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Per Curiam.
Gardner Smith, Jr., by his attorney, has filed for a rule on the clerk.
His attorney, Charles P. Allen, has attached an affidavit admitting that the record was tendered late due to a mistake on his part.
We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our Per Curiam opinion dated February 5,1979, In Re: Belated Appeals in Criminal Cases, 265 Ark. 964.
A copy of this opinion will be forwarded to the Committee on Professional Conduct. | [
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Darrell Hickman, Justice.
Pat Kellebrew was awarded $25,000 in this slip and fall case. The only thing unusual is that Pat Kellebrew, the appellee, filed suit against his daughter, Norma Hicks Lowery, the appellant. Otherwise, it is a simple case of whether the jury chose to believe Mr. Kellebrew’s evidence.
Kellebrew, age 70, testified that on January 26,1976, his daughter called him to move a motorcycle from her carport. In doing so he slipped and fell on the concrete carport and injured himself. He said that he was knocked unconscious and when he came to in a few moments his pants had grease or oil on them. His medical expenses totalled over $3,000.
Kellebrew’s sons went to Mrs. Lowery’s house to help move their father. They both testified that Kellebrew’s feet were lying in an oil spot in the carport, and that the oil spot had been there at least several days. James Kellebrew testified that the spot was about three feet in circumference.
Mr. Kellebrew said that before the accident he had done carpentry work, painting, and farm work, and made up to $4,000 a year doing so. He said that that was the amount he was allowed to earn and still receive his social security benefits. He testified that he was not able to work after he was injured because of severe pain in his back and legs.
The two issues raised are whether there was substantial evidence to support the jury’s verdict and whether there was sufficient evidence to support an instruction of loss of working time. In both instances it is a question of the credibility of the witnesses. The jury chose to believe Pat Kellebrew and his sons. The appellee made a prima facie case of slip and fall which the appellant failed to overcome. Safeway Stores Inc. v. Waddy, 253 Ark. 473, 486 S.W.2d 683 (1972); Weingarten, Inc. v. Thompson, 251 Ark. 914, 475 S.W.2d 697 (1972).
Affirmed. | [
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Steele Hays, Justice.
This is a damage suit. Appellee Lewis and his wife brought suit against appellant Lawson for personal injuries and loss of consortium arising from a collision on December 20, 1977, between Lawson’s automobile and Lewis’s motorcycle. The case was tried to a jury upon an admission of liability by Lawson, but denying that any injury had been sustained by Lewis. The jury’s verdict found for the Lewises on their complaint and assessed their damages at “NONE.”
Appellees Lewis filed a motion for a judgment n.o.v. and in the alternative for a new trial. Over Lawson’s objection, the trial court set aside the verdict and granted a new trial, which Lawson claims on appeal was error. We disagree.
Appellant concedes that the law gives the trial court broad discretion in setting aside a jury verdict which it finds to be against the clear preponderance of the evidence. She argues, however, that its discretion here was abused as a matter of law, in that the instructions demonstrate that because of her admission of liability the issue of negligence was not submitted to the jury and, hence, the trial judge’s recollection to the contrary was mistaken. She contends the jury believed the injuries were fictitious.
The argument is unpersuasive because the trial judge gave an additional reason for setting aside the verdict. In a memorandum opinion he explained his reasons:
The Court in review of this matter must agree with petitioner in this instance and grant the Motion for New Trial. There is simply no substantial evidence upon which the jury should not have awarded some damages. The defendant had admitted liability; the Court erred in its failure to limit the jury’s verdict to the sole issue of those damages resulting; and the Court must now set aside the verdict.
Thus, whether the trial court’s recollection was accurate with respect to how the case was submitted to the jury we need not decide, as it is clear he found the verdict and the evidence to be at odds. But neither do we decide whether the evidence and the verdict were consistent, as appellant has abstracted nothing from the testimony and proof, other than a single medical report, and it would be utterly impossible to find an abuse of discretion where a new trial is granted because the evidence and the verdict fail to agree. Appellant’s brief tacitly concedes the point, as most of her argument is devoted to a discussion of the weaknesses and contradictions of appellees’ evidence with respect to the injuries, concluding that: “[A] review of the record in this case will readily establish that the jury did not reach an impermissible result or one unwarranted by the attempts of the appellee to portray the nature and extent of his alleged injuries. Certainly, contrary to the trial court’s order, there was at least ‘substantial’ evidence that the appellee had indeed received no injuries which were approximately caused by the accident in question.”
Unfortunately, we have no way of validating the argument in the face of the abstract given us. Supreme Court Rule 9 requires an abstract of so much of the record as is necessary to an understanding of the issues raised on appeal. To hold that the trial judge abused its discretion by finding the evidence to be such as to require a verdict in some amount for the plaintiffs (appellees) is utterly impossible where we have no basis on which to review his actions.
ARCP Rule 59 gives the trial court the discretionary power to grant a new trial to any party for ‘‘grounds materially affecting the substantial rights of such party,” including error in the assessment of the amount of recovery, whether too large or too small, or where the verdict is contrary to the preponderance of the evidence. Dorey v. McCoy, 246 Ark. 1244, 442 S.W.2d 202 (1969); Bobbitt v. Bradford, 241 Ark. 697, 409 S.W.2d 339 (1966). We find no abuse of discretion and the order is affirmed. | [
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Robert H. Dudley, Justice.
In 1972 the Circuit Court of Jackson County entered a judgment for the appellee Bank of Tuckerman and against appellant Bruce Burton. The judgment was not satisfied and in August 1980 appellee sought to revive the judgment by causing a writ of scire facias to be issued. The writ ordered appellant to appear in court within twenty days and show cause why the judgment should not be revived and the execution levied. Appellant received a copy of the petition for writ of scire facias as well as the writ of scire facias by certified mail at his address in Memphis, Tennessee. He filed a response denying the allegations in the petition and alleging that it was barred by the statute of limitations. No further action was taken until April 1981, when the appellee filed a second petition for writ of scire facias, obtained a writ directing the appellant to show cause why the judgment should not be revived and caused a warning order to be issued by the clerk commanding the appellant to appear. An attorney ad litem was appointed and constructive service was completed. Appellant challenged the court’s jurisdiction and asked the court to quash the second writ. The trial court granted appellee’s second petition and ordered the judgment revived and the lien continued for a three year period from the date of the entry of the order. The question on appeal is whether this judgment was properly revived by a scire facias writ pursuant to Ark. Stat. Ann. § 29-601 et seq. (Repl. 1979). Jurisdiction is in this court pursuant to Rule 29 (1) (c). We affirm.
The appellant first argues the original judgment lien had expired by the time of the filing of the action and cites §§ 29-131 and 29-602 for this contention. Section 29-131 provides “liens... shall continue in force for three [3] years from the date of the judgment and may be revived.” Section 29-602 recites “The plaintiff . . . may at any time before the expiration of the lien on any judgment, sue out a scire facias to revive the same.” Appellant contends that action must be taken within the first three years while the lien is in effector else a revivor action is not allowed. However, in the case of Bird v. Kitchens, 215 Ark. 609, 221 S.W.2d 795 (1940), we interpreted the statute to mean:
. . . while the judgment lien expires at the end of this three year period, unless revived, the judgment itself remains in full force and effect for ten years, and the execution may be issued at any time within this ten year period.
The reference to the ten year period is found in § 29-601:
No scire facias to revive a judgment shall be issued but within ten [10] years from the date of the rendition of the judgment; or if the judgment shall have been aforetime revived, then within ten [10] years from the order of revivor.
The import of this statute was explained in General American Life Insurance Co. v. Cox, 215 Ark. 860, 223 S.W.2d 775 (1949):
... By its terms it grants the full period of ten years within which the writ may issue. To require that the judgment also be taken within ten years would have the effect of reducing the time allowed for issuance of the writ, since provision is made for the filing of an answer and for a hearing upon the question of revivor.
The judgment here was entered in October 1972. The appellee sought to revive the judgment in August 1980. Pursuant to § 29-601 a scire facias may issue because the ten year limitation had not run. Appellee concedes the original judgment lien expired but according to § 29-607, “ ... if the lien of any judgment or decree shall have expired before suing out the scire facias, the judgment of revival shall only be a lien from the time of the rendition of such judgment.” The trial judge correctly revived the judgment lien for a three year period beginning in September 1981.
Appellant also argues that the service of process was not proper because personal service must be utilized before constructive service. Appellee first served appellant pursuant to the long-arm statute, Ark. Stat. Ann. § 27-2502 (Repl. 1979) by sending the petition and writ by certified mail to appellant’s address in Memphis. Appellee then employed a second procedure found in § 29-604 which authorizes a method of services when a defendant cannot be found. This second form of effecting service was used because appellant, residing in Memphis, could not be found in this state within the intent of § 29-604. The method of service used was proper and the appellee complied with the posting requirements of § 29-605. The trial court was correct in ordering the judgment revived and the lien continued.
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George Rose Smith, Justice.
Ronnie Brush, 21, brought this action for malicious prosecution against Don Parker, because Parker had wrongfully had Ronnie arrested for failing to surrender possession of rented land after having been served with a 10-day notice to vacate. Ark. Stat. Ann. § 50-523 (Repl. 1971). This appeal is from a verdict and judgment awarding Ronnie $5,000 as compensatory damages and $7,500 as punitive damages. For reversal Parker contends primarily that he had probable cause for the prosecution and that the damages are excessive. Our jurisdiction is under Rule 29 (1) (o).
In September, 1979, Parker bought a small trailer park from the other appellee, Eddie Polk, whom Parker brought into the case as a third party defendant. At the time of the sale Ronnie Brush was occupying a trailer on a trailer space in the park and had paid his rent on the space for about a month in advance. Polk, however, had forgotten to make a record of one of Ronnie’s rental payments and erroneously informed Parker, the purchaser, that Ronnie was delinquent on his rent.
When Parker tried to collect past-due rent from Ronnie after Parker bought the trailer park, Ronnie insisted that his rent was paid and offered to show Parker three canceled checks as proof. Parker refused to look at the checks and instead made telephone calls to Polk and had other conversations with Ronnie, trying to learn the facts. Finally Parker accepted Polk’s statements that the rent was overdue and served Ronnie with a notice to quit. When Ronnie failed to remove his trailer by the tenth day Parker went to the prosecuting attorney’s office and obtained a warrant for Ronnie’s arrest. That warrant was never served.
After Ronnie had removed his trailer, Parker moved his own trailer onto the space and found that the sewer line serving the space was broken and clogged. Parker concluded that Ronnie had damaged the sewer, and for that reason he obtained a second warrant and had Ronnie arrested. The prosecution resulted in an acquittal, because Polk realized his mistake when he was shown the canceled checks.
Parker first contends that according to the undisputed evidence he had probable cause for prosecuting Ronnie and was therefore entitled to a directed verdict. The trouble is, probable cause must be based upon the existence of facts or credible information that would induce a person of ordinary caution to believe the accused to be guilty. Malvern Brick & Tile Co. v. Hill, 232 Ark. 1000, 342 S.W.2d 305 (1961). Ordinary caution is a standard of reasonableness, which presents an issue for the jury when the proof is in dispute or subject to different interpretations. Here it was for the jury to say whether Parker acted with reasonable caution in accepting Polk’s disputed statements as to the truth, instead of taking further steps to get to the bottom of the dispute between Polk and Ronnie. The jury’s verdict has settled that issue, against Parker.
It is also argued that the deputy prosecutor’s decision to issue a warrant for Ronnie’s arrest is a complete defense to this action. On the evidence, however, which we need not detail, the jury could have found either that Parker did not impartially state all the facts to the deputy or that he did not honestly and in good faith act upon the advice given, being motivated instead by his belief that Ronnie had damaged the sewer line. On this point see Oldham v. State, 201 Ark. 903, 147 S.W.2d 361 (1941).
As to the damages, Ronnie was arrested and taken to jail, was booked, photographed, and fingerprinted, and had to remain at the jail for two hours while his wife raised money for his release on bond. He was subjected to a criminal trial, with legal expenses of $200. The awards, even if they cannot be described as modest after a long period of inflation, certainly do not shock the conscience of the court.
Lastly, Parker filed a third party complaint against Polk, seeking not contribution as between joint tortfeasors but complete indemnity for any judgment that Ronnie might obtain against Parker. It is now argued that the trial court should have submitted this indemnity theory to the jury. The only authority cited for this novel argument is Larson Machine v. Wallace, 268 Ark. 192, 212-215, 600 S.W.2d 1 (1980). There we held, among other things, that before a person can maintain an action for indemnity, there must be some special relationship between the parties, which did not exist when this claim arose, and that the claimant must have suffered an actual loss, which Parker had not suffered when this case went to the jury. We do not regard the present argument as warranting further discussion. Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977).
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John I. Purtle, Justice.
The Washington County Chancery Court dismissed appellants’ complaint wherein they sought to have the estate of the decedent, Walter G. Walters, recovered and partitioned for their benefit as widow and sole surviving child.
Maria Walters, as widow, and Cristina Walters, as only surviving child of Walter G. Walters argue three points on appeal. First, they allege the chancellor erred in applying Ark. Stat. Ann. § 62-2902.1 to the facts of this case. Second, they contend that the court erred in finding the above statute barred their claim even if it was applicable. Third, it was argued that the court erred in dismissing the purchasers of the decedent’s land from the case.
The facts reveal that Maria and Walter G. Walters were married in Guadalajara, Mexico on December 23, 1964, residing there for a number of years. Decedent adopted his wife’s daughter, Cristina, on May 17, 1967, while all three still lived in Mexico. The family visited Mr. Walters’ relatives in Washington County, Arkansas on a fairly regular basis until December 1969 when the decedent returned to the United States to renew his visa. However, he never returned to Mexico. Plaintiffs and the decedent corresponded fairly regularly at first but later only sporadically. Through the Walters’ various visits in this country the appellees were all aware that Maria and Walter were married and represented themselves to be man and wife.
On February 23, 1976, Walter G. Walters died intestate in Washington County, Arkansas. About March 16, 1976, Ola Jean Lewis, sister of the decedent, filed an action in probate which resulted in her appointment as personal representative of the decedent’s estate. She listed only the brothers, sisters, nieces and nephews of the decedent as hifc surviving relatives. She listed neither Maria nor Cristina as relatives although she knew that Walter and Maria had been married in Mexico. She had Maria’s address, which was the same since she married Walter in 1964. On October 5, 1976, Ola Jean Lewis caused the distribution of the estate and had it closed. Prior to closing the estate she sold property to her relatives, the Groces, for the sum of $8,000. She had obtained permission of the court to sell the property. The appellants were not notified of the closing of the estate.
Christmas, 1977, Maria sent Walter a Christmas card. It was returned to her in Mexico with the written notation on the envelope, "deceased.” The envelope bore a Guadalajara postmark dated January 11, 1978. Shortly thereafter Maria wrote Ola Jean Lewis a letter inquiring about Walter. Maria claimed she wrote several letters in 1978 and denied receiving any response. Ola Jean Lewis admitted she received one letter from Maria but decided not to answer because she didn’t think Maria had shown enough interest in the decedent. Sometime in July, 1979, Maria was able to go to Chicago to visit a relative, and while there she applied for social security benefits as the widow of Walter G. Walters. She presented the returned Christmas card to the authorities and explained she had written the Bureau of Vital Statistics of the State of Arkansas and requested a death certificate if one was on file. This action was taken at the request of the American Consul in Mexico. A three dollar check was enclosed with the request for the death certificate but neither the certificate nor the money were ever returned. There is no question but that on March 31, 1980, Maria learned that Walter was dead. This is the date she commenced receiving social security widow’s benefits. In October of 1980, appellant was able to go to Washington County, Arkansas where she learned that her late husband’s estate had been distributed to his relatives. She filed the present suit on January 23, 1981 and the court rendered its decision on August 31, 1981, finding constructive fraud on the part of appellee, and dismissing appellants’ complaint due to the running of the statute of limitations.
We first consider the question of whether Ark. Stat. Ann. § 62-2902.1 (c) (Supp. 1981), Ark. Stat. Ann. § 62-2912 (Repl. 1971), or Ark. Stat. Ann. § 37-213 (Repl. 1962) applies to the facts in this situation. Under the foregoing statutes we find that the claim of the appellants is not barred. We so find because the personal representative breached her duty of trust and was guilty of fraud in: 1) failing to notify the appellants of Walter’s death, 2) failing to disclose to appellants her appointment as personal representative, and 3) failing to advise appellants when the estate was closed. Further, appellee, Ola Jean Lewis, perpetrated a fraud upon the court by leaving appellants’ names off the list of heirs as required by her position of administratrix to the estate. We find no basis for the excuse used that she thought Maria had divorced Walters. Maria had lived at the same address all of the time since the administratrix had become acquainted with her. She even admitted receiving a letter from Maria Walters sometime in 1978 but decided not to answer it.
We agree that the statute of limitations must commence to run at some time. Therefore we look to prior decisions for guidance in this area. We considered a matter relating to the tolling of a statute of limitations based on grounds of fraud in Williams v. Purdy, 223 Ark. 275, 265 S.W.2d 534 (1954), where we stated:
Mere ignorance of one’s rights does not prevent the operation of the statute of limitations, but where the ignorance is produced by affirmative and fraudulent acts of concealment, the statute of limitations does not begin to run until the fraud is discovered.
Silence on the part of one who is under no duty to speak will not prevent the statute from running. However, if there is some positive act of fraud which would conceal a plaintiff’s cause of action then the statute is tolled, Williams v. Purdy, supra. There must be some affirmative action on the part of the person charged with fraud before the statute will be tolled. Nicklaus v. McClure, 244 Ark. 23, 423 S.W.2d 562 (1968). In the case of Wrinkles v. Brown, 217 Ark. 393, 230 S.W.2d 39 (1950) we stated:
The cases hold that in actions to recover money paid because of fraud, the cause of action accrued when the fraud was discovered, or should have been discovered, with the exercise of reasonable diligence.
We find that the personal representative committed fraud by failing to notify the appellants of her appointment and by not listing them as heirs on her petition for letters of administration. We think the appellants were put on notice requiring them to investigate the matter in January of 1978 when the Christmas card was returned with “deceased” written on the envelope. Maria immediately wrote the presonal represenative who intentionally refused to respond. She contacted the American Consulate in Mexico and was told to write the Bureau of Vital Statistics in Little Rock. She did not receive a death certificate nor was her money refunded. We think she used due diligence in investigating Walter's death after having been put on notice that he may have been dead. She received no cooperation from the people who were in the best position to assist her. Maria Walters was able to get to Chicago in July of 1979 at which time she applied for social security benefits as the widow of Walter G. Walters, perhaps with the idea in mind that this would resolve once and for all the question of whether he was deceased. We think she had learned at this time or learned during this proceeding that her husband was dead. She would have known positively that he was dead in March of 1980 when she received a social security check as the surviving widow.
In essence, this is a suit for damages based on the fraudulent actions and inactions of the personal representative of the estate. We find that there was a duty on the part of the personal representative to notify the appellants of her appointment and of the closing of the estate. We also hold that there was a duty on the part of the appellants to verify the death of the decedent. We think that these duties on the part of the respective parties were resolved in July, 1979, when Maria applied for social security benefits. The fact that she did not actually learn of the distribution of the estate until October 1980 may be attributed to her failure to proceed in a more reasonable manner. Since we hold that the statute of limitations commenced to run in July of 1979 when the fraud was discovered the appellants were well within the time limits in filing their action pursuant to any of the foregoing statutes.
Appellants also argue that the court erred in dismissing the purchasers of the real property from the action. We agree with the chancellor’s holding in regard to this portion of the case because the purchasers were in no way responsible for the fraudulent acts of the personal representative and, from the record as we see it, were bona fide purchasers for value, without notice of a defect in the title.
The case is remanded to the trial court with directions to enter the appropriate judgment against the personal repre sentadve and her surety, Fidelity and Deposit Company. The decree as to all other defendants is affirmed.
Affirmed in part, reversed in part, and remanded. | [
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Steele Hays, Justice.
This appeal is from a conviction of murder in the first degree. The jury rejected appellant’s plea of insanity and sentenced him to life in prison. For reversal, he argues the trial court should have declared a mistrial or directed a continuance because he was deprived of the opportunity to cross-examine the examining psychiatrist at the Arkansas State Hospital and because he was not furnished a copy of the admission diagnosis, both in violation of the court’s discovery order. The arguments cannot be sustained.
Appellant was accused of the deliberate homicide of his former girl friend on October 16,1980, by shooting her with a .22-caliber rifle. He raised the defense of mental disease or defect and was committed to the Arkansas State Hospital for examination and observation. The examining psychiatrists were instructed to file their report with the trial court with copies to defense counsel and the prosecuting attorney. Appellant filed a motion for discovery to inspect the results of any physical or mental examinations, any opinions concerning his mental condition, and all records of examination and observation made pursuant to the discovery order. Appellant was furnished a written report from the State Hospital stating that on the date of the offense he was able to appreciate the criminality of his conduct and to conform to the requirements of the law and had the capacity to assist in his own defense. The letter was signed by Dr. A. F. Rosendale as Examining Psychiatrist and by Dr. Robert B. Sheldon as Director of Forensic Psychiatry Services.
During Dr. Rosendale’s testimony, it developed that the report was incorrect in that Dr. Rosendale was Director of Forensic Psychiatry Services and Dr. Sheldon the Examining Psychiatrist, but each had signed the report, in the form of a letter to the trial judge, in the wrong place. Dr. Rosendale said Dr. Sheldon was no longer at the hospital and explained the procedures of the Forensic Psychiatry Services in examining and evaluating persons accused of crime: after the examining psychiatrist had arrived at an opinion the case was reviewed by another psychiatrist, a psychologist, and a social worker and a joint opinion rendered; that appellant’s admission diagnosis was “A typical psychosis”; that the opinion appellant was without psychosis was unanimous; that Dr. Rosendale was present at the review and approved the opinion.
Appellant contends on appeal he should have been furnished a copy of the admission diagnosis as provided in the trial court’s order on discovery, and because the State Hospital report erroneously reflected Dr. Rosendale as Examining Psychiatrist rather than Dr. Sheldon, he was denied the opportunity to cross-examine Dr. Sheldon and hence, effectively deprived of the benefits of discovery intended by A.R.Cr.P. Rule 17. But neither of the arguments was presented to the trial court by motion or objection, and we have held too often for any doubt to exist that in order for questions of error to be considered on appeal, they must have been raised before the trial court by timely and proper objection. Moore v. State, 270 Ark. 592, 605 S.W.2d 445 (1980); Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980); Allen v. Rankin, 269 Ark. 517, 602 S.W.2d 673 (1980).
Appellant claims these errors are so fundamental he was denied a fair trial and notwithstanding the absence of an objection the court should have declared a mistrial or directed a continuance on its own. We disagree. There is nothing to suggest appellant would have benefited by the availability of Dr. Sheldon, as the staff diagnosis was unanimous that appellant was without psychosis. As to whether appellant was given a copy of the admission diagnosis, this, too, fails to demonstrate fundamental error. The record does not show the admission diagnosis was not furnished, other than by implication in a question posed by defense counsel to Dr. Rosendale asking why a copy had not been given the defense. But in a subsequent dialogue, the prosecuting attorney stated categorically he had given the admission diagnosis to the defense on April 21, 1981, and this direct assertion was never challenged by defense counsel. We take this silence to indicate he received it.
We find no reversible error and, accordingly, the judgment is affirmed. | [
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Per Curiam.
Petitioner Merril Lee Curry was convicted of murder in the first degree in February 1978 and sentenced to life imprisonment in the Arkansas Department of Correction. We affirmed. Curry v. State, 272 Ark. 291, 613 S.W.2d 829 (1981). This Court later denied petitioner’s petition for postconviction relief pursuant to Arkansas Criminal Procedure Rule 37. Curry v. State (not designated for publication, March 8,1982). She has now filed a petition for credit for the time spent in jail prior to trial.
In the absence of any showing to the contrary, it will be presumed that a sentence is pronounced according to the statutes. Coleman v. State, 257 Ark. 538, 518 S.W.2d 487 (1975). Petitioner does not allege, and it does not appear from the face of the record, that the trial court did not afford her the opportunity to ask for credit for jail time prior to sentencing.
Postconviction relief is not available to an accused who could have asserted the ground of her collateral attack in the trial court before sentence was pronounced but did not. Coleman, supra.
Furthermore, there is no way to credit jail time against a life sentence since a life sentence is for the natural life of the person. Campbell v. State, 265 Ark. 77, 576 S.W.2d 938 (1979).
Motion denied. | [
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Robert H. Dudley, Justice.
Petitioner seeks to prohibit David Partain, Judge, from holding a trial on charges pending against her. She contends that she has not been afforded a speedy trial. On August 28, 1980, petitioner was arrested and charged with having committed a felony on June 3, 1980. She has remained lawfully at liberty on bond since her arrest. The trial judge set her trial for December 17, 1981, which was within 18 months of the date of her arrest. Prior to the trial she moved for dismissal for lack of speedy trial. Her motion was denied by the trial court. She now seeks a writ of prohibition in this court. We decline to issue the writ.
Petitioner contends that under Ark. Stat. Ann. § 43-1709 (Repl. 1977), she was entitled to be tried within three terms of court and that three terms have passed without trial. The statute cited by petitioner has been superseded by A. R. Cr. P. Article VIII, Speedy Trial, Vol. 4A (Repl. 1977 and Supp. 1981). Matthews v. State, 268 Ark. 484, 598 S.W.2d 58 (1980).
Petitioner takes cognizance of the Matthews decision, supra, but contends that the superseded three-term statute and the 18-month speedy trial rule, A. R. Cr. P. 28.1 (c) (Supp. 1981) are inconsistent. She argues that, as a result of the inconsistency, Ark. Stat. Ann. § 22-242 (Supp. 1981), which authorized this court to prescribe rules of criminal procedure, is an unlawful delegation of legislative authority. In Miller v. State, 262 Ark. 223, 555 S.W.2d 563 (1977), we addressed this issue and held this not to be an unlawful delegation of legislative authority. We noted the enabling act “merely recognizes and is harmonious with the court’s inherent powers rather than conferring an express power.” Certainly, if we have the inherent power to make the Rules of Criminal Procedure, it follows that we have the inherent power to amend those rules.
Petitioner next contends that the crime occurred on June 3, 1980, and that our speedy trial rule in effect at that time must govern. The rule in effect on June 3, 1980, provided for a trial within three terms, A. R. Cr. P. 28.1 (c) (Repl. 1977), while the rule in effect at the time of trial, A. R. Cr. P. 28.1 (c) (Supp. 1981) provides for a trial within 18 months. If speedy trial rules were substantive law the petitioner would be correct for a trial is controlled by the substantive law in effect on the date of the commission of the crime. Art. 2, § 17, Constitution of Arkansas; Taylor v. Governor, 1 Ark. 21 (1837). However, speedy trial rules are not substantive law, they are procedural law. As stated in Cassell v. State, 273 Ark. 59, 616 S.W.2d 485 (1981):
Alternatively, Cassell argues in this court that our former statute requiring an incarcerated defendant to be tried within two terms of court laid down a rule of substantive law which this court could not supersede by a rule of procedure permitting a longer delay. Ark. Stat. Ann. § 43-1708 (Repl. 1977). That statute, however, was not substantive law merely because its violation might have a substantive effect. That is true of many procedural statutes, such as a statute of limitations or a statute requiring a defendant to file an answer within 20 days after the service of summons. In criminal matters substantive law declares what acts are crimes and prescribes the punishment; procedural law provides or regulates the steps by which one who violates a criminal statute is punished. Roberts v. Love, 231 Ark. 886, 333 S.W.2d 897 (1960). Under that distinction a speedy trial statute is procedural.
Because the rule is procedural it can be validly applied to all criminal trials commencing on or after July 1, 1980.
Petitioner next contends A. R. Cr. P. 28.1 (c) (Supp. 1981) is unconstitutional because it violates the right to a speedy trial as provided in both the Sixth Amendment of the United States Constitution and Article II, § 10 of the Arkansas Constitution. Petitioner cites no federal or state case for the proposition that an 18-month speedy trial rule for one at liberty on bond is prejudicial. The 18-month period is reasonable and is consistent with the constitutional standards set out in Barker v. Wingo, 407 U.S. 514 (1972).
Petition denied. | [
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Robert H. Dudley, Justice.
Appellee was burning stumps on his land when the fire got out of control and destroyed appellants’ house and most of their possessions. The appellants brought suit asking $75,000 in damages but the jury gave them a verdict for only $7,500. Their motion for a new trial alleging insufficiency of damages was denied. This appeal is from that denial and comes to this court as a tort action pursuant to Rule 29 (1) (o). Appellants’s sole point of appeal is stated as follows:
The trial court erred, as a matter of law, in denying appellants’ motion to set aside the jury’s verdict on damages and in denying appellants a new trial on the issue of damages. [Emphasis supplied.]
Appellants’ opening sentence in their statement of the case is:
This is an appeal from the lower Court’s denial of appellants’ motion to set aside that portion of a jury verdict relating to damages and for a new trial on the issues of damages alone. [Emphasis supplied.]
The final paragraph of their conclusion is:
Appellants urge this Court to reverse the decision of the lower Court in which the motion for new trial was denied, and to enter its order setting aside that portion of the jury verdict awarding damages of $7,500.00 and order a new trial on that issue alone. [Emphasis supplied.]
Thus, appellants do not ask for a new trial but seek to limit the scope of appellate review in order that they can avoid the hazards of a complete new trial and, if remanded upon the condition asked, have the jury only assess damages with the law of the case being that $7,500 is an inadequate verdict. We do not allow such a course. Because we cannot grant the relief asked, the lower court must be affirmed.
“ ... In law cases the verdict is an entity which we cannot divide by affirming the finding of liability and yet remanding the cause upon the issue of damages.” Manzo v. Boulet, 220 Ark. 106, 246 S.W.2d 126 (1952), citing Martin v. Street Improvement District No. 349, 180 Ark. 298, 21 S.W.2d 430 (1929). This has long been our law. Krummen Motor Bus & Taxi Co. v. Mechanics’ Lumber Co., 175 Ark. 750, 300 S.W. 389 (1927); Martin v. Kraemer, 172 Ark. 397, 288 S.W. 903 (1926); Bothe v. Morris, 103 Ark. 370, 146 S.W. 1184 (1912); Carroll v. Texarkana Gas & Electric Co., 102 Ark. 137, 142 S.W. 586 (1912); and Dunbar v. Cowger, 68 Ark. 444, 59 S.W. 951 (1900).
As a matter of law we cannot grant the only relief asked on appeal and, therefore, the lower court is affirmed. | [
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Milas H. Hale, Special Justice.
This case is before the Supreme Court pursuant to Rule 29 (1) (n) as it presents issues of first impression regarding gas rights. Appellants, plaintiffs below, the “Hillards,” are lessors of seven gas leases in Franklin County, Arkansas. Appellees, “Stephens,” are the lessees.
The first lease was executed on or about February 6, 1957, and all of the gas produced from the wells, except that part used, retained and/or purchased by the Hillards under the leases and as modified by letter agreements was sold for use off of the premises under long-term gas purchase contracts. Stephens paid appellants over the years based on “net proceeds” which Stephens received for the sale of the gas under the long-term gas purchase contracts. Appellants contend that royalties have been underpaid.
All of the gas leases were on the same oil and gas lease form then in use in the State of Arkansas, and more particularly, the Arkhoma basin of Arkansas, but each such lease contained certain modifications. The first five of these leases provide for a royalty to the lessor as follows:
3. (b) The Lessee shall pay Lessor as royalty for gas the equal one-eighth (1/8) of the value of such gas calculated at the rate of “five cents” Prevailing Market Price at Well per thousand cubic feet while the same is being sold or used off the premises, measured according to Standard Measurement Law in the State in which the above described land lays.
The term “five cents” as set out in the foregoing provision was struck out and the term “prevailing market price” was inserted therein. Stephens paid royalty to the Hillards and the Hillards accepted the royalty payments without complaint until this suit was filed on June 28,1979, based on the “net proceeds” from the Ark-La contracts.
Two of the leases provided for a royalty to lessor as follows:
3. (b) The Lessee shall pay Lessor as royalty for gas the equal one-eighth (1/8) of the value of such gas calculated at the rate of five seven (7) cents per thousand cubic feet while the same is being sold or üsed off the premises, measured according to the Standard Measurement Law of the State in which the above described land lays.
The term “five” as set out in the foregoing provisions of the two leases was struck out and the term “seven (7)” was inserted therein. Stephens paid royalty to the Hillards under these two leases from the commencement of production of natural gas to July 21,1970, computed on the “net proceeds” received from the Ark-La contracts. After July 21, 1970, Stephens paid royalty to the Hillards computed at a set amount of approximately $ .16 per MCF and was unable to explain why it did not compute the royalty based on the “net proceeds” received from the sale of the gas as in the past. The Hillards accepted the royalty payments from Stephens without complaint until this suit was filed on June 28,1979.
On June 30, 1981, the trial court held:
1. That the “prevailing market price at the well” provision of the royalty clause in the first five of the leases requires that Stephens’ royalty obligation be settled on the basis of “current sales” of the gas on a daily basis through November 8,1978, and thereafter by reference to § 105 of the Natural Gas Policy Act of 1978, 15 U.S.C.A. § 3315 which fixes the maximum price for such gas at the price specified in the existing contracts under which Ark-La purchased the gas from Stephens; and
2. That Ark. Stat. Ann. § 53-511 (Repl. 1971) converted the two leases from the fixed price of $0.07 per MCF leases to “proceeds” leases and required that Stephens’ royalty obligation be settled on the basis of the “net proceeds” received by Stephens for the sale of the gas to Ark-La under the contract. JThe trial court awarded Hillards a judgment for $193,749.00, with prejudgment interest. Hillards appealed and Stephens cross-appealed.
The Hillards contend on appeal:
1. That with respect to the first five of the leases, they are entitled to a royalty computed on the current market value of the gas in the field determined on a daily basis the moment the gas is produced and/or delivered to Ark-La under the gas purchase contracts;
2. That with respect to the last two of the leases (the fixed price leases of $0.07 per MCF) they were entitled to a royalty computed on the “net proceeds” received by Stephens from Ark-La from the sale of the gas under the contracts, because these leases were converted into “proceeds leases” under § 53-511, and alternatively, they own all of the gas produced under these two leases on and after June 28, 1974, because these two leases were forfeited retroactively by Stephens under Ark. Stat. Ann. § 53-514 (Repl. 1971).
Stephens contends on cross-appeal:
1. That the “prevailing market price at the well” under the five leases is determined by the contracts between Stephens and Ark-La, for the sale of the gas and Stephens’ payment to the Hillards of the royalty computed on the price per MCF received by Stephens under the long-term contracts discharges in full its obligation to pay royalty.
2. That § 105 of the Natural Gas Policy Act (NGPA), 15 U.S.C.A. § 3315, determines the “market value” of the Hillard gas on and after its effective date on November 9, 1978, and Stephens’ payment to the Hillards of the royalty computed pursuant to § 105 of the NGPA, 15 U.S.C.A. § 3315 (the price specified in the Ark-La gas purchase contracts) discharges in full its obligation to pay royalty.
3. That payment of royalty to the Hillards computed at the rate of $0.07 per MCF as specified in the last two leases discharges in full its obligation to pay royalty because §§ 53-511 and 53-514 do not apply to gas leases, since these gas leases constituted a present sale of gas in place with all the title to such gas being vested absolutely in Stephens and none in the Hillards.
4. That if §§ 53-511 and 53-514 convert the fixed price leases (the 0.07 per MCF) into proceeds leases, then all the gas leases are converted into proceeds leases by the statute.
5. Other grounds for relief based on the doctrines of estoppel and laches and Stephens objects to the awarding of pre-judgment interest.
The first issue to be decided here is whether the “contract price” that Stephens receives according to the gas purchase contracts with Ark-La is the “prevailing market price at well” under the five leases. We hold that it is. The gas lease constitutes a present sale of all of the gas in place at the time such lease is executed; and as the gas leaves the well head, the entire ownership thereof is in the lessee, none being reserved in the lessor. Once the lessee-producer drills a well resulting in the commercial production of natural gas on the leased premises, the lessee-producer has the immediate duty to market the gas. In order to market such gas effectively, it is the custom in the industry and is usually necessary for the lessee-producer to sell the gas under a long-term gas purchase contract. In Tara Petroleum Corporation v. Hughey, 630 P.2d 1269, 1273 (Okla. 1981), the Oklahoma Supreme Court stated:
We have recognized this necessity of the market, and we believe that lessors and lessees know and consider it when they negotiate oil and gas leases. Lessors and lessees also know that during the term of a gas purchase contract gas prices may increase, perhaps substantially. During the term a producer’s revenues, fluctuations in the production aside, will not increase. Yet if royalty must be paid on the basis of a “current,” steadily-increasing “prevailing price,” then the lessor’s share will take an even larger and larger proportion of the producer’s revenues.
Following the foregoing quotation, the Tara court considered an example of how the lessor would continue to receive a larger portion of the revenues for the sale of the gas, if the lessor’s contention were followed. Similarly, in this case, on December 1,1981, Stephens would be receiving from Ark-La under the gas purchase contracts the sum of $0.3390 per MCF for the Hillard gas, and the Hillards contend that they are entitled to be paid royalty computed on a “prevailing market price at well” of about $2.40 per MCF with their royalty portion amounting to $0.30 per MCF, while Stephens’ revenues per MCF will remain constant. If this were true, then Stephens will keep only $0.0390 per MCF from the $0.3390 proceeds received. As stated by the Oklahoma court in Tara, supra, p. 1273:
This would not be fair to the producers ... We do not believe that the lessors in this case... ever contemplated that the lessors’ royalty could be over half of what the producers... received for the gas. The better rule — and the one we adopt — is that when a producer’s lease calls for a royalty on gas based on the market price at the well and the producer enters into an arm’s-length, good faith gas purchase contract with the best price and term available to the producer at the time, that price is the “market price” and will discharge the producer’s gas royalty obligation.
See also, Henry v. Ballard & Cordell Corp., 401 So.2d 600 (La. Ct. Appeals, 1981). We recognize that the Texas courts have taken a Afferent approach, see Texas Oil if Gas Corp. v. Vela, 429 S.W.2d 866 (Texas 1968) and other Texas cases that followed it.
Here, the gas purchase contracts under which the Hillard gas was sold to Ark-La were effective as long as natural gas was produced from the Hillard wells. At the time these contracts were executed, all natural gas produced in Arkansas was then being sold to either Ark-La, or Arkansas Western Gas Company, or Arkansas Oklahoma Gas Company under long-term contracts. None of Arkansas production was sold or used outside the State of Arkansas. Stephens placed in evidence a substantial number of such gas purchase contracts that accounted for the sale of substantially all of the production in Arkansas with computerized graphs reflecting the comparison of the price per MCF of the Hillard gas received by Stephens under its contract with the price per MCF under the other Stephens gas purchase contracts, and in each such case the price per MCF of Stephens gas was substantially greater than the price per MCF received by the other producers in the field. In this respect, the circuit court found as a matter of fact that Stephens had fulfilled its obligations to market the Hillard gas and stated:
The Court, however, is of the opinion that the gas sale contracts entered into between Stephens Production Company and Arkansas Louisiana Gas Company were negotiated at arms-length and in good faith. Although there was no testimony introduced, questions were raised in the interrogatories to establish the percentage of interest of Stephens in Arkansas Louisiana Gas Company. The Court cannot conceive of businessmen of the caliber of the Stephens accepting a lesser amount for the sale of gas, the total of which would come directly to them, than they would receive as stockholders in a large gas distribution company which they would have to share with other stockholders and after additional distribution and administrative expense would reduce it further. The Court finds nothing in the record by which anyone in the early 1960s could have anticipated or predicted the inordinate increase in gas prices that has occurred in the 1970s.
We believe that this interpretation of “prevailing market price at the well” is consistent with the intent and understanding of both Homer Hillard, the Hillards’ predecessor in title, and Stephens, and it is the only interpretation that operates fairly for the producer. It is not unfair to the Hillards. As long as the gas purchase contracts were reasonable when entered into, and as long as the law recognizes long-term gas purchase contracts as binding in the face of escalating prices, the law should not penalize Stephens who was forced into the gas purchase contracts in a large measure by its duty to the Hillards to market the gas efficiently and effectively. However, if the long-term gas purchase contracts executed by Stephens and Ark-La were not reasonable when entered into, if they are not at a minimum fair and representative of other contracts negotiated at the time in the field, then a different result obtains, because Stephens has not then protected its lessors (the Hillards) in discharging its duty to market the gas efficiently and effectively and there is no policy in the law requiring the courts to protect the lessee (Stephens) in interpreting the leases. But here the evidence contained in the record makes it abundantly clear and the trial court so found, that the Stephens and Ark-La purchase contracts were fair and reasonable and that Stephens had discharged its obligation to the Hillards to market the gas efficiently and effectively. In any event, the burden of proving that the gas purchase contracts between Stephens and Ark-La were unfair or unreasonable at the time they were entered into is on the Hillards, Tara, supra, and in this case there is no hint that the contracts were unfair or unreasonable. Nor is it fair for the trial court to impose its own methodology and interpretation.
Since here the Stephens-Ark-La contract price per MCF of gas is the “prevailing market price at well,” the lessors (the Hillards) were not entitled to any additional royalties from the producer (Stephens). In this respect the j udgment is reversed on cross-appeal.
The last two leases provide for a royalty per MCF to the lessor (Hillards) as follows:
3. (b) The Lessee shall pay Lessor as royalty for gas the equal one-eighth (1/8) of the value of such gas calculated at the rate of five seven (7) cents per thousand cubic feet while the same is being sold or used off the premises, measured according to the Standard Measurement Law of the State in which the above described land lays.
The Hillards contend and the trial court held that the Hillards were entitled to have their royalty payments due them under these $0.07 per MCF leases computed on the “proceeds” received by Stephens under the long-term gas purchase contracts between Stephens and Ark-La because § 53-511 converted these last two leases from “fixed price” leases into “proceeds” leases. Section 53-511 provides:
It shall be the duty of both the lessee, or his assignee, and any pipe line company, corporation or individual contracting for the purchase of oil or gas under any oil, gas or mineral lease to protect the royalty or lessors interest by paying to such lessor or his assignees the same price including such premiums, steaming charges, and bonuses of whatever name, for royalty oil or gas that is paid such operator or lessee under such lease for the working interest thereunder.
Although the foregoing statute has been in effect since 1929, no cases were found where the statute was interpreted insofar as it applies to the production and marketing of natural gas.
If, as the trial court held, § 53-511 converts all “fixed price” gas leases into “proceeds” leases, it follows that fixed prices favorable to a lessor or higher “fixed price” leases would be converted into “proceeds” leases. That is not the intent of the statute. Nor is it to prohibit fixed price contracts for oil and gas leases. Absent indications previously referenced, it is clear that §§ 53-511 and 53-514 are inapplicable in this case and could not under the circumstances cause Stephens to forfeit the leases to the Hillards.
We hold that Stephens’ payment of royalty to the Hillards computed at the rate of $0.07 per MCF discharges its obligation to pay royalty under these leases.
Stephens contends that it is entitled to a judgment against the Hillards for the excessive payment of royalty under these $0.07 per MCF leases because it paid excess royalties. The record disclosed that Stephens did pay the Hillards additional royalties but the record fails to disclose evidence that such royalty paid was due to a “mutual mistake of fact” on the part of both Stephens and the Hillards. We hold that Stephens is not entitled to a judgment against the Hillards for the excessive royalty payments under the $0.07 per MCF leases.
I
Several other issues were raised on appeal. Holding as we have, we find it unnecessary to decide those questions.
The trial court is affirmed in part and reversed in part.
Adkisson, C.J., and Holt, J., not participating.
George O. Jernigan, Special C. J., joins in the opinion.
Hickman, J., concurs in part and dissents in part. | [
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By the Court,
Dicinriuo;!, J.
We have looked into the cases upon this subject with much attention, and can find none precisely in point. The principles, however, which will guide us in this decision, will be found fully sustained in the adjudged cognmon law cases, and expressly decided by the civil law. The vendo^has suffered nO eviction in this case. He enjoyed the use and possession of the property, until its destruction. His title had never been disturbed, nor did he claim any indemnity for want of title in the vendor, by action for a deceit. Upon what principle, then, either of equity or justice, can he be permitted to question his vendor’s title, after a providential contingency has happened, and deprived him, at once, of the enjoyment and possession of the property? The value «of his contract depended upon the happening of this contingency; and both he and the vendor took it into consideration, when the one purchased, and the other sold and delivered, the property. It is too late for him, now, to turn round and say to his vendor, “you bad no Cue.5’ A bill in equity would not lie to rescind the contract, for want of title in the vendor, because it would be wholly impossible to place him in (he condition he was when he parted with his property. Why, then, shall the vendee not pay the purchase money, when he has enjoyed all the fruits and benefits arising from the sale ? We apprehend the like consequence would follow, if they had remained in his possession, when they should have become useless from service, and he, in the mean time, derived no inconsiderable advantage from their labor. The contract of sale could only last during the lives of the slaves; and this contract he enjoyed to the fullest extent, for that fijne. We are aware that, in many of the English ' cases, there is said to be an implied warranty in the sale of a personal chattel. Still that principle, when correctly understood, has no application to the question now before us. We hold the true doctrine in 1 this case, to be the rule laid down by Pothier, which is: if one, in " good faith, sells, and puts another in possession of, an estate, of which i he is not the true owner, and his want of title is afterwards discovered, : the vendee is not entitled to an action against the vendor, so long as i he remains undisturbed in his possession. This holds good, when the 1 seller parts with the property in good faith, believing it tb be his, which the law presumes until the contrary is proved. But if he knew, at the time of the sale, that he had no title, an action of deceit would necessarily lie for bad faith. Pothier on Contracts, 27, 28. This principle of the civil law is certainly in accordance with sjtrict justice I and moral right; aiyl it is peculiarly applicable to the purchase of f slaves, whose value may be increased or lessened by providential circumstances, over which neither parly can have any control. If a pur- / chaser would rescind a contract of sale, and so entitle himself to. a return of the money paid,.he must put the vendor in the same situation that he was in before the delivery of the article. Kimball vs. Cunningham, 4 Mass. 502. In Carr vs. Henderson, 15 Mass. 320, it is said that if the vendee does not return the property, or cannot put the party in the same situation, he elects to consider the contract as existing; and, in that case, if he is entitled to any redress, it is by way of damages for its breach. Now it cannot be pretended, that, because an action will lie for deceit, for want of title, that a vendee, having undisturbed possession, can defend himself against the payment of the purchase money, and at the same time retain the property, and enjoy all the benefits of the sale. If that were the case, the vendor would not only lose the property, but be compelled to pay the price of it to the true owner. The doctrine, therefore, of Benton vs. Stewart, 3 Wend. 236, and Minor vs. Bradley, 22 Pick. 457, fully sustains the principle that a purchaser cannot treat the contract as void, if he retain the property. How, then, if he cannot restore the property, can he be exonerated from the purchase money? In Tallmadge vs. Wallis, 25 Wend. 107, the court held that a plea of want of seizin in the vendor, who had conveyed real estate, with a covenant of seizin, is no bar to an action of debt on a bond given for the purchase money. To bar a recovery, upon the ground of a failure of consideration, the defendant must allege that he obtained no estate or interest whatever under the conveyance. Now if this' is true as to personal actions, and as to the sufficiency of a plea questioning the consideration of the contract, it is undeniable that the same principle must govern in regard to the proof of a failure of consideration as to personal property. Does the vendee, in this instance, pretend to prove that he received no estate or interest in the property? Unquestionably not. His own evidence shows that he had an interest, and enjoyed the estate, during its whole continuance. The law will, therefore, hold him bound to pay the purchase money.
If a vendor fraudulently represents the goods sold to be his own, when he knows them to belong to a stranger, an action on the case lies to recover damages therefor, though the real owner has not recovered the possession, nor the vendee suffered any actual damage. 1 Show. 68. Sell. N. P. 482. The same matter may be admissible, by way of defence, for the purpose of reducing or extinguishing the claim to the purchase money. See 15 J. R. 250. 24 Wend. 102. Where, however, the vendee relies on the warranty qf title, express or implied, there must be a recovery by the real owner, before an action can be maintained. This is in the nature of an eviction, and is the only evidence of the breach of the contract, in analogy to the case of covenant real, and is so expressly ruled in Case vs. Hall, 24 Wend. 102. It would be unjust to permit the vendee to retain possession, and enjoy the use of the property, and put his vendor at defiance. Possibly his title and possession may never be disturbed, or the seller might perhaps quiet it. The breach implies no bad faith, and is, therefore, compatible with perfect fair dealing between the parties. Judgment affirmed. | [
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By the Court,
Lacy, J.
Whether or not a person is entitled to bail, after the finding of an indictment for murder, by a grand jury, is a question of no ordinary import or interest, and one upon which we express no opinion, as that point is not, now, properly before us. That this court has full power to issue writs of habeas corpus, and to try and determine the same, cannot be denied, provided the party applying shows that he is legally entitled to the benefit, and brings himself within the provisions of the statute regulating the proceedings in such cases. According to the requisitions of the act, the prisoner, or some competent person in his behalf, must apply to the person having him in custody, for a copy of the warrant, order, or process, by which he is detained in prison, or he must show that he has demanded a copy of the causes of such committal, and that it has been refused him. jRev. Statutes, p. 434, sec. 5.
The showing, in the present instance, is wholly defective, in these particulars: It exhibits no properly certified copy of the warrant, order, or process, by which the prisoner is restrained of his liberty; nor does he show that no demand could be made for such copy, or that it has been refused. The affidavit accompanying the petition merely states that the prisoner stands chargéd upon an indictment for murder, and that there has been a mis-trial before a traverse jury; and he accompanies this statement with a paper purporting to be the copy of the indictment furnished the prisoner on the trial. Such a showing is wholly defective, as it does not comply with the requisites of the habeas corpus act.
Application denied. | [
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By the Court,
Dickinson, J.
During the trial, Farrington moved the court for instructions to the jury, which, though very general in terms and language, we understand to be, that, if they were satisfied, from the evidence, that the time and place of delivery had been specified and agreed upon by the parties, no demand of the corn, by Far-rington, was necessary to entitle him to a recovery, but, that Bradley must prove the payment of it. We have not deemed it necessary to state the testimony introduced, nor the other instructions given to the court, as neither can have any bearing upon the decision of the case.
The only question is, was a demaud necessary before action brought? The evidence did not determine as to the time or place of payment. Consequently, they remain to be fixed by the election of one party or the other, and the rights of each must be considered, with a due regard to the nature of the case. The creditor would be required to make the demand in the season to pay in farm produce, as such contracts are presumed to be in favor of the debtor. 5 Cozu. Rep. 516. A contract payable in portable specific articles, at a day certain, not at any specific place, are payable at the creditor’s residence. But “ not so as to specific articles which cannot attend the person of the debtor.” They are supposed to be at the debtor’s place of residence, and the creditor, therefore, must demand the payment. Farm produce is presumptively on a farm, and has locality attached to it. The court, in our opinion, clearly erred in the instruction that Farrington was not bound to prove a demand of the corn, before a right of action accrued to him.
Judgment reversed. | [
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By the Court,
Ringo, C. J.
Upon the facts presented on this application, the petitioner insists that he is entitled to an order or writ of venditioni exponas, to coerce the sheriff to expose to sale the property seized by him, on and by virtue of his executions aforesaid, to satisfy said judgment against Webb; that the law regards a judgment, obtained in a Court of competent jurisdiction, as a security and obligation of the highest grade, upon which final process of execution may be obtained of right, and cannot legally be refused, so long as it does not, by testimony of equal grade, appear to have been suspended, reversed, annulled, or satisfied; that there is no other legal means of enforcing satisfaction of a judgment at law; and, therefore, as there is no legal or record evidence that the judgment in question is either suspended, reversed, annulled, or satisfied, he has a legal right to the order, or writ of execution, demanded, and is without any other adequate legal remedy to enforce the payment or satisfaction of his judgment; and, inasmuch as the Circuit Court has denied to him such remedy, he is entitled to this writ, to compel that Court to grant it.
That the law considers the judgment of a Court of competent jurisdiction, as creating a security and obligation of the highest grade, must, in our opinion, be admitted; and it is equally clear, that the law has provided, that, in most, if not all cases, where judgment is obtained in the course of a common law proceeding, such obligation shall be enforced by means of some writ of execution. But this remedy, like most remedies designed to coerce the observance or performance of any legal obligation or duty, is the mere creature of law, and must, in its operation and effects, be governed by such regulations as are prescribed by law. And whenever a party resorts to it, he takes it, subject to all such legal regulatidns, restrictions, and limitations, as are provided for its government. Thus, such acts only as the law prescribes, can be legally done or justified under its authority; and,in every stage of the proceeding, such legal prescriptions must be observed, whether they inure to the benefit of the one party or the other, provided they neither destroy any vested right, nor impair the obligation of any contract.
In the case before us, the judgment ascertained, beyond all controversy, the fact, that Cummins was legally entitled to a certain sum of money, and that Webb was legally obliged to pay it to him; but its payment could only be coerced by means of such writ of execution as was authorized by law to issue on such judgment; and the officer* charged with the execution thereof, was bound, in the discharge of his duty, to observe, in every essential part, the provisions of law in relation thereto, and could not legally forbear the doing, of any act thereby enjoined upon him, nor do any act not authorized by it; and hence, it is manifest, that this, as well as every other legal remedy, must be prosecuted in the manner and form prescribed by law. Upon such judgment, Cummins had, unquestionably, a legal right to demand, and cause to be issued, a writ of execution, against the goods and chattels, lands and tenements, of Webb, according to the provisions of the 5th, 6th, and 7,th sections of the 60th chapter of the Revised Statutes, of this State, so soon as the time had expired during, which the execution thereof, was to be stayed by the express agreement between himself and Webb, entered of record when the judgment was obtained; and of this right he availed himself, by suing out such writ, which was placed in the hands of the proper officer, to be by him executed according to law. But other provisions of the same law secured to Webb the right of retaining in his own possession, until the day of sale, such personal property as should be seized by the officer by virtue of such writ, by giving bond in favor of Cummins, with sufficient security, to be approved by the officer, in double the value of such property, conditioned for the delivery of the property to the officer, at the time and place of sale named in such condition; and, for the purpose of ascertaining the value of such property, made it the duty of the officer to call to his assistance, at the time of making such levy, two respectable householders, to inventory and value such property, under oath, and required such inventory to be attached to, and returned with, the execution. By virtue of the execution so issued in this case, the sheriff seized certain slaves, the property of Webb, caused them to be valued, and an inventory made, as required by law, whereby the property so seized was ascertained to be of the value of $3,400, and, thereupon, Webb gave bond to Cummins, with security, approved by the sheriff, in double the amount of the value of said property, conditioned according to law, and then, availing himself of his legal right, retained the property in his own possession until the day of sale, when the same not being produced or delivered to the sheriff, according to the condition of the bond so taken therefor by him, the bond was forfeited, and the execution, together with the inventory, appraisement, and bond aforesaid, returned, with a statement of all the facts endorsed thereon by the sheriff.
What was the legal effect or consequences of these proceedings? Did they satisfy the debt to Cummins, or discharge the obligation of Webb to pay it? In our opinion they did neither. What remedy,, then, was provided by law, to enforce the obligation, and coerce the payment of the debt? According to the well-established principles of the common law, the seizure, in execution, of the property of the defendant, of sufficient value to pay the demand, discharged the judgment, and extinguished the obligation of the defendant, and constituted a bar to any subsequent action or execution founded upon it; and the plaintiff was forced to seek his remedy either against the property so seized, or the officer charged with the execution of the writ. But such, it is contended, is not the effect of a levy, under outlaw, where a delivery bond is given, and the possession of the property retained by the defendant. And it is urged that, in such case, the judgment creditor may, at his election, either proceed against the property seized, pursue his remedy on the bond, or have an alias execution on his judgment, without regard to the proceedings upon the first execution, or the property thereupon seized, the remedies provided by the statute being cumulative. Be this as it may, we do not consider any determination, in regard to it, necessary to a correct legal disposition of the present application, as Cummins has neither thought proper to follow up his remedy against the property seized upon the original execution, nor to resort to the delivery bond, to coerce payment of the money adjudged to him, but has voluntarily sued out an alias execution upon the judgment, as though nothing had been taken upon the original, by virtue of which, property of Webb appears to have heen taken, which, as nothing appears to the contrary, must be presumed to be of sufficient value to satisfy the demand. Now, suppose it is conceded that the alias writ irregularly or illegally issued, or both, still it would, as we apprehend, not only furnish a legal justification to the officer executing it, but would also impose that duty upon him. It was not void, and the officer could not justify any dereliction of duty, in omitting to execute its mandate according to law, by showing that it was so irregularly or illegally issued; and, thererefore, it is unnecessary to decide whether it issued regularly or irregularly, legally or illegally, as that could make no difference in regard to the question of sale; because, so long as the writ was neither superseded, nor otherwise legally avoided, the seizure under it could not, in either case, be regarded as a nullity; and, therefore, the officer, if he had not been arrested in the discharge of his duty, by the order of Cummins not to proceed with the sale, would have- been bound to expose the property, so seized, to sale, in the manner prescribed by law, to satisfy said execution. But, as no delivery bond had been given and forfeited, subsequent to the last levy, he could not, upon or after a failure to sell, at the time prescribed by law, whether such failure was or-,» casioned by the interference of the plaintiff, or any other cause, proceed to sell the property on five days’ notice, because it was not a case within the provisions of the statute authorizing a sale upon such notice, which only embrace cases where a delivery bond has been taken, and the condition thereof not complied with. Besides, the thirty-ninth section of the 60th chapter of the Revised Statutes, by virtue of which a sale on such notice was authorized, though in force when Cummins forbid the officer’s proceeding with the sale, and ordered him to desist therefrom, had been repealed prior to the time when his motion was made to the Court for an order to the sheriff to sell the property levied on under the alias execution, after giving five days’ notice; consequently, there existed no legal authority whatever, to sell the property on such notice, and the motion for such order was properly overruled. The motion was not, as it has been urged, for a venditioni exponas, simply commanding the officer to sell the property seized on the alias execution, and remaining in his hands unsold, and to have the money before the Court at the return thereof, to satisfy Cummins’ debt, according to the legal order of the proceeding in such such case, but for an order wholly unknown to the law, and requiring him to sell the property at a time, and under circumstances, not authorized by it. Such was the motion made by the party himself; and, if he was either mistaken as to his legal rights or his remedy to enforce them, it surely was not the province of the Court, to mould his application into a different form, and grant him, thereupon, a remedy authorized by law, but which he did not seek. The duty of the Court was, to decide upon the case iii the form in which it was presented by the parties themselves, and grant or refuse the remedy sought, as the law adjudged the right upon the case as presented. In this case, as before remarked, Cummins had no right to such order as, by his motion, he required the Court to make; and,of course, this Court would not be justified in compelling the inferior Court to make it.
Motion denied. | [
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By the Court,
Ringq, C. J.
The record before us shows, we think conclusively, that the execution, upon and by virtue of which the property mentioned in the condition of the delivery bond was seized by the sheriff, was issued upon the judgment which this Court has reversed,’ in the case of Holden Moss et al. vs. Lorenzo Gibson et al. And inasmuch as the judgment upon the delivery bond is dependent upon the judgment on which the execution issued, and on and by virtue of which the property mentioned in said bond was seized by the sheriff, and "the latter has been reversed; therefore, the judgment on the delivery bond must also be reversed, annulled, and set aside, with costs, in accordance with the opinion of the Supreme Court of the United States, in the case of Barton vs. Pettit & Bayard, reported in 7 Cranch, 288, and also, 2 Peters Cond. Rep. 494. | [
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Held, that it is not necessary, in the return on a writ, to state where it was executed. | [
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By the Court,
Dickinson, J.
The suit is instituted upon a writing obligatory, dated at Little Rock. The defendant below craved oyer, and demurred, upon the ground of’misdescription in the declaration. It states that it was executed at the county of Pulaski. This, we deem sufficient; for it is an averment as to the place alone, not a description of the writing sued on. The obligation is,payable one day after date, with interest at the rate of eight per cent, per annum. The breach'conforms to the stipulations of the contract; and, in our opinion, there is no error in the judgment of the court below, in overruling the demurrer.
Judgment affirmed. | [
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By the Court,
Dickinson, J.
The statute {Rev. Code, sec. 37, 38,' Chap. 60,) authorizes the defendant, when a levy is made upon his property by execution, to “ retain possession until the day of sale, -by giving bond, in favor of the plaintiff, with sufficient security, to be approved by the officer, in double the value of such property, conditioned for the delivering of the property to the officer at the time and place of sale, to be named in such condition; and that, if the property be not delivered according to the condition of the bond, the levy shall remain a lien upon the property taken for the satisfaction of the judgment, into whose possession soever the same may have passed.” The 40th section of the same act provides, that, “ if the condition of the bond be broken, and the execution be returned unsatisfied, the plaintiff may, at his option, bring an ordinary suit on the bond.” The 39th, 41st, 42d, and 45th sections of Chap. 60, of the Revised Code, upon the subject of executions, are expressly repealed, by name, by an act op the General Assembly, passed at Nov. session, 1840, which takes away the remedy, by motion, when the condition of the delivery bond is broken, and changes 'the rate of damages and the mode of appraisement of the property lowed upon. By repealing the 41st section, the Legislature totally destroyed the summary mode of proceeding upon a delivery bond, when the condition of it was'broken; and that express declaration, by ¡.lie Legislature, necessarily repeals that portion of the 40th section which has reference to judgments being taken in this summary mode; thus leaving the party to bis common-law remedy, by bringing an ordinary suit upon the bond, or to pursue the property as provided for in the 38th section of the act, which declares that the levy shall remain a lien upon the property taken for the satisfaction of the judgment, into whose possession soever the same may have passed; or to prepare his declaration upon the bond, and file the same on the return-day of the execution, or on any subsequent day of the term at which the execution is returned; and the defendant ■ and his security shall be deemed to have notice of the facts, that the condition of the bond has been broken, and the execution returned unsatisfied, thereby rendering the issuing and service of process unnecessary, as he is presumed to have notice of the facts to the same extent as if process was served. The proceedings, in this case appear to have been summary, on motion, without the form of pleading, and therefore clearly erroneous.
Judgment reversed.' | [
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By the Court,
Dickinson, J.
The only question presented for our consideration, is, as to the effect of the demurrer, no defect or imperfection in the pleadings being set out. The plaintiff below certainly does set out facts sufficient to entitle him to a recovery upon the writing obligatory for $595. Therefore, as the defendants omitted to specify in their demurrer in what respect the declaration is defective or insufficient, the Circuit Court rightly overruled it. Davis vs. Gibson, 2 Ark. R. 115. The plaintiffs in error, however, relied upon their demurrer, and the Circuit Court was only authorized to give judgment in accordance with the breach in the declaration, which is confined exclusively to the debt demanded in the' declaration, and contains no averment of the nonpayment of the interest; consequently, as there was a special contract to pay at a certain rate of interest, the allegation in the breach must be governed by the nature of the stipulation, and be co-extensive with it.
There being an entire omission of any breach as to the interest, the judgment of the Circuit Court is clearly erroneous, having been given for more than the pleadings warranted.
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The motion was refused by
Judge Dickinson,
who said:
That the- question presented is of vital importance, as regards both the State and its citizens, is conceded. Such is the light in which it has been viewed by the Court. In this, as in all other cases, the difficulty in determining is not the amount in dispute, but the principle involved. No case has ever received more profound attention from this Court, than the one now before us; and in none has its judgment-been more firmly convinced. Upon the argument for reconsideration, the whole ground was re-examined, with the same result. We know of but one rule for our guidance — the law of the land. Nor can I believe that any legal, unbiassed mind will, after a careful investigation of the authorities, differ with us in our opinion, as to the jurisdiction, of the Court, and the validity of the deed. No considerations of public policy not warranted by law — no fears of popular indignation— will ever delay or hasten my decision, when my judgment is once convinced. Totally indifferent to the private views of individuals, however numerous, elevated, and influential they might be, I have never hesitated, even for one moment, in announcing the convictions of my mind. I speak as well for my brother judges as for myself. The labors of no appellate Court in the Union have been more serious than of this. It has been our task to meet questions of the most exciting and complicated character. We have had to interpret a constitution, differing in detail from all the American States, with a code of laws the most defective that was ever imposed upon a free people, and reconcile one with the other. We have endeavored to guard every interest that rqight be affected, and protect every citizen in the enjoyment of his rights. This Court, it is true, necessarily possesses great power. That power has been exercised with an eye single to our public duties; and, conscious of the fearlessness and independence with which they have been discharged, we had hoped to create a confidence in the judiciary, equally as broad as its power. While we neither sought nor declined the responsibility which devolved upon us, whether as a court or as judges, we have exercised no authority not properly conferred upon us by the constitution and the laws, at the same time confining the other departments to their proper and legitimate spheres. And while we will not permit the rights of the humblest individual to be violated with impunity, we should impair, if not utterly destroy, the confidence of our citizens in the supreme tribunal of the country, if we should suffer it, on the other hand, to be controlled by individuals, or dictated to by either of the other departments. It is for the legislature to declare the public will, the judiciary to interpret it, and the executive to enforce it. The line of distinction is too broadly marked to be mistaken.
If the executive department shall so far lose sight of its boundaries, as to encroach upon, or usurp the powers of the judiciary, or attempt, under the pretext of a deep interest in the general welfare, to influence its judgment, or control its action, such interference should be repelled with firmness, but with dignity. We may have often erred in our judgment, but all, I trust, will do us the justice to admit, that where once convinced of our error, we have never hesitated to rectify it. We have never attempted to exercise legislative or executive powers, or influence the action of either. The constitution fodbids it;, and while I have the honor of a seat upon this bench, I cannot so far forget the obligations of that instrument, as to permit the rights and authority of this Court to be invaded by' either of the other departments. If such an interference as is attempted in this instance should be submitted to, it would be but a precedent justifying the executive, in any case pending between individuals in this Court, to come in directly as a party, because he might think, however erroneously, that the interest of the State was jeopardized, and, after a decision, ask that it be again reviewed. If this is permitted in the one instance, it cannot, consistently, be refused in another. The right once admitted, cannot be limited. Then, indeed, would the community have cause to tremble for their security. Better at once unite the two departments, if one is to be dictated to, or rendered subservient to the other. It has been my pride, while sitting here, to settle the law, if possible, upon a firm and sound basis; to extend protection to every individual, however humble be might be; to guard every interest, whether of the public or of individuals; to secure the confidence of the citizen, by rendering the judiciary respected at home, and elevating the character of the State abroad. If I have failed in any one of these objects, it has not proceeded from a fear to travel the path of duty, when sufficicniiy plain to follow it. And if, in the discharge of my public duty, I am not sustained by those upon whom it devolves to judge of my judicial acts, I must bow to their decision in silence.
I have discovered no sufficient cause to justify me in disturbing the judgment of the Court, as heretofore announced; and, as I cannot, without compromising the independence of this tribunal, recognize the right of the Executive to interpose his wishes or opinion upon a matter already solemnly adjudicated, the motion, must be refused. | [
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By the Court,
Dickinson, J.
No argument, we presume, is necessary to show that there must not only be an obligor and an obligee, but that the obligee ought to be the defendant in the suit. The bond is, in this case, made payable le Thomas B. Han, who is no party to the proceedings. We are clea ly of opinion, that the circuit court erred in overruling the motion o»' the defendant, to set aside the bond for costs, and dismiss the case.
Judgment reversed. | [
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Held, that where there are several defendants, one of whom is not served with process, nor appears, and judgment taken by default against him with the others, it will be reversed as to all. | [
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By the Court,
Lacy, J.
(The Chief Justice not sitting in the case).
The complainant in this case sets up title to the land described in his bill, as the legal owner of a pre-emption right of Duval & Cams, under the act of Congress of 29th of May, 1830, which was rejected, and the entry refused by the Register and Receiver of the Land-office at Batesville, by reason of a prior fraudulent location of the same land, by John Nicks, made by virtue of a donation claim, granted to Andrew Matthews, upon which a patent had issued, and conveyed by Matthews in fee to the heirs of Nicks. The respondents claim under the location of the ancestor, which, they say, was made in good faith, and under an authority given to him in his lifetime, by William Morse, the actual settler upon the premises, and, therefore, their patent rightfully issued, and they are entitled to possession under it. The bill prays to enjoin Nicks’ heirs from instituting. any proceeding under the patent, and Gibson and wife from setting up any claim of dower, perpetually quieting the possession of the complainant, and that of Duval, who holds under him. The decree affords the-relief prayed for; to reverse which, an appeal has been taken to this Court.
Before we proceed to an investigation and decision of the several important questions that arise in this case, we will first notice and determine a number of minor points, that were raised upon the hearing, and insisted upon here.
These relate, principally, to matters of practice, and, as such, may readily be disposed of in a few words. The objection to filling up the blank in the commission, by the insertion 'of the words, “ to any Justice of the Peace,” that the exhibits were not annexed to the depositions proving them, and to establishing the exhibit of the deed from Duval to Rector,, viva voce, without notice or a previous order, all of which points the Chancellor overruled at the hearing, we regard as mere matters of practice, clearly within the exercise of his discretion. And this being the case, if there was any error or mistake committed, it cannot be taken advantage of in this Court upon appeal, especially when these questions do not enter seriously into the merits of the decree. The authorities are clear and express upon the point, that much allowance must be made for infirmity and errors upon mere rules of practice, falling within the equitable exercise of his authority. And this Court is not authorized to reverse a decree upon mere questions of practice, unless the Chancellor has expressly violated some important principle of equitable jurisprudence, or disregarded some plain and authoritative, command of the statute upon that subject. In the present instance, we perceive no such violation of principle, or disregard of any positive injunction. This rule is all-important for the government of our systems of chancery practice, and, without its enforcement, it would be impossible for the Chancellor to proceed with the business of the Court. The rigid application of the rules of English practice to our courts would, in many cases, be wholly impracticable, and, if allowed, would work most manifest injustice and wrong. The Chancellor, upon the hearing, unquestionably possessed the power to cause the blank in the commission to be filled up. For the commission is certainly nothing more than the process of the Court, which may, at any time, be amended upon suggestion, in an unimportant point. The provision in our statute, requiring the exhibits to be attached to the depositions, and to be sealed up, and returned with them, was only intended for greater certainty and security in proving them, and does not, in our opinion, apply to a case where the exhibits are made a part of the bill, and filed with it. The design and object of the law are certainly answered, if the exhibits are shown to the witnesses, and they are iden. tified. And upon no principle of fair construction, can a party be required to take them from the rolls, for the useless purpose of attaching them to the depositions; nor would it be proper to allow it. All the statute requires is, that the exhibits should be identified, and their execution proved.
That clause in the statute regulating the proceedings in chancery. that requires the. testimony of vi'ii.neiAus to be taken in writing, unless otherwise directed by the Court apon the hearing, so far from denying to the Chancellor the right of causing an exhibit to be proved viva voce upon the trial, expressly gives him authority to do so, provided, in the exercise of bis discretion, he does not take the party by surprise, or commit any serious wrong. In the present case, the exhibit proved viva voce upon the hearing, was filed with the bill, and there can be no pretence that those who wished to controvert it, had not a fair opportunity afforded them of questioning its genuineness, ft is surely a more regular practice, and one more consonant with the principles of equity, to prove the exhibits before the examiner, it is likewise usual, where an exhibit is proved viva voce, first to obtain an order, car parte, accurately describing it, and giving four days’ notice before tito hearing; but tins rule has been changed, and a reasonable notice, instead of an order, is now substituted in its stead. And there arc many cases to be found, where both the order and notice have been dispensed with, upon tue ground, that no injustice was done by permitting the exhibit to be proved viva voce upon the hearing. And in the case of Desplaces vs. Goris, 5 Paige Rep. 252, Chancellor Walworth said, in a case where a written agreement was proved upon the hearing viva voce, and that, too, where no notice or order was had; “ that there was no pretence, on the part of either of the defendants, that they had any reason to believe that the agreement was not in fact executed, or that the translation, as stated in the bill, was incorrect; that the only clfcct of denying the application would be, to subject the parties to the delay of a new suit, as it would, under the circumstances, be a r/aiter of course to permit the bill to be dismissed without prejudice/’ in that case, the objection, that the the agreement was not sufficiently proven, was taken after the plaintiff’s counsel had closed the opening argument, and the defendant’s counsel had responded. And in Poor vs. Carleton, 3 Sumner, 76, Justice Story well remarks, <c there arc numerous cases which show the gradual mutation and changes, often silent, and almost imperceptible, which have been -inti educed into the practice of courts of equity, to obviate inconveniences, which experience has demonstrated, and to adapt the remedial justice of these, courts (o Site new exigencies of society.” These remarks apply with peculiar force to our courts of chancery jurisdiction, which only sit once in six months, and then but for a limited period, with no rule days, and no opportunity afforded for taking the necessary and regular steps in the proceeding, which is happily ihe case in other chancery systems, better organized and more fortunately situated than our own. Consequa vs. Fanning et al. 2 J. C. R. 481; Barrow vs. Rhinelander 1 J. C. R. 551. But whether the decision of the Chancellor upon this point be right or wrong, we deem it immaterial. Regarding it, as we do, to he a mere question of practice, and within the discretion of the Court, there can be no advantage taken of it upon appeal. Rogers vs. Hosack's Ex'r, 18 Wend. 319. Mandeville vs. Wilson, 1 Cranch, 15. The People vs. Rector, 19 Wend. 569. Prescott vs. Tufts, 7 Mass. 209.
Another objection raised is, that the evidence of the hand-writing of Nathan Barnett, one of the witnesses to the conveyance of Morse to Duval & Cams, ought not to have been received, his absence not being sufficiently accounted for. The rule upon this subject is properly stated in the case of Brown vs. Hicks, 1 Ark. Rep. 232, and Wilson vs. Royston, 2 Ark. Rep. 315, and in the authorities there cited. The principles there established, fully authorize the Chancellor to receive secondary evidence of the hand-writing of the witness proving the execution of the agreement. It was proved, upon the trial, that four years ago, the witness had gone to the State of Kentucky, and that he was supposed to be dead, and nothing more heard of him. This proof is uncontradicted by any opposing evidence, and, certainly, according to, all the adjudicated cases upon the point, the hand-writing of the witness may be proved. Jackson vs. Gager, 5 Cow. 385. Jackson vs. Cody, 9 Cow. 140. Jackson vs. Waldron, 13 Wend. 178.
It is contended, that the evidence offered under the certificate and seal of the commissioner of the General Laiid-office, was improperly received. It is said to contain irrelevant testimony, and the certificate not to be in due form of law. It may be, and probably is true, that a considerable portion of the matter contained in that record is not strict proof in the cause, but it surely will not be presumed that could have had any influence upon the mind of the Chancellor, in determining the matter, 6r, that certain portions of the record being irrelevant, should exclude other portions, which were relevant and legal. The act of Congress organizing and establishing the land-office, makes all records, books, or papers, belonging to the office of the commissioner, authenticated under his signature, and the seal of his office, competent evidence in all cases in which the original record, books, or papers, could be evidence. Gordon’s Digest, p. 320. It was evidently the design of Congress to place the seal of the office on the footing with seals of courts of record; and, consequently, the seal of the General Land-office, and the signature of the commissioner to copies of originals, required by law to be deposited in his office,prima facie prove themselves. U. S. vs. Bonner, 1 Bald. 236. Bleecker vs. Bond, 3 Wash. C. C. R. 529. Smith vs. U. S. 5 Peters, 229.
Having disposed of these preliminary points, we will now consider the main questions in the cause. The first inquiry is, what is the nature and character of the agreement entered into between Nicks and Morse? There arc two agreements, evidencing the contract of the parties, and both executed on the same day, to wit: on the 21st of January, A. D. 1829. The first part of the contract is, a sale from Morse to Nicks, of his improvement, with an authority to locate the same by a donation claim; and when the land was thus secured, it was to be for the joint benefit of both, and to be divided according to the stipulations therein contained. This agreement was signed by both Morse and Nicks. The second part of the contract, which was signed by Nicks alone, was a note of hand, by which he bound himself to pay Morse two hundred and fifty-nine dollars, the price of the improvement, on or before 15th of May, A. D. 1829, containing this express stipulation: if he, Nicks, should secure, by a donation claim, a patent to the land on which the improvement was made, then the obligation was to be in full force, otherwise, it was to be of no effect.
It is clear that these two instruments are to be taken together, as constituting one entire contract. They both have relation to the same subject matter, and bear date of the same day. The rule of law upon the subject is, that when the transaction is evidenced by two papers, the connection between which is established by their contents, without any necessity of referring to other matter to connect them together, they will be taken as one entire agreement. Boydell vs. Drummond, 11 East. 140. Chitty on Con. 23.
By one agreement, Morse gives authority to Nicks to locate the land by a donation claim, for their joint benefit, upon certain terms. By the other, Nicks was to pay the note only on the condition that the location should be made by a certain day. It was in the power of Nicks to defeat the payment of the note, by postponing the location. It was certainly not competent for Nicks to release himself from all liability, and to hold Morse bound by his license. In all covenants, there must be a mutuality of agreement upon the respective parties, to be obligatory. Should the time have elapsed lor location, could Nicks have enforced the specific execution of the agreement against Morse? Certainly not. And it is equally as clear, that after that period, Morse could not have enforced the payment of the note by Nicks. A court of equity will never decree a specific performance, unless the remedies are mutal, or where one party only is bound by the agreement. Upon Nicks’ failure to make the location upon the day fixed, the authority given to him expired, because he was not bound, beyond that day, to pay for the improvement. The terms of the contract bound the parties to the performance of their mutual agreements, upon a day certain; and both the license given to Nicks, to locate, and the obligation to pay the money, expired at that period, and at one and the same time.
The clause in the act of the 6th January, 1829, was a mere personal privilege, or protection, afforded by law to the actual settler, in the peaceful enjoyment and occupation of his improvement. The policy of the government upon this subject, has ever been, to protect the bona Jide occupant of the soil against an unjust and unwarrantable intrusion. Hence, his improvement and settlement are secured to him; and this privilege has ever been guarded assiduously by courts of justice, unless it clearly appeared that the settler either waived his privilege, or had transferred his improvement and interest, bona fide, to another. If, by any means, the settler transferred this right or privilege, or signified his consent to the location, it would be a mere waiver of his right to his improvement and settlement-; and possibly a personal covenant that would bind him so long as lie continued to reside on the land, and the agreement be made to operate by way of an equitable estoppel; and it probably could not be revoked, if its terms were absolute and unconditional. But it would be otherwise, where its terms were conditional, and limited to a particular time. Such an agreement would certainly be binding, so long as the actual settler remained upon, and continued in possession of, the land. But should ho voluntarily abandon his possession, then his consent to such location would seem to us to bo of no avail. The act of Congress certainly contemplated the consent of the actual settler upon the land; for it has so expressed it. It makes the location of a donation claim, without such consent, if the land had not beers previously offered for sale, absolutely null and void. But it is contended, in behalf of the defendants, that the location by Nicks, in this instance, is taken out of the operation of the act of Congress of 6th of January, A. D. 1829, upon the ground, that the authority and license granted by Morse to make the location, was coupled with an interest, and, therefore, irrevocable. Justice Story, in his accurate and admirable treatise upon agency, page 495, says, “ where a power pr authority is coupled with an interest, or where it is given for a valuable consideration, or where it is a part of a security, there, unless there is an express stipulation that it shall be revocable, it is, from its own nature and character, in contemplation of law, irrevocable, whether expressed so on the face of the instrument conferring the authority, or not;” and ho puts several cases by way of illustration — a power to levy a fine, as a part of a security to a creditor; letter of attorney to sell a ship, as a security upon a loan of money, and the like. This doctrine was fully considered and determined in the case of Hunt vs. Rousmanier, 8 Wheaton, 174, and the distinction between a mere power, and a power coupled with an interest, is there clearly defined. In that case, Chief Justice Marshall remarked: “ It becomes 'necessary to inquire, what is meant by a power coupled with an interest? Is it an interest in the subject on which the power is to be exercised? Or is it an interest in that which is produced by the exercise of the power? We hold it to be dear, that the interest which can protect a power after the death of the person who creates it, must be an interest in the thing itself. In other words, the power must be engrafted upon an estate in the thing. The power and the interest are united in the same person.” In the present case, is the power here engrafted upon the estate in the land? Was not the estate in the land to be created by the exercise of the power? It certainly was. For by the exercise of the license or authority given to Nicks, to make the location, the land upon which the improvement was situated, was to be secured; and the interest in the estate, or thing, was by the entry to' be produced, by the exercise of the power. This being the case, in the language of that Court, the power, to produce the interest, must be exercised, and by its exercise, it is extinguished. The power ceases when the interest commences, and, therefore, in the present case, there is no pretext whatever, that the license given to Nicks was a power coupled with an interest, or irrevocable.
Morse never constituted Nicks his agent. In making the location, Nicks acted for himself, and not for Morse, and this their agreement clearly shows. There are no equal equities established between Nicks and Duval & Cams. The principle, as to an equal subsisting equity, does not apply — that he who is prior in time, is first in right. Morse had neither a legal nor equitable estate in the land. He merely possessed an inchoate, or imperfect right to the possession of the improvement, against all the world, except the United States, and that only so long as he continued to reside upon it. In no respect can Morse or Duval & Cams be regarded as the tenants of Nicks. Nicks had neither a fee in the land, or a, life estate in the freehold, or any kind of interest which would create the relation of landlord and tenant. Neither Morse, Duval, or Cams ever professed to hold under him, or derive any title whatever from Nicks’ supposed interest. The proof unquestionably establishes the fact, that Morse applied to Nicks for the payment of his note, after it became due; that Nicks refused to pay, from some cause or other; and from that time forward, Morse considered the contract and treated it as dissolved. Upon Morse’s failure to obtain the purchase money from Nicks, he immediately sold his improvement to Duval & Cams, for the sum of five hundred and ninety dollars, which they paid him the 29th June; and upon the 29th July, A. D. 1829, they acquired all his right and title therein, by regular conveyance, executed in their behalf by Morse, and claimed to be the sole and exclusive owners of the improvement, and the actual settlers upon the land. Morse never set up any adversary claim, or disputed either their right of improvement or possession. He abandoned the entire occupancy to them in October of the same year, and moved off the premises, leaving them in the actual and quiet possession of the land, and its improvements. After their purchase, the proof shows they added other valuable improvements upon the land, and were in the cultivation, and actual and sole possession of it, when Nicks made his location in November, A. 1). 1829; and that Duval has, for Carns and himself, and for himself individually, and for the, present complainant, continued to reside on the same tract ever since, and now holds it in possession. In the view we have taken of this case, it matters not whether Duval & Carns had notice or not of Nicks’ purchase from Morse; for, after his leave to locate had expired, Nicks had no interest whatever in the improvement. Shortly after Duval & Carns purchased from Morse, they applied to- the proper land-office to secure their improvement, by a donation claim, before Nicks located the same; but their application was rejected, for a supposed informality in giving their consent to the location.. It was after this, that Nicks located the land; and whether he. was apprised or not, that Duval & Carns were the actual settlers on it, he made his location at his own election and peril, and he must abide the consequences. If they were settlers— and that they were, there can be no doubt — then, without obtaining their consent, (which is not pretended in this case), his location, being made before the land was offered for sale, by the express terms of the law, is declared to be held null and void. His authority to locate is a gratuity, on the part of the government, to the original claimant, whose rights he acquired, given upon express compliance with certain, conditions contained in, and annexed to, the graht, one of which is, if the donation claim is laid on the improvement of an actual settler, where the land has not been offered for sale, then, and in that case, the location is in violation, and in fraud of the law creating the grant; and,, of course, the patent that issued on the claim must be held to be void. After Nicks had made his location, Duval & Cams applied to the proper land officers, to enter their pre-emption right, but their application was rejected, not upon the ground that they had no right of pre-emption, or that it was not a good and valid one, capable of being fully established; but on the ground that the land had been previously entered by Nicks, and that, therefore,' they were deprived of the benefit of the act of Congress, of 29th May, A. D. 1830. Now, it must be perfectly manifest, if Nicks’ location was void, being in fraud of law, of course Duval & Caras’ right of preemption was not annulled by such location. It is equally clear, if Duval and Cams were entitled to the right of pre-emption, they cannot, on any principle of law or equity, be deprived of that right, by the land officers refusing the entry. Upon the case being brought to the consideration of the Commissioner of the General Land-office, he directed the Register and Receiver to take the proof, and report the facts to the department, which was accordingly done.
The patent issued to Matthews, A. D. 1831, and Nicks has obtained a deed from the original claimant, and brought an action of ejectment against the tenant ip possession; and it is now contended, in their behalf, that the decision of the Register and Receiver is final and conclusive between the parties; and that, whatever right of pre-emption Duval & Cams once had, it has now ceased to exist. It will be botne in mind; that the Register and Receiver never passed upon the validity or genuineness of Duval & Caras’ pre-emption, but they merely refused their entry, because the land had been previously* located by Nicks, with a donation claim. The proof taken before them unquestionably established, beyond all doubt, that Duval & Cams strictly and fully complied with all the requisites of the act of 29th of May, A. D. 1830, and, as settlers and occupants, they were entitled to the benefit of the act. It is true, that the decisions of the Register and Receiver are conclusive as to all matters properly within their jurisdiction, in the absence of fraud; for the act of Congress, for many purposes, makes them judicial officers, and gives them exclusive cognizance of a particular class of cases. But we apprehend that the case now under consideration does not fall within the enumeration. The Supreme Court of the United States, in the case of Wilcox vs. Jackson, 13 Pet. 490, has laid down the whole- doctrine upon this subject.
The pre-emption act of 29th May, 1830, provides that, prior to an entry being made, proof of settlement and improvement, to the satisfaction of the Register and Receiver of the district in which the lands claimed are situated, shall be taken, agreeably to the rules prescribed by the Commissioner of the General Land-office. Upon this grant of power to the Register and Receiver, the Supreme Court remarks, “ that the decision of the officers, in the absence of fraud, would be conclusive, as to the facts that the applicant for the land was in possession, and of his cultivating the land during th(§ preceding year, because these questions were directly submitted to them.” But, says the Court, “ if they undertake to grant pre-emptions to land upon which the law declares they shall not be granted, then they are acting upon a subject matter clearly not within their jurisdiction; as much so as if a court, whose jurisdiction was declared not to extend beyond a given sum, should attempt cognizance of a case beyond that sum.” So the act of Congress, of the 24th of May, 1828, authorizes the Register and Receiver to take the proper testimony for the establishment of donation claims, according to the requisitions of the act. As to the facts of settlement and removal, agreeably to the provisions of the treaty, the decision of these officers is conclusive, because it appertains strictly to their jurisdiction. But when the Register and Receiver undertook to decide that Duval & Cams’ improvement upon the land was legally subjected to a location by a donation claim, then they were deciding in a matter entirely beyond their jurisdiction. No power was given them by law, nor were they authorized or required by the instructions of the General Land-office, to allow an improvement of an actual settler to be located by a donation claim, without his consent, in regard to that matter, they had no jurisdiction. The person entering a donation claim, did so at his peril; and, if he located lands upon which there was an actual settler, without obtaining his consent, such location was null and void, and the settler is, in our opinion, relievable in equity. The entry of Nicks’ location being void by law, of course the patent invests those claiming under it with no title.
The bill does not seek a decree for a title, nor does it pray to vacate the patent. It only asks, that the possession of the complainant shall remain undisturbed by a patent illegally issued, and palpably void — a patent procured by a grant of Congress, and yet obtained in express derogation of the condition annexed to the grant. Nicks’ entry having been shown to be void, Duval & Cams, or their assignee, have the exclusive right of purchasing and holding the land. They have a vested, legal, and equitable right, equivalent to an interest in the land. Having tendered the purchase money to the government, to enter their pre-emption, their right becomes complete and fixed. Even an entry by a bona fidc^ purchaser is not good against a valid pre-emption. The tender of payment in due time, and of the requisite amount, is sufficient, in ordinary cases, between individuals, to save the right of the parties making’it. In cases of executory agreements, it will entitle him who made it, in a court of equity, to a specific performance of the contract. We take the same principle to hold good in cases arising under the land laws, between a settler and the government. ' The rule in regard to the sufficiency of a tender is, if ,a debtor offers to produce the money, and its production is dispensed with by the creditoi4, the tender is complete and valid, without being actually made. The tender, in this case, was sufficient, because the land officer refused to receive the money.
As to the jurisdiction of a court of equity in this case, we entertain no doubt. “ Whenever the law declares certain instruments illegal and void, as the British annuity act does, or as the gaming acts do, there is inherent in the courts of equity, a jurisdiction to order them to be delivered up, and thereby give effect to the policy of the Legislature; and, if this was not the case, a party would have a right w'ithout a remedy, or clear equitable interest or title without any means for its protection or enforcement.” Clark vs. Smith, 13 Pet., in which this language is used, to show that equity may cancel a patent, declared, by the Legislature, to be void. 10 Ves. 218. 5 Ves. 604. 2 Yerger, 524.
It only remains to be shown, that Duval’s assignment to Rector of his pre-emption right, under the act of 1830, is valid. The act, it is true, declares all assignments and transfers of the right of pre-emp tion, prior to the issuing of the patent, null and void; but, by a supplementary act of 23d January, 1832, it was enacted, that from and after its passage, all persons who haye purchased under the act of 1830, may assign and transfer thei^certificates of purchase or final receipts, and patents may issue in the, name of such assignee, any thing to the contrary notwithstanding. 2 Land Laws, 298. Cams did not sell his interest to Duval until after the passage of this act, to wit: in December, 1832, and Duval sold to Rector in 1837. . At the time of neither sale, was the transaction contrary either to the policy or letter of the law; and, if a person whose pre-emption was allowed, could sell, certainly those who had .only been prevented from purchasing, by the fraud of a third party, and the dereliction of duty and .negligence of the officers of the United States, could have no less a right to' dispose of their interest. =-
It seems to us, on a careful consideration of the whole case, that the complainant has amply shown, that he is entitled to the relief prayed for in his bill, and granted by the decree; and therefore it is ordered in all things to be affirmed. | [
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Frank Holt, Justice.
A jury found appellant guilty of burglary, aggravated assault, criminal mischief, and two counts of battery and imposed sentences totalling ten years. All charges stem from an incident occurring around 7:30 a.m., February 27, 1980, when the appellant entered an apartment occupied by Cathy Chastain and Robert Clayton. A fight erupted. Chastain and Clayton received injuries requiring medical treatment.
We first consider appellant’s argument that the court erred in admitting into evidence, over appellant’s objections, proof of disorderly conduct, escape, and criminal mischief in the second degree which involved other persons and occurred several years prior to the incident here. During cross-examination of the appellant, the following exchange took place:
Q. Do you remember an incident in July of ’77 in Which you were convicted of escape and disorderly conduct and criminal mischief in the second degree?
(Defense Counsel):
Object to that. I’d like to approach the bench on that____
(Prosecuting Attorney):
Your honor, they have raised the issue of self defense____ This goes specifically to acts of conduct or misconduct .... This is for impeachment. They have raised the issue of self defense and I think I can show what he’s been doing all his life, whether it has to do with violence....
Following a colloquy between the-state and the defense attorneys, the court overruled the objection, stating “It’s an incident involving violence”; neither a conviction nor arrest makes any difference, and therefore, appellant could be asked about whether he was involved in violence in a particular incident.
The trial court erred in overruling appellant’s objec tion, which we feel was sufficient. Rule 608 (b) of the Uniform Rules of Evidence provides that the trial court may, if it finds good faith and the probative value of the testimony outweighs the prejudicial effect, allow questions about certain offenses if the misconduct relates to honesty and truthfulness. “Questions regarding appellant’s violent nature and destruction of property are wholly unrelated to his propensity for honesty, and therefore, improper.” Divanovich v. State, 271 Ark. 104, 607 S.W.2d 38S (1980). See McCormick, Evidence, § 43 (2d Ed. 1972); 3 Weinstein’s Evidence § 608[05] (1981).
Rule 609 deals with impeachment by evidence of conviction of crime. Section (a) provides:
General Rule. For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted but only if the crime (1) was punishable by death or imprisonment in excess of one [1] year under the law under which he was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to a party or a witness, or (2) involved dishonesty or false statement, regardless of the punishment.
Thus, before the evidence of convictions of crimes was admissible the court had to be satisfied they were crimes either (1) punishable by imprisonment in excess of one year or (2) involved dishonesty or false statement. Once counsel raises the issue of whether the defendant’s prior convictions should be excluded from trial, the trial judge has the duty to see that he is informed of the relevant considerations before admitting the evidence. Clearly, the disorderly conduct, § 41-2908, a class C misdemeanor, was not admissible. Escape ranges from an admissible class C felony, first degree escape, § 41-2810 to an inadmissible class A misdemeanor, third degree escape, § 41-2812. Criminal mischief in the first degree, § 41-1906 can be admissible as a class C felony or inadmissible as a class A misdemeanor, depending on the value of the property destroyed. Criminal mischief in the second degree, § 41-1907, is an inadmissible misdemeanor. The state did not prove, nor did the trial judge make sufficient inquiry in the conference at the bench, to determine if the convictions were for crimes punishable by imprisonment in excess of one year and thus admissible into evidence.
The convictions were not admissible as convictions of crimes involving dishonesty and false statement. Those convictions are peculiarly probative of credibility and are always to be admitted without regard to grade of offense or length of sentence. Examples are perjury, subornation of perjury, criminal fraud and embezzlement. Thus, the prior convictions were not admissible for attacking the credibility of appellant under Rule 609.
Neither was the evidence admissible under Rule 404 to prove a trait of character. First, appellant on direct examination did not testify to a character trait of non-violence and so no rebutting evidence was admissible. Rule 404 (a) (1). Second, it was not admissible under 404 (b) to prove motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.
Two of the charges in the present case were battery in the first degree and aggravated assault. The testimony concerning prior crimes was not relevant to prove intent to commit the crimes charged. For a complete discussion of cases involving evidence admissible to prove intent see Alford v. State, 223 Ark. 330, 266 S.W.2d 804 (1954); and Moore v. State, 227 Ark. 544, 299 S.W.2d 838 (1957). Here, the evidence of other crimes was not admissible and was prejudicial to the appellant.
We feel it necessary to discuss other contentions raised by appellant in view of a possible retrial. Appellant contends that the verdicts of guilty as to the charge of burglary and criminal mischief were not supported by the evidence, and the trial court erred in overruling his motion for a directed verdict on those counts. We cannot agree. In Harmon v. State, 260 Ark. 665, 543 S.W.2d 43 (1976), we said:
It is well established that a directed verdict is only proper where there are no factual issues to be deter mined by the jury and on appeal, the evidence will be reviewed in the light most favorable to the appellee and the judgment will be affirmed if there is any substantial evidence to support it. Munn v. State, 257 Ark. 1057, 521 S.W.2d 535 (1975).
Substantial evidence is evidence which is of sufficient force that it will compel a conclusion one way or another beyond suspicion or conjecture. Jones v. State, 269 Ark. 119, 598 S.W.2d 748 (1980). In order for the state to prove the charge of burglary, it must show that the appellant entered or remained unlawfully in Chastain’s apartment with the purpose of committing an offense punishable by imprisonment. Ark. Stat. Ann. § 41-2002 (Repl. 1977) and Commentary. The appellant argues that admittedly he had a key to Chastain’s apartment with the right to come and go as he pleased; that he kept some of his clothes there and spent several nights there each week; that he had contributed substantially to her financial support; that the fact they had previously lived together at other locations indicated that he had consent to enter her apartment; and also when he went in the apartment, it was “uncertain as to what he had in mind”
The day before the incident appellant inquired at Chastain’s place of employment as to her whereabouts and was informed she had left with Clayton; that night Chastain received several threatening phone calls from appellant and finally she unplugged the phone; between the time Chastain and Clayton parked their cars outside Chastain’s apartment and the fight the following morning, Clayton’s car had been pushed sideways into Chastain’s vehicle, causing extensive damage to both cars; tire tracks near Clayton’s car were made by tires similar to those on appellant’s car; Clayton’s car sustained approximately $1,500 damages; at approximately 7:30 a.m. appellant forcibly entered Chastain’s apartment, splintering the door jam and forcing a chain lock from the wall; he observed Clayton in bed undressed; Chastain was in her night gown; the appellant was asked to leave; a fight broke out resulting in Chastain’s and Clayton’s injuries and medical treatment.
We feel the evidence was sufficient for the jury to infer the appellant entered or remained unlawfully in Chastain’s apartment with the intent to commit an offense punishable by imprisonment. We also find the evidence sufficient to enable the jury to infer that the appellant purposely destroyed or damaged the vehicles of Chastain and Clayton in excess of $500. Ark. Stat. Ann. § 41-1906 (Repl. 1977).
The appellant next contends the trial court erred in refusing to permit testimony concerning his and Chastain’s plans and plane reservations to travel to Mexico which were made about two weeks prior to the altercation and in failing to allow appellant to introduce evidence as to a $1,100 commission he gave Chastain about two months before the incident here. We agree that the court should have permitted the evidence. The state attempted to show Chastain had been trying to “break up” her relationship with appellant. The evidence as to their plans to travel together and the real estate commission were relevant to rebut the state’s theory. Uniform Rules of Evidence, Rule 402. Also evidence that a civil suit had been filed by Clayton against appellant as a result of the fracas had a bearing on the extent of the bias of the witness and was admissible. See Goodwin v. State, 263 Ark. 856, 568 S.W.2d 3 (1978). In Wright v. State, 133 Ark. 16, 201 S.W. 1107 (1918), we said: “Pecuniary interest, personal affection or hostility, a quarrel or prejudice may always be shown to discredit a witness.”
Appellant asserts the trial court erred in admitting statements of Chastain, given to the investigating officers, to be introduced as “binding” on the appellant as direct evidence of wrongdoing on his part toward her and failing to limit the introduction of statements to impeachment purposes only. We find no merit in this argument. First, we observe that her transcribed statements were neither read to the jury nor introduced in evidence. Further, she and appellant have married since the incident involving the alleged offenses upon her and, understandably, she appeared to be a reluctant witness. The state merely read portions of her statements in questioning her on direct examination about her past relationship with appellant and his conduct toward her. She admitted that everything in her statements was true. We do not perceive that this procedure was "binding” upon appellant, and no error is demonstrated.
We also find no merit in appellant’s contention that the court erred in permitting Clayton to detail conversations concerning the relationship between Chastain and appellant that he had with Chastain out of the presence of the appellant. On cross-examination of Clayton, appellant’s counsel asked Clayton whether Chastain "let you know she had this relationship with” appellant. We feel this opened the door for the later questions on redirect by the state concerning the status of their relations.
We deem it unnecessary to discuss any of the remaining contentions raised by appellant as they are not likely to reoccur in a new trial.
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Darrell Hickman, Justice.
The question to us on appeal is the ownership of an $18,000 certificate of deposit and a $5,000 savings account. The same question was presented to the trial court after both parties moved for summary judgment on what can be fairly said are agreed facts.
The certificate of deposit was originally issued in the names of Charles L. Hall or Helen Hall, who were husband and wife. Subsequently, Charles L. Hall, without the knowledge of his wife, Helen, asked the bank to change the certificate and her name was deleted upon his oral request. The probate court held that this was an improper change according to statutory law and the issuance of the certificate to Mr. and Mrs. Hall created an estate by the entirety; thus, Mrs. Hall was entitled to the proceeds since Mr. Hall was deceased. The $5,000 savings account was opened in Charles L. Hall’s name alone, at the same time the certificate was issued. The court held that this account was the property of Charles L. Hall’s estate since it was initially opened in his name only. Both Mrs. Hall and the estate appeal from the probate judge’s ruling; each party is seeking all the money. We affirm the trial court.
Charles L. Hall and Helen Hall were married April 7, 1977. In September of 1977, Mr. Hall had his individual checking account at the First State Bank of Lonoke changed to a joint account in the name of “Mr. or Mrs. Charles L. Hall (Helen L.).’’ On April 11,1978, he purchased a $30,000 certificate of deposit in the name of “Charles L. or Helen L. Hall.” He told Mrs. Hall he had placed $30,000 in savings in both names. The certificate matured in April, 1979, and Charles L. Hall cashed it for $31,840.00 and purchased a new certificate of deposit for $25,000.00. It was issued just like the former certificate. The balance of the money was deposited in the joint checking account. The $25,000.00 certificate matured in October, 1979, and the maturity sum, $26,059.59, was deposited in their joint checking account. The next day, Mr. Hall drew a $23,000.00 check on their account and purchased the $18,000.00 certificate of deposit in question. With the remaining $5,000.00 he opened the individual savings account in question in his name only.
Mrs. Hall said she was shown the $18,000.00 certificate, and saw both their names on it. She said Mr. Hall placed it in a drawer, specifically telling her that it was there if she ever needed it or wanted it. She said it was only after his death that she examined the certificate and found it had been changed. Unknown to his wife, Mr. Hall had taken the certificate to the bank and requested a bank official to alter it to read Charles L. Hall. Her name was erased and the certificate altered to so read. It was initialed by the bank official.
It was undisputed that the money used to buy all these certificates was Mr. Hall’s funds; Mrs. Hall made no contributions at all. While she wrote a check occasionally, Mr. Hall managed the checking account. She did not allege she was denied access to any of these transactions.
The trial court was right in holding that the alteration of the certificate of deposit was contrary to law. Ark. Stat. Ann. § 67-552 (g) requires that in order to change the designee of an account there must be written directions accepted by the banking institution. Lovell v. Marianna Federal Savings & Loan, 264 Ark. 99, 568 S.W.2d 38 (1978). There is no doubt the Halls held the certificate as tenants by the entirety, and since that estate was not legally changed, it remained so. The proceeds are Mrs. Hall’s. But the estate argues that Ark. Stat. Ann. § 67-552 requires written instructions before such an estate can be created in such an instrument, and since there were no written instructions to the bank to issue these instruments, no estate by the entirety was ever created. We held in Cook v. Bevill, 246 Ark. 805,440 S.W.2d 570 (1969) that no such instructions are necessary when issuance is to husband and wife.
The $5,000.00 savings account was properly issued in Mr. Hall’s name only; it was never altered and the trial court held that it belonged to the estate. Mrs. Hall argues that since the checking account was in the name of Mr. & Mrs. Hall, it was their joint property as were the certificates of deposit bought from the funds in that checking account; therefore, the funds got from the redemption of the $25,000.00 certificate of deposit, $5,000.00 of which was deposited in Charles Hall’s savings account, were also joint property. Mr. Hall properly drew the checks on their checking account to purchase the certificates and those certificates were properly issued and redeemed. Mr. Hall opened the savings account with part of those funds and, therefore, the account was not illegally or improperly created. Mrs. Hall was never denied access to the checking account and the last transactions occurred over five months before Mr. Hall died. She certainly could have known of all the transactions regarding the checking account if she chose to. See Lovell v. Marianna Federal Savings & Loan, supra. Based on such a state of undisputed facts the trial court properly ruled that as a matter of law the savings account was not jointly held and was the property of the estate.
The estate argues that the probate court did not have jurisdiction since this was a dispute over the title to the accounts, a subject for litigation in chancery court. This argument is premised on the fact that since Mrs. Hall could not receive her dower interest because of our decision in Hall v. Hall, 274 Ark. 266, 623 S.W.2d 833 (1981), she was a stranger to this action and, therefore, any dispute between her and the estate belonged in chancery. The simple fact that Mrs. Hall was denied certain rights by operation of law did not make her a legal stranger to this case. She was still his widow and the claim was properly adjudicated by the trial court.
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John I. Purtle, Justice.
Appellees, Rodney and Earlean Fields, rented an apartment from Gary Ross who had recently acquired the property from Dalrymple. A fire in the apartment destroyed the Fields’ personal property and they filed suit to recover against Ross. Ross filed a third party complaint against Dalrymple and plaintiffs amended their complaint against Ross to recover punitive damages from Dalrymple. A jury awarded the Fields a judgment for $6,000 compensatory damages and $7,500 in punitive damages. They allocated the negligence of Ross at 15% and Dalrymple at 85%. The jury also awarded Ross $10,000 compensatory damages but no punitive damages against Dalrymple. Dalrymple’s motion for a new trial was denied, and this appeal results.
Appellants argue three points for reversal: (1) the trial court erred in denying appellants’ motion for a directed verdict and for judgment notwithstanding the verdict; (2) the trial court erred in allowing proof of Dalrymple’s financial status; and, (3) the trial court erred in allowing evidence of unrelated violations of the building code and regulations. We agree that there was no evidence to support a verdict for punitive damages and that Dalrymple’s financial status was not properly in issue. Also, we agree that it was error to allow evidence of unrelated building code violations.
There seems to be no serious dispute but that a fire in the Fields’ rented apartment, which was owned by Ross, resulted from defective wiring near a hot water heater which was encased in a crawl space and was unavailable for inspection by the Fields. The Fields were not at home at the time of the fire but upon returning home and discovering the fire Mrs. Fields, who was pregnant, became very upset and ill. Her baby was born slightly premature approximately a month later. There was evidence that she did have ailments and complaints related to the loss of their property in the fire. The suit was filed on October 1, 1979, by the Fields against Ross. They alleged he knew or should have known of the dangerous situation and that he had been notified that some irregularity existed concerning the hot water heater and their high electric bills. They alleged he took no action in regard to the situation. The complaint alleged that Ross breached the warranty of habitability by furnishing an unsafe dwelling place. Ross entered a general denial and filed a third party complaint against Baseline Corporation, Dalco Corporation and Ociad Corporation as well ás John and Barbara Dalrymple. All parties agreed that the foregoing corporations and Dalrymple were one and the same. The complaint by Ross alleged negligence through unworkmanlike construction and improper maintenance and repairs. On February 18,1981, the third party complaint was amended to allege that Dalrymple was guilty of gross and wanton conduct and negligence in complete disregard to the consequences of human safety. It alleged a conscious knowledge on the part of Dalrymple. The Dalrymples entered a general denial. On March 2,1981, the complaint of the Fields was amended to seek punitive as well as compensatory damages. Also, on the same date the Fields filed a complaint against the third party defendant in which they accused him of conduct giving rise to punitive damages.
We first consider whether the trial court erred in denying appellants’ motion for a directed verdict on the issue of punitive damages and for a judgment notwithstanding the verdict on a motion for a new trial. Before punitive damages may be allowed it must be shown that in the absence of proof of malice or willfulness there was a wanton and conscious disregard for the rights and safety of others on the part of the tortfeasor. Tucker v. Scarbrough, 268 Ark. 736, 596 S.W.2d 4 (Ark. App. 1980). We have also quoted with approval prior decisions holding exemplary damages proper where there is an intentional violation of another’s rights to his property. Ford Motor Credit Co. v. Herring, 267 Ark. 201, 589 S.W.2d 584 (1979). We hold the trial court erred in failing to direct a verdict as to the punitive damage portion of this case.
In viewing the record we do not find any evidence that either Dalrymple or Ross were guilty of activities which would give rise to exemplary damages. The issue in question was well-stated in the case of Hodges v. Smith, 175 Ark. 101, 293 S.W. 1023 (1927), which stated:
... negligence alone, however gross, is not sufficient to justify the award of punitive damages. There must be some element of wantonness or such a conscious indifference to the consequences that malice might be inferred. In other words, in order to warrant a submission of the question of punitive damages, there must be an element of willfulness or such reckless conduct on the part of the defendant as is equivalent thereto.
Appellants also insist that the court erred in allowing the plaintiffs access to Dalrymple’s financial status and allowing it to be presented to the jury. One of our leading cases on this point is Life & Casualty Ins. Co. of Tenn. v. Padgett, 241 Ark. 353, 407 S.W.2d 728 (1966). In Padgett we held that where two or more defendants were sued for punitive damages the plaintiff waived his right to prove the financial condition of any one of them. In the present case the appellees did not originally sue for punitive damages but through a separate pleading at a later date they sought punitive damages against Dalrymple and Ross. We reached the same result in the case of Dunaway v. Troutt, 232 Ark. 615, 339 S.W.2d 613 (1960), as well as in Curtis v. Partain, Judge, 272 Ark. 400, 614 S.W.2d 671 (1981). Therefore, itwas error to allow the evidence relating to the financial worth of Dalrymple.
The plaintiffs and Ross presented evidence of several other code and ordinance violations. The ordinances, or the pertinent parts, were treated as having been introduced into evidence. However, a search of the record on appeal indicates that the ordinances or the perinent parts thereof were never introduced into the trial court’s record. We have held as far back as Pugh v. The City of Little Rock, 35 Ark. 75 (1879) that parol evidence is not admissible to prove an ordinance or resolution of a city council. See also Indemnity Ins. Company of North America v. Harrison, 186 Ark. 590, 54 S.W.2d 692 (1932). These alleged violations were such things as lack of fire stops in the attic; no fire wall separating apartments; only one door to the outside from the apartment; an outside staircase and steps constructed of wood. None of these violations, or others presented during the course of the trial, had any bearing on the cause of the fire nor do they rise to that degree of manifest indifference from which malice may be inferred. We think the trial court would have erred by allowing into evidence these independent and unrelated violations even if the code or ordinances had been properly in the record. We held in Myers v. Martin, 168 Ark. 1028, 272 S.W. 856 (1925), that where the issue is one of negligence or non-negligence on the part of a person on a particular occasion, other acts of negligence are not admissible. The appellees state that the evidence of the other violations was eventually submitted to the jury by mutual agreement of all of the parties to this action. Even though the matter was submitted by agreement of all the parties, it was after the court had overruled Balrymple’s objections to the other violations. Also, there had been a motion in limine to prevent the introduction of the other violations which had no connection with the fire. We have held that a motion in limine preserves the objection throughout the trial. Ward v. State, 272 Ark. 99, 612 S.W.2d 118 (1981).
We note appellees’ objection to appellants’ argument that the issue of substantial evidence was not preserved. However, ARCP Rule 50 (e) quoted by appellees states on its face that the sufficiency of the evidence is preserved when there has been a motion for a j udgment notwithstanding the verdict or a motion for a new trial.
Earlean Fields claimed personal injury as a result of this incident. However, she was not injured by the fire and suffered no direct trauma or anything of that nature. We have consistently held that a claimant’s right to recover for emotional distress and related injuries may be had only upon proof of the existence of willful and wanton wrongdoing on the part of the tortfeasor. M.B.M. Co., Inc. v. Counce, 268 Ark. 269, 596 S.W.2d 681 (1980). Also, AMI 1101 sets out guidelines for conduct which will give rise to punitive damages.
A review of the record indicates that the jury had ample evidence to find the appellants and Ross had breached the warranty of habitability at the Fields’ rented apartment. However, we feel that by introducing evidence of Balrymple’s financial status, the jury may well have been improperly influenced in their allocation of compensatory damages. Therefore, we must remand for a new trial in accordance with this opinion.
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Richard B. Adkisson, Chief Justice.
This is a second appeal from a suit in which The Little Rock School District, hereinafter LRSD, seeks damages arising from the roofing of Parkview High School. This case was first before us in The Little Rock School District v. Celotex Corporation, 264 Ark. 757, 574 S.W.2d 669 (1978); Supplemental Order, 264 Ark. 768-A, 576 S.W.2d 709 (1979) and was remanded.
LRSD originally filed this action in Pulaski County Circuit Court on March 25, 1975, against Celotex Corporation, the manufacturer of the roofing material, and Knox Gill Company, the roofing subcontractor, alleging breach of implied and express warranty and negligence. Celotex and Knox Gill filed third-party complaints against Cromwell, Neyland, Truemper, Levy and Gatchell, Inc., hereinafter Cromwell, the architectural firm, alleging negligence. Knox Gill also filed a cross-complaint against Celotex Corporation alleging negligence and breach of warranty.
On the first appeal this Court held that all grounds for relief between the parties were barred by the statute of limitations, except for express warranty which was held to be a question for the jury.
After remand to the circuit court LRSD amended its complaint against Celotex Corporation to allege fraudulent misrepresentations and requested punitive damages. Knox Gill amended its cross-complaint against Celotex Corporation to ask for similar relief. The trial court, by order dated September 22,1981: (1) denied Celotex’s motion to strike and dismiss the fraudulent misrepresentation and punitive damage claims; (2) dismissed Celotex’s third-party negligence complaint against Cromwell; (3) dismissed LRSD’s negligence count against Celotex and Knox Gill. All the parties appeal. We affirm.
Celotex argues the trial court erred in failing to strike and dismiss the amended complaints for fraudulent misrepresentation of LRSD and Knox Gill. The trial court, in refusing to dismiss, found “factual issues which must await disposition upon submission of proof.” The trial court’s order refusing to dismiss is not a final order which may be appealed under Rule 2 of the Arkansas Rules of Appellate Procedure, Ark. Stat. Ann., Vol. 3A (Repl. 1979). The denial of a motion to strike portions of a pleading is not a final order under Rule 2. See also Williams v. Varner, 253 Ark. 412, 486 S. W.2d 79 (1972); Stacker & Dugan v. Southwestern Co., 245 Ark. 350, 432 S.W.2d 481 (1968).
But, Celotex argues that the refusal to strike is an appealable intermediate order under Rule 2 (b) which provides:
An appeal from any final order also brings up for review any intermediate order involving the merits and necessarily affecting the judgment.
Celotex contends that the dismissal of Celotex’s third-party negligence complaint and the dismissal of LRSD’s negligence claim against Celotex and Knox Gill are the final orders which make Rule 2 (b) applicable. We disagree. The dismissal of these claims is not a final order for purposes of this case because these claims were previously disposed of by the Court in the first appeal. There, by supplemental per curiam order, we granted Cromwell’s petition for rehearing, holding that negligence causes of action were barred by the statute of limitations. By the granting of that petition, all claims against Cromwell were dismissed, including those of Celotex, Knox Gill, and LRSD. That holding became the law of the case and is controlling upon this Court in a second appeal. Furthermore, although the per curiam’s dismissal of the negligence claim did not expressly apply to a party other than Cromwell, the order’s effect was to dismiss LRSD’s negligence claim against Celotex and Knox Gill, Knox Gill’s negligence claim against Celotex, and Celotex’s negligence claim against Knox Gill.
The above holding as to the meaning of our supplemental opinion disposes of the other issues argued on appeal.
Affirmed. | [
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Per Curiam.
Petitioner Glenn Barnum was convicted in the Circuit Court of Pulaski County of attempted capital murder, Ark. Stat. Ann. § 41-701, 1501 (Repl. 1977), and aggravated robbery, Ark. Stat. Ann. § 41-2102 (Repl. 1977). He was sentenced to a term of 24 years imprisonment for attempted capital murder and a term of 20 years imprisonment for aggravated robbery with the sentences to run consecutively. We affirmed. Barnum v. State, 268 Ark. 141, 594 S.W.2d 229 (1980). Petitioner now seeks permission to proceed in circuit court for postconviction relief pursuant to Arkansas Criminal Procedure Rule 37 for the purpose of vacating or setting aside his 20 year sentence for aggravated robbery.
Petitioner alleges that it was improper for him to be convicted and sentenced for attempted capital murder and aggravated robbery since aggravated robbery was the underlying specified felony to the charge of attempted capital murder. He asserts, inter alia, that the conviction and sentence for aggravated robbery violates Ark. Stat. Ann. § 41-105 (Repl. 1977).
When a criminal offense, by its definition, includes a lesser offense, a conviction cannot be had for both offenses. § 41-105. Rowe v. State, 275 Ark. 30, 627 S.W.2d 16 (1982); Simpson v. State, 274 Ark. 188, 623 S.W.2d 200 (1981); Swaite v. State, 272 Ark. 128, 612 S.W.2d 307 (1981). Section 41-105, supra, reads in pertinent part:
(1) When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense. He may not, however, be convicted of more than one offense, if:
(a) one offense is included in the other as defined in subsection (2):
(2) A defendant may be convicted of one offense included in another offense with which he is charged. An offense is so included if:
(a) it is established by proof of the same or less than all the elements required to establish the commission of the offense (required to establish the commission of the offense) charged; or
(b) it consists of an attempt to commit the offense otherwise included within it; or
(c) it differs from the offense charged only in the respect that a less serious risk of injury to the same person, property, or public interest or a lesser kind of culpable mental state suffices to establish its commission.
In proving the elements of attempted capital murder, it is necessary to prove the elements of aggravated robbery. Rowe v. State, supra. Therefore, in light of our recent holdings in regard to Ark. Stat. Ann. § 41-105 in Rowe, Simpson and Swaite, supra, we hold that the sentences imposed on petitioner were in excess of the maximum sentence authorized by law. In accordance with Rule 37.1, we therefore set aside petitioner’s conviction and sentence for the lesser included offense of aggravated robbery. Rowe v. State, supra. The conviction and sentence for attempted capital murder are not disturbed. Since the conviction and sentence for aggravated robbery are set aside, an evidentiary hearing in circuit court, as requested by the petitioner, becomes unnecessary.
Petition granted in part and denied in part. | [
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George Rose Smith, Justice.
On June 16,1980, Luther Hall acted as a lookout while his two accomplices killed Leonard Jones and Carl Jackson by shooting them repeatedly while they were tied up in the trunk of a car. After that the three men decided to rob Rosemary Bogard and killed her in the course of that felony.
Hall was first tried separately for the capital murder of Jones and Jackson, was found guilty, and was sentenced to life imprisonment without parole, the State having waived the death penalty. About 70 days later Hall was tried for the capital felony murder of Rosemary Bogard, was found guilty of second degree murder, and was sentenced as an habitual criminal to 30 years’ imprisonment, to run consecutively to the life sentence. The first case was appealed to this court. The second case was transferred to us and consolidated with the first one, because related issues with regard to Hall’s confession are involved. Four points for reversal are presented.
First, it is argued that Hall’s confession should have been excluded as having been involuntary. Hall was arrested on a warrant one Friday morning and after having been warned of his rights was interrogated for some time, but he made no statement. He was not questioned on Saturday or Sunday. On Monday morning he was taken before the municipal court, where the judge again explained his rights and explained the charges and the right to appointed counsel. Hall said that he would retain his own counsel. Upon being returned to the jail Hall said he wanted to make a statement, apparently to give his side of the occurrences as opposed to that of the other two suspects. After being informed of his rights for still a third time Hall made a detailed confession, which was tape recorded. The statement covered both criminal episodes, but only that part relating to the killing of Jones and Jackson was eventually read to the jury at the first trial.
The voluntariness of the confession turned almost entirely upon matters of credibility. No physical mistreatment of any kind is alleged, but there were conflicts in the testimony about whether Hall was allowed to make telephone calls or was promised leniency. Having given due weight to the trial judge’s advantageous position in the resolution of such conflicts, we cannot say his decision was clearly erroneous. Harvey v. State, 272 Ark. 19, 611 S.W.2d 762 (1981).
Second, at the close of the State’s proof defense counsel moved for a directed verdict because of a supposed fatal variance between the information and the proof, in that the information charged that the defendants, with the purpose of causing the death of “another” person (instead of “any” person, as the statute reads, Ark. Stat. Ann. § 41-1501 [c] [Repl. 1977]), caused the death of Jones and Jackson. The trivial variance in wording had no prejudicial effect whatever upon Hall’s substantial rights and does not call for serious discussion. For more than a century it has been the state’s policy to disregard such defects. Ark. Stat. Ann. § 43-1012 (Repl. 1977).
Third, since the decision in Jackson v. Denno, 378 U.S. 368 (1964), the trial judge determines the voluntariness óf a confession after an in-chambers hearing and is not required to resubmit that issue to the jury. Walker v. State, 253 Ark. 676, 488 S.W.2d 40 (1972); Brown v. State, 239 Ark. 909, 395 S.W.2d 344 (1965), cert. denied 384 U.S. 1016 (1966). Consequently, as explained in AMCI 200, Comment, the Arkansas model criminal jury instructions do not include an instruction with respect to confessions, because the weight and credibility of the testimony are matters to be argued by counsel.
Nevertheless, the trial judge is free to submit the issue of voluntariness to the jury if he thinks it to be appropriate. Here the trial judge said he was submitting the issue because he was asked to do so by the prosecution and by the defense. As between the two instructions that were offered, he gave the State’s instruction after modifying it to include an explanation that the presumption that an in-custody confession is involuntary must be overcome by the State by a preponderance of the evidence.
The two tendered instructions were substantially similar, but it is argued that the State’s instruction, given by the court, was defective in two respects: First, it did not specifically refer to a promise of leniency. It did, however, refer to any promise or favor, which was certainly sufficient to enable counsel to argue the matter to the jury. Second, it did not tell the jury that the requirement of voluntariness is based upon the constitutional privilege against self-incrimination. We find it impossible to believe that the inclusion of such an abstract statement of the source of law would have had any effect upon the jury’s deliberations.
Fourth, even though the same confession was introduced in both cases after the trial judge had determined its voluntariness at a Denno hearing preceding the first trial, it is insisted that he should have conducted a second Denno hearing at the second trial for a second determination of the same question. In denying the motion for another hearing the trial judge said: “Apparently from what I’m told there would be no difference in the testimony, there would be no new evidence, no new witnesses, and it would simply be an exercise in futility — really an endurance contest — to hear the same thing I’ve spent a day listening to already.... I’m going to order that a transcript of the Denno hearing held in the previous case ... be made a part of the record in this case.”
We find no abuse of the trial court’s discretion. The first Denno hearing had consumed almost a day. Fourteen witnesses, including a police officer from another county, had testified. If defense counsel had any new matter to offer, witnesses could have been called to supplement the original proof. No such offer was made. Following our practice of giving a commonsense interpretation to statutes, we cannot construe the pertinent statute as mandatory in the circum stances now presented. Ark. Stat. Ann. § 43-2105; and see Henderson v. Russell, 267 Ark. 140, 589 S.W.2d 565 (1979); Ark. State Hwy. Commn. v. Mabry, 229 Ark. 261, 315 S.W. 2d 900 (1958).
We discern no prejudicial error in the various other objections and rulings that have been brought to our attention.
Affirmed.
Adkisson, C.J., and Purtle, J., dissent. | [
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Frank Holt, Justice.
Following our reversal in Adams v. State, 263 Ark. 536, 566 S.W.2d 387 (1978), a jury found appellant guilty of aggravated robbery and theft and as sessed his punishment at 25 years and 7 years respectively as a habitual offender. We affirm.
We first consider appellant’s contention, through court appointed counsel, that the court erred in allowing the state to substitute an expert fingerprint witness the day before trial because of the unexpected illness of the scheduled expert witness. The state had tried to immediately notify appellant’s counsel. The trial court denied appellant’s motion that the substituted witness be precluded from testifying. However, the court did grant a six day recess to permit defense counsel to interview the witness and investigate his qualifications. No error is demonstrated. Sumlin v. State, 273 Ark. 185, 617 S.W.2d 372 (1981).
Neither can it be said that the trial court erred in denying appellant’s motion for funds to pay some unknown, unnamed witness to rebut the testimony of the state’s substituted fingerprint expert. Admittedly, appellant knew that the state would present a fingerprint expert witness. Further, appellant does not argue nor has he shown that the testimony of a substitute witness would be any different from that of the unavailable witness for which he had admittedly made sufficient preparation.
Appellant asserts that the trial court erred in numerous other instances. A sufficient answer is that we do not consider arguments which are not presented to the trial court and are raised for the first time on appeal in this type of case. Kitchen v. State, 271 Ark. 1, 607 S.W.2d 345 (1980); Sumlin v. State, supra. The record on appeal is confined to that which is abstracted. Jones v. Reed, 267 Ark. 237, 590 S.W.2d 6 (1979). Furthermore, we do not reach a contention when, as here, it is not supported by convincing argument nor authority unless apparent, without further research, the contention is well taken. Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977).
Again we find it necessary to emphasize compliance with the procedure set out in Rule 9, Rules of the Supreme Court, Ark. Stat. Ann. Vol. 3A (Repl. 1979), which must be strictly followed in order to enable the court to determine whether there is merit in any asserted point of error. That necessity was fully discussed in Randle v. State, 257 Ark. 232, 516 S.W.2d 6 (1974); Kitchen v. State, supra; and Jones v. Reed, supra. The mere scattering of transcript references in an appellant’s argument is not a sufficient substitute for the requirement of a proper abstract. Kitchen v. State, supra.
Affirmed. | [
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Steele Hays, Justice.
Appellee was formerly employed at a warehouse of appellant Dillard Department Stores, Inc., and brings this action for defamation based on statements by supervisory employees of Dillard accusing him of theft. The trial court sitting with a jury awarded appellee $2,000 compensatory damages and $5,000 punitive damages. For reversal, appellant contends, first, the defamatory statements relied upon by the appellee did not exceed the qualified privilege existing under the law and there was no substantial evidence that the statements were made with express or implied malice; and second, the evidence does not support an award of punitive damages. We sustain the argument with respect to punitive damages but affirm the judgment as to compensatory damages.
Stating the facts most favorably to the appellee: On June 28, 1981, at quitting time, a Dillard security officer observed a box of Dillard merchandise in appellee’s car in the parking lot. Appellee was unable to produce a sales receipt, as required of employees who make cash purchases from the company. The following morning he was called to the office of the warehouse supervisor, George Burger. Mr. Burger, Emory Martin, appellee’s immediate supervisor, and the appellee were present. Mr. Burger asked appellee to explain his possession of the merchandise without a sales receipt and his having been seen leaving the warehouse with the merchandise by an unauthorized exit. Appellee’s response was that the exit rule was not enforced and that he had bought the articles the previous week at a company warehouse sale and had left them in Mr. Martin’s office over the weekend. He said the merchandise and sales receipt were in a Dillard’s sack but somehow during the interval the sack was destroyed and the receipt lost. Mr. Burger said, “I think you’re a liar and a thief.” He told appellee he had received an anonymous telephone call that appellee had been attempting to sell two stereo speakers missing from the warehouse, suggesting the evidence might justify criminal prosecution. At this point appellee became angry and walked out of the meeting. Outside Burger’s office as he was leaving, appellee told a fellow employee, Alonzo Waller, that he had been accused “of taking some things.” When Mr. Martin came out of Burger’s office, Waller asked him what had happened and in the presence of several employees Martin said appellee had been fired because he had been caught stealing.
Sometime later appellee’s wife called Mr. Martin to ask why appellee was fired. She testified Mr. Martin said all he knew was “there was an anonymous phone call about some speakers that Ronnie was selling and that there was nothing he could do. ...”
Appellee went immediately to the Employment Security Division to seek unemployment benefits. Appellee testified he told an unidentified woman interviewing him, “... I was fired and accused of theft and dishonesty.” When the ESD interviewer called Mr. Burger to verify appellee’s termination, Burger testified:... “She said, ‘I want to verify that Mr. Felton was fired for alleged theft’ and I just said ‘no,’ that he was going to be terminated for violation of company rules.” This testimony of this conversation is uncontradicted as the unidentified ESD employee did not testify.
Still later Mrs. Willis of the Employment Security Division telephoned Carl Williams, appellant’s Director of Personnel, requesting a letter stating the reasons for appellee’s termination. Mr. Williams wrote in response: “The circumstances leading up to this involves Mr. Felton having possession of merchandise for which he could not produce a receipt.”
First, we consider whether the publication of these communications exceeded the scope of the qualified privilege. The relevant law is summarized in the Restatement (Second) of Torts § 595 (1981):
(1) An occasion makes a publication conditionally privileged if the circumstances induce a correct or reasonable belief that
(a) there is information that affects a sufficiently important interest of the recipient or a third person and,
(b) the recipient is one to whom the publisher is under a legal duty to publish the defamatory matter or is a person to whom its publication is otherwise within the generally accepted standards of decent conduct.
(2) In determining whether a publication is within the generally accepted standards of decent conduct it is an important factor that
(a) the publication is made in response to a request rather than volunteered by the publisher or
(b) a family or other relationship exists between the parties.
Prosser explains the qualified privilege as follows:
There remain a group of situations in which the interest which the defendant is seeking to vindicate is regarded as having an intermediate degree of importance, so that the immunity conferred is not absolute, but is conditioned upon publication in a reasonable manner and for a proper purpose. The privilege is therefore spoken of as “qualified,” “conditional,” or “defeasible.” It is difficult to reduce these cases to any single statement, and perhaps no better formula can be offered than that of Baron Parke, that the publication is privileged when it is “fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned.” W. Prosser, The Law of Torts, § 110, p. 805 (3rd ed. 1964).
One important condition attaches to the qualified privilege, such communications must be exercised in a reasonable manner and for a proper purpose. The immunity does not protect a defendant from publication to persons other than those whose hearing is reasonably believed to be necessary or useful for the furtherance of that interest. Prosser, supra, at p. 819.
We believe the statements made at the June 19 closed-door meeting come within the qualified privilege afforded an employer. Merkel v. Carter Carburetor Corp., 175 F.2d 323 (8th Cir. 1949), 53 C.J.S. Libel and Slander, § 109 (1948). The only persons present other than the appellee were the warehouse manager and a supervisor, both of whom had a legitimate interest on behalf of appellant to investigate appellee’s possession of merchandise without the required receipt.
Nor does the communication from Mr. Martin to appellee’s wife strike us as excessive. The communication was factual and was in response to her inquiry. (See Restatement, supra.) She had an interest in learning the reason for her husband’s termination, making this communication neither unnecessary nor excessive. Thomas v. Kaufman’s, 436 F. Supp. 293 (W.D. Penn. 1977), 53 C.J.S. Libel and Slander § 120 (1948).
We next examine those statements made by appellant’s employees to the Employment Security Division. The trial court held these not to be within the qualified privilege. We disagree. These communications fall within the general rationale for which the qualified privilege was created by protecting statements made in good faith with reasonable grounds for believing them to be true on a subject matter in which the author has a public or private duty to a person having a corresponding duty. 53 C.J.S. Libel and Slander § 89 (1948). Similarly, this privilege extends to reporting agencies. Dun & Bradstreet, Inc. v. Robinson, 233 Ark. 168, 345 S. W.2d 34 (1961). Under the Employment Security Act a discharged employee’s entitlement to benefits depends in part on the circumstances of his termination and plainly the employer’s duty to report accurately to the ESD carries a qualified privilege. We find no evidence that the content of all of the communications, oral and written, to the Employment Security Division was factually inaccurate, beyond what was necessary, or was lacking in good faith.
Finally, the statement by Emory Martin to Alonzo Waller and others that appellee was “fired because he was caught stealing” cannot be similarly disposed of, as we find no justification in fact for Martin’s statement, nor any reason for the recipients (Waller and the other employees) to have an important interest affected by the investigation. Notwithstanding the fact that Waller, rather than Martin, initiated the communication and that some privilege applies to an employer’s right to inform other employees that one of their number has been discharged for theft, nevertheless, when viewed in the light most favorable to the appellee we find the statement exceeds that which was necessary to the sitaution. Martin did not simply state that appellee was under investigation for theft, or for violation of rules, but that appellee was fired because he was caught stealing. The statement was factually incorrect and obviously injurious to the appellee. He was not caught stealing and according to appellant’s argument on appeal he had not even been fired, but had quit. The most that Martin could have said in truth was that appellee had been found to be in possession of goods without a receipt and was suspected of theft. Since we find no legitimate interest necessitating Martin’s statement and find it to have been factually inaccurate at the expense of appellee’s reputation, we think it excessive and therefore supportive of the award of compensatory damages.
Appellant argues that any defamatory impact was effectively nullified by the fact that Waller had already been told essentially the same thing by appellee on leaving the warehouse. But we disagree. There is a vast difference in saying someone is accused of stealing, as opposed to saying that someone has been fired because he was caught stealing. The former plainly implies the possibility of error — the latter, unquestioned guilt. Mr. Martin was under no obligation to divulge anything to other employees, at least at that point, and having chosen to speak, his communication should have been strictly accurate. When this evidence is given its fullest import it exceeds the privilege afforded under law. In Arkansas Associated Telephone Company v. Blankenship, 211 Ark. 645, 201 S.W.2d 1019 (1947), we approved the following language:
“The protection of the privilege may be lost by the manner of its exercise, although the belief in the truth of the charge exists. The privilege does not protect any unnecessary defamation. In order for a communication to be privileged, the party making it must be careful to go no farther than his interest or his duties require. Where the party exceeds his privilege and the communication complained of goes beyond what the occasion demands that he should publish, and is unnecessarily defamatory of plaintiff, he will not be protected, and the fact that a duty, a common interest, or a confidential relation existed to a limited degree is not a defense, even though he acted in good faith.” (At p. 651.)
Turning to the question of malice, the trial judge expressly found no actual malice. The appellee acknowledged that he did not believe either Burger or Martin “had it in for him.” In fact, he admitted that Mr. Martin suggested appellee use his name as a reference for future employment. Appellee argues malice may be inferred from appellant’s failure to further investigate the alleged theft after the June 19 meeting. The argument is unsound. Appellant’s action or inaction in this respect is consistent with its contention that the appellee had quit and consequently there was no reason to continue the investigation or take further steps in the matter.
Although it is said that express malice requires no extrinsic proof and can be inferred by the jury from all of the circumstances of the case, nevertheless where the totality of the evidence is such that fair-minded men could not infer malice, an award of punitive damages cannot be upheld. We find no evidence that any ill-will was harbored by appellant’s employees, or that they were motivated by malice or bad intent toward the appellee, as his own testimony sustains. It is significant that Martin’s statement was not volunteered, but made in response to Waller’s question, an important element in mitigation (Restatement, supra). We conclude the award of punitive damages cannot be upheld. Braman and The Gus Blass Co. v. Walthall, 215 Ark. 582, 225 S.W.2d 342 (1949); Stallings v. Whittaker, 55 Ark. 494, 18 S.W. 829 (1892); Luster v. Retail Credit Co., 575 F.2d 609 (8th Cir. 1978).
Affirmed as to compensatory damages; reversed as to punitive damages. | [
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Richard B. Adkisson, Chief Justice.
After a trial by jury appellant, James Dean Walker, was convicted of felony escape and sentenced to two years in the Arkansas Department of Correction, with the sentence to run consecutively to any sentence then being served. On appeal from this conviction the only issue is whether the trial court erred in instructing the jury pursuant to AMCI 6004, the instruction for deadlocked juries. We affirm.
The jury was given the case on the afternoon of October 19, 1981, but had still not reached a verdict after approximately four hours of deliberation. At that time the court asked the foreman how the jury stood in its voting. The foreman responded that it was nine to three. The court then gave the jury an instruction commonly known as the "Allen charge” which is essentially set out in AMCI 6004. In giving the instruction the court added the sentence emphasized below to the AMCI version:
It is to the interest of the State of Arkansas and of the defendant(s) for you to reach an agreement in this case, if at all possible. A hung jury means a continuation of the case and a delay in the administration of justice. And it also means additional expense on the taxpayers.
You should consider that this case will have to be decided by some jury and, in all probability, upon the same testimony and evidence. It is unlikely that the case will ever be submitted to 12 people more intelligent, more impartial, or more competent to decide it. ...
The instruction then goes on to tell the jury that they should weigh and discuss the evidence and make every reasonable effort to harmonize individual views on the merits of the case. It also states that no juror should surrender his sincere convictions to reach a verdict and that the verdict should be the result of each juror’s free and voluntary opinion, but that every sincere effort should be made to reach a proper verdict. After hearing this instruction the jury continued their deliberation but were unable to reach a verdict until the next morning.
Appellant objects to the sentence added by the court for two reasons: (1) the sentence is extraneous to issues of guilt or innocence or punishment; and (2) modification of the instruction should not have been made without the trial judge setting out in writing the reason for not giving the AMCI version.
In regard to instructing the jury on extraneous matter we held in Evans v. State, 252 Ark. 335, 478 S.W.2d 874 (1972) that:
An admonition to the jury as to its duty to return a verdict, without any expression of the court’s opinion as to the weight of the evidence, or any change in instructions previously given, or suggestion that any juror yield his individual convictions to reach a verdict is not improper.
In Graham v. State, 202 Ark. 981, 154 S.W.2d 584 (1941) this Court committed to the general rule that the trial court may detail to the jury the ills attendant upon a disagreement, including the expense. See also McGaha v. State, 216 Ark. 165, 224 S.W.2d 534 (1949).
In answering appellant’s second objection, we quote the “Note on Use” which follows AMCI 6004:
This instruction should not be given until the jury, after prolonged deliberation, has not reached a verdict. The trial judge may wish to give this type of instruction in his own words. The above is submitted as a guide to avoid errors sometimes made.
Because of the language in the note which invites the trial judge to use other language, it was not error to detail to the jury that necessary expense is involved in a subsequent trial, particularly where bur cases have approved such language.
Appellant also argues that the portion of the instruction which informs the jury that the case will have to be decided by some jury should not have been given because such a statement is legally inaccurate. Appellant points out that a jury may never decide the case because if there is a mistrial, the State has the authority to request dismissal of the action.
Although technically appellant is correct, it was not error for this language to be included in the instruction. There is always a possibility that a particular case will never be decided by a jury for any number of reasons, i.e., death of the defendant. But, as a practical matter, in most instances some jury will have to decide the case. Also, the statement itself does not encourage the jury to find the accused guilty; therefore, appellant cannot show any resulting prejudice from the language in the instruction.
Affirmed. | [
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Per Curiam.
James Surridge was convicted in the Circuit Court of Desha County of first degree murder. He was sentenced to a term of 50 years imprisonment in the Arkansas Department of Correction. Retained trial counsel, John Belew, filed a timely notice of appeal on July 24,1981, and secured Surridge’s release from custody on bail. Surridge was subsequently arrested for bank robbery and his bail was revoked.
Belew filed a motion with us on March 22, 1982, to be relieved as counsel and tendered a partial record. The clerk refused to accept it as untimely, and we denied the motion to be relieved. We said that if Belew would concede in a subsequent motion that it was his fault the record was not timely filed we would grant the motion. Although nearly three months have passed, Mr. Belew has not filed a second motion for rule on the clerk.
When it appears that the attorney is at fault, but he has not conceded as much, it is the practice of this Court to deny a motion for rule on the clerk. See our Per Curiam opinion dated February 5, 1969, In Re: Belated Appeals in Criminal Cases, 265 Ark. 964. It is made clear, however, that a subsequent motion will be granted if the attorney admits his error or gives other good cause for granting the motion.
Rule 36.26 of the Arkansas Rules of Criminal Procedure provides:
Trial counsel, whether retained or court appointed, shall continue to represent a convicted defendant throughout any appeal to the Arkansas Supreme Court, unless permitted by the trial court or the Arkansas Supreme Court to withdraw in the interest of justice or for other sufficient cause.
The method for taking the appeal is set out in Rule 36.9. In the case at bar, the attorney Belew was not relieved as counsel by the trial court before he filed the notice of appeal. Once the notice of appeal was filed, he was obligated to obtain permission from this Court to withdraw in accordance with Supreme Court Rule 11 (h). Ellis v. State, 276 Ark. 560 (July 12, 1982). Rule 11 (h) in pertinent part states:
Any motion by counsel for a defendant in a criminal case for permission to withdraw made after the notice of appeal has been given shall be addressed to this Court, shall contain a statement of the reason for the requests, and shall be served upon the defendant appealing.
Counsel, whether retained or appointed, cannot file the notice of appeal and sit idle. When a person convicted of a crime desires an appeal, his constitutional right to effective assistance of counsel is denied where counsel fails to pursue the appeal. See Finnie v. State, 265 Ark. 941, 582 S.W.2d 19 (1979); Harkness v. State, 264 Ark. 561, 572 S.W.2d 835 (1978). It is imperative that counsel abide by the rules of procedure, and it is incumbent upon this Court and the trial courts to see that the rules are consistently followed. To do otherwise leads to selective enforcement of the rules and confusion as to what constitutes proper appellate procedure.
In light of his failure to follow the procedure prescribed for withdrawal from a case, Belew remains attorney of record. He is therefore responsible for the duties imposed on him by the rules, statutes and opinions of the Court. Since the appellant has furnished this Court with an affidavit attesting to his indigency and is eligible to have counsel appointed, we will grant Belew’s motion to be relieved as retained counsel and appoint him counsel on appeal. A writ of certiorari shall be issued to prepare the record.
A copy of this opinion shall be forwarded to the Committee on Professional Conduct. | [
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Darrell Hickman, Justice.
Don Brown was convicted of aggravated robbery with a deadly weapon and sentenced to fifty years imprisonment. On appeal he raises two issues. First, he argues the court was wrong in granting a mistrial in the presence of the jury and dismissing two co-defendants from the trial. Second, he argues the court was wrong in admitting his confession because it was involuntary, taken after an undue delay and an illegal arrest. We find no error and affirm the judgment.
Brown, along with two other men, Edward Brown and Johnnie Glenn, was tried for the robbery of the Majik Market in West Memphis, Arkansas, which occurred on December 4, 1980. During closing argument, counsel for Brown pointed out to the jury that Brown was the only defendant who had taken the witness stand. At this point counsel for the other two defendants asked for a mistrial and it was granted. There was no objection to the motion for a mistrial, no exceptions to the judge’s ruling, and no request for an admonition. It is suggested that we should apply the plain error rule in this case and take into consideration the fact that the jury only had one of the three defendants before it and took its wrath out on this defendant. There is no evidence whatsoever to support that supposition. Brown’s counsel brought this matter about. No objection was made and without any showing of prejudice, we find no error in the court’s action.
The second issue requires more discussion. The court held a Denno hearing and heard testimony of various police officers and witnesses regarding the circumstances that led to Brown’s arrest, his incarceration, and his admission that he was involved in the Majik Market robbery. The West Memphis police department was investigating another robbery concerning the A-l Liquor Store. A victim of that robbery had identified the appellant as the robber and the police obtained a warrant for Brown’s arrest. When Brown went to the police station to obtain his automobile, which had been confiscated, they arrested him for this robbery. He was advised of his rights twice according to the police and at first denied complicity in the A-1 robbery. Later, on Sunday, the officers said that Brown confessed to both the Majik Market robbery and the A-l robbery. They testified that the confession was voluntarily given without any coercion on their part. On the basis of this confession they caused an information to be filed against Brown for the Majik Market robbery. Two witnesses who saw the Majik Market robbery told the police that Brown was one of the robbers. The witnesses said that they did not immediately identify Brown when they were questioned by the police but later did identify him. This all occurred during the weekend Brown was in jail. Brown testified that he was physically and mentally intimidated during his incarceration, threatened, and awakened early Sunday morning and questioned again.
It is unnecessary to elaborate in detail all the testimony of the police officers and Brown. Suffice it to say the trial court held a Denno hearing and found that the officers had probable cause to arrest Brown and that the statement was not involuntary. On appeal we make an independent determination of voluntariness of a confession. We consider the totality of the circumstances and will resolve all doubts in favor of individual rights, but we will not reverse the trial court’s holding unless it is clearly against the preponderance of the evidence. Degler v. State, 257 Ark. 388, 517 S.W. 2d 515 (1974). In this case there was a conflict between the testimony of Brown and the police officers and we have to defer to the superior position of the trial court to resolve the issue of credibility of the witnesses. Gardner v. State, 263 Ark. 739, 569 S.W. 2d 74 (1978).
Certainly we cannot say it is reversible error that Brown was not arrested for the Majik Market robbery until after he confessed. There is no doubt that a warrant was issued for his arrest in connection with the A-l robbery and he was arrested and incarcerated for that offense. He was in custody at the time he was placed under arrest for the Majik Market robbery and an information was caused to be filed against him for that offense. Even if the arrest was illegal, and we in no way deem it so, it would not vitiate his confession. Sanders v. State, 259 Ark. 329, 532 S.W.2d 752 (1976).
It is undisputed that Brown was held from late Friday afternoon through the weekend before he was taken before a magistrate on Monday morning. A.R.Cr.P., Rule 8.1, requires that an arrested person be taken before a magistrate without unnecessary delay. We cannot say on the facts in this case that Rule 8.1 was violated. See Wilson v. State, 258 Ark. 110, 522 S.W. 2d 413 (1975), cert. denied 423 U.S. 1017 (1975).
Purtle, J., concurs in part, dissents in part. | [
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Steele Hays, Justice.
This suit was brought on behalf of the Committee for Peaceful Co-Existence, Inc. by appellant, Dr. J. F. Cooley, alleging negligence and breach of contract by First National Bank in the handling of a joint checking account. After hearing the evidence, the Chancery Court held the claim was barred by the three-year statute of limitations (Ark. Stat. Ann. § 37-206 [Repl. 1962]), and the only issue on appeal is whether the chancellor’s ruling is clearly erroneous. We find no basis for a reversal of his ruling.
On August 29 of 1969, Dr. J. F. Cooley, Rev. Cato Brooks, as co-chairmen, and Rev. V. Castle Stewart, as a board member, opened a checking account in the name of the Committee for Peaceful Co-Existence. The signature card authorized the bank to honor checks drawn by any two of the three authorized signatures. All bank statements were to be sent to post office box no. 1787, the Little Rock address of the Committee for Peaceful Co-Existence. Dr. Cooley insists he never received a bank statement until after this suit was filed in December, 1976, but he concedes that three other persons, including Rev. Brooks, had access to the post office box. On February 16, 1970, the account name on the signature card was changed, apparently by Rev. Brooks and Rev. Roy L. Laird, to the Mobile Section of the Committee for Peaceful Co-Existence. Withdrawals required both signatures. In March 1970, some 22 checks totaling over $4,000 were drawn on the account by Rev. Brooks and either Rev. Stewart or Rev. Laird.
As early as November 1969, Dr. Cooley suspected that unauthorized withdrawals were being made from the account. He notified the bank verbally in November 1969 and by letter on March 26, 1970. He asked that copies of past statements and cancelled checks be sent to him, to no avail.
Dr. Cooley testified that around April 1, 1971, he went to the bank and demanded the records; he was told to come the next day to pick them up, but when he returned a bank officer told him someone from the committee had already claimed the. records earlier that morning. The bank then refused to give him the records because of the conflict within the committee and the bank’s uncertainty as to who was actually authorized to receive the records; Dr. Cooley said he made numerous inquiries and hired three attorneys between 1969 and 1976, and after this suit was filed the chancellor entered an order directing the bank to provide the committee with all records and documents relative to the disputed account.
Appellant argues the statute of limitations was tolled by his letter of March 26,1980, requesting records and directing the bank to stop honoring drafts on this account. He relies on Ark. Stat. Ann. § 85-4-406 (Add. 1961), which requires a bank to make statements reasonably available to customers. Dr. Cooley maintains he never received a bank statement nor was one ever made available to him.
Dr. Cooley’s only argument on appeal is the statute of limitations never started to run because the bank failed to make bank statements available. But whether the bank statements were sent was, of course, a question of fact. The chancellor resolved the issue in the bank’s favor and his finding will not be set aside unless clearly erroneous. ARCP Rule 52. The bank offered credible evidence at trial that the statements were mailed to post office box no. 1787, as designated on the signature card. Even after the signature card was changed, the mailing address for the bank statements continued to be post office box 1787. Joy Greer, a senior vice president in charge of the bank’s communications division, testified the only monthly statement addressed to the post office box which was returned to the bank was not until after the post office box had been closed out. Where bank statements are mailed to the address provided by the depositors as reflected on the signature card, we believe they are “available” within the meaning of Ark. Stat. Ann. § 85-4-406. Further, the usage and custom of a bank in delivering statements and cancelled checks to its depositors is competent evidence to prove delivery was effectuated. England Nat’l Bank v. United States, 282 F. 121 (8th Cir. 1922).
The bank’s payment of a check or withdrawal on less than the required number of signatures renders the signature “unauthorized” within the meaning of Ark. Stat. Ann. § 85-4-406 and requires the customer to discover and report it within one year from the time the statement and items are made available. Pine Bluff Nat’l Bank v. Kesterson, 257 Ark. 813, 520 S.W.2d 253 (1975); First National Bánk of Springdale v. Hobbs, 248 Ark. 76, 450 S.W.2d 298 (1980); Ark. Stat. Ann. § 85-4-406 (4).
Dr. Cooley’s testimony reveals he believed there were unauthorized withdrawals of money as early as November of 1969, yet he did not bring suit until December, 1976. In conclusion, we believe the evidence in the record is more than sufficient to support the chancellor’s conclusion that Dr. Cooley had knowledge of unauthorized withdrawals and yet failed to act within the time allowed under the statute of limitations.
Affirmed.
Adkisson, C.J., not participating. | [
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John I. Purtle, Justice.
At the close of the plaintiffs’ testimony in a personal injury suit the trial court directed a verdict in favor of the appellee (defendant). The only argument presented on appeal is that the court erred in granting the motion for a directed verdict at the close of the plaintiffs’ case. We disagree with the appellants’ contention and affirm the judgment of the trial court.
Plaintiffs, Dessie Warren and Sylvia Kyle, sisters and residents of Poinsett County, were injured about 10:00 p.m. on May 5, 1980, when an automobile driven by Sylvia Kyle collided with the wheels of a flat car sitting on a railroad track which crossed Judd Smith Road in Crittenden County, Arkansas. The automobile was damaged and the passenger, Dessie Warren, was seriously injured.
Mrs. Kyle stated she was familiar with the road and knew the railroad crossing was there. She admitted seeing what looked like a board across the road. She told her sister that she had never seen that before and her sister replied that it might be a detour sign. In any event, they did not attempt to stop until they were within 100 feet of the flat car at which time Mrs. Kyle hit her brakes and the automobile “slid casually into the wheel.” There was a crossing signal sign on the other side of the railroad tracks which both appellants had seen before. The driver testified her headlights were working properly, she had good brakes and her vision was good. There was no oncoming traffic meeting her nor any traffic signals beyond the track to indicate that vehicular travel was controlled. The appellant driver said she was driving very slowly and indicated that her speed was in the neighborhood of 30 miles per hour. The windows of the automobile were up and it was a clear night. Mrs. Kyle was looking for the railroad track because she was familiar with the area and knew it was nearby. She admitted knowing a crossbuck sign was located at the crossing. Dessie Warren, the passenger, testified essentially the same as her sister had testified. One of her statements regarding Mrs. Kyle’s actions was, “She was driving slow, because we were trying to figure out what we were going to hit.”
Although not impossible, the cases have been few and far between in allowing a recovery by someone running into a stopped train. A case relied on heavily by the appellants is Missouri Pacific Railroad Co. v. Purdy, 263 Ark. 654, 567 S.W.2d 92 (1978). The Purdy case is cited by the appellants for the proposition that it is not a settled rule of law that a plaintiff can never recover when running into a parked train. This is still the law; however, the facts of the present case do not constitute the situation described in Purdy.
The other case relied upon by the appellants is Hawkins v. Missouri Pacific Railroad Co., 217 Ark. 42, 228 S.W.2d 642 (1950). In Hawkins the trial court directed a verdict for the defendant just as occurred in the present case. However, we reversed on the theory that there was sufficient evidence to permit a jury to find negligence in the defendant and a lesser degree of negligence in the plaintiff who drove his automobile into the side of a standing freight train at a railroad crossing during the night. In Hawkins the accident occurred about 2:00 a.m., November 11, 1948, in Paragrould, Arkansas. The facts reveal that the crossing was a 90 degree one such as exists in the present case and it was a nighttime accident. Both Hawkins and his driver stated they were facing an oncoming car which had its lights on bright and blinded them somewhat. Also, they saw an operating traffic light in the middle of the street ahead of them on the other side of the tracks. They said they thought they had an unobstructed view down the highway, that there were no active signals at the crossing and that there was no brakeman or anyone to warn them that the boxcar was across the tracks. The boxcar had the doors on both sides open. Also, the track was elevated some two to three feet thereby causing meeting traffic to be somewhat hindered by the lights of an approaching vehicle. The Hawkins decision stated:
In the instant case we believe there was evidence from which the jurors might reasonably have found that the defendant through its employees failed to exercise the care which an ordinary prudent man would have exercised under the same or similar circumstances. The time of night, the lights visible across the track, the open space in the line of an autoist’s vision above the raised tracks and beneath the bottoms of the stopped freight cars, the wide open doors of the boxcar through which lights across the track shone while the boxcar stood motionless and silent, the absence of active crossing signals of any kind, the absence of guard or watchman, the fact that this was on a principal street in the business section of a goodsized city, and the fact that the train was then moved a distance down the track with neither sign nor signal given — all this was included in the evidence and if believed by the jury would indicate that defendant created, unintentionally but perhaps carelessly, something like a trap for unwary night drivers . . .
We do not see Hawkins v. Missouri Pacific Railroad Co., supra, as being comparable with the present case to the extent that the appellants should be allowed a recovery. The two ladies both saw the flat car on the track and wondered what it was doing there. One of them thought it was probably a board and the other one said she just wondered what it was they were going to run into. Therefore, both of them admitted failure to use proper care and that they were negligent to the extent of being responsible for this accident. The court made the judgment that the plaintiffs’ evidence would not support a judgment against the defendant. A review of the evidence presented shows that the court’s ruling was correct and was not an abuse of discretion. Therefore, we agree with the trial court and affirm this judgment.
Affirmed. | [
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Richard B. Adkisson, Chief Justice.
The Miller County Circuit Court held petitioner, an attorney, in contempt of court for advising his client in open court that it was not necessary for him to follow a lawful order of the court. Petitioner was sentenced to 24 hours in jail and fined $250. On appeal, we affirm.
The conduct which gave rise to the trial court’s finding of contempt occurred after the client’s case had been called. As petitioner and his client approached the bench the judge stated that he believed that the client was drunk. The following exchange then took place:
BY THE COURT:
Let’s take a breathalizer and see. Go with the sheriff.
BY MR. DAVIS:
Just a minute. I don’t see why he should be made to take one. It’s self-incriminatory, and he should be advised that he —
BY THE COURT
Because he is staggering and coming around here in open court, and I asked him if he’s had anything to drink, and he says he hadn’t.
BY THE DEFENDANT:
That was because of my boots that —
BY MR. DAVIS:
You don’t have to take the test.
BY THE COURT.
Yes, he will take the test, Mr. Davis. Mr. Sheriff, take him down. Now, if you want to get an order to stop me, you go ahead and get one, sir. But when I order one here in front, don’t you tell somebody they don’t have to do it.
BY MR. DAVIS:
He’s my client, Your Honor. I can advise him as I see fit. If I’m wrong —
BY THE COURT:
If I’m wrong, you can take me to the Supreme Court, but don’t get here in front of this court and tell somebody not to obey an order that I have just given. You hear me, sir?
BY MR. DAVIS:
I hear you.
Although an attorney has a duty to represent his client zealously, he should not engage in conduct which offends the dignity of the court. An attorney may make a proper objection to a ruling of the court but then should abide by the ruling so long as it remains in effect. Stewart v. State, 221 Ark. 496, 254 S.W.2d 55 (1953). Here, petitioner was clearly in contempt of court when he specifically advised his client in open court that he could disregard a lawful court order which had just been made.
Petitioner does not question the court’s authority to order a breathalizer but alleges that the following statement did not constitute an order: “Let’s take a breathalizer and see. Go with the sheriff.” It is obvious from petitioner’s immediate response that even he believed it to be an order:
BY MR. DAVIS:
Just a minute. I don’t see why he should be made to take one. It’s self-incriminatory, and he should be advised that he —
The statement was clearly taken as an order by the court and all present, and it was, in fact, an order. See Hall v. State, 237 Ark. 293, 372 S.W.2d 603 (1963).
Petitioner also argues that he merely advised his client that he did not have to take the test, which is different from advising his client to disobey the order. We fail to see or appreciate this fine distinction under the facts of this case.
Affirmed.
Dudley, J., not participating.
Purtle, J., dissents. | [
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Robert H. Dudley, Justice.
The appellants, four girls ranging in age from sixteen to twenty, were charged with the aggravated robbery of Louis Daniels at the New Hope Grocery in Pope County in February, 1981. A jury found all four guilty and fixed the sentence of each at six years. The applicable statute, Ark. Stat. Ann. § 41-2102 (Supp. 1981), provides a minimum mandatory sentence of six years without suspension of execution of sentence. The jury added to its verdict form the phrase, “we the jury recommend leniency according to the Court’s judgment by consideration of the partial suspension.” No details of the aggravated robbery are known to this court as none of the evidence has been designated to be a part of the record. The record before us consists of only the instructions, requests for instructions and rulings of the trial court with regard to the constitutionality of the mandatory serving of sentences. Jurisdiction is vested in this court pursuant to Rule 29 (1) (c) as one of the issues involves the constitutionality of an act of the General Assembly. We uphold the constitutionality of the act and affirm the trial court.
The trial court instructed the jury only on the offense of aggravated robbery. Appellants contend that the trial court erred in refusing to instruct on lesser included offenses and they argue that theft and robbery are lesser included offenses.
Our general rule on instructing the jury on lesser included offenses was stated in Caton & Headley v. State, 252 Ark. 420, 479 S.W.2d 537 (1972):
* * * We have consistently held that a trial court commits reversible error when it refuses to give a correct instruction defining a lesser included offense and its punishment when there is testimony on which the defendant might be found guilty of the lesser rather than the greater offense. (Citing cases.) * * *
The questions in this case become; are theft and robbery lesser included offenses within aggravated robbery and, if so, is there evidence upon which appellants might be found guilty of the lesser rather than the greater offense? Theft is not a lesser offense included within the definition of aggravated robbery. Higgins v. State, 270 Ark. 19, 603 S.W.2d 401 (1980), Hence no additional discussion of the need for an instruction on theft is necessary. However, robbery is a lesser offense included within the definition of aggravated robbery as those offenses are defined in the Arkansas Criminal Code of 1976. Ark. Stat. Ann. §§ 41-2102 and 41-2103 (Supp. 1981). Hamilton v. State, 262 Ark. 366 at 373, 556 S.W.2d 884 (1977). If there is any evidence to support the giving of the instruction on the lesser included offense, it must be given. Sargent v. State, 272 Ark. 336, 614 S.W.2d 503 (1981). But, if there is no rational basis for acquitting appellants of aggravated robbery and convicting them of the lesser offense of robbery, the lesser instruction need not be given. Ark. Stat. Ann. § 41-105 (3) (Repl. 1977); Hamilton v. State, supra. In this case the trial judge, in refusing the instruction on the lesser included offense, commented that he was going to give only the aggravated robbery instruction “because there is no question — there is no conflict in the testimony that a deadly weapon was used...” The statement is conclusive of the fact that there was no rational basis for acquitting appellants of aggravated robbery and convicting them of robbery because none of the evidence given at trial has been made a part of the record on appeal. Thus, we affirm on the issue of instructing the jury.
Appellants next contend that a statute containing a mandatory minimum sentence with a provision prohibiting the suspension of execution of the sentence is an unconstitutional legislative usurpation of judicial powers. The relevant portions of § 41-2102 are:
(3) (a) Upon ... being found guilty ... of aggravated robbery... such person shall be imprisoned for not less than six (6) years;
(4) The sentences provided for . . . are mandatory and shall not be subject to suspension.
The trial court ruled that the statute made the imposition of the sentence mandatory and that he could not suspend execution of sentence even though the jury had recommended partial suspension. The trial court was correct in its ruling for we have long held that courts have no inherent authority to suspend indefinitely the execution of a sentence. In Davis v. State, 169 Ark. 932, 277 S.W. 5 (1925), we stated:
It is evident that, when a court undertakes on its own motion to suspend a sentence indefinitely, it really refuses to enforce the punishment provided by statute, unless it shall at some future time conclude that it is proper to do so. The power to exercise discretion as to the enforcement of the punishment provided by law and pronounced by the court is vested in the Governor.
We are therefore of the opinion that the circuit court in each instance erred in holding that it had inherent power or any power at all to suspend the execution of the sentence during the good behavior of the defendant. ***
We have consistently held that statutory authority is necessary for a court to suspend the execution of a pronounced sentence. Joiner v. State, 94 Ark. 198, 126 S.W. 723 (1910); Wolfe v. State, 102 Ark. 295, 144 S.W. 208 (1912); Davis v. State, supra; Stocks v. State, 171 Ark. 835, 286 S.W. 975 (1926); Denham v. State, 180 Ark. 382, 21 S.W.2d 608 (1929); Culpepper v. State, 268 Ark. 263, 595 S.W.2d 220 (1980). We decline to overrule these cases. The power to grant or withhold the authority of trial judges to suspend the execution of a pronounced sentence properly lies within the General Assembly.
Appellants’ final argument is that during the course of the trial the judge expressed doubts about the constitutionality of the act but, at the time of sentencing, upheld the act. This does not constitute reversible error for a trial judge is at liberty to reconsider earlier rulings. Arnold, Sheriff v. State, ex rel Burton, 220 Ark. 25, 245 S.W.2d 818 (1952); Nance v. Flaugh, 221 Ark. 352, 253 S.W.2d 207 (1952). In addition, on the abbreviated record before us, no prejudice can be demonstrated. In Arkansas we have long held that a
judgment of conviction will be reversed for prejudicial errors only. Lee v. State, 73 Ark. 148, 83 S.W. 916 (1904). This is still the law. We do not reverse for non-prejudicial errors. Brown v. State, 262 Ark. 298, 556 S.W.2d 418 (1977).
Affirmed. | [
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Darrell Hickman, Justice.
The question before us involves the interpretation of the language in a testamentary trust. We affirm the trial court’s determination which essentially was that the plain and ordinary meaning of the language controls.
Delphia Wilson, whose estate consisted primarily of farm land in Poinsett County, created a trust in her will for certain beneficiaries who were to receive during their respective lives the following income from the trust:
1. Juanita Bowden, 30% of the net annual income;
2. Dale Thomas Bowden, 30% of the net annual income;
3. George Milburn Bowden, 20% of the net annual income;
4. Doris Bowden, 20% of the net annual income;
5. George Carlyle Bowden, 10% of the net annual income.
Besides that provision the only other relevant language in the will reads:
VI.
Upon the death of George Milburn Bowden, his interest shall pass to his two sons, Mike Bowden and Timmy Bowden, who shall receive one-half (1/2) each of the said George Milburn Bowden’s share. Provided, that if at any time the said Juanita Bowden shall remarry, then her interest in the trust shall terminate. Upon death of any of the beneficiaries above named, with exception of George Milburn Bowden, the deceased beneficiaries’ share shall be divided equally between the remaining beneficiaries of the trust. This trust shall terminate upon the death of the last beneficiary herein named and all assets of the trust and any accumulated income shall be divided equally between my then existing heirs at law.
The will was admitted to probate in 1969. In March, 1976, Juanita Bowden died and a petition was filed to construe the trust. It was found that her 30% share of the income would be equally divided between the remaining living beneficiaries. So each received an additional 7.5% of the income of the trust. No appeal was taken from that decision.
In May, 1981, George Milburn Bowden died and another petition was filed to construe the trust. The question this time was whether George Milburn Bowden’s two sons, Mike and Timmy, should receive only the original 20% granted to their father by the provisions in the trust or whether they were entitled to the 27.5% share their father was receiving at his death.
The trial court held that the two sons would receive 27.5% for the duration of the trust.
George Milburn Bowden’s sons were favored by the trust; only his sons were granted a share in the income from the trust. It is possible that George Milburn Bowden could have died first and, if so, his sons would have only received 20% of the income from the trust. As it turned out, he died later and his sons’ share is greater because, according to the plain language of the trust, they were to receive his share at his death. That is the interpretation the trial court gave the language and that is the only reasonable interpretation we can give the language in view of the law. The words and sentences used in a will are to be construed in their ordinary sense in order to arrive at the true intention of the testator. Morgan v. Green, 263 Ark. 125, 562 S.W.2d 612 (1978).
Affirmed. | [
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Darrell Hickman, Justice.
The question in this case is whether a full-time school teacher can be denied the minimum salary due to teachers because of a written contract for a lesser amount. The trial court found such a contract enforceable. We disagree and reverse.
Deborah Marvel had been a part-time librarian and teacher for the Coal Hill Public School District when her contract was negotiated for the 1979-1980 school year. She said that Mr. Nolan Williams, the superintendent of schools, told her she would serve as part-time librarian and part-time teacher but would receive the same salary that full-time teachers did. (She had been paid in the past as an aide, but was now to be paid as a teacher.) Williams refuted that. But the contract only provided for a salary of $9,800.00 and the minimum a full-time teacher with her experience would receive is $11,450.00. She accepted the position and signed the contract but chose to sue for the difference, which was $1,650.00, plus interest.
The parties disagreed as to whether Miss Marvel signed the contract under protest but that is irrelevant. It is not disputed that she was a "teacher” within the meaning of Ark. Stat. Ann. § 80-1326 (Repl. 1980), and performed all the duties of a full-time teacher. She performed the ancillary duties of all teachers such as hall monitor, attending ball games and faculty meetings. She kept grade, class planning and attendance records. In order to qualify as full-time, she was required to work six periods a day. She acted as a teacher five periods a day and as a librarian two periods. It is also undisputed that the school district filed with the State Department of Education a salary schedule, as required by Ark. Stat. Ann. §§ 80-1324 and 80-850.7 (Repl. 1980), and that her salary as a full-time teacher would have been $11,450.00.
The superintendent said the reason Miss Marvel was not paid the minimum salary is because the part of her salary for teaching remedial reading was Title I money (federal money) and the grant did not allow her to be paid more.
The trial court held that the contract did not violate Arkansas law which requires that school districts promulgate minimum salary schedules, citing Ark. Stat. Ann. §§ 80-1325, et seq. (The Teachers’ Minimum Salary Law), and 80-850.1, et seq. (The School Finance Act of 1979), and Fennell v. School Dist. No. 13, 208 Ark. 620, 187 S.W.2d 187 (1945). The court found that since she was paid fairly for librarian duties from general funds that the district complied with the law, and found further that Miss Marvel knowingly and freely entered into a binding agreement.
The trial court was wrong in its interpretation of the law. Miss Marvel was a full-time teacher and the district could not receive her services and refuse to pay her the minimum salary it paid other full-time teachers. Title I provisions cannot be used to avoid Ark. Stat. Ann. §§ 80-1327 and 80-850.7, which require each school district to set a schedule of minimum salaries and abide by it.
If the district’s position were to prevail, then no teacher could be sure of equal treatment when he or she was hired or retained — at least to the extent that a minimum salary would apply to all hired for full-time duties. The school district received the benefit of the services of a full-time teacher and it should not be allowed to manipulate the law to avoid its legal responsibility.
The judgment is reversed and the cause remanded for the court to enter judgment for the appellant.
Reversed and remanded. | [
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Per Curiam.
Appellant, Tonnie Brown, by his attorney, has filed for a rule on the clerk.
His attorney, Deborah R. Sailings, admits that the record was tendered late due to a mistake on her part.
We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our Per Curiam opinion dated February 5,1979, In Re: Belated Appeals in Criminal Cases, 265 Ark. 964.
A copy of this opinion will be forwarded to the Committee on Professional Conduct. | [
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George Rose Smith, Justice.
Barbara Collins was charged with first-degree murder, found guilty of second-degree murder, and sentenced to 20 years’ imprisonment. Apart from objections to an autopsy report, which we find to be without merit, the only argument for reversal is that the trial court abused its discretion in refusing to grant a continuance on the day of trial. That contention must be sustained.
We recognize at the outset our familiar rules that the granting of a continuance rests in the sound discretion of the trial court and that a defendant cannot be permitted to use a change of lawyers as a device to delay a scheduled trial. In harmony with those principles the real issue is whether, as the defendant contends, she was the victim of an unfortunate misunderstanding shared by the trial judge, the prosecutor, and the two defense lawyers or, as the State contends, she attempted to switch counsel as a ruse to obtain a continuance.
After the defendant was charged in Chicot County with murder, she was continuously confined to jail there until the trial. She first employed James M. Barker, an Ashley County lawyer. He interviewed her and filed motions, but he did not begin to prepare for trial by talking to witnesses. On March 30, 1981, the court entered an order setting the case for trial on Thursday, May 14.
Sometime in April the defendant’s mother talked to Robert F. Morehead, a Jefferson County lawyer, about taking over the defense. Morehead consulted the defendant in Chicot County on April 24, but told her he could not enter the case until her retained counsel had been relieved. The defendant dismissed Barker by a letter received by him on April 27. On May 4 the court granted Barker’s motion to be relieved as counsel, the court’s order containing this language:
[I]t is found that the granting of [Barker’s] request will not unduly burden, delay or hinder the operations of this court. Further, that the request is timely, and should be granted, with a provision that [Barker] deliver to the Defendant’s new Attorney [all discovery items delivered to Barker].
It is indicated that both the prosecutor and the trial judge intended the order to be conditioned on the new attorney’s being ready to try the case on May 14 as scheduled, but unfortunately that condition was not expressed in the order and was not brought home to either defense lawyer.
Barker, having been relieved by the May 4 order, sent a copy of it to the defendant on May 5 and cautioned her: “There is a lot of discovery in this case and you need for you or your new attorney to notify me as soon as possible regarding this discovery.” On May 6 or 7 the jailer in Chicot County called Morehead’s office and left word for him to call the defendant collect. Morehead had a two-day trial in progress on the 6th and 7th, but he called the jailer and said that he had another matter in Ashley County on Friday, May 8, and would see the judge and the prosecutor then. He did see the prosecutor and the judge on Friday. He explained at least to the prosecutor that he already had a schedule and could not try the case on May 14, only six days away. At that point the matter was left unresolved.
On Monday, May 11, the court entered an order reciting that Barker had been relieved on May 4, reciting that no substitute counsel had entered an appearance for the defendant, noting that the case was set for trial on May 14, setting aside the order relieving Barker, and directing that he continue to represent the defendant. The judge called Barker at 4:30 p.m. and read him the order, which was also served on him by the sheriff a few minutes later. Barker had a trial in chancery court the next morning. Thus Barker, practicing in an adjoining county, was brought back into the case without prior notice and in effect was given a day and a half to prepare to try a first-degree murder case.
On Thursday, the day of trial, the defendant moved for a continuance. At a long hearing Barker and Morehead testified to the facts we have narrated. They also stated they had not interviewed the witnesses and they had not subpoena’d any witnesses. The trial judge overruled the motion for a continuance and proceeded with the trial. He explained that he had a responsibility to move the business of the court and could not allow litigants to determine when they desired a trial. The j ury returned a finding of second-degree murder, with a 20-year sentence.
We hold that the trial judge abused his broad discretion in refusing a continuance. We are convinced that the difficulty would not have arisen if the order relieving Barker had been conditioned, as the trial judge undoubtedly intended it to be, upon Morehead’s being ready for trial on May 14. However, it was not so conditioned. Moreover, there is no indication that the defendant herself, who was in jail and had little to gain by delay, changed lawyers in an effort to force a continuance. (The State erroneously attributes to the witness Scales a statement, as worded in the State’s abstract, that “Barbara [the defendant] told me she wanted to hire Mr. Morehead to get Morehead to get her a continuance.” Actually the witness was referring not to Barbara but to her mother, nor was the statement as positive as the quoted paraphrase indicates.) As for the attorneys, we have set out their activities in almost a day-to-day sequence from May 4 to May 14 and find no real indication of any effort on their part to play for delay.
Error is presumed to be prejudicial unless we can say with assurance that it is not. Both attorneys were, without question, not prepared for the trial. No witnesses had been interviewed. The trial resulted in a 20-year sentence. Since counsel had scant opportunity to interview possible defense witnesses, we cannot fairly require counsel to demonstrate specific prejudice by showing just what the defense would have been if a continuance had been granted. The error cannot be dismissed as harmless.
Reversed and remanded for a new trial.
Adkisson, C.J., and Hickman, J., dissent. | [
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By the Court,
DiOKmsojr, J.
The object of the act of the Legislature, passed upon the subject of gaming, was to suppress and punish every species of vice of that kind that was known to exist, or that might afterwards arise.
The mischief being highly prejudicial to the best interests of society, and in every way demoralizing in its consequences, and destructive of the prosperity and good order of the State, hence the Legislature used very general and pomprehensive terms to suppress the evil of gaming, and advance the remedy, to put a stop to all such practices.
The party bound himself in the recognizance, that the individual charged should appear and answer to the indictment for gaming. He was liable for his appearance for keeping or exhibiting a gaming-table, for that is certainly one species of gaming, and is included in the general words of description. The scire facias, in setting out the recognizance, truly describes the bond, when it states, it was for keeping and exhibiting a gaming-table; for we hold that to be gaming, within the meaning of the recognizance and the act of the Legislature. The production of the record then proved the charge, and there is no substantial variance between the recognizance set out in the scire facias, and that produced upon the triaL
Judgment affirmed. | [
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By the Court,
Lacy, J.
The rejection of the receipt constitutes the principal ground in support of the motion for a new trial. It is certainly- an inflexible rule of law, that written evidence is a higher grade of proof than oral testimony; and that, where the writing itself contains no ambiguity, in such cases, oral testimony is not admissible to explain or prove it. This rule, however, is not contravened, but expressly recognized by the principle that, if there is ambiguity in the instrument, then it is admissible to explain its uncertainty, or to supply its deficiency. In this case, it was certainly competent to have proved the date of the receipt by oral testimony, or to have shown it by circumstantial evidence connected with the transaction.
The receipt was given in payment of Trowbridge «fe Jennings’ account, the signature of Sanger was proved, and, if there had been satisfactory evidence given as to its date, (for aught that we can know), it might have established the discharge of Sanger’s account, or at least so much of it as it purported to pay. Dates, and amounts of receipts, are capable of being proved orally, and it is the daily practice of courts'of justice to permit it. They are merely defects or omissions, which may be properly supplied by other proof than the instrument itself; and the admission of such testimony comports with the rule of written evidence, and goes far to uphold it. The Court, then, certainly erred in rejecting the receipt as evidence; and, as the party’s rights may have been materially prejudiced by this error, a new trial should have been awarded, upon that ground alone. ,
Besides, we have looked into the evidence as presented by the record, and there is certainly no very satisfactory proof showing the partnership of Trowbridge <fe Jennings. Their liability depended upon their copartnership. This fact the declaration charged, and the plaintiff was bound to prove it by competent testimony. It was a substantial fact, capable of being established either by the partnership agreement itself, or by other acts and circumstances of a clear and explicit character, which would remove all difficulty upon the subject. We deem it unnecessary to analyze the testimony given upon this point, because we have already shown that the party was entitled to a new trial on other grounds.
Reversed, and a new trial awarded. | [
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By ike Court,
Ringo, C. J.
That the filing of an affidavit, as prescribed by law, constituted a condition precedent to the right of the party to appeal to this Court, in the present case, there can be no doubt; because the statute expressly declares, that, in civil cases, no appeal shall be allowed “from any final judgment or decision of any circuit court,” unless the appeal be made during the term at which the judgment or decision complained of was given; and the appellant, or his agent, shall, during the term, file in the Court an affidavit, stating that such appeal is not made for vexation or delay, but because the affiant verily believes that the appellant is aggrieved by the decision or judgment of the Court. Rev. St. Ark., p. 638, sec. 141, 142. In the transcript before us, the clerk has copied a writing purporting to be the affidavit of the attorney of the appellant, containing all the requisites prescribed by law, except the essential one that the individual purporting to make the affidavit, does not appear to have been sworn, or to have made the affidavit before any authority competent to take it. It is true, that this statement appears immediately under the writing purporting to be an affidavit, “sworn to and subscribed in open Court, Dec. 22d, 1841;” but this attestation is not subscribed or certified, either by the clerk, the judge, or the Court; and therefore it can oqly be regarded as the mere draft of an affidavit, never sworn to by the person by whom it purports to have been made. And therefore, as the record shows no affidavit, as required by law, the appeal must be considered as having been previously and illegally granted, and, for this cause, be dismissed. | [
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By the Court,
Ringo, C. J.
The plaintiff in error recites and relies upon the cases of Gilbreath vs. Kuykendall, 1 Ark. R. 50; and Rose vs. Ford et al. 2 Ark. R. 26, as establishing the proposition, that the return to process, to justify a judgment by default, must expressly state, that it was executed in the county within which the officer to whom it is addressed is authorized by law to execute it. We have examined the opinions expressed in the cases cited, and find that this point has not been.expressly decided in either. The Court, in these cases, says, in effect, that it must appear, from the return of the officer, that the process was executed in such county, and must state expressly how it was executed. This opinion we still entertain; but the statute does not require the officer to state expressly, in his return, where the process was served; and, therefore, the legal presumption that he acted within the sphere of bis power, and according to the obligations of his official duty, must be so far indulged as to warrant the conclusion that the act was done within the limits of the county in which he was legally authorized to act. The return before us shows every fact essential to a legal execution of the writ, and is signed “ Eli Bell, Sh’ff of Crawford county, Ark.” And, although it does not expressly state that it was executed in said county, the legal presumption is, that it was executed there; and, therefore, it is, in our opinion, sufficient to warrant the judgment by default.
The second question depends upon the construction to be given to the provisions contained in chapter 80 of the Revised Statutes of this State; the 2d section of which provides that parties may agree, in writing, for the payment of interest, not exceeding ten per centum per annum; the third gives interest on all moneys due on judgments at law, or decrees in equity, from the day of the rendition thereof, until satisfaction be made, by payment, or sale of property; and the fourth declares expressly, “ that judgments or decrees upon contracts bearing more than six per cent, interest, shall bear the same interest as-may be specified in such contracts, and the rate of interest shall be expressed in all such judgments and decrees.” These provisions unquestionably allow parties to contract in writing for the payment of interest, at any rate not exceeding ten per centum per annum, and expressly give the same interest specified in such contracts, upon-judgments and decrees founded thereupon, when the interest so stipulated in such contract is more than six per cent, per annum, from the date of the judgment and decree, and imperatively require the rate of interest so given upon such judgments or decrees, to be expressed therein. But it is insisted, that judgments bear no interest at common law; and, therefore, all statutory provisions giving it, must be construed strictly- This, we think, might be conceded, and yet judgment be given for interest, at the rate specified in the contract, upon the whole sum adjudged or decreed, including both principal debt and damages, according to the express letter, as well as the obvious design, of the law; and this appears to us to be the only mode in which these plain and express provisions of the statute could be literally or strictly enforced. And the argument, that they are designed to enforce a specific execution of the contract, cannot be maintained; because, a judgment er decree, so framed as to enforce only a specific performance of the contract, would necessarily give interest upon the contract, according to the stipulation therein contained, instead of giving it upon the judgment or decree, as the statute expressly requires it to be given; and, in this respect, they would not only not be in conformity to the provisions of the statute, but be directly opposed to them. We are, therefore, clearly of the opinion, that the statute contemplated that the whole sum, both principal and damages, adjudged or decreed to be recovered or paid on such contracts, should bear interest from the date of the judgment or decree, at the rate specified in the contract, and that the same should be so expressed in the judgment or decree.
Judgment affirmed. | [
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By the Court,
Dickinson, J.
We think the Court erred in sustaining the demurrer, for Martin may have adopted one of the other seals, and thereby made it his own. He does not deny the execution and sealing of the instrument; nor would he, under our statute, be permitted to do so, except by plea, supported by affidavit.
It is as well to remark, that the same objection lies to the writs in ¡this, as in many other cases decided by this Court. Several writs were issued to different counties, including, in each one, the names of all the defendants; and the objection was made by McPherson, one of the defendants, and overruled. But, as he is not a party to the case in this Court, his objection cannot be so considered as authorizing us to adjudicate as between him and the appellant.
Judgment reversed. | [
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Bp the Court,
Lacy, J.
The instrument bears dale on the 11th day of March, A. D. 1840, and, at that period of time, bank paper constituted the common medium of exchange or ordinary circulation for money. Bank issues are not, in the constitutional sense of the term, lawful money or legal coin. Gold and silver alone are a legal tender in payment of debts; and the only true constitutional currency known to the laws. And, had specie or current coin been the common circulating medium at the date of the note sued on, then the terms of the contract would have been restricted exclusively to that circulation. Such was not the fact; and this Court is bound judicially to take notice of the kind of circulating medium that was then in general use in the State. And the bond sued on should be construed in reference to the existing state of things at the date of its execution. The parties contracting must be supposed to use the terms in their agreement, in their ordinary and popular acceptation, and not in their strict constitutional sense. Words and terms, when used in agreements between individuals, must be taken in a general sense, and not in a technical signification. This is a rule of sound legal construction, founded alike in justice and in public policy; and its application to the case now before the Court, will readily test and determine the case before us. The terms “ common currency in Arkansas,” at the date of the bond sued on, unquestionably meant bank notes or paper issues, which, were then the general and universal currency of the State. Gold and silver, or lawful coin, had, at that time, ceased to circulate as money, and their place was supplied by bank issues or paper money; and, consequently, the parties to the suit are presumed to have contracted, with a full knowledge and understanding of this state of things; and, therefore, it is both right and just, that their contract should be governed by the true import and meaning of the terms that they themselves have thought proper to attach to them. This point has been expressly decided, in a number of cases, by the Court of Appeals in Kentucky. McCord vs. Ford, 3 Mon. 166; Stricker, as adm'r, vs. Miller, 5 Lit. 235. In the case of Chambers vs. George, 5 Lit. 335, which was an action of petition and summons on a note, “ payable in the currency,” Chief Justice Boyle held the terms of the agreement to mean bank notes or paper issues at the date of the contract; paper money then constituting the ordinary circulation in that State. In this opinion we fully concur; and, consequently, the Court below decided correctly in sustaining the demurrer. The note sued on not being an obligation for the direct payment of money, of course an action of debt will not lie upon it.
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By the Court,
Dickinson, J.
There is- a good deal of contrariety in the testimony, and not a little ambiguity in many portions of it. There are several instructions given by the court, to which no exception can be taken. There is one, however, where the law is stated too broadly, and as there is much confusion and contradiction in the testimony, the court cannot determine what influence or effect the instruction might have had in determining the jury to decide for the' plaintiff. The instruction is, that if they believed, from the evidence, that the plaintiff represented himself as a skilful workman, but did not. covenant to use his skill, that the defendant]would be bound to'pay him the worth of his labor. This is not the true doctrine upon the point. Where a party represents himself as a workman,, that very representation raises an implied covenant, that he will use his skill in the work which be is employed to do. It is .not necessary that he should covenant, expressly, to use such skill. When he-holds himself out to the world, that he is a workman, the law binds him to do the work in a workmanlike manner; and that expression is tantamount that it shall be done in a skilful manner. Any other rule would produce great injustice and hardship. It would enable those who profess to be mechanics, to engage to do work as such mechanics, and then wholly to excuse themselves, on a failure or breach of contract, by alleging that they had not covenanted to do it in a skilful manner.
Judgment reversed. | [
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By the Court,
Lacy, J.
It is perfectly clear, under our revised statutes, page 659, that this action may be maintained for an unlawful taking, or a wrongful detention of a personal chattel. The plaintiff, to support the action, must show title: he has no right to a recovery unless he has been injured, either by an invasion of his right of property or his right of possession. The pleadings in the action are peculiar, but they are nevertheless founded in justice and policy. In this case, the defendant pleaded “ non-detinet,” and “ property in himself and other persons.” Issues were formed upon these pleas: the inquiry now is, what are the parties respectively bound to prove ?
The declaration alleges title in the plaintiff. This is a mate rial fact; and when the issue is joined upon it, must necessarily decide the cause. When the defendant pleads any matter inconsistent with this averment, as property in himself or in a stranger, of course he is compelled to conclude with a traverse cf the plaintiff’s title.
The point upon which the issue is joined, and upon which the jury must pass, is, whether or not the plaintiff has such a title to the property as will enable him to maintain the action.
The allegation of the defendant, of properly in himself, or in a third person, is merely inducement to the traverse of the plaintiff’s title, and, therefore, no issue is formed upon that fact. The plaintiff is not at liberty to waive the issue of his own title, and tender a traverse of the defendant’s title. To admit him to do this, would be to establish a rule in pleading that would run contrary to all established precedents, and produce endless prolixity.
In replevin, as in all other actions, it must appear by the declaration, that the plaintiff is the injured person. It would be idle to charge the defendant wit'h .unlawfully taking or detaining the plaintiff’s property, unless he had title. The possession of a chattel interest carries with it the presumption of ownership or right of possession; and neither of these can be interrupted or disturbed, unless the party claiming it shows that he has a superior, paramount title. The authorities are full and conclusive upon this point. 1 Saund. 22, n. 2; 1 Chitty, 592; Com. Dig. Plead. S. 14; Lady Chichesly vs. Thompson, Cro. Car. 4; Rogers vs. Arnold, 12 Wend. 33. In Prosser & Petrie vs. Woodward, 21 Wend. 207, the whole doctrine will be found fully examined and decided in exact conformity with the principle here stated.
These principles clearly show that the plaintiff was not entitled to recover, unless she showed title, in herself, and that the defendant could defeat the action by establishing it in another. The plaintiff was bound to recover by the strength of her own title, and not by the weakness of her adversary’s. She held the affirmative of the issue; and, unless she proved her own title, she had no right to recover. These principles are perfectly obvious, and their application to the instructions given to the jury by the Judge who tried the cause proves he was mistaken in regard to the Jaw governing the case be fore him. The facts contained in the record, so far from proving title in the plaintiff, expressly disprove the claim.
The Court instructed the jury, that, “ under the issues joined, if the defendant proved property in a third person, other than hfmself, he was bound to show that he derived a valid title from that third person, in order to defeat the plaintiff’s right of action.” This instruction was evidently erroneous, and expressly contradicts all the established rules of pleading upon the subject, and also our own statute. Rev. St. sec. 34, p. 664. The Court refused to instruct the jury that “ if they believed, from the evidence, that the title to the slave in dispute, was in the estate of John Calloway, deceased, the plaintiff had no right to recover.” In refusing to give this instruction, the Court also erred. It is perfectly manifest, that if the administrators, or the heirs of John Calloway, deceased, had title to the property, an action could not be maintained alone in the name of the widow. The plaintiff’s right to recover, depended upon her title; and if the proof showed the title out of herself, and vested it in others, yhe certainly could not maintain the action. The whole proof in the cause, in our opinion, clearly established these facts: The slave mentioned in the declaration, is shown to be the property of John Calloway, in his lifetime, and that the plaintiff in the action, is his widow; that, upon his death, he left a number of children, several of whom are now living; and that Amy Calloway, with John S. T. Calloway, administered upon the estate of her deceased husband; that there was no legal distribution of the assets of the estate among the heirs or representatives; that, after the death of John Calloway, the plaintiff retained possession of the slave; that he was considered and called her property; and that she exercised acts of ownership over him, until a short time before the Commencement of this suit, when he passed into the possession of the defendant. This evidence, so far from establishing title in the plaintiff, clearly negatives any such idea. As the wife of John Calloway, she held no property separate and apart from her husband, during her coverture. That, upon his death, she was only entitled to her distributive share of his estate; and the fact of her claiming the boy as her own property, and its being so regarded by others, could not vest in her either a legal or equitable title. She brings this suit in her own name, and rests her claim upon her own title and interest. By her own showing, she has no title or pretext of title. If the property belonged to the estate of John Calloway, at the time of his death, then it must either have vested in his administrators, or in his legal heirs and representatives. , If the administrators had title, they of course should have both joined in the action. If their right to the property, or to the possession of it, had been divested by distribution, or otherwise, then the action would only lie in the names of the heirs or legal representatives, or in the names of those in whom the legal interest was vested. Here, Amy Calloway’s title rests upon the mere assertion of a naked right, without title, accompanied with possession; which is not shown to be adverse to the other heirs or legal representatives: and, of course, having established no separate right or claim in herself, she is not entitled to a recovery.
This view of the case supersedes the necessity of our examining or deciding the other points raised upon the record, with regard to the defendant’s proof. Amy Calloway, having shown no title, according to the doctrine well settlled in actions of replevin, she is not then authorized to disturb the possession of the defendant.
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The following opinion was delivered by
Ringo, C. J.
If the omission of a venue be a defect in'substance, at common law, or by the statutes of England adopted in this State, it is not cured by our statute of jeofails, which only extends to judgments by confession, or upon verdict, but not to judgments upon demurrer, where the cause of' demurrer is specially stated, as required by the statute. The question, therefore, whether it is such a defect in the pleading as may be taken advantage of by general demurrer, must be determined by the application to it of such rules and principles of the common law and statutes of England, in aid, or to supply the defects thereof, made prior to the fourth year of James the First, as are applicable to it, and of a general nature, and also applicable to our form of government, and not repugnant to the constitution and laws of the United States, or of this State. By the common law, transitory actions might have be,en brought in any county, but, by the statute, 6 R. 2, Chap. 2, it was enacted, that if, by the declaration, it appears that the contract was in another county than where the writ is brought, the writ shall, abate. 1 Com. Dig. 250, (n. 6), 271, (n. 18), 114, (n. 17). The effect of this statute was to require such actions to be instituted in the county where the contract was ma/ie, if founded in contract; and, if brought in a different county, although the fact did not appear in the declaration, the court, upon affidavit being made, showing that the cause of action arose in another county, and not in the county where the action was laid, nor elsewhere out of the other, county, would change the venue, unless the plaintiff would undertake to give evidence of some matter in issue in the county where the action was brought, when, if he failed to do so on the trial, he was .non-suited, which had the same effect as abating the writ according to the statute. 1 Saund. Rep. 74, (2), (h.) And since the statute 4 Ann, Chap. 16, sec. 6, which directs thé jury, in civil cases, to be taken from the body of the county, it is held sufficient, in civil cases, to state the- codnty in the declaration, without any place at all. Ware vs. Boydell, 3 M. & S. 108. And even before, it was held sufficient to name the place only in the declaration, because the place is always construed to refer to the county in the margin. 1 Saund. Rep. 308, (1). The authorities cited indicate, that the principal object of stating avenue, or place where the cause of action arose, was to show where the trial should be had, or from whence the jury should come, and that, by the ancient common law, no particular place where the cause of action arose need be stated, in transitory actions; and, it has been ruled, that, in such actions, the omission of a venue is aided at common law by a judgment by default, hecause the defendant thereby admits that there is nothing to try, and that an objection merely to the mode in which the venue is stated, can be taken only by special demurrer. 1 Chitty’s Pl. 311. Briggs vs. Nantucket Bank, 5 Mass. R. 94. Gilbert et al. vs. same, ib. 97. Alder vs. Griner, 13 J. R. 449. Now, by the l|ws of this State, it is wholly immaterial in transitory actions, founded on contract, where the cause of action arose, because, in such cases, the action may be prosecuted in any county, without regard to the place where the contract was made, or the cause of action arose; and the jury must come from the body of the county in which the suit is brought, notwithstanding the contract was made, or the cause of action arose, in a different county; consequently, as no legal right depends upon that fact, the statement of it in the declaration appears to be unnecessary, and the law which required it to be shown, may well be regarded as inapplicable to our form of government, as at present organized; yet, admitting it to be applicable, still it would, as we conceive, be only matter in abatement, or cause of special demurrer, which, under our statute, could not now be taken advantage of by demurrer. But, besides this, the county in which the action was brought, is stated in the margin of the declaration; and this, according to some of the authorities cited, would have been a sufficient venue in such case, notwithstanding the statute of 6 R. 2, above cited. The demurrer as to the first ground specially assigned was, therefore, in our opinion, properly overruled.
As to the second ground, it is deemed sufficient to remark, that the instrument exhibited upon oyer is not copied in the transcript before us, and of course we cannot say whether it is truly set out and described in the declaration or not. It is, however, described as paya ble on demand, and ¡.here is no averment of any special demand or request made of the plaintiff in error to pay it, before the commencement of this suit, which omission constitutes the third objection stated in the demurrer.
This objection cannot, in our opinion, be maintained, because the contract, as set out in the declaration, shows a direct and positive obligation or promise to pay, in consideration.of a pre-existing debtor duty; and, in such case, it has been uniformly held, both in England and the United States, that no demand or request is necessary to create a legal right of action on the contract. Birks vs. Trippet, 1 Saund. R. 32. 2 Bibb, 101. Cotton vs. Beaville et al., 3 Mon. 224. Haxton & Brace vs. Bishop, 3 Wend. 13. And it has been adjudged that, in an action on a promissory note, payable on demand, non as-sumpsit infra sex annos is a good plea,' for it is payable immediately on the making of the promise; also, if indebitatus assumpsit be brought on a promise to pay on demand, the plea of non assumpsit infra sex annos has been held to be good, because it shows a debt due at the time of the promise; but, if the promise was to do a collateral thing, on demand or request, nothing is due until a demand or request is made, and, until then," no right of action accrues; and, therefore, in such cases, the demand or request must be specially averred and proved. The contract, as set forth in the declaration, is clearly of the first description, and the demurrer was correctly overruled.
In respect to the time from which interest on such contract shall be ’ computed, there has been some diversity of decision in the courts of the different States, and even in England; but we are not aware of any case in which it was ever decided that the right of action did not accrue at the date of the contract, which could not be the case upon any legal principle, if the money was not then due, the rule being inflexible, that no legal right of action arises upon any contract, without some breach of the stipulations contained in it, either expressed or implied; and, therefore, as our statute expressly gives interest “for all moneys, after they are become due by any instrument of the debtor, in writing,” the interest was correctly allowed to be computed from the date of the note.
Affirmed with costs, deducting ‡ 10, remitted.
Mr. Justice Lacy concurred. | [
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Held, that, where defendants reside in different counties, writs-issue to each, and each writ contains the names of all the defendants,, all the writs must be quashed, on motion. | [
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By the Court,
Lacy, J.
We deem it unnecessary to notice the two first questions raised upon the record, further than to remark, that it was held in the case of McFarland et al. vs. The Bank of the State of Arkansas, ante, that the issues of the notes of the Bank are not bills of credit, within the meaning of the Federal Constitution. And that, to constitute á good plea of usury, the party pleading it must aver a corrupt intent. It certainly cannot be contended that the Court below erred in disregarding a plea of non est factum, which is not sworn to.
The only remaining inquiry is, do the first and fifth sections of the 80th chapter of the Revised Statutes, as printed, which is declared to be the law of the land, by an act of the General Assembly of the I4th of December, 1838, put in operation by the proclamation of the Governor, issued in pursuance of its authority, on the 20th of March, 1839, repeal the acts of 3d of March and 10th of December, A. D. 1838, prescribing the rate of interest for the Bank of the State? By the Revised Code, it is declared, that “ no person or corporation shall, directly or indirectly, take a higher rate of interest for the loan or forbearance of money, than six per centum per annum, unless it is so expressed in the writing,” and then not exceeding ten per cent. The acts of the 3d of March and 10th of December, 1838, prescribe the rate of interest for the Bank, and fix it higher than six per cent., without requiring it to be expressed in the contract, and give ten per cent, per annum upon all bonds, bills, and notes, which shall not be paid upon maturity, or be protested, or upon which suits may be brought. The question now recurs: Does the general law of interest, as contained in the Revised Statutes, repeal the special law upon that subject, as fixed by the acts referred to? This question is one of ac knowledged magnitude, and the Court has met with no inconsiderable difficulty in arriving at a satisfactory conclusion. It has been well discussed by the repective counsel engaged, and in a manner worthy the importance of the principle involved. ,
It is a universal rule in the construction of statutes, whether public or private, founded alike in justice and sound policy, that all acts passed upon the same subject, in pari materia, must be taken and construed together, and made to-stand, if they are capable of being reconciled. Wc know of no exception to the universality of this rule. Indeed, the principle may now be considered as a settled maxim of the common law. Its application to the statutes now under consideration, will test the question in the present case. The rule of interest, as prescribed in the Revised Code, may properly be denominated a general law, including all cases within its terms. It does not apply to cases not within the meaning or reason of the statute. The rate of interest, as prescribed by the acts of the 3d of March and 10th of December, may justly be termed a special law, having exclusive reference to the Bank. Now, do the provisions of the general law of interest repeal a special law of interest, as applicable alone to the Bank? They certainly do not do it by any express words or terms.
The Revised Statutes declare, that no person or corporation shall take a greater rate of interest than is contained in the act of the code. But it does not refer to the Bank of the State by name, or declare that that institution is embraced by the word corporation. Does it, then, do it by necessary implication, or by any just interpretation of that term? The term “Corporation,” if it stood alone, is a word of general signification, and would unquestionably embrace the case of the Bank. But is not its meaning restricted and confined to a more limited sense, and applying only to such corporations, other than the Bank, that were then in being, or might afterwards be created. There were many corporations besides the State and Real Estate Bank; for instance, the Little Rock Manufacturing & Mining Company; Little Rock Academy; Napoleon Public School and Church; numerous turnpike companies, &c.
To most, if not all of these corporations, was given, by the express provisions of their charters, the power of acquiring, holding, and transmitting property, and making contracts. And the corporation of the Fayetteville Female Academy, by the third section of its charter, had express authority given it to loan money on interest. The term “Corporation,” then, is justly applicable to all these corporate bodies, and hence the propriety of the term as used in the Revised Statutes. It is clear, that the term could not embrace the cases of interest of the Real Estate Bank, because the Legislature was incompetent to prescribe any other rule upon that subject, than was contained in the charter, without the assent of the stockholders; the charter being a contract between the State and the corporators. That they did not intend to apply the term corporation to the Bank of the State, is, we apprehend, pretty clear and certain. Had that been the intention, would they have left its repeal to mere implication, and that, too, in a case where the State was the sole corporator, and its honor and its means pledged for the redemption of the capital stock?
This view of the case is strengthened, by considering that both the general and special law of interest were before the Legislature at one and the same time, and that there were only four days between their respective dates. The proximity of these dates raises a violent presumption, if it does not amount to full proof, that the term “Corporation,” used in the general law of interest, was never intended to embrace or apply to the transactions of the Bank. The rate of interest that was to govern that corporation, was fixed by special and particular acts, that were considered maturely, and-separately passed; and the latter act upon the subject, might almost be said to reach the very verge of the date of the general law upon the subject, or run into its provisions in point of time. This idea receives an additional confirmation from the known and well established fact, that the laws of the Revised Code were passed in one collected body, as a code, and not in separate and distinct acts. This grew out of the errors- and imperfections of the original rolls, as they appeared in the office of the Secretary of State, and hence the act of the 14th December, 1838, made the Revised-Code, as printed, the law of the land. Having passed in this manner, is it reasonable to suppose that the Legislature could have intended, when 'using general words in a general law, to repeal the provisions of special and particular acts not falling within the reason or spirit of the rule.
Besides, if this was the case, it must have been apparent to all that the Bank would be compelled to adopt the rate of interest as-specified by her charter, and the amendatory acts engrafted upon it for a given time, until the Governor issued his proclamation; which it( was reasonable to presume could not take place before the lapse of several months. Such being the state of things, to suppose that the Legislature intended, by the term “ Corporation,” to include the Bank, would argue a want of foresight, and inconsistency in their proceedings, which this Court is not allowed to infer. Such a presumption would give the debtors to the Bank one rule of interest to govern their' contracts, during a given period, and, in a short time thereafter, would furnish a wholly diiferent rule upon the subject, and-that,, too, in a case of importance, affecting the rights and franchises-®f a public corporation owned entirely by the State.
We deem-it unnecessary to pursue the subject further; and if we even entertained serious doubts upon the point, we would feel ourselves constrained to declare, that the first and fifth sections in the Revised Statutes, relating to the general law of interest, do not repeal, either by express words, or by necessary implication, the acts of the, 3d of March and 10th December, 1838. The magnitude of the mischief, and the manifest injustice of a contrary decision, if our judgment stood suspended upon the point, would incline the balance in. favor of the construction we have put upon these acts.
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By the Court,
Dickinson, J.
The principle, in this case, was discussed and decided in the case of The State Bank vs. Hubbard, during the present term; and the authorities there referred to, we deem conclusive. The variance, in this instance, is fatal. The note declared on was said to be payable at the office of the Real Estate Bank at Washington. On oyer, the one produced was payable at Washing, instead of Washington. The Court below unquestionably erred in not sustaining the defendant’s demurrer to the declaration.
Judgment reversed. | [
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By
Dickinson, J.
This is a question w'hich, both in its principle and in its consequences, involves the construction of our constitution, in regard to the powers that belong to the State, in her sovereign capacity ; and,' also, the constitutional jurisdiction of the county courts.
The matter in controversy is not easily determined, because the questions involved in its discussion possess inherent difficulty, in them- , selves; and this is greatly increased by the vagueness and uncertainty of the terms used in the constitution.
In the construction of grants of constitutional power, there is no rule which should be more closely adhered to, than the one laid down by Justice Story, who declares, “thatwe should regard the constitution as a frame of laws, and not as ordinary statutes, and that the great end and object of all just interpretation are, to ascertain and determine the sovereign will of the people who formed the constitution; that the whole instrument must be taken together; and that its true intent and meaning can only be ascertained and defined from the great objects and purposes for which the government was instituted; that anj other construction will abridge grqat fundamental principles, which are supreme, and enlarge those which are restricted, beyond their true and just meaning.”
I deem it proper to make this preliminary remark, before entering into a minute examination of the powers that belong to the State, as a sovereign, and those that appertain to the county courts.
The great axiom in the American form of government, is the separation and division of all political power among the three equal and co-ordinate departments of government; and that true and beneficial problem in the'science of government was revealed by our revolution, and worked out and put in harmonious operation by the adoption of our federal and State constitutions. To deny this self-evident proposition, is to impeach the right of self-government, and to destroy the great presdrvative and constitutional principle that runs through our entire system of free states. This axiom is declared inviolate by our constitution, by which it is also declared, that the powers of the government of the State shall be, divided into three distinct departments, each to be confided to a separate body of magistracy. Those which are legislative to one, those which are executive to another, and those which are judicial to a third; and, “that no person, or collection of persons, being of one of these departments, shall exercise any powers belonging to either of the others.” It is clear, from this provision, that this was the great and important object that the convention had in view, in the formation of the constitution, and therefore the instrument must be construed in reference to it. They well knew that they could not be separated, or made independent of each other; for the action of the government depends upon the joint agency of them all. But, within the constitutional jurisdiction, each was supreme, exceptin cases expressly permitted or directed. Now, it is perfectly clear, that the clause in the constitution which confers jurisdiction upon the county courts “in all matters relating to county taxes, disbursement of money for county purposes, and in all other cases that might be necessary for their internal improvements or local concerns,” must be considered by, and in reference to, the leading and governing principle of the constitution; and that the authority given to the justices of the peace, as a county court, must yield to, and be restricted by, this principle, unless its exercise is in accordance with the true object and design of the convention. Again, it cannot be denied, that, if these clauses in the constitution were in direct contradiction to each other, the latter must give way to the former, because an inferior principle is intended to be engrafted upon the constitution, in opposition to a higher and more commanding provision, and one which constitutes the ingredients of civil liberty, and furnishes the only means and security by which the liberty of the country can be preserved or continued. This is the plain dictate of common sense, founded on experience and the nature of things, and strictly in accordance with all just rules of constitutional interpretation. There is a wide difference between the constitution of the United States and those of the State governments. The one is a delegation and enumeration of powers for national purposes and objects, and hence, its provisions are not to be extended beyond the true construction of the terms used, and their necessary implication with reference to the objects granted and intended to be secured. The constitution of a State government is wholly different. It is true, whatever it forbids, either to the State or to the people, cannot be done; and, thus far, it is like the constitution of the United States. Here the similitude stops; for, whatever is not forbidden by the constitution of the United States, or by the laws of Congress in pursuance of its authority, is retained as a residuary power to the State, as a matter of sovereign right, which she has the unquestionable authority to exercise in any manner she pleases, subject to the restrictions and limitations before stated. This results from the nature and character of civil government.
It would be impossible to make an enumeration of all the political rights that belong to sovereign States, or the natural privileges that belong to the people, or to give a definition that would include the whole extent of their power. Besides, it would be impeaching the will of the sovereign to do whatever she might think proper, within her constitutional orbit; and it would strip her of all her attributes of usefulness .and improvement. The constitution of a State is, therefore, a mere declaration or biff of rights, imposed alike upon the different departments of government, and upon the citizens, and organizing its powers and franchises in such form as the sovereign will of the people, in convention, deemed proper to impose. These premises? being established, will, I think, lend to just and proper conclusions.
The most distinguishing characteristic in the federal and State governments, is the power that belongs to the legislative department to impose taxation upon the people. There is a sensibility and a jealousy upon this subject, that may be regarded as furnishing the most effectual barrier against oppression and injustice. Representation and taxation, in their proper meaning, belong exclusively to the principles of a free, constitutional, and limited government; and this power, checked and controlled by the elective franchise, is not exerted partially or in local districts, but through the agency and sovereignty of the Slates, by uniform and impartial laws, and was the power that the people regarded, above all others, as constituting the shield of their protection. Liberty, they well knew, was in far more danger from attacks upon private property, than from any other cause; and hence, they guarded it upon that side with more solicitude and concern than any other.
These principles being established, it would seem to me to follow, that the State has certainly not entrusted her resources or her powers, on the subject of taxation, to any ether department than the General' Assembly, unless the grant in the constitution is so express and imperative as to forbid the idea that she ever intended to reserve this privilege solely to herself. And if it is doubtful how the power of taxalion is distributed, then, as a governing principle of constitutional freedom, it necessarily belongs to tbe State, and she is authorized to exert it through the agency and instrumentality of her political or corporate communities. By keeping in view these principles, we shall be able to define the- true constitutional jurisdiction of the several departments, and confine each to its appropriate sphere. The power of taxation, as has been justly said, is the greatest power that can be entrusted to a sovereign. In ils exercise, all the great interests of society are involved, and the government is put into operation and supported by its resourced or influence. As a general principle, the right of taxation is given, and belongs exclusively, to the legislative department. And there is great propriety and necessity in thus lodging it; for, as it is to be exercised for the benefit and security ©f the State, so' the whole people of the State, through the means of the elective fran chise, should have the power of regulating and controlling-its action. Is our constitution an exception to this universal rule? How is the power of taxation given, iti the instrument? The county courts “ shall have jurisdiction in all matters relating to county taxes, and disbursements of money for county purposes, and in every other case that may be necessary to the internal improvement and local concern of their respective counties.” Sec. 9, Art. 6, Cons. These words must be all construed together, keeping in view the great object and purposes of the government. Admit that the term, jurisdiction over all matters relating to taxes for county purposes, if taken disconnected from the other portions of the constitution and the clauses of the sentence that ■follow it, might convey to the mind the idea (hat the power of taxation was given to that court; but, even then, I should deem that doubtful; for they are certainly neither appropriate nor sufficiently explicit terms to confer such a power. Their meaning is restrained by the latter part of the paragraph, which shows the object for which the jurisdiction was conferred; for that proves that the county court was intrusted with the mere collection and disbursement of the revenues of the county, and in all other cases in which she was concerned, by the appointment and prescription of the Legislature. Such is the extent of their powers. That they are to have and exercise jurisdiction in all cases coming within the provisions from which they derive their authority, is not controverted; and it is the duty of this Court to sustain and protect them in it. But the objects upon which that jurisdiction is to be exercised, must first be defined, and the line of distinction drawn by the General Assembly, between what shall be considered local or general concerns, and the internal improvements of the counties pointed out, as contradistinguished from those of the State; for what purposes county taxes may he assessed; the amount, mode, and manner of taxation; and the purposes for which such moneys may be disbursed. When this shall have been done, and a case is properly presented, in the form prescribed by law, then the jurisdiction attaches.
To assert the broad and naked proposition, that the county courts can act upon the subject either of taxation or disbursement, without any legislative control upon the subject, is, virtually and in effect, to give to the most inferior tribunals in the State, powers expressly belonging to the General Assembly; and that, too, in a class of cases in which they might cause the most serious embarrassment to the State, by cutting off her revenue. As judges, they possess no such right, because it is the exercise of legislative authority. Where, I ask, is the grant giving them legislative power ? Does the constitution regard them as a court, or as d legislature ? or do they partake of a double character compounded of both, possessing the attributes of both judging and legislating. Is it to be presumed that so novel and extraordinary a power would have been conferred on an inferior tribunal of justice, without an express declaration of the constitution to that effect? To say that they, as judges alone, may declare what constitute county purposes, is to make the corporate and political bodies of the State uncontrollable upon the subject of county taxation, as well as disbursements, and all their incidents; for it cannot be contended that this, or any other court, could control them upon a mere question of fact, and that, too, upon a subject of which they have an exclusive, absolute jurisdiction. Suppose the General Assembly had passed no-act whatever upon the subject, could the county court, upon its own mere will, have gone on and imposed burthens upon the property of her citizens? If it can arbitrarily declare the class of cases which shall be deemed local, or upon which the county funds shall be disbursed, regardless of the expression of the legislative will, it may, with equal propriety, levy and collect whatever tax it pleases, and upon such species of property as it may think proper to designate. If it can do all this, by what rule of uniformity are the county courts-governed? for that bench, consisting of numerous judges, continually changing, at the will of the p.eople by whom they are elected, must, then, having no rule for its government, be controlled in its judgment by the many circumstances acting upon the immediate interests of those who preside upon it. With a power undefined, unlimited, and unregulated, that which in one county would be deemed local, in another would be adjudged very differently. If the county court can, independent of the legislative will, levy taxes, and select all objects of expenditure, why can it not, as an incident of these powers, create an assessor, a treasurer, and collector? Such a power, I presume would hardly be claimed for them. Grant, then, these uncontrolled powers of levying taxes, and they can, if they wish it, indirectly exclude the State from coming into the counties for her revenue, or at least so cripple her resources as to render them valueless. What right has a county to purchase property of any kind without the authority of law? If she can do this, she may erect court-houses and jails, and call them county property, and exclude the State from the use or occupation of them, and thereby paralyze the arm of justice. It is no answer to this proposition, to say there can be no motive to do such a thing. A failure to do so may be mere policy, while it can exercise the power at any time, to the great detriment of the general interests of the State and the citizens. I admit that, if the courts were given this power, absolutely and unquestionably, by the constitution, however dangerous such an arbitrary jurisdiction might be, no valid objection could be made to its exercise; but, as there is no such express grant in the instrument, according to my view of it, we are not warranted in clothing them with such unlicensed discretion. Had the convention intended to confer it upon them, would they not have declared, in express terms, that the county court should have authority to levy taxes upon the citizens of their counties, for county purposes, and disburse the same, without being subject to the control of the General Assembly? As they have not done so, is it not fair and reasonable to presume that no such power was ever intended to be conferred? Assume the position that an uncontrolled power is explicitly given to the county courts over eounty disbursements, and it must, of course, extend to the power of taxation. I cannot consider the grant as standing separate and alone, but as in reference only to other and higher objects of government. The question that I am considering, is one of power, and not of policy. Therefore, I am unable to bring my mind to the conviction that the convention ever intended to confer upon the most inferior part of the judiciary system the power of taxation and of disbursement, without reference to any legislative action. Admit the power, and all that the county courts have to do is, to declare any object local, and a fit subject for county taxation, and then they can, of course, (if the position the county court,has assumed be correct), raise the levy to meet the expense; or, they may refuse to make any improvCrfients whatever, to the injury of other parts of the State. If this be trife, how could taxation be uniform throughout the State, or a standard of equal valuation fixed upon the same species of property? And yet, this is one of the main and leading provisions of the constitution, upon the subject of taxation.
The members of the convention who framed the constitution, are supposed to have known the wants of the State, and to have provided adequate and sufficient means for the security and maintenance of the government. They, according to my opinion, proceeded upon the principle that the people were willing to intrust the General Assembly with the power of taxation; and, through the representatives of the whole State, have agreed that their property might be taxed for State purposes and county objects. They have provided the means for these two things, by intrusting the power to the Legislature, in the first instance, and requiring it to lay down a rule upon the subject, that should govern county courts. The constitution regards the county courts as political and corporate bodies, that are to be controlled and regulated in their discretion by the acts of the General Assembly, and not as independent of, and superior to, it. As political and corporate bodies, they are required to conform their action to the rule of the Legislature, and, in the exercise of their jurisdiction, to proceed in the mode and manner prescribed by law. That the State has the right to require them to defray the expenses of criminal prosecutions, originating in their respective districts, I have no doubt. As the sovereign, she may defray them out of any portion of her revenue that she may think proper. Whether the law she has passed in regard to the subject be ill advised or not, it does not belong to this Court to determine. Much rmiy depend upon the vigilance of the police of a county, in preserving peace, good order, and quietness, and in suppressing vice and crime. And while, on the other hand, she is induced to exercise all her energies in preventing the commission of crime, she is warned that unnecessary and unwarrantable prosecutions may cause the expenditure of her public moneys, and increase the burthen of her citizens. The General Assembly having, under any state of case, authority to pass the laws, they must, in my opinion, remain in force until changed or modified by subsequent legislation.
Under the view I have taken of this case, it is not necessary for me to say, that I consider the acts of the General Assembly, regulating the disbursement of county funds, as imperative upon the county courts, and that they have no discretion but to obey them. In the present case, it cannot be contended but that the sheriff of Phillips county has acted in conibrmity with law, and that his account for official services, rendered in the case of the State vs. Douglass,-is properly certified. It is equally clear, in my opinion, that the county of Pulaski, in which the prosecution was instituted, is bound to pay the costs. The judgment of the circuit court, however, must be reversed, as that court, upon certiorari, could take no other action upon the proceedings of the county court, than to quash or affirm them. The case must therefore be remanded, with instructions that the judgment of the county court be quashed.
By | [
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By the Court,
Dickinson, J.
The first count charges the defendant upon a bill of exchange. The acceptance was conditional; the defendant’s liability depended upon a settlement between himself and the plaintiff; and as that settlement is never averred to have taken place, of course his liability has not accrued. The demurrer was, therefore, properly sustained as to this count. The second count charges the defendant’s indebtedness upon a promissory note, and is every way formal and valid. The third is an indebitatus count, and equally as good. And the fourth is also an indebitatus count, charging, among other things, that the defendant and two other persons, (who are not sued in the action), were indebted for “ goods and merchandize sold and delivered,” “ money paid, laid out, and expended”’ &c. We can discover no objection to this count. The defendant was jointly and severally liable for the purchase and delivery of the goods, with the other two persons not sued; and his liability, in that capacity cannot be deemed a misjoinder of actions with the other counts. By the purchase of the goods, if separately answerable to the plaintiff, we can see no suffl cient reason why this responsibility may not be coupled with other distinct charges against him. The demurrer was, therefore, improperly sustained as to each of these counts.
Judgment reversed. | [
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Held, that although the judges of an inferior court do not obey an order of this court, and thereby subject themselves to an attachment for contempt, yet, if their return to the mandamus shows that there was no intentional contempt on their part — instead of an attachment, an alias mandamus will issue. | [
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By the Court,
Risco, C. J.
Every question presented by the record and assignment of errors, is within some of the principles adjudged by this Court, in either the case of Pullen vs. Chase, ante, or Davies vs. Gibson, 2 Ark. 115; and, according to the judgment of this Court, then expressed and still entertained, they must be, respectively, determined against the plaintiff in error.
Judgment affirmed, except as to the $2 remitted, with costs. . | [
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John I. Purtle, Justice.
The appellant was convicted of the crime of capital felony murder in Mississippi County Circuit Court, on a change of venue from Crittenden County. Punishment was set at death by electrocution. Appellant argues twelve points for reversal, which will be set out and discussed separately. However, we do not find reversible error in any of them and affirm the action of the trial court.
The facts in this case reveal that Sergeant Glen Bailey of the Arkansas State Police encountered the appellant driving at a highly excessive rate of speed. The officer crossed over the highway median in order to give chase and radioed for assistance. Appellant was stopped at a blockade on the exit ramp from Interstate Highway 55 into the city of Marion, Arkansas. Two police cars were in front of him and he stopped a short distance before reaching the first car. A uniformed trooper started walking toward the appellant who began to back up but discovered the original officer had blocked him in from behind and was approaching him on foot. Appellant stopped his car, got out and fired point blank into Sergeant Bailey’s chest critically wounding him. The officer died soon thereafter as a result of this wound. The appellant attempted to escape on foot but was apprehended a short time later in a nearby house. At the scene the officers determined that the vehicle appellant had been driving was stolen. They found a number of stolen articles in the vehicle. They further learned that appellant was an escapee from the Tennessee Department of Correction where he had been serving time for a number of felony convictions.
The incident was given wide publicity resulting in the court granting appellant’s motion for a change of venue from Crittenden County to Mississippi County.
Over the objections of the appellant the fact that he was an escapee and serving time on the other sentences was allowed to be introduced. Also, it was shown that the automobile was stolen and that various items found in the car belonged to other people. The owners were allowed to identify their property during the course of the trial. The information was also challenged and the more standard defenses normally presented in capital felony trials were argued.
We will separately discuss the arguments on appeal.
I.
THE TRIAL COURT ERRED IN DENYING APPEL, LANT’S MOTION TO QUASH THE INFORMATION.
The motion to strike the indictment was based upon the Eighth Amendment prohibiting cruel and unusual punishment. This argument has been presented to the court in many cases, and we have consistently ruled that our death penalty statute is constitutional. Westbrook v. State, 265 Ark. 736, 580 S.W.2d 702 (1979); Ruiz and Van Denton v. State, 265 Ark. 875, 582 S.W.2d 915 (1979); Swindler v. State, 264 Ark. 107, 569 S.W.2d 120 (1978); and Collins v. State, 261 Ark. 195, 548 S.W.2d 106 (1977). Appellant contended that ’ the overlapping provisions of Ark. Stat. Ann. § 41-1501 (Repl. 1977) with Ark. Stat. Ann. §§ 41-1502 and 41-1503 (Repl. 1977) were arbitrary and discriminatory. We have also held constitutional these particular statute sections in Wilson v. State, 271 Ark. 682, 611 S.W.2d 739 (1981), and in Cromwell v. State, 269 Ark. 104, 598 S.W.2d 733 (1980), where it was stated "... we find no constitutional infirmity in the overlapping of the two sections, because there is no impermissible uncertainty in the definition of the offenses.”
II.
THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION CHALLENGING THE DEATH QUALIFICATION VOIR DIRE OF PROSPECTIVE JURORS.
The “death qualified” jury was approved by the United States Supreme Court in Witherspoon v. Illinois, 391 U.S. 510 (1968). Since Witherspoon we have approved this procedure in many cases. See Ruiz and Van Denton v. State, supra; Collins v. State, supra; and Westbrook v. State, supra.
III.
THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT’S MOTION TO QUASH THE JURY PANEL.
The jury panel was selected by the jury wheel through a random selection process. The selection was by computer process from the list of registered voters of a voting district within Mississippi County. Additionally, prior to this trial, 300 names were again selected using the same process of jury wheel random selection. The court requested that 150 of the j urors report on the first day. Only 54 appeared. Five or six of these were black. The trial court excused a considerable number of jurors prior to the trial date. Eighteen were excused because they were 65 or older and did not wish to serve; 16 stated they were in bad health; and 12 others listed various hardships which caused the court to excuse them prior to the trial date. Several had moved from the district and a few of them were dead. There was nothing about this process which indicated an intent not to have a fair cross-section of the population of the district represented by the panel. Appellant’s attorney made the statement that the state had a habit of excusing black jurors peremptorily. The panel as selected was all white. Although this could give the impression of discrimination, a closer examination reveals the selection was not in violation of the rule set out in Swain v. Alabama, 380 U.S. 202 (1965), and followed by us in Williams v. State, 254 Ark. 799, 496 S.W.2d 395 (1973). Appellant did not use the process utilized in Waters & Adams v. State, 271 Ark. 33, 607 S.W.2d 336 (1980), wherein we held the system used therein was discriminatory. There is no proof in the record that there was a conscious effort to exclude black jurors. Statistics concerning the number of blacks in Mississippi county were not presented until the appeal brief was filed. The random selection process used in this case does not guarantee that a proportionate cross-section of the community will serve on the jury nor is there a guarantee that any proportionate number of appellant’s race will be seated on the jury. Swain v. Alabama, supra; and Williams v. State, supra. If it had been shown that it was the practice of the state to automatically exclude black jurors the result may well have been different, however there was no proof as to this point.
IV.
THE TRIAL COURT ERRED BY REQUIRING DEFENDANT TO VOIR DIRE THE PROSPECTIVE JURORS BEFORE THE STATE WAS REQUIRED TO ACCEPT OR STRIKE.
Appellant sought to have the prospective jurors voir dired separately. However, the court found that there was not enough room in the courthouse to utilize this process. Although appellant thought the library in the courthouse would be adequate for this purpose, the court exercised its discretion in rejecting this suggestion.
In Clark v. State, 258 Ark. 490, 527 S.W.2d 619 (1975), we held it reversible error to require a defendant to examine all of the jurors drawn from the panel each time before the state was required to either accept or reject a juror, it being felt that this process would afford an unfair advantage to the state. However, it appears that the appellant waived the requirements of Ark. Stat. Ann. § 43-1903 (Repl. 1977) by making the suggestion that this process would be satisfactory. It may be noted that this process was utilized at the request of defense counsel after consultation with appellant. We do not overlook the fact that appellant stated he still did not waive his objection to questioning the jurors other than individually. However, the agreement to use this method was made only after consulting with the appellant, and we do not find it to be reversible error. Also, only ten of the twelve authorized peremptory challenges were exercised by appellant. See Crutchfield v. State, 251 Ark. 137, 471 S.W.2d 361 (1971); and Stroud v. State, 169 Ark. 348, 275 S.W. 669 (1925).
V.
THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION TO PROHIBIT JURY DISPERSAL.
It is hard to understand why this argument is presented when the appellant admits that such matters were within the discretion of the trial court. Although it may be preferable to sequester the jury, it is a matter upon which the trial court must decide. The burden of proof to show that the appellant did not receive an impartial trial because of failure to sequester the jury is upon the appellant. This burden was not met. Ark. Stat. Ann. § 43-2137 (Repl. 1979); Nail v. State, 231 Ark. 70, 328 S.W.2d 836 (1959); Hutcherson v. State, 262 Ark. 535, 558 S.W.2d 156 (1977).
VI.
THE TRIAL COURT ERRED BY ALLOWING THE MENTION OF APPELLANT’S PRIOR FELONY CONVICTIONS DURING THE STATE’S OPENING STATEMENT.
The statement made by the state was:
Officer Brackin further continuing his investigation determined that at the time this occurred the defendant, Clay Anthony Ford, was wanted for an escape from the Memphis Community Service Center where he was serving a sentence of — completing a sentence of three years on convictions of burglary in the third degree, grand larceny and burglary in the second degree.
The court had taken into consideration the appellant’s motion in limine prior to the commencement of the trial and had ruled that the state would be permitted in its case in chief to show that appellant was a prior convicted felon in regard to those convictions which he was serving at the time of his escape. Additionally, the court later held that these convictions were allowable for the purpose of showing intent. The court had made it clear that the motion in limine was granted as to any other convictions which the appellant may have had. Since' the proof showed that the appellant was serving time for these particular convictions prior to his escape, it is proper to refer to them in order to show motive or intent pursuant to Arkansas Uniform Rules of Evidence, Rule 404 (b). Relevancy of evidence is within the trial court’s discretion and absent a .showing of abuse of that discretion its decision will be affirmed. Hamblin v. State, 268 Ark. 497, 597 S.W.2d 589 (1980). The admissibility of evidence must necessarily be decided on a case by case basis. Intent can seldom, if ever, be shown by direct evidence and may be proven only from circumstantial evidence. Smith v. State, 264 Ark. 874, 575 S.W.2d 677 (1979). We do not interpret these offenses to be excluded under the theory set forth in Alford v. State, 223 Ark. 330, 266 S.W.2d 804 (1954). We still adhere to the principle that prior convictions cannot be introduced for the purpose of showing that the accused was a bad person. We hold to the rule that evidence of other crimes may not be introduced merely for the purpose of showing the accused to be a man of bad character likely to commit the crime charged. Umbaugh v. Hutto, 486 F.2d 904, cert. denied 94 S. Ct. (1978), 416 U.S. 690 (8th Cir. Ark. 1973). Since evidence of appellant’s other crimes was introduced for a proper purpose, there was no prejudicial error in allowing this material to be introduced.
VII.
THE TRIAL COURT ERRED WHEN IT COMMENTED UPON THE EVIDENCE.
At the beginning of the trial the court stated to the jury, “Ladies and gentlemen, I feel that a word of caution might be in order at this time in regard to that type and nature of evidence which has been admitted.” “ . . . any prior convictions or escape from the State of Tennessee, of course, has no bearing upon the question of whether or not this defendant did in truth and fact shoot and kill Sgt. Glen Bailey.” Appellant objected to the trial court’s comment and at his request the trial court struck its previous remark. Even if the words of caution uttered by the judge had been improper, it is apparent that the court’s prompt striking of the statement cured any impropriety. We do not find this to be a violation of Art. 7 § 23 of the Constitution of Arkansas prohibiting judges from commenting upon the evidence. There is no doubt that a trial judge is in a position of great stature in the eyes of the jury and should be extremely cautious in both conversation and candor throughout the course of a trial. Without having any intention whatsoever and perhaps unconsciously the trial court could prejudice the right of an accused by making comments upon the evidence or appearing to act in a manner favoring one side or the other. However, we do not find that such is the case here.
VIII.
THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT ALLOWED A SERIES OF STATE’S WITNESSES TO IDENTIFY STOLEN PROPERTY TAKEN IN THE COMMISSION OF OTHER CRIMES UNRELATED TO THIS CHARGE AND FOR WHICH THE APPELLANT HAD NOT BEEN CHARGED.
Exercising its discretion, the trial court, over the appellant’s objection, permitted evidence of stolen credit cards and other articles found at the scene of the slaying, including the vehicle, to be introduced as evidence. As we stated earlier, Rule 404 (b), Arkansas Uniform Rules of Evidence, allows the judge to admit evidence that goes to show motive or intent. It is obvious the appellant would not have wanted to be apprehended with stolen articles in his possession. Therefore, we cannot say the trial court abused its discretion in allowing the introduction of this evidence for the purpose of shedding light upon the intent of the accused. Perhaps it is unfortunate that as a side effect of the introduction of this evidence the jury could imply that appellant had committed these other crimes. However, the trial court obviously ruled that its probative value outweighed the danger of unfair prejudice. Martin v. State, 258 Ark. 529, 527 S.W.2d 903 (1975); and Grigsby v. State, 260 Ark. 499, 542 S.W.2d 275 (1976).
IX.
THE EVIDENCE REGARDING PREMEDITATION AND DELIBERATION WAS INSUFFICIENT AS A MATTER OF LAW AND THE TRIAL COURT ERRED BY DENYING APPELLANT’S MOTION FOR DIRECTED VERDICT.
The jury was properly instructed by the court that in order to find the appellant guilty of capital felony murder they must find that he acted with a premeditated and deliberated purpose; that he had a conscious object to cause the death; that he formed that intention before acting; and, that he must have weighed in his mind the consequences of a course of conduct as distinguished from acting upon sudden impulse without the exercise of reasoning power. The matter of premeditation and deliberation, absent a confession, can only be proven by circumstantial evidence. This state of mind may be formed on the spur of a moment. The fact that appellant alighted from his car with his pistol in his hand and fired point blank into the approaching officer’s chest is rather strong evidence of his intent. We stated in Westbrook v. State, supra, “premeditation and deliberation are not required to exist for any particular length of time and may be formed almost on the spur of a moment.”
X.
THAT DEFENDANT WAS PREJUDICED BY THE STATE’S IMPROPER CLOSING ARGUMENT AND THE TRIAL COURT’S DENIAL OF DEFENDANT’S MOTION FOR A MISTRIAL.
During the state’s closing arguments reference was made concerning the motive for killing the officer and in that connection the state made the statement that appellant was trying to avoid apprehension for “other crimes, the escape, the burglary, the theft and possession of stolen property.” Appellant timely objected to the mention of these crimes but the court denied his motion for a mistrial. The court did instruct the state not to dwell at length upon this aspect of the case. All of these items had been mentioned both at the beginning of the case and further along in the proof in chief. Therefore, they were not prejudicial as mentioned in the closing argument. Closing argument should be confined to the questions in issue, the evidence introduced and all reasonable inferences and deductions that may be drawn therefrom. Brewer v. State, 271 Ark. 254, 608 S.W.2d 363 (1980). We have previously stated that these particular crimes were admissible under Rule 404 (b). Therefore, it was not error to mention them in the closing argument.
Appellant contends that the trial court abused its discretion when, after admitting that the court had not heard a certain portion of the argument, the court refused to listen to the reporter’s transcript in order to determine what had occurred. The court also denied a motion for a mistrial at this point. A review of the transcript shows that the judge inquired as to what was said and it turned out to be the remark of the prosecuting attorney relating to the other crimes. Neither side disputed that that was the portion of the proceeding which the court did not hear. Consequently it was not prejudicial error to refuse to listen to the tape.
XI.
THE TRIAL COURT ERRED BY ALLOWING THE STATE TO INTRODUCE EVIDENCE OF APPELLANT’S PRIOR CONVICTIONS DURING THE PENALTY PHASE OF THE TRIAL.
The prior convictions admitted during the penalty phase were convictions for larceny, burglary and receiving and concealing stolen property. These are not the same crimes that were mentioned earlier but are convictions for which the appellant had been paroled or released. We agree with the appellant that as stated in Williams v. State, 274 Ark. 9, 621 S.W.2d 686 (1981), the trial court should not submit to a jury a defendant’s conviction for burglary during the penalty phase of a trial. We held that in order for an offense to be admissible as an aggravating circumstance pursuant to Ark. Stat. Ann. § 41-1303 (Repl. 1977) the felony committed must include the use or threat of violence to another person, or the creation of substantial risk of death or serious physical injury to another person. Sometimes a burglary could include this risk. We still adhere to the rule. It was error for the court to allow evidence of prior crimes which did not involve the use or threat of violence or create substantial risk of death or serious physical injury to another person as an aggravating circumstance. Neither were these prior felonies proper for the purpose of anticipating a showing of lack of prior convictions as a mitigating circumstance. We faced a similar situation in the case of Miller v. State, 269 Ark. 341, 605 S.W.2d 430 (1980), wherein we stated:
We think it a better practice, and less confusing to the jury, for the circuit judge to omit from submission any aggravating or mitigating circumstances that are completely unsupported by any evidence, and we take this opportunity to direct the circuit judges of Arkansas to hereafter allow this alternate procedure. If there is any evidence of the aggravating or mitigating circumstances, however slight, the matter should be submitted to the jury. Of course, counsel may object to the determination of the trial court the same as they may object to any other form of verdict.
Therefore, it was the duty of the trial court to omit the mitigating circumstance relating to appellant’s lack of prior criminal history. The jury could not have found it to exist and the appellant would not have these prior felonies presented before the jury. The fact that it was shown that appellant was an escapee from the Tennessee prison where he was serving time for felony convictions had already foreclosed the possibility of the jury finding no significant history of prior criminal activity. However, in the present case the jury did not find appellant had committed the aggravating circumstance of having a prior felony involving the use of or threat of violence to another person or involving the creation of substantial risk of death or serious physical injury to another person. Neither did the jury find the mitigating circumstance that appellant had no significant history of prior criminal activity. Under the circumstances of this case we do not find the error to have been prejudicial.
XII.
THE TRIAL COURT ERRED BY DENYING WITHOUT A HEARING APPELLANT’S MOTION FOR NEW TRIAL AND SUBPOENA DUCES TECUM AS A RESULT OF MEDIA COVERAGE OF TRIAL PROCEEDINGS IN THE COURTROOM WITHOUT CONSENT OF APPELLANT AND APPELLANT’S COUNSEL.
Appellant filed a motion for new trial based on a number of grounds. Most of the grounds were matters which were previously raised and ruled upon during the course of the trial. One other ground emphasized was that the trial court allowed TV and media coverage at the sentencing stage of the trial without the consent of appellant or appellant’s counsel. In reviewing the record it is unclear how much media coverage this trial was given. Appellant’s objection was made at the sentencing phase of the trial and thus it is with that point which we deal.
The court, after the case had been submitted to the jury and a verdict returned fixing appellant’s penalty at death by electrocution, asked the appellant, “Do you have any legal cause to show at this time why sentence should not be passed?” At this point counsel for appellant requested that the court be closed “. . . insofar as the press is concerned.” The trial court denied the request. In the case of Shiras and Arkansas Gazette Co. v. Britt, 267 Ark. 97, 589 S.W.2d 18 (1979), we held that public trials are guaranteed by law, therefore the request that the court be closed to the press was properly denied. However, assuming that the appellant’s counsel was referring to TV coverage, the record does not reveal the extent to which the proceeding was videotaped or covered by the television media. Canon 3 (A) (7) of the Code of Judicial Conduct prevents cameras in the courtroom without the consent of the accused. See 271 Ark. 358 (1980). Our rule has been somewhat relaxed since the date of this trial. The rule was not placed into effect to be ignored by the courts. It is possible that the rights of an accused could be prejudiced by intrusion by members of the media. Therefore, safeguards have been adopted by Canoh 3 (A) (7) of the Code. A willful disobedience of this Canon would, no doubt, be dealt with in an appropriate manner which could go so far as to cause a retrial of the case or result in other action by this court. Since the trial of the appellant had been completed and the only thing left to do was to sentence him and only one sentence was to be imposed, we cannot hold that there was any prejudice to the appellant as a result of coverage by the media without prior approval.
The trial court considered appellant’s motion for a new trial and denied it on the grounds (1) that some of the matters had been previously considered and ruled upon, (2) that there was no timely objection in regard to media coverage of the trial, and (3) that appellant’s motion for new trial failed to comply with Rule 36.22 of the Ark. R. Crim. Pro. which states that a motion for new trial “ . . . should include a statement that the movant believes the action to be meritorious and is not offered for the purpose of delay.” In light of the previous discussion and considering the trial court’s reasoning, we cannot find that the trial court abused its discretion in failing to grant appellant a new trial.
XIII.
SEARCH FOR OTHER ERRORS.
In accordance with Ark. Stat. Ann. § 43-2725 (Repl. 1977) and Rule 11 (f) of our rules we have reviewed the record in this case regarding all objections upon which the trial court ruled adversely to the appellant but which were not included in the brief herein. We have found no overruled objections which amount to reversible error.
We would call appellant’s attention to the fact that in a brief to this court the abstract should be done in first person and is not to be copied verbatim from the transcript. Rule 9 (d), Rules of the Supreme Court. This seems to have added to appellant’s own, as well as our difficulty in coming to a full understanding of the case; however, we have proceeded with due diligence and find that the trial court should be affirmed.
Affirmed.
Hickman, J., dissents. | [
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Robert H. Dudley, Justice.
The appellant was tried and convicted of rape in violation of Ark. Stat. Ann. § 41-1803 (Repl. 1977) and received a thirty-five year sentence. Jurisdiction is in the Supreme Court pursuant to Rule 29 (1) (b). This appeal follows the denial of a motion for a new trial. We affirm the trial court.
The facts relating to the motion for a new trial establish that appellant’s attorney stated by affidavit that two days after the trial he was in the corridor of the courthouse when Virgil Elmore, one of the jurors, approached him and said that the jury had assumed the appellant would serve considerably less than thirty-five years in prison because of the parole system. Appellant’s attorney then filed a motion for a new trial, acknowledging our caveat in Sanson v. Pullum, 273 Ark. 325, 619 S.W.2d 641 (1981), but alleging “the jury was given extraneous information that was improper concerning the parole system that greatly influenced the sentence to the prejudice of the defendant.” A hearing was held on the motion and the trial court limited questioning to whether any extraneous prejudicial information was improperly brought to the jury’s attention and whether any outside influence was brought to bear on any juror. Appellant objected to this restricted questioning and maintains that he should have been allowed to ask questions which address “the impropriety of a jury computing the sentence to be imposed on the basis of them applying one or more of their member’s uninformed ideas of the workings of the parole system to compute a sentence to insure a certain actual incarceration time.”
The questions and answers of Juror Elmore at the hearing on the motion for a new trial are representative of the testimony of the other jurors. They have been abstracted by appellant as follows:
My name is Virgil Elmore. Ido recall sitting on the jury trial of Troy Veasey.
MR. HOLIMAN: [appellant’s attorney] After you [were] seated in the box and sworn in as a jury panel, was there any extraneous or prejudicial information that was brought to bear upon your decision in that particular case?
MR. ELMORE: No. I simply observed and listened to the testimony and made my decision according to that testimony.
MR. HOLIMAN: Was there any outside influence brought to bear upon your decision in this particular case?
MR. ELMORE: No.
In Andrews v. State, 251 Ark. 279, 472 S.W.2d 86 (1971), we held that a trial court should not instruct a jury on the law of parole. In that opinion we stated:
Their [the jury’s] duty is to determine, within the limits of the statute, the punishment that should be meted out for the crime that has been committed, and such judgment should not be influenced by any event that might occur at some time in the future. The subject matter is entirely alien to a judicial proceeding since it is handled entirely by another department of government, the executive.
The appellant contends that Andrews governs the issue of discussion of parole and the subject may have been impermissibly allowed into the deliberations here. However, after Andrews we clarified our holding by explaining in Woods v. State, 260 Ark. 882, 545 S.W.2d 912 (1977) that a reference to the possibility of parole by a juror would not constitute reversible error:
In Andrews we did not even intimate that the barest reference to the possibility of parole would be reversible error. Our holding was that the court should not attempt to explain to the jury the law governing the parole system. We adhere to that view, but no such explanation was attempted here. The challenged clause in the judgment certainly did not tell the jurors anything unknown to them, since it is hardly possible that even one person, much less twelve, old enough to serve on a jury would not know that Arkansas has a parole system.
We affirmed the Woods clarification in the recent case of Ashby v. State, 271 Ark. 239, 607 S.W.2d 675 (1980) and stated:
... If the jury or any of them, did take the possibility of parole into consideration in their determination of appellant’s sentence, any information they had concerning parole was independent knowledge which they had prior to trial.
# # #
... It would be highly unrealistic for this court to think that jurors do not consider the possibility of parole in arriving at a sentence in a criminal case. The outward expression of that by a juror is not grounds for a new trial.
The trial court was correct in refusing to set aside the verdict of the jury even if some jurors considered the possibility of parole. Thus, appellant’s argument that the trial court erred by restricting his questioning of the jurors in order to establish the jury’s consideration of parole is without merit. It is also without merit for a second reason.
The type of limited questioning appealed from is authorized and controlled by Rule 606 (b) of the Unif. Rules of Evid., Ark. Stat. Ann. § 28-1001 (Repl. 1977), which provides:
(b) Inquiry into Validity of Verdict or Indictment. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon his or any other j uror’s mind or emotions as influencing him to asset [assent] to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received, but a juror may testify on the questions whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror.
This rule states plainly that a j uror may not testify as to the effect of anything upon his mind as influencing him to assent to the verdict. Sanson v. Pullum, supra. See also, Ashby v. State, supra.
Affirmed.
Purtle, J., concurs.
“We take this opportunity to state unequivocally, for the guidance of the bar, that in our opinion it is improper for a lawyer to interview jurors after a trial in an effort to obtain such inadmissible affidavits to impeach their own verdict.” | [
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Frank Holt, Justice.
The appellant was arrested September 27, 1977, on charges of rape, burglary, and theft of property. The next day an information charging him with these offenses was filed, and he was arraigned. Shortly before his arraignment, he was appointed counsel. Following a brief consultation with his attorney, he entered a guilty plea to the three charges, pursuant to a negotiated plea, and was sentenced to 30 years for rape and 10 years on each of the other charges. The sentences were to run concurrently.
On May 15, 1980, appellant initiated proceedings for postconviction relief pursuant to A. R. Cr. P., Rule 37, Ark. Stat. Ann. Vol. 4A (Repl. 1977). He alleged, inter alia, that his sentence was imposed in violation of A. R. Cr. P., Rule 24 and, therefore, his plea was not voluntarily nor intelligently made. After an evidentiary hearing, the court, in written findings of fact and conclusions of law, found to the contrary and denied relief. The court concluded any deficiencies in the September 28, 1977, plea proceeding were supplied at the postconviction relief hearing. Hence this appeal.
We need only to consider appellant’s contention, through present appointed counsel, that the court erred in finding his guilty plea was entered voluntarily, knowingly, and intelligently. He argues that the judgment was imposed in violation of A. R. Cr. P., Rules 24.4, 24.5, 24.6 and 24.7, which provide:
Rule 24.4 in pertinent part:
The court shall not accept a plea of guilty or nolo contendere from a defendant without first addressing the defendant personally, informing him of and determining that he understands:
(a) the nature of the charge;
(b) the mandatory minimum sentence, if any, on the charge;
(c) the maximum possible sentence on the charge, including that possible from consecutive sentences;
Rule 24.5:
The court shall not accept a plea of guilty or nolo contendere without first determining that the plea is voluntary. The court shall determine whether the tendered plea is the result of a plea agreement. If it is, the court shall require that the agreement be stated. The court shall also address the defendant personally and determine whether any force or threats, or any promises apart from a plea agreement, were used to induce the plea.
Rule 24.6:
The court shall not enter a judgment upon a plea of guilty or nolo contendere without making such inquiry as will establish that there is a factual basis for the plea.
Rule 24.7:
The court shall cause a verbatim record of the proceedings at which a defendant enters a plea of guilty or nolo contendere to be made and preserved.
We are hampered in our review of this matter as the court reporter was unable to supply the court with a record of the September 28, 1977, proceeding which is required by Rule 24.7. In the absence of the required record, the state has the burden of proving the plea was voluntarily and intelligently entered. Irons v. State, 267 Ark. 469, 591 S.W.2d 650 (1980); and Deason v. State, 263 Ark. 56, 562 S.W.2d 79 (1978). We will not reverse the findings of the trial court unless clearly against the preponderance of the evidence. Mitchell v. State, 271 Ark. 512, 609 S.W.2d 333 (1980).
Here, the state introduced the court’s docket. However, it merely reflected the appointment of counsel to represent appellant and to advise him of his rights to a trial by jury and counsel; that the trial court read the charge to the appellant and again explained his rights to which the defendant stated that he understood them following which .he pled guilty to the charges and received the sentences of 30 years for rape, 10 years for burglary and 10 years for theft, the sentences to run concurrently. The appointed attorney, who represented the appellant when he pled guilty, testified that when he was appointed on the day of arraignment he reviewed the investigating officers’ file, talked with them and conferred with and explained to appellant the possibilities of conviction upon a jury trial, including the range of sentences. The appellant had signed a confession to the crimes charged, the attorney was convinced that the confession was voluntary, and that appellant had committed the alleged offenses. He did not remember asking the appellant about prior convictions or possibilities of parole. He did not discuss the crimes of burglary or theft except as to additional punishment. Appellant appeared coherent, although he was upset, afraid and didn’t know what might happen to him. He never complained about any coercion. The court "pretty well left everything” to him as appointed counsel "to advise him of his rights and so on.” He did not remember the questions the trial judge asked the appellant but stated: “He [the court] didn’t go into details of the event. He merely arraigned the defendant again ... he asked him if he pled guilty or not guilty — ” The prosecutor then made a recommendation as to the sentence and the trial judge “didn’t hesitate and rendered judgment right then, and wrote it in the docket.” The trial judge did not ask the appellant anything about the voluntariness of his plea nor the factual basis.
The state’s evidence clearly shows that the trial judge, upon accepting appellant’s plea of guilty, failed to comply with our rules. We have said that compliance with Rule 24.6 is mandatory. Irons v. State, supra. Rule 24.5, which requires that the trial judge himself ascertain whether a plea of guilty is voluntary, is mandatory. McGee v. State, 262 Ark. 473, 557 S.W.2d 885 (1977); Irons v. State, supra; see also Boykin v. Alabama, 395 U.S. 238 (1969); and Byler v. State, 257 Ark. 15, 513 S.W.2d 801 (1974). It is the duty and responsibility of the trial court to determine beyond doubt that a plea of guilty is voluntary, and in order to do so, he should inquire of the defendant personally, substantial compliance being sufficient. Simmons v. State, 265 Ark. 48, 578 S.W.2d 12 (1979). However, reversal is not mandated where the deficiencies in the proceeding are supplied at a postconviction hearing. Deason v. State, supra. See Byler v. State, supra.
Here, on the record presented, when we view the totality of the circumstances, we cannot say with confidence that the state has met its burden of showing that the plea of guilty was voluntarily and intelligently entered.
The judgment of the trial court is reversed and remanded with directions to vacate the sentences imposed and for further proceedings against the appellant as may be appropriate.
Reversed and remanded. | [
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Darrell Hickman, Justice.
This is an appeal from the trial court’s directed verdict in favor of the appellee, Con- Ark Builders, and others, finding that the appellant, American Sheet Metal Works, Inc., did not have a binding contract to be a subcontractor to Con-Ark, which had the general contract to construct the medium security building at the Cummins unit of the Department of Correction. American Sheet Metal Works had sued the appellees for damages for breach of contract.
We agree with the trial court that the issue was a question of law and find the court properly decided that issue.
Con-Ark Builders was the general contractor bidding on the medium security building at the Cummins unit of the Department of Correction. American Sheet Metal Works made a telephone bid to several general contractors, bidding on various mechanical portions of the job. American’s bid was $643,969.00 and it was the low bid for its portion of the job. Con-Ark used American Sheet Metal’s bid as part of its overall bid and was awarded the construction project as the low bidder. Later, Con-Ark had some reservations about the ability of American Sheet Metal Works to perform the job. Of the total subcontract of $643,969.00, approximately $400,000.00 of it was plumbing. It was learned that American Sheet Metal Works, which was primarily a sheet metal, electrical, air conditioning and mechanical contractor, intended to use Southern Mechanical, a Memphis, Tennessee firm, to perform the plumbing part of the subcontract and that Southern had no license to perform construction work in Arkansas. Con-Ark also questioned whether American Sheet Metal Works could obtain a bond in the amount of the subcontract, and, Con-Ark learned that American Sheet Metal Works’ Arkansas license did not authorize American Sheet Metal for the specialty of plumbing. Con-Ark notified American Sheet Metal that it would not enter into a written contract with American Sheet Metal on this job; instead Con-Ark obtained permission from the State to substitute one of its subsidiaries, Nabco Mechanical, Inc., to perform this subcontract at the amount bid by American Sheet Metal Works.
Essentially American Sheet Metal argues that the trial court was wrong in finding as a matter of law that it did not have an enforceable contract with Con-Ark Builders. What American Sheet Metal Works could not avoid at trial, nor with us, is that its Arkansas license, at the time of the negotiations, did not authorize American Sheet Metal Works to do plumbing. Later, American Sheet Metal Works did have ip license amended to reflect that it was authorized to perform plumbing work. American insisted below and insists on appeal that the missing authorization was due to a mistake. But the question has to be, could Con-Ark be forced to accept the proposal in view of the deficiency on the license and the other considerations that we have mentioned?
American Sheet Metal Works, Inc. argues that Ark. Stat. Ann. § 14-613 (Repl. 1979) was circumvented by Con-Ark. Ark. Stat. Ann. § 14-613 is referred to in the construction industry as the “name your subcontractor law.” Generally it requries that a general contractor offer the first opportunity for subcontracts to Arkansas contractors qualified as mechanical, electrical, roofing and sheet metal contractors engaged in plumbing, heating, ventilating, air conditioning, electrical wiring and illuminating fixtures and other such specialties.
However, the statute reads that the general contractors must “first offer an opportunity to Arkansas licensed and qualified . . . subcontractors.” [Emphasis added.] Con-Ark insisted that American Sheet Metal Works, Inc. was not licensed and qualified at the critical time and we must agree.
Essentially, American Sheet Metal Works’ argument is one of equity and implies that Con-Ark Builders used bad faith. It is suggested that American Sheet Metal Works was simply used to obtain the bid and then Con-Ark deliberately awarded the subcontract to one of its subsidiaries. American Sheet Metal Works argues that it found a qualified Arkansas subcontractor to perform the plumbing work; that it proved that it could be bonded for the full amount and that later it had its license amended to include plumbing. But all these factors arose after the fact and could merely be used as arguments to persuade Con-Ark to sign a contract with them. These arguments avoid the question of law involved and that is, whether Con-Ark Builders was required to accept American Sheet Metal Works’ proposal after the State of Arkansas awarded the contract to Con-Ark. The Arkansas statute did not require Con-Ark to accept the bid and, consequently, we cannot.
Affirmed.
Holt, J., not participating.
Hays, J., dissents. | [
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George Rose Smith, Justice.
This case must be affirmed because of flagrant deficiencies in the appellants’ abstract of the record. Rule 9 (d) requires that the abstract consist of an impartial condensation of such parts of the record as are necessary to an understanding of all questions presented for decision. In scores of cases we have discussed the essentials of a proper abstract of the record. In the case at bar the following statement from Collins v. Duncan, 257 Ark. 722, 520 S.W.2d 192 (1975), is especially pertinent: "A good rule of thumb would be for an attorney to forget that he knows anything at all about the case, and examine his abstract of the record for a determination of whether it clearly sets out all he would,need to know if he were required to decide the issues involved on appeal.” In the light of that statement we quote the appellants’ entire abstract:
The Complaint of Appellant alleges jurisdiction; a contract between appellant and appellee; a breach of the contract and resulting damages (TR-1). The answer of appellee alleges it is a quasi-municipal corporation; comparative negligence as a bar to recovery; and governmental immunity as a bar to recovery (TR-3). Motion for Jury Trial by appellant (TR-5). Order Transferring cause from Second Division to First Division (TR 6-10). Request for Admissions of Fact by Appellee (TR-13). Answer of Appellant to Request admitting the act which occurred was an act of an employee or agent of appellee, the act was an act of negligence and was not caused by an automobile (TR-15). Motion for Summary Judgment with brief by Appellee alleging immunity, no evidence of a contractual relationship and no issue of material fact existing (TR 17-20). Response of appellant stating the contract is a fact question and there is an issue to be determined (TR-22-23). Order granting Judgment to Appellee Summarily (TR-24). Notice of Appeal and Designation of the Record (TR-25).
For reversal it is argued, first, that we should abolish municipal immunity from tort liability, and second, that whether a contract existed between the parties was a question of fact precluding the entry of summary judgment. The appellants’ abstract tells us next to nothing about the plaintiffs’ asserted cause of action, about the supposed contract, about the alleged act of negligence, about the possible fact question, or about the summary judgment. We have insufficient information from the abstract even to discuss, much less decide, the issues that are argued.
Affirmed. | [
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Per Curiam.
Appellant was convicted in White County Circuit Court of three felonies and judgment was entered on July 25,1979. Notice of appeal was filed September 28,1979, by the trial attorney, Bob Scott. On December 18, 1979, the trial court granted an extension of time until February 20, 1980, within which to file the transcript and record with this court. Apparently, Bob Scott did not notify appellant as to the time when the transcript was due nor did he take any action to perfect the appeal. For all intents and purposes, he seems to have unilaterally withdrawn from the case. On April 10,1981, a hearing was conducted in the White County Circuit Court in which the court ruled that appellant was inadequately represented on his appeal. The trial court then granted appellant the right to file a belated appeal.
Rule 11 (h), Rules of the Supreme Court of Arkansas, places certain duties upon the trial attorney if he intends to withdraw from the case. We considered this matter in the case of Finnie v. State, 265 Ark. 941, 582 S.W.2d 19 (1979), and held that Rule 36.9, Rules of Criminal Procedure, allows the supreme court to act upon and decide a case in which neither the notice of appeal was timely given nor the transcript timely filed. In Finnie we held that it was the duty of the trial attorney to obtain permission from the trial court to withdraw from the case and the petition to withdraw should contain a statement of the reasons therefor. Also, we held that a copy of the request for withdrawal, if granted, should be sent to the appellant. Rule 36.9 provides that the supreme court may act upon and decide a case in which the notice of appeal was not given or the transcript untimely filed when a good reason for the omission was shown by affidavit. In the present case no good reason was shown by trial counsel. However, we think the motion for a belated appeal was properly granted by the trial court because the trial attorney, Bob Scott, had apparently abandoned his client and left him without an appeal being perfected.
Under the circumstances of this case we think the belated appeal should be granted and we concur with the decision of the trial court to allow an appeal to be filed. A copy of this per curiam will be furnished to the Committee on Professional Conduct.
Adkisson, C.J., and Hickman, J., dissent. | [
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Darrell Hickman, Justice.
Johnny Scroggins was arrested without a warrant for two counts of aggravated robbery at his motel room in Fort Smith, Arkansas. He was registered under the name of Johnny Smith. Scroggins’ codefendant, Earl Maxwell, was with him in the motel room and apparently registered under the name of Danny Maxwell. Scroggins was convicted of two charges of aggravated robbery and sentenced to eighty-three years.
The two main issues before the trial court were whether the arrest was legal; and, if not, did that taint and make inadmissible a subsequent confession of Scroggins’. The trial court ruled for the State on those two issues. We disagree and reverse on both questions.
Scroggins and Maxwell were reported to have robbed two people that Scroggins personally knew in the early morning hours of November 1, 1980. Immediately after the robbery one of the victims, George Yonkers, reported it to the police. He knew Scroggins only as “Johnny,” airiend of one of his neighbors. The neighbor, Clifta Corley, was acquainted with both Scroggins and Maxwell. They were also charged with robbing her.
Detective Mike Brooks testified that on November 3, 1980, he went to the prosecuting attorney’s office to obtain a warrant for the arrest of Scroggins and Maxwell for the aggravated robbery of Yonkers and Corley. He signed an affidavit and it was dated the third of November. Brooks told two other detectives, Officers Tate and Davis, who were working the night shift, that he had obtained a warrant that morning for Scroggins’ and Maxwell’s arrests. Actually he had only signed an affidavit; the warrants had not been issued.
The two detectives decided that they would try to locate the pair that evening. Davis testified that when they left the station they had been told warrants were issued and that eyewitnesses had identified Scroggins and Maxwell as the robbers. (Tate was later killed in the line of duty and did not testify at the trial.) Davis said he also knew that there was an outstanding warrant against Scroggins for third degree battery but he did not have that warrant with him either. Such a warrant did exist and was dated September 18.
\ Working that night on a hunch the officers discovered that a Johnny Smith and Danny Maxwell had registered at the Holiday Motel, but had checked out. A girl friend of Maxwell’s had called the bus station asking for Maxwell and left a number to be called at the Holiday Motel. Checking another motel in the vicinity, the Englander, the officers discovered that a Johnny Smith and Danny Maxwell were registered there using identical addresses to those at the Holiday Motel. Officer Davis did not know that Scroggins was registered as Johnny Smith when he approached the room. Davis said that he and Tate knocked on the door and informed the occupants that they were police officers. Scroggins, whom Tate recognized, came to the door. One officer drew his pistol and asked Scroggins to open the door and come out. Scroggins did not resist. Then the officers saw Maxwell in the rear of the room and, with drawn revolvers, ordered him out. He came out. Both were arrested for aggravated robbery and taken to the police station, booked, and jailed. A jacket and two suitcases were seized from the room. Detective Tate questioned Scroggins that night but evidently the questioning stopped when Scroggins indicated he wanted an attorney. The next day at about 11:55 a.m., Officer Brooks took a detailed five page incriminating statement from Scroggins.
It is argued that the statement was inadmissible because it was not voluntarily given and was the product of an illegal arrest. We hold that the arrest was illegal because Scroggins had a fourth amendment right to expect privacy in his motel room. Absent exigent circumstances, Scroggins was not subject to arrest without a warrant, unless he consented to the arrest. The State offered no evidence of exigent circumstances. Instead it chose to argue at trial and on appeal that the officers acted in good faith and that the motel room was not the residence of Scroggins and, therefore, not subject to constitutional protection. At the time of his arrest Scroggins gave his residence as 1701 Fresno, which was not the address of the Englander Motel.
The crucial question is the legal status of the motel room. In the companion cases of Payton v. New York and Riddick v. New York, 445 U.S. 573 (1980), the United States Supreme Court unequivocally held that the fourth amend ment as applied to the states through the fourteenth amendment prohibits the police from making a warrantless and nonconsensual entry into a suspect’s home in order to make a routine felony arrest absent exigent circumstances. The Court did not extend its ruling to searches or arrests occurring at a third party’s home. Payton v. New York, supra at 583.
The Court has held that the fourth amendment prohibition against warrantless seizures goes to persons as well as property. Davis v. Mississippi, 394 U.S. 721 (1969). Of course it is elementary that the State must prove that a warrantless intrusion, in this case an arrest, was not in violation of the fourth amendment. In Katz v. United States, 389 U.S. 347 (1967), the Court explained that,
. . . searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.
So it is the State’s burden to prove that the motel room in this case was not subject to constitutional protection.
The fourth amendment protects the right one has to expect privacy in various places. While that right extends to one’s home, and to the trunk of an automobile, Sanders v. Arkansas, 442 U.S. 753 (1979), it does not extend to a public place such as a common hallway in an apartment building, U.S. v. Calhoun, 542 F.2d 1094 (9th Cir. 1976), or a parking lot, U.S. v. Cantu, 557 F.2d 1173 (5th Cir. 1977) cert. denied 434 U.S. 1063 (1977).
Two cases of the United States Supreme Court have held that one’s right of privacy in a hotel or motel room is protected by the fourth amendment to the United States Constitution. In Johnson v. United States, 333 U.S. 10 (1947), the Court found that the defendant’s living quarters, which were in a hotel, could not be searched without a warrant absent exigent circumstances. In Stoner v. California, 376 U.S. 483 (1964), a defendant was arrested in a hotel room and the room was searched without either a search warrant or an arrest warrant, and the search was found to be illegal. It was the government’s argument that the hotel clerk consented to the search. The Court said:
No less than a tenant of a house, or the occupant of a room in a boarding house, McDonald v. United States, 335 U.S. 451, a guest in a hotel room is entitled to constitutional protection against unreasonable searches and seizures. Johnson v. United States, 333 U.S. 10. That protection would disappear if it were left to depend upon the unfettered discretion of an employee of the hotel. It follows that this search without a warrant was unlawful. Since evidence obtained through the search was admitted at the trial, the judgment must be reversed. Mapp v. Ohio, 367 U.S. 643.
Therefore, it does not matter that a hotel or motel room is not a permanent residence; one registered at a motel or hotel as a guest is protected against unreasonable searches and seizures by the fourth amendment to the United States Constitution. The fact that Scroggins was registered under a false or assumed name would not change the situation because that fact was not used by the State to justify the warrantless arrest and, therefore, in this case becomes irrelevant.
The State offers a parenthetical argument that Scrog-gins consented to leave the room and was actually arrested outside the room and, therefore, no Payton issue exists. The facts demonstrate why this argument is meritless. The officers held a gun on Scroggins and asked him to come out of the room; obviously there could be no free choice on the part of Scroggins in such a situation.
Having decided that the arrest was illegal, and necessarily that the seizure of the suitcases and jacket was illegal, we consider the separate question of the admissibility of Scroggins’ confession. When an in-custody statement is challenged, the State has the burden of proving by a preponderance of evidence that it was voluntarily given. On appeal, we make an independent determination of this issue and affirm the trial court’s ruling unless it is clearly erroneous. Coble v. State, 274 Ark. 134, 624 S.W.2d 421 (1981).
In this case, such a statement must be examined not only to determine if it was voluntary by the fifth amendment standards but also to make certain that the illegal arrest did not taint the statement. In the case of Brown v. Illinois, 422 U.S. 590 (1975), the United States Supreme Court enumerated three factors to be used in determining whether a prior illegal arrest has tainted any incriminating statements made after the arrest: (1) The “temporal proximity between the arrest and the confession, (2) the presence of intervening circumstances, ... (3) the purpose and flagrancy of the official misconduct are all relevant.” The Court noted that merely giving the Miranda warning is not sufficient to remove the taint. The Court held in Wong Sun v. United States, 371 U.S. 471 (1965) that there must be an intervening action of free will between the illegal arrest and the subsequent confession to remove the taint. See Woodard v. State, 273 Ark. 235, 617 S.W.2d 861 (1981), and Brewer v. State, 271 Ark. 810, 611 S.W.2d 179 (1981).
Applying those principles to Scroggins’ confession, we conclude that the State did not meet its double burden. Scroggins testified that he was questioned on the evening of November 3rd by Detective Tate who arrested him, but that he told him he wanted a lawyer and the officer discontinued the questioning. That is not refuted and it is borne out in part by the record. At noon the next day, Detective Brooks, an officer not connected with the arrest, interviewed Scrog-gins and obtained a five page statement. It is undisputed that Scroggins was given his Miranda rights at this time. Officer Brooks had Scroggins’ two suitcases before him when he questioned Scroggins. He asked Scroggins if he could search them. Scroggins admitted during his testimony that he consented to the officer examining the contents of the suitcases at that time, but he explained that Officer Tate had already searched them the night before. The suitcases did contain evidence connecting Scroggins to the robberies in question. Scroggins said he asked Brooks for a lawyer and asked to make a telephone call. Brooks said he did not ask for a lawyer but he could not remember if Scroggins made a telephone call.
Once Scroggins asked for an attorney, as he did when he was first questioned, he could not be interrogated later except at his request. Edwards v. Arizona, 451 U.S. 477 (1981). It appears undisputed that the State initiated the interrogation the next day. Officer Brooks conceded that he did not obtain written consent to search the suitcases when he interrogated Scroggins, although it was departmental policy to do so.
We cannot say the officers acted in good faith. They set out to find these men during their shift without any warrants and offered no evidence of exigent circumstances requiring immediate action. The only real basis to uphold the trial court’s findings would be that Scroggins was given his Miranda warning before the statement was taken. There is no other evidence to support a finding that the State met its burden and removed the taint of the illegal arrest. There was no intervening action of free will to remove the taint.
The other arguments raised on appeal are easily answered. First, it is argued that it was error to allow the State to cross-examine Scroggins regarding his prior convictions because he was charged as an habitual criminal and, thereby, he was forced to prove the convictions, which was the State’s burden. We rejected that same argument in Coleman v. State, 256 Ark. 665, 509 S.W.2d 824 (1974).
He argues that one of his convictions was actually “court probation” and according to our decision in English v. State, 274 Ark. 304, 626 S.W.2d 191 (1981), it was not a conviction that could be used to enhance his sentence pursuant to Ark. Stat. Ann. § 41-1001 (Supp. 1981), the habitual offender statute. Scroggins’ probation was not the type of court probation that we discussed in English. Scroggin’s plea of guilty was entered and accepted and, therefore, no error was committed in allowing this conviction to be considered by the jury.
He argues the evidence is insufficient to support the conviction for aggravated robbery of Clifta Corley. She testified that she knew Scroggins and was awakened that night by Scroggins and Maxwell who wanted money, and at first she thought they were joking. But then she changed her mind when she saw her roommate crying and Scroggins continued to point the gun at her. We find substantial evidence to support this charge of robbery.
Finally, it is argued that Scroggins’ sentence to eighty-three years was excessive. We have repeatedly held that such arguments are meritless. Kaestel v. State, 274 Ark. 550, 626 S.W.2d 940 (1982); Osborne v. State, 237 Ark. 5, 371 S.W.2d 518 (1963).
Reversed and remanded.
Apparently Officer Tate obtained a written consent to search the suitcases the night before on the basis of some agreement between .Scroggins and him as to the other charges. | [
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John I. Purtle, Justice.
Appellees filed suit in the Circuit Court of Crawford County, Arkansas, seeking damages from appellants alleging expressed and implied warranties in that certain construction was not done in a workmanlike manner. They also alleged that a concrete parking apron extended two feet over onto the adjacent lot thereby creating a breach of the warranty deed which was executed to the appellees by the appellants. The trial court, sitting as trier of fact, found the appellees had been damaged in the amount of $594.30 for breach of expressed and implied warranties contained in the warranty deed. The court further gave the appellees judgment in the amount of $500 to compensate them for damages sustained to the driveway located at their residence.
On appeal the appellants argue (1) there is insufficient evidence to support the judgment based upon implied warranty; (2) the appellees failed to use reasonable care to mitigate damages which could have been avoided; (3) there is no evidence that title to the lot had failed or that there had been a breach of warranties in the deed; and, (4) the wrong measure of damage was used in determining damages for breach of warranty. The appellees filed a cross-appeal alleging the judgment was inadequate in view of the testimony and evidence presented to the trial court. We affirm in part and reverse and remand in part.
Appellant J. E. Bass is a builder and developer, having been in the business about 20 years. He built the house in question, including the concrete slab parking pad. Appellees obtained title to the property through a warranty deed from appellants dated February 9, 1978. The deed conveyed lot 10, Rimberling Hills II Addition to the city of Alma, Arkansas. On January 18,1979, the appellees complained to appellants that water was washing the fill from underneath the parking pad constructed on the property. The appellants thereafter returned to the property and constructed a concrete catch basin to stop the erosion in the area where the pipe went underneath the slab to drain off surface water. Appellees added gutters and drain pipes to the house and one drain was located near the entrance to the pipe extending underneath the concrete pad. Apparently, appellees had removed the concrete basin and placed other materials in the area.
On November 28, 1978, the appellants caused a survey of lot 10 to be made and it revealed the parking pad extended two feet onto lot 9. Appellees then purchased lot 9 in order to insure the use of the last two feet of the parking pad.
Appellants argue there is insufficient evidence to support a judgment based upon implied warranty. They also argue that the pad is still in the place it was constructed and serving the purpose for which it was intended. They argue the appellees caused their own damage by not taking the necessary steps in order to prevent erosion underneath the parking pad. It is argued that had the appellees performed their duty to mitigate damage by constructing step walls as water barriers it would have cost between $30 and $50. Appellants argue that there is no evidence that title to lot 10 or any part thereof had failed and that the judgment based upon breach of warranty to real property is unsupported by any evidence. Appellants further argue that the court used the wrong measure of damages in setting the amount for breach of warranty in regard to the concrete pad extending two feet over onto another lot.
Appellees argue that appellants waived their argument for additional damages because ARCP Rule 50 (e) requires that a motion for new trial based upon insufficiency of the evidence is waived unless it is preserved through a motion at the close of all the evidence or in a motion for new trial. Rule 50 (e) reads as follows:
When there has been a trial by a jury, the failure of a party to file a motion for directed verdict at the conclusion of all the evidence, or a motion for judgment notwithstanding the verdict, or a motion for new trial because of insufficiency of the evidence will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the jury verdict.
This is the first time we have been called upon to rule as to whether Rule 50 (e) is applicable to a nonjury trial. We are of the opinion that the rule means exactly what it says. Prior to the adoption of this rule there was a requirement that the matters stated in Rule 50 (e) applied both to a jury and nonjury trial. Therefore, we hold that the rule applies only to trials held before a jury. In specifically stating that the rule applies to a jury trial, the rule by implication excludes cases tried to the court without a jury. Therefore, the doctrine of expressio unius est exclusio alterius applies. We hold that the appellants did not waive the right to question the sufficiency of the evidence in this case.
Appellees also argue that ARCP Rule 59 (a) (5) requires a motion for a new trial to be made when it is thought that there has been an “error in the assessment of the amount of recovery, whether too large or too small.” Having already decided that the provisions of Rule 50 (e) are inapplicable to a nonjury trial we hold that it was not error for the appellants to appeal the court’s order based upon the alleged error in assessment of the amount of recovery.
As to the cross-appeal, appellees relied upon their own interpretation in regard to the rules and, therefore, abandoned any informative discussion, and in essence abandoned the cross-appeal. Hence, we will not deal with it here.
Turning to the merits of appellants’ argument on appeal, the evidence clearly shows that there was no breach of warranty in executing the deed to lot 10. It is undisputed that appellees received all of the property described in the deed conveying lot 10 to them. Since appellees were willing to accept the deed to the lot without a survey at the time of the sale, they cannot at this time prove damages merely because the parking pad extended two feet onto lot 9. There simply has been no failure in the deed to lot 10. There is no evidence that appellants warranted that the pad was constructed entirely on lot 10. Therefore, we hold that the trial court was in error in assessing damages based upon the failure of the warranties contained in the deed to lot 10.
It is a well-developed concept in Arkansas that in regard to the sufficiency of proof we are required to view the evidence in the light most favorable to appellees and are bound to affirm if any substantial evidence exists. Hamlin Flying Service v. Breckenridge, 275 Ark. 188, 628 S.W.2d 312 (1982). We cannot say as a matter of law that there was not substantial evidence to support the decision of the trial court as it relates to breach of warranties concerning the parking pad.
The judgment as to the damages for the improper installation of the drainage pipe is affirmed. The judgment as to the damages for the breach of warranty on lot 10 is reversed and dismissed. Appellees’ argument on cross-appeal has been abandoned. Therefore, the case is affirmed in part and reversed in part and remanded to the trial court with directions to proceed in a manner consistent with this opinion.
Affirmed in part; reversed and remanded in part.
Adkisson, C.J., dissents. | [
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Darrell Hickman, Justice.
The issue in this case is whether a perfected security interest in certain equipment can be defeated by a judicial sale. The trial court held that Arkoma Coal Corporation had a perfected security interest in a John Deere road grader, a Wisconsin 4-cycle engine and a one ton flat-bed Ford truck that was not defeated by a judicial sale. But it held that the security interest was not perfected in a 1964 International Scout motor vehicle. Troy Brown, the appellant, purchased this equipment, in addition to some other, at a judicial sale and appeals the Sebastian County Circuit Court’s decision awarding the three items of equipment to Arkoma Coal Corporation. We find no error as to the road grader and engine but must reverse the court’s finding as to the Ford truck.
Arkoma Coal Corporation made several loans to Midwest Coal and Energy Corporation and secured the notes with security agreements, properly filed, on the equipment in question. But Arkoma did not note its lien on the certificates of title to the motor vehicles as Ark. Stats. Ann. §§ 75-160 and 75-161 direct. The City of Greenwood, Arkansas obtained a money judgment against Midwest Coal and issued a writ of execution to satisfy its judgment, attaching the equipment in question. At the sale, Troy Brown, who was the Mayor of Greenwood, purchased all of the equipment for $1,000.00. He bought the equipment individually and not as mayor. It is undisputed that no legal notice was given to Arkoma Coal Corporation of the sale. Nor is it disputed that Arkoma Coal had filed security agreements on all of the equipment. However, on the date of the sale, the president of Arkoma Coal Corporation learned on his own that a sale was to take place and caused a petition to be filed with the court to stay the distribution of the proceeds of the sale. Arkoma either did not pursue their petition, or was unaware of the court’s order confirming the sale six days later.
This suit is a replevin suit that was filed a year and a half later by Arkoma for the return of the equipment it claimed a security interest in. The trial court found that Arkoma had a superior right to the grader, engine and truck to that of Troy Brown, because there was no notice of the sale to Arkoma. He found Arkoma had neither waived its valid security interest nor was it estopped to assert its claim. In this regard the only serious consideration was whether Arkoma had either expressly or impliedly waived its claim by filing the pleading to stay the distribution. Both parties refer to Ark. Stat. Ann. § 85-9-306 (2) as authority. The statute reads:
Except where this Article otherwise provides, a security interest continues in collateral notwithstanding sale, exchange or other disposition thereof by the debtor unless his action was authorized by the secured party in the security agreement or otherwise, and also continues in any identifiable proceeds including collections received by the debtor.
Troy Brown argues that Arkoma, by filing the pleading, consented to the sale and falls within the category of “otherwise” authorizing the sale. The trial court correctly held that this was not a waiver of the security interest. A party holding a security interest can go against both the proceeds of the sale and the property. Ark. Stat. Ann. § 85-9-306, Comment 3. There is no evidence in this case Arkoma ever intended to waive its claim except for filing the petition and that is insufficient as a matter of law to waive a lien. See Nickles, A Localized Treatise on Secured Transactions — Part II: Creating Security Inteests, 34 Ark. L. Rev. 559 (1981).
Brown also argues that since Arkoma did not file its replevin suit until one and a half years after the judicial sale, that amounts to ratification of the sale. That fact alone cannot be controlling. Perhaps if Arkoma had elected to only seek the proceeds of the sale, rather than the collateral, that might amount to ratification. See Nickles, supra, n. 728. We do not reach that because we cannot say that Arkoma made such an election.
The only real problems to us in this case are the fact questions. The appellant did not object during the hearing to the court sitting without a jury. But the court did note in the judgment that a jury trial had been requested and went on to find no question of fact was to be decided. Actually it appears the appellant wanted any disputed facts decided by a jury. Certainly there was a disputed question regarding whether the one ton Ford truck was an on-the-road vehicle and, therefore, subject to registration. It would appear that the truck would have to be registered with the State of Arkansas. (Arkoma did not perfect its lien by noting its interest on the certificate of title as required by Ark. Stat. Ann. §§ 75-160, 75-161.) The only testimony regarding this vehicle came from the president of Arkoma who testified that the Ford truck was probably an off-the-road vehicle used in a coal mine or used to transport material between coal mines. But he could not be certain. If it was not subject to registration, Arkoma should probably prevail. However, the matter is further complicated because it may be that Brown’s claim, based on the judicial sale, is still inferior to Arkoma’s because evidently the order of sale did not list the truck in question as one of the vehicles to be sold. Instead, another truck was listed which was a “water” truck — not a flat-bed truck. The court simply found that the one ton Ford truck was the property of Arkoma and the decree recites there were no questions of fact to be decided. Obviously there was at least one disputed question of fact and that should have been resolved either by the trial court with the consent of the parties or before a jury.
In our judgment there remained no other disputed facts before the court. Waiver and estoppel were presented as defenses because of the pleadings filed and the passage of time only. There appears to be no other basis for these arguments. If the appellant had desired these issues preserved for a jury he should have explicitly said so. These issues were submitted to the court without explicit objections. It is the duty of the appellant to make his record and we must resolve all doubts on behalf of the appellee on appeal. Orsby v. McGee, 271 Ark. 268, 608 S.W.2d 22 (1980). The trial court’s finding regarding the Ford truck is reversed and remanded and the remainder of the judgment is affirmed.
Affirmed in part, reversed and remanded in part. | [
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Richard B. Adkisson, Chief Justice.
The Arkansas State Board of Dental Examiners (hereinafter the Board) suspended the license of appellant, Dr. Neil Hinsley, for one year and 90 days after finding that he had practiced dentistry under a false name and had permitted unlicensed persons under his supervision and control to practice dentistry. The Pulaski County Circuit Court sustained the Board; on appeal, we reverse.
The Board charged appellant with violating Ark. Stat. Ann. § 72-659 and § 72-560 (7) (Repl. 1979) but found him “guilty” of violating Board rules and regulations. In its order of April 9, 1981, the Board specifically found that:
Neil Hinsley is guilty of violating Article 12, Section I of the Rules and Regulations of the Arkansas State Board of Dental Examiners in that he practiced under a name other than a name which he is licensed to practice, and as such is to have his license to practice dentistry suspended for a period of 90 days. It is further found that Neil Hinsley is guilty of violating Article 12, Section E of the Rules and Regulations of the Arkansas State Board of Dental Examiners in that he aided or abetted an unlicensed person to practice dentistry in the state of Arkansas and as such he will have his license to practice dentistry in the state of Arkansas suspended for a period of one year. It is further found that the two periods of suspension of his license to practice dentistry, referred to above, will be consecutive in nature, and that the total amount of suspension will be one year and ninety days from the date of this order.
The only issue on appeal is whether there is substantial evidence to support the Board’s finding that appellant was “guilty” of violating these rules and regulations. Testimony at the hearings before the Board revealed that the alleged incidents of misconduct occurred before the effective date of the rules. Mr. Trice, attorney for the Board, admitted that these rules did not go into effect until September 1,1980, and that “The statutes are all that need to be considered in this case ...”
It is a fundamental element of due process that a rule, the violation of which would cause a person to lose a valuable property right, must be in existence before it can be violated. There is not, nor could there be, substantial evidence to support the Board’s finding that its nonexisting rules were violated.
We cannot assume that the Board intended to find appellant “guilty” of violating Ark. Stat. Ann. § 72-559 and § 72-560 (7) when the Board’s order plainly states otherwise. We do not reach the issue of whether or not the Board could have suspended Dr. Hinsley’s license had it found that he had violated Ark. Stat. Ann. § 72-559 which provides for a fine of from $50 to $500 upon conviction.
Reversed. | [
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By the Court,
Dickinson, J.
We find none of the objections taken in the Court below tenable. We do not deem it necessary to determine the point, whether the process was sued out in strict conformity with the statute, or not; nor whether the notice was properly served. If there be any defects on these points, which we think questionable, there can be no doubt but that they are fully cured by the parties appearing in the first instance, and, by their consent, agreeing to a continuance. The object of service and notice was, to apprise the party of the nature of the pro- ccedings against him. The fact of his agreeing to the continuance, is evidence of his having made himself a party to the record; and by such appearance, any defect that might exist, as to the service of the writ or notice, was waived. The judgment was entered by default against Rogers, the plaintiff having first continued as to Ford. This judgment is manifestly irregular, but its informality is cured by our statute of amendments. The proper judgment should have been by wihdicAt.
Judgment affirmed. | [
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By the Court,
Dickinson, J.
The exceptions of the plaintiff in error came too late to be considered. As they were not reserved at the trial, they form no part of the record. There was no objection made to the amendment of the declaration, after the demurrer was sustained, nor any further steps taken by the defendant below; consequently, it is too late now to avail himself of any irregularity in this respect. The breaches in the declaration are well laid; and whether the assignment of the'writing obligatory was set out with sufficient certainty, is immaterial; for oyer was craven only of the writing, and not of the assignment; and the fact of the clerk’s copying it into the transcript does not necessarily make it form a part of the record, or entitle it to the consideration of this Court. The plaintiff below was ordered, by the Circuit Court, to pay the costs of the demurrer and amendment; and the final judgment for costs against the defendant, in that Court, must be considered for all the costs in the suit expended by the plaintiff, and cannot, as we conceive, be made to extend any further. The terms used are certainly vague and uncertain, but, as they are not in direct contradiction to the statute, we will presume them to be in conformity with it.
Judgment affirmed. | [
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By the Court,
Dickinson, J.
It is certainly true, as contended, that each party, under the constitution of the United States, and of our own State, is entitled to the benefit of a trial by jury. But then this is a personal right or benefit, which either or both of the parties may waive. And as the record shows that neither party demanded a jury, according to the provisions of our statute regulating the practice in such cases, it is an express waiver of the right. Rev. St., p. 633, sec. 98.
The judgment was given upon a lost note, as appears from the affidavit filed before the justice of the peace. The issue in the Circuit Court was the same as before the justice of the peace. Rev. St., sec. 186, p. 517. The question, then, to be tried, was, Is the defendant entitled to a set-off? This plea certainly admits the existence of the note, its assignment and loss. The record fails to show what the defendant below offered to set off. Of course, the presumption is, that the Court decided correctly. If the defendant intended to question the execution of the note, or its assignment, he had the right to do so before the justice of the peace, or before the Circuit Court. The instrument set out is certainly assignable, under our statute, and the Court below decided correctly in refusing to dismiss the case from the docket.
Judgment affirmed. | [
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By the Court,
Dickinson, J.
The demurrer was rightly sustained, as the declaration was clearly insufficient, and determined the suit as to Murphree, until the pleading'was amended. And, as the judgment of the Circuit Court is jointly entered against all of the defendants below, and not capable of being severed, it is, for that reason, erroneous.
Judgment reversed. | [
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By the Court,
Dickinson, J.
The court below decided right, in sustaining the demurrer to the declaration. ' The suit was instituted upon a foreign judgment, which is composed of sundry items. The amount of them is set out, with the interest and cost accruing thereon. The interest, in more instances than one, exceeds six per cent, per annum, and the breach in the declaration is, that the judgment demanded remains wholly unsatisfied.
The inquiry now is, can the plaintiff, under such a breach, recover more interest than six per cent, per annum? It has been repeatedly ruled in this court, that a party plaintiff cannot recover more than six per cent, per annum, unless he avers the non-payment of the interest, when the contract is for a greater rale. Here it is certain that there is no such averment. It is the amount of the judgment demanded, which it is averred has not been paid. Now, the non-payment of the interest that arises upon this judgment, is not negatived in the breach. The setting out of the interest, in the declaration, for more than six per cent, per annum, is precisely similar to showing the same thing, by profert of a note, where the rate exceeds that amount. This being the case, the question falls within the principle before stated.
Judgment affirmed. | [
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By the Court,
Dickinson, J.
The ftrst inquiry is, to whom did the improvement pass, upon the death of Ryan? To the administrator, or to the heirs? The interest that a party possesses in an improvement upon public land, is of a peculiar kind, and known only to our laws. He certainly has a possessory right or interest against all the world but the United States; and this is secured to him upon the principles of natural justice. It partakes, in some degree, of the nature of a chattel real, which Sir Edward Coke says, “ concerns or savors of the realty,” as being an interest issuing out of, or annexed to, real estate, of which they have one quality, viz: immobility, belonging to the realty, but want sufficient duration to constitute them chattels; such for instance, as a term for years; wardship in chivalry, while military tenures existed; the right of presentation to a church; statute staple; leases, and the like; and a tenantry, from year to year, as long as both parties please. All these interests vest in the personal rep re- sentatives of the deceased. The case of a tenancy, from year to year, determinable at the pleasure of either party, so passes, says Toller, in his Treatise on Executors, 139; 2 Black. Com. 312; Dukehart and Wife vs. State, 4 Har. & John. 506.
Whether the interest would pass differently, if there was a right of pre-emption to the improvement, is a question not properly before us, and will not now be considered. We think it, however, clear, that the personal representatives of the deceased had a right to sell the improvement, without the intervention of the Probate Court.
The testimony is so contradictory, and so ambiguous and uncertain in its character, that, though we consider it as slightly preponderating in favor of the appellant, yet it is not so conclusive as to satisfy our minds, as to the kind and extent of title sold; for, if the administrator sold, and Cravens understood that he was purchasing, a pre-emption right, and that fact had been substantiated, he would certainly have been entitled to relief. If, however, the improvement alone was sold, then it is equally as clear that he bought at his peril, and must comply with his contract.
Upon the whole view of the case, as presented by the bill, answer, and depositions, we are of opinion that the decree directing the obligation of the appellees to he cancelled and delivered up, ought to be reversed, with costs, and the case remanded for a hearing de novo, and that each party have leave to take additional proof, if asked for. | [
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By the Court,
Dickinson, J.
In instructing the jury to find as in case of nonsuit, there is error; but we do not regard it of such character as authorizes us to reverse the judgment, if the record shows, as it does in this instance, that the final judgment is right.
Blackburn, for the plaintiff in error,
presented a petition for re-consideration, which was overruled.
That replevin cannot be maintained against an officer, who has the custody and possession of property, under a valid execution, is clear. In such case, the property is already in custody of the law, and cannot be replevied out of it. If the party desired to try the right, the statute prescribes the mode. If the officer was a trespasser, he could be sued, or the party could follow the property into the hands of a purchaser. Replevin was certainly not the proper remedy to obtain possession of the property, or damages for its loss or detention. We can discover no error in the proceedings of the court.
Judgment affirmed. | [
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By
Ringo, C. J.
This is a prosecution based upon the 13th section of the first Article, Division VIII., Ch. 44, Rev. St. Ark., p. 280, which declares, that “ every person'who shall wear any pistol, dirk, butcher or large knife, or a sword in a cane, concealed as a weapon, unless upon a journey, shall be adjudged guilty of a misdemeanor.” The indictment was quashed, and the defendant ordered to be discharged by the Circuit Court; and the State has, by appeal, brought the case before this Court, to revise said decision.
No question as to the sufficiency of the indictment, in point of form, has been raised or argued at the bar, and in this respect it is believed to be substantially good. But the appellee insists that the provisions of the statute above quoted, upon which the prosecution is founded, are in conflict with and repugnant to the second article of the amendments of the constitution of the United Stales, which ordains that “ a well regulated militia being necessary to the security of a free State, the right pf the people to keep and bear arms shall not be infringed.” The attorney for the State contends that the enactment in question is not prohibited by any fundamental law of the land, and that the Legislature of this State possesses legitimately, the power of regulating by law the use of such weapons as are mentioned therein, as that body has assumed to do by said enactment.
In order to arrive at a just conclusion in regard to the question under consideration, it may in the first instance be necessary to recur to some of the primary objects for which the government was instituted, and concisely state what are understood to be its principal obligations, not only in reference to the aggregate community, but also to each individual member of which it is composed; and then consider the extent of its powers, and how far they are limited by this article in the federal constitution.
Among the objects for which all free governments are instituted, may be enumerated the increase of security afforded to the individual members thereof for the enjoyment of their private rights, the preservation of peace and domestic tranquillity, the administration of justice by public authority, and-the advancement of the general interests or welfare of the whole community. In addition to which, it is designed that adequate security shall be provided by law for the most perfect enjoyment of these blessings. Consequently, where the people, in forming the government, have not by some fundamental law made such provision as, in every variety of circumstances which may exist, shall be found necessary to the attainment of every object for which it was established, nor expressly, or by necessary or reasonable implication, prohibited the Legislature from supplying by law such omission, the obligation to do so is conceived to be unquestionable; otherwise, the people could not, through the instrumentality and agency of the government, possess and enjoy, in the greatest degree of which they are capable, all of the blessings and advantages which, by its institution, they intended to insure to themselves and posterity.
It results, therefore, that the legislative department, if not so inhi bited, possesses adequate powers to provide, by laws adapted to the purpose, the means by which those who compose the community shall aggregately and individually be secured in the full and complete enjoyment of all such benefits as may be derived from the operation or influence of the government. And in the execution of this power, and the performance of the high and important obligations devolved upon it, the Legislature possesses, and must necessarily exercise a discretion as to the means best calculated to attain the object, which in the nature of things is, and must remain, without control, provided no right vested by the constitution, or other authority paramount to that of the Legislature, be by their enactment infringed or divested. Now, if I have not wholly mistaken the objects for which the government was instituted, the trusts confided to it, and the powers with which it is invested, those who subjected themselves to its operation, must, in consideration of the advantages which they trusted and believed would result from it to themselves and posterity, have voluntarily surrendered or subjected to the control of the public authorities provided for the administration of the government many if not all of the rights of which, independent of all government, they would have been possessed without any restriction whatever. For instance, the right of any individual to redress, according to the dictates of his own will or caprice, any injury inflicted upon his personal or private rights by another, is surrendered; and the right of determining not only what his, rights are, but also whether they have been invaded, and the kind and measure of redress to which he is entitled, are all referred to the arbitrament of the law. Also the natural right of speech must remain without restraint, if it were not surrendered and subjected to legal control upon the institution of government; yet every one is aware that such limitations as have been found necessary to protect the character and secure the rights of others, as well as to preserve good order and the public peace, have been imposed upon it by law, without any question as to the power of the government to enforce such restrictions. So the liberty of the press, which is based upon the right of speech, is to the like extent subject to legal control. So the right of migration and transmigration, or of every individual to pass from place to place, according to his own free will and pleasure, when and where he chose, acknowledged no restraint until surrendered upon the institution of government, when it became subject to such regulations as might be found necessary to prevent its exercise from operating prejudicially upon the private rights of others, or to the general interests of the community. These rights are believed to be as essential to the enjoyment of well regulated liberty, and as fully guarded against infringement by the government, as the right to keep and bear arms. Their use, if subject to no legal regulation or limitation whatever, would tend to unhinge society, and most probably soon cause it either to fall back to its natural state, or seek refuge and security from the disorders and suffering incident to such licensed invasion of the rights of others, in some arbitrary or despotic form of government; while their unrestrained exercise, so far from promoting, would surely defeat every object for which the government was formed. And if the right to keep and bear arms be subject to no legal control or regulation whatever, it might, and in time to come doubtless will, be so exercised as to produce in the community disorder and anarchy.
Suppose the constitutional existence of such immunity in favor of the right to keep and bear arms as is urged by the appellee be admitted. By what legal right can a person accused of crime be disarmed ? Does the simple accusation, while the law regards the accused as innocent, operate as a forfeiture of the right? If so, what law attaches to it this consequence ? Persons accused of crime, upon their arrest, have constantly been divested of their arms, without the legality of the act having ever been questioned. Yet, upon the hypothesis assumed in the argument for the appellee, the act of disarming them must have been illegal, and those concerned in it trespassers, the constitution not limiting the right to such only as are free from such accusation. Nor could the argument of necessity or expediency justify one person in depriving another of the full enjoyment of a right reserved and secured to him by the constitution. Again, the term “ arms,” in its most comprehensive signification, probably includes every description of weapon or thing which may be used offensively or defensively, and in the most restricted sense, includes guns or firearms of every description, as well as powder, lead, and flints, and such other things as are necessarily used in loading and discharging them, so as to render them effective as instruments of offence'or defence, and without which their efficiency lor these purposes would be greatly diminished, if not destroyed. By what authority, then, (if powder is comprehended by the term “ arms,”) can a person be prohibited from keeping, at such place and in such situation as he may desire, upon his own premises, any amount of powder he may think proper, however much it may endanger the lives or property of others? Certainly none. And yet, the right of inhibiting by law the keeping of powder in places where its explosion would endanger the lives or property of others, has been constantly asserted and enforced, without question as to the legal right or power of imposing such restriction. Still no such prohibition can be legally made or enforced, if the principles asserted in the argument for the appellee be true. Other instances, in which the right to keep and bear arms has been either directly or indirectly subjected to legal regulations and restrictions, without any question as to the power so exercised, could be referred to; but that just mentioned is esteemed sufficient to prove, that in the judgment of the people of the United States, the right in question possesses no such immunity as exempts it from all legal regulation and control.
And here it may not be without utility to inquire for what object the right to keep and bear arms is retained exempt from all legal regulation or control, if in fact it has been so retained, as urged in the argument for the appellee. Is it to enable each member of the community to protect and defend by individual force his private rights against every illegal invasion, or to obtain redress in like manner for injuries thereto committed by persons acting contrary to law? Certainly not; because, according to the fundamental principles of government, such rights are created, limited, and defined by law, or retained subject to be regulated and controlled thereby; and the laws alone are and must be regarded as securing to every individual the quiet enjoyment of every right with which he is invested; thus affording to all persons, through the agency of the public authorities to whom their administration and execution are confided, ample redress for every violation thereof. And to these authorities every person is, in most cases, bound to resort, for the security of his private rights, as well as the redress of all injuries thereto. Hence it has become a maxim in all well organized governments, that there is no wrong without a remedy, or, in other language, that the law furnishes to each individual some adequate remedy for every invasion of, or injury to, his private rights. Such legal remedies, however, can only be enforced by public authority; yet, from the very institution of the government, every individual is considered as freely assenting to assist in maintaining the laws and executing their mandates. Consequently, the public authorities have a right to demand their aid in enforcing legal remedies, whether they so operate as to prevent or redress injuries, apprehended or suffered. And this obligation of the government to protect every individual in the quiet and peaceable enjoyment of his private rights, and afford him redress for all injuries thereto, including also the power of coercing by public authority the performance of all legal obligations, constitutes not only the most perfect and ample security to individuals for the enjoyment of their private rights, but is believed to have formed one of the great objects for which the government was instituted. Now, is it reasonable to suppose that either those who proposed or those who adopted the article under consideration, doubted the capacity or disposition of the government to discharge every obligation devolved upon it? Surely not. And therefore it is conceived that the right in question could not have been so retained and secured with any view to the protection or vindication of such rights of individuals as are merely private.
Another great object contemplated by the people in the institution of the government, was to establish a more perfect union, by creating a community of interests and a common concert of action in the different members of the State, by which their common interests could be better promoted and defended. And, therefore, the obligation of making, from time to time, such legal provision as shall be found necessary to advance their common or public interests, or to protect,, preserve, and defend the free institutions they had established, was imposed upon the legislative department of the government. And in order to perform this important trust, there was necessarily confided to it a discretion as to the means best adapted to the object, over which the judiciary has no control, unless the enactment be repugnant to some law of paramount obligation.
But surely if the government does not possess the power of so regulating and controlling, by law, the acts of individuals, as to protect the private rights of others, preserve domestic tranquillity, peace and order, promote the common interests of the community, provide for the common defence of the country, and the preservation of her free institutions, established for the common benefit of the people, and, in a great measure, committed to its fostering care, its powers are inadequate to the performance of the obligations imposed upon it. Such, however, is not believed to be the case, as the government possesses, in my opinion, ample power to inhibit, by law, all such acts and practices of individuals, as affect, injuriously, the private rights of others, tend to disturb domestic tranquillity, or the peace and good order of society, militate against the common interests, impair the means of common defence, or sap the free institutions of the country; and to enforce the observance of such laws by adequate penalties, the character and quantum of which, in most respects, depend exclusively upon the will and judgment of the legislature.
If these general powers of the government are restricted in regard to the right to keep and bear arms, the limitation, to whatever extent it may exist, will be better understood, and more clearly seen, when the object for which the right is supposed to have been retained, is stated. That object could not have been to protect or redress by individual force, such rights as are merely private and individual, as has been already, it is believed, sufficiently shown: consequently, the object must have been to provide an additional security for the public liberty and the free institutions of the State, as no other important object is perceived, which the reservation of such right could have been designed to effect. Besides which, the language used appears to indicate, distinctly, that this, and this alone, was the object for which the article under consideration was adopted. And it is equally apparent, that a well regulated militia was considered by the people as the best security a free state could have, or at least, the best within their power to provide. But it was also well understood, that the militia, without arms, however well disposed, might be unable to resist, successfully, the efforts of those who should conspire to overthrow the established institutions of the country, or subjugate their common liberties; and therefore, to guard most effectually against such consequences, and enable the militia to discharge this most important trust, so reposed in them, and for this purpose only, it is conceived the right to keep and bear arms was retained, and the power which, without such reservation, would have been vested in the government, to prohibit, by law, their keeping and bearing arms for any purpose whatever, was so far limited or withdrawn: which conclusion derives additional support from the well known fact, that the practice of maintaining a large standing army in limes of peace, had been denounced and repudiated by the people of the United States, as an institution dangerous to civil liberty and a free State, tvhich produced, at once, the necessity of providing some adequate means for the security and defence of the State, more congenial to civil liberty and republican government. And it is confidently believed that the people designed and expected to accomplish this object, by the adoption of the article under consideration, which would forever invest them with a legal right to keep and bear arms for that purpose; but it surely was not designed to operate as an immunity to those, who should so keep or bear their arms as to injure or endanger the private rights of others, or in any manner prejudice the common interests of society.
The court of appeals of the State of Kentucky, in the case of Bliss vs. the Commonwealth, 2 Littell, 90, and the argument of this case for the appellee, if I have not misapprehended their premises and reasoning, both assume that the right to keep and bear arms was adopted as well for the purpose of enabling individuals to defend and redress, by their own arms, injuries threatened or suffered in respect to their personal or private rights, as for the security of the State, and is not subject to any legal regulation, restriction, or control whatever; and that, by virtue of it, every person in the community possesses a privilege or immunity, by virtue of which he may keep and bear arms of every description, at all times, in-- every place, and in any manner, according to his own free will or caprice.
However captivating such arguments may appear upon a merely casual or superficial view of the subject, they are believed to be specious; and to rest upon premises at variance with all the fundamental principles upon which the government is based; and that, upon a more matare and careful investigation, as to the object for which the right was retained, their fallacy becomes evident. The dangers to be apprehended from the existence and exercise of such right, not only to social order, domestic tranquillity, and the upright and independent administration of the government, but also to the established institution of the country, appears so obvious as to induce the belief that they arc present to every intelligent mind, and to render their statement here unnecessary.
I cannot, therefore, indulge the opinion, that they were not distinctly foreseen by those who recommended, as well as those who adopted the article under consideration, or that they intended to incorporate into the charter of their civil policy, a principle pregnant with such dangers. Besides, it cannot have escaped the observation of any person of intelligence, whose mind has been directed to the subject, that to resist, or oppose by force, the constituted public authorities of the State acting in pursuance of law, in the discharge of any public duty enjoined upon them, must, according to the extent and success of such resistance or opposition, either produce some revolution in the government itself, or subject those who so act to such consequences as are denounced against them by law. Suppose a portion of the community consider their private rights invaded by some act or exercise of authority, on the part of the government, which they consider as unauthorized, can they, by virtue 'of any legal right with which they are invested, either prevent or redress such injury by private force? In my opinion they cannot; their private rights being in this, as in most other cases, committed, as it were, to the care and custody of the law; and to it, so long as our civil liberties and republican institutions remain unimpaired, they are bound to look for protection as well as redress; both of which the government is under a positive obligation to provide.
I also deem it proper to remark here, that, in my opinion, the provisions contained in the article under consideration, were designed to furnish the people of the United States precisely such security for the preservation and perpetuation of their civil liberty and republican institutions, as it was the object of those who framed the constitution of this State to provide for those subject to - its jurisdiction, by the 21st sec. of the 2d art. of the Constitution, which declares, “ that the free white men of this State shall have a right to keep and bear arms for their common defence;” thus indicating, in terms too plain to be misunderstood, that the sole object of the latter in securing this right, was to provide, beyond the power of legal control, adequate means for the preservation and defence of the State, and her republican institutions. And therefore, without applying to this provision in our Constitution the maxim “ expressio unius, exclusio alterius,” so often applied in the interpretation of laws, I have come to the conclusion, that the legislature possesses competent powers to prescribe, by law, that any and all arms, kept or borne by individuals, shall be so kept and borne as not to injure or endanger the private rights of others, disturb the peace or domestic tranquillity, or in any manner endanger the free institutