157 Ark. 86, 247 S. W. 385; King v. Dickinson-Reed-Randerson Co., 168 Ark. 112, 269 S. W. 365; Minick v. Ramey, 168 Ark. 180, 269 S. W. 565; C. A. Blanton Co. v. First Nat. Bank, 175 Ark. 1110, 1 S. W. (2d) 558.
There was a proceeding to amend the original decree, and an amended decree was rendered, which we must accept as reflecting the final action of the court. This amended decree adjudicated the fact that the plaintiff acquired no title to the land described in the deed to him from Smith, for the reason that Smith had lost his interest in the land through the foreclosure proceeding hereinabove referred to, which the court refused to vacate for the reason that “no defense to the original suit by Henry Lepp against said M. S. Smith is set up or shown.”
As to the tract of land first described in the original complaint, it may he said that the record is somewhat confused, and two writs of certiorari have been sued out and returned to clarify the record. The last return of the clerk upon these writs shows certain errors in the original transcript, and we must take the final certificate of the clerk as to the record made at the trial from which the appeal comes as correct.
There was filed with the original complaint, and as an exhibit to it a deed from the State “for forfeited lands sold” to plaintiff, which recites that the land there described was forfeited to the State for the nonpayment of the taxes for the year 1926. The exhibit of this deed to the complaint shows that it is a copy of the deed as recorded in deed record book 28, page 380, and the original of the deed does not appear to have been offered in evidence. As thus exhibited, the deed recites that it was based upon a forfeiture to the State for the nonpayment of the taxes due for the year 1926.
There appears, however, in response to one of the writs of certiorari, what is now certified to he a correct copy of the deed as recorded in deed record book 28, at page 380, which shows that the State’s deed was based upon a forfeiture for the nonpayment of the 1924 taxes. But it was shown at the trial from which the appeal comes that the taxes on the entire southwest quarter, which embraces the land herein described, have been paid, as evidenced by tax receipt No. 860, issued on March 31,1925, for the year 1924. As the taxes had been paid, the sale to the State for their nonpayment was, of course, void, and the deed based thereon from the State conveyed no title.
Upon this showing the court correctly refused to award the possession of the land to the plaintiff; and also correctly refused to render judgment in plaintiff’s favor for the sum paid by him to the State for his deed from the State.
The cause had by consent been transferred to equity, where the deed from the State was canceled and held for naught, and, as the decree dismissing the complaint as being without equity is correct, it must be affirmed, and it is so ordered. | [
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Johnson, C. J.
This appeal involves the construction of the following exemption contained in the double indemnity clause of a life insurance policy issued by appellee as insurer upon the life of George W. Martin, deceased, in which Susie J. Martin, appellant, was designated as beneficiary, to-wit:
“The double indemnity will be payable upon receipt of due proof that the insured died as a direct result of bodily injury effected solely through external, violent and accidental means, independently and exclusively of all other causes, and of which, except in the case of drowning or asphyxiation, there is evidence by a visible contusion or wound on the exterior of the body, and that such death occurred within ninety days after the date of such injury; provided that the double indemnity shall not be payable if death resulted from self-destruction, whether sane or insane, or from military or naval service in time of war, or from any act incident to war, or from engaging in riot or insurrection, or from committing an assault or felony, or from participation in aeronautics, or directly or indirectly from disease or bodily or mental infirmity. ’ ’
The insured was instantly killed when the airplane, in which he was an invited guest, crashed and struck the ground while navigating the air between Augusta, Arkansas, and St. Louis, Missouri.
The facts and circumstances of the crash and the death of the insured are identical with those narrated in Missouri State Life Insurance Company v. Martin, 188 Ark. 907, 69 S. W. (2d) 1081, and reference is here made thereto.
The exemption here employed by the insurer “or from participating in aeronautics” differs only from the exemption contained in Missouri State Life Ins. Co. v. Martin, supra, as’ follows: “Or for participation in aviation or submarine operations” by the elimination of the word “operations.”
It is true that the opinion in Missouri State Life Ins. Co. v. Martin, supra, was put upon the ground that the use of the word “operations” limited the meaning and effect of the word “participation” which preceded it, and, when thus construed, conveyed the definite meaning and effect of not exempting the insurer from liability as against an invited guest riding in an airplane. The opinion as thus construed ^s not in conflict with any other case which has been called to our attention in briefs. When the word “operations” is eliminated, however, a very different case, is presented and must be decided as of first impression by us. In Missouri State Life Ins. Co. v. Martin, supra, although stated as dictum, we said as a concurring basis of the opinion and the conclusion thereafter determined that: “The distinction thought by the courts to exist between ‘engage in aeronautics’ and ‘participation in aviation’ may be apparent to, and approved by, those learned in the niceties of the language and accustomed to its precise use, but it is to be doubted whether these hair-splitting and subtle distinctions would occur to, or be understood by, the majority of the thousands of persons who seek insurance against the many hazards to life and limb which are likely to occur to the most prudent and fortunate. Words and phrases used in insurance policies should be construed by their meaning as used in the ordinary speech of the people, and not as understood by scholars.
“It might well be imagined that if the average tradesman, artisan, or farmer, although he had many times taken passage on a railroad train and intended again soon to do so, if asked if he had participated, or intended to participate, in railroading, would at once answer, 'No’; and if then asked if he had engaged in, or intended to engage in railroading, would reply, ‘I have just told you, No.’ It might well be assumed that to his mind the word ‘participate’ in the connection used in the question would imply some action, some ‘taking part in’ the movement of the trains, the upkeep of the property, or manage ment of its 1)118111088. He likely would not think that by the question was meant to learn if he had, or intended merely ‘to have, enjoy, or share in common with others’ the privilege of being transported as a passenger on the lines of railway companies.
“It is interesting, however, to note that, in these cases and others which discover a distinction between ‘engaged in’ and ‘participate in,’ the courts, when they abandon the role of the ‘precisian’ and discuss the case in the language of the ordinary (person, sometimes use the words ‘engaged’ and ‘participate’ or ‘participation’ as conveying a similar idea. In the case of Peters v. Prudential Ins. Co., supra, [233 N. Y. S. 500] in discussing the word ‘engaged,’ the court said: ‘It gives the impression of participation as an occupation.’ In Benefit Ass’n v. Hayden, supra, [175 Ark. 565, 299 S. W. 995] the court found for the beneficiary, saying: ‘ * * * The proper construction of those words (engaged in) is that actual employment or participation was contemplated, and not ‘merely riding as a passenger. ’ This case followed the case of Benham v. Insurance Co., 140 Ark. 612, 217 S. W. 462, 463, where the court defined the word ‘engaged’ as denoting action, thus: ‘It means to take part in.’ This is precisely one of the meanings of the word ‘participate’ which is apparent from the etymology of the word; ‘participate,’ a word coming from the Latin words ‘pars,’ a part, and ‘capio,’ to take, therefore meaning to take part in. 6 Words and Phrases, First Series, 5185.
“As defined by the leading lexicographers, ‘aviation’ is a more exact and specific term than ‘ aeronautics, ’ and means ‘the art or science of locomotion by means of aeroplanes.’ Webster. It might appear that, if aviation is the science of locomotion by aeroplane and the word ‘participate’ means ‘to take part in,’ the phrase ‘participate in aviation’ would connote an active share in its management; as, where a person would actually pilot a plane himself, or, as in the case of First National Bank v. Phoenix, supra, where he owned the plane and had authority to, and did, direct the pilot as to when he should make the flight. It would seem that this interpretation of the phrase ‘participate in aviation’ is not wholly unjustified. ’ ’
After the most careful consideration of all the cases cited, we now conclude that the reasoning employed by ns in Missouri State Life Ins. Co. v. Martin, supra, although dictum, when pronounced, is sound and logical and is aptly applicable to the language employed in the exemption clause in the instant case.
We grant that our conclusion thus announced seems to be in conflict with respectable authority on this question, but such must be the inevitable result so long as courts think and act independently of each other. The insurer had full power and opportunity to exempt itself from liability5' beyond any question, cavil, or doubt had it elected so to do. It must have known that the average purchaser of life insurance would not expect exemption from liability merely because he took passage as an invited guest upon one isolated trip by airplane. As stated by us in Missouri State Life Ins. Co. v. Martin, supra, “participate” does not connote to the average person the meaning that his mere presence is sufficient to participate or engage in such art or occupation. On the contrary, he would be warranted in concluding that the word “participate” has the meaning and effect of “engage in” and other words of similar import and meaning.
In this view of the situation here presented, the contract of insurance was ambiguous and susceptible to more than one reasonable -construction, and the one most favorable to the insured should be adopted. Travelers’ Protective Ass’n v. Stephens, 185 Ark. 660, 49 S. W. (2d) 364; National Life Ins. Co. v. Whitfield, 186 Ark. 198, 53 S. W. (2d) 10; Gits v. N. Y. Life Ins. Co., (C. C. A.) 32 F. (2d) 7; Charette v. Prudential Ins. Co., (Nov. 11, 1930) 212 Wis. 470, 232 N. W. 848.
For the error indicated, the cause is reversed and remanded. | [
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Butler, J.
The appellant, Boy Denton, was indicted in the Marion Circuit Court charged with the crime of murder in the first degree, the offense alleged to have been committed on November 25, 1932, by wilfully, with malice aforethought, after premeditation and deliberation, killing one Coy Aday, by shooting him with a pistol. No objection has been raised to the indictment. The trial resulted in a conviction for murder in the second degree and punishment fixed at seven years’ imprisonment in the State Penitentiary.
We have examined the record in this case and find substantial legal evidence to support the verdict of the jury. We do not detail this evidence because no point is made by the appellant that it was not legally sufficient to warrant the. verdict.
The contentions made by appellant for reversal of the judgment of the trial court are:
1. That the court erred in permitting a- witness for the State to testify to the effect that the defendant drank a great deal — gets drunk and fights a lot. On this contention it is pointed out by the appellee that this error was invited by the defendant, he having first brought out this testimony on the cross-examination of the witness. The question asked 'by his attorney was: “Why was Roy so bad,” and the answer was: “He drank, and was out with girls.” On redirect examination the witness was asked if Roy did not drink a good deal, get drunk and fight. On objection interposed, the court said: “You brought that out yourself — you asked the witness why he was so bad.” The witness answered the question in the affirmative.. The character of the defendant, not being put in issue, it would have been improper for the prosecuting attorney to have elicited the evidence complained of, but defendant, himself, having invited the error, he is now in no position to complain. Crawford v. State, 132 Ark. 518, 201 S. W. 784; Beck v. State, 141 Ark. 102, 216 S. W. 497; Harper v. State, 151 Ark. 338, 236 S. W. 263; Yelvington v. State, 169 Ark. 498, 276 S. W. 498; Wilhem v. State, 175 Ark. 455, 299 S. W. 739.
2. The next contention for reversal is raised by assignment of error No. 5 in the motion for a new trial which complains of error of the court in permitting the State’s attorney to cross-examine the defendant regarding other offenses than that with which he was charged. It is well settled that, when a defendant in a criminal proceeding waives his privilege of silence by electing to become a witness in his own behalf, he subjects himself to the rules governing the examination of any other witness, and the court has the discretion within reasonable bounds to permit the defendant to be questioned on those matters which, in his opinion, are proper to assist the jury in judging the present veracity of the witness. It has been often held that the trial court does not abuse its discretion in permitting inquiry to be made of a defendant witness on cross-examination regarding his personal habits, associations, and other offenses committed by him, for this tends to inform the jury of the degree of credit which may be attached to his statements and their probative worth. We do not think there was any abuse of discretion, Holliday v. Cohen, 34 Ark. 711; Bergstrand v. Townsend, 70 Ark. 602, 70 S. W. 307; Hollingsworth v. State, 53 Ark. 387, 14 S. W. 41; Bullen v. State, 156 Ark. 148, 245 S. W. 493.
3. The next ‘assignment of error presented is the court’s refusal to give to the jury instructions Nos. 8 and 12, requested by the .defendant. Instruction No. 8 called to the attention of the jury the distinction between direct and circumstantial evidence, and that crime may be proved by either or both kinds of evidence; but, where circumstances are relied upon to establish guilt, they should be consistent with each other and with the guilt of the defendant and inconsistent with any reasonable theory of innocence. Instruction No. 12 required that the prosecution prove the defendant guilty as charged and beyond a reasonable doubt, and the jury was told that it should acquit unless the evidence measured up to the standard required.
This was not a case where the State relied wholly upon circumstantial evidence to establish the guilt of the defendant. The killing was proved by defendant’s own admission, and the law imposed upon him the burden of proving such facts and circumstances as would excuse or justify the homicide. Then, too, the court had presented to the jury the defendant’s plea of self-defense and fully and fairly instructed it respecting such plea. The jury had also been fully instructed as to the presumption of innocence, the credibility of witnesses, and the necessity for the State to establish defendant’s guilt as charged beyond a reasonable doubt, and that upon the whole case, if it should have a reasonable doubt as to the guilt or innocence of defendant, it should find him not guilty, requiring the jury to weigh all of the evidence, both direct and circumstantial. Where the court has instructed the jury, as in the case at bar, the rule is that refusal to give further instructions on circumstantial evidence, even where the case depends wholly upon evidence of that character, is not error. Griffin v. State, 141 Ark. 43, 216 S. W. 34; Jordan v. State, 141 Ark. 504, 217 S. W. 788; Payne v. State, 177 Ark. 413, 6 S. W. (2d) 832. In Ridenour v. State, 184 Ark. 475, 43 S. W. (2d) 60, it is said:
“This court has ruled that the refusal to give any instructions on circumstantial evidence where the case depends wholly upon such evidence is not error if he had already fully and correctly instructed the jury on the credibility of witnesses, the weight of evidence, the presumption of innocence, and reasonable doubt.”
Instruction No. 12, supra, was properly refused because it was fully covered by instructions already given relating to presumption of innocence and reasonable doubt.
4. It is also insisted that the giving of instructions Nos. 3, 4 and 5 constituted error because they omitted reference to defendant’s plea of self-defense. These instructions related to the degree of proof necessary to warrant the jury in determining the degree of homicide, and each began with the expression, “If you do not find the defendant not guilty under his plea of self-defense, etc.” Instructions given at the request of the defendant correctly and fully presented to the' jury the defendant’s plea of justification, and, with instructions Nos. 3, 4 and 5, made a harmonious whole. We find no reversible error, and the judgment is therefore affirmed. | [
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Butler, J.
On October 26, 1932, at about 1 o’clock, a. m., tbe appellants were traveling in an automobile along Highway No. 39 within the corporate limits of the city of Paragould. This highway crossed the line of the appellee railroad company at right angles. When appellants reached the intersection of the. highway and the railroad, their automobile ran into a moving passenger train. The automobile was demolished, and the appellants suffered certain personal injuries. Suit was instituted by the appellants to recover for the value of the automobile and for damage to them by reason of the personal injuries sustained. At the conclusion of the testimony, the court directed a verdict for the appellee on the theory that the undisputed evidence showed that the negligence of the appellants was the proximate cause of the collision.
The plaintiffs alleged that the passenger train with which they collided was traveling at a rate in excess of that provided by the ordinance of the city; that the statutory signals were not given as the train approached the crossing; that the bell was not rung or the whistle sounded; and that the train was moving at a high and excessive rate of speed, which acts of negligence were the direct cause of the collision and the injuries sustained. The answer of the defendant was a general denial of the allegations of the complaint with a plea that the injuries sustained were the result of the negligence of the plaintiffs themselves.
The evidence which tended most strongly to establish the liability of the railroad company was that of the appellants themselves, which, viewed in the light most favorable to them, may be stated as follows: The appellants were young men from nineteen to twenty years of age. On the evening of the accident they had been attending some social function in the neighborhood, and after its conclusion had carried some girls home. At the time of the collision they were on their way to their own homes. It was raining and the night was dark. The windows on the sides of the car had water on them. They were traveling in a closed car with all the windows up except the one on the driver’s side which was lowered about two inches. The windshield wiper was working, and the brakes were in good condition. The railroad ran north and south and the highway' crossed it from east to west. The appellants were approaching the railroad from the -west traveling east and their view of the railroad was obscured by houses on the south of the highway to a distance of about 123' feet from, the line of railroad and on the north by houses to a distance approximately forty-five feet from the railroad. When they reached a point where their view to the south was unobstructed, they looked and saw the headlight of a locomotive. One of the appellants judged it to be about 789 feet south of the crossing and the other estimated it at 500 feet. They were traveling at the rate of fifteen to twenty miles an hour and continued, after seeing the headlight, without further looking to the south, to approach the railroad at that speed. When they passed the last house on the north of the highway — about 45 feet from the crossing — they looked to the north and, seeing no sign of danger in that direction, kept driving until within about 24. feet of the railroad track, the locomotive suddenly “loomed” on the track before them. The driver applied his brakes, but was unable to check his car so as to prevent striking the train. The front end of the automobile ran against the baggage coach, striking the steps of the same which descended from the door. The impact bent the steps of the baggage coach and deflected the automobile from the highway causing it to crash through a line of posts and into a ditch. The automobile was practically demolished and the. appellants injured.
The appellants testified that the train was moving at a speed, variously estimated, at from thirty to fifty miles an hour, and offered to introduce the ordinance of the city of Paragould fixing the maximum at which trains should be operated through the city limits. This testimony was objected to by the defendant company, and the objection was sustained over the exception of the appellants. Appellants also introduced testimony to the effect that no signals were being given as the train approached the crossing either by ringing a bell or sounding a whistle. This testimony was excluded by the court.
Appellants insist that the. court erred in refusing to accept the testimony offered relative to the speed limit prescribed by the city ordinance and in excluding from the jury evidence tending to show that no signals were given by the engineer and fireman. They also insist that the testimony raised a question for the jury as to whether or not the collision was the result of the negligence of the railway company and whether or not the collision was occasioned by their negligence.
Under the undisputed facts, it is immaterial whether or not the signals were given and what was the rate of speed of the. moving passenger train. By their own admission the appellants were cognizant of the fact that a train of some character was just south of the crossing, aud therefore, the blowing of the whistle or sounding of the bell would have given them no information not already in their possession, and the failure to give these signals was not the proximate cause of the injury. St. L. S. F. R. Co. v. Ferrell, 84 Ark. 275, 105 S. W. 263; C. R. I. & P. Ry. Co. v. Elzen, 132 Ark. 431, 200 S. W. 1000; Tyler v. St. L. I. M. & S. R. Co., 130 Ark. 583, 198 S. W. 128.
The appellants in their testimony attempted to justify their conduct by saying that they did not realize that the train was on the main line when they saw the headlight, but thought it was on a side track, but, from the testimony of the appellant, McHaney, it appears that the side track intersected with the main line about sixty-eight feet south of the crossing, and both of the appellants were familiar with the surroundings’ in the vicinity of the crossing. It also developed from their testimony that they did not anticipate the approach of any train at that hour, but were of the opinion that it had passed about 11 o’clock. The proof is undisputed, however, that the appellants did in fact see the headlight of the approaching train at a point from 123 to 80 feet of the crossing and paid no further attention to it, but drove heedlessly along taking no precaution for their own safety, and the passing train did not strike them. They struck it after the entire locomotive and tender had passed and one-half of the baggage coach. The conclusion is inescapable that the only cause of the collision was the negligence of the appellants themselves, and that the 'speed of the train was immaterial. Therefore, there was no error in the court’s refusal to permit the introduction of the city ordinance, and the court correctly directed a verdict in favor of the appellee-
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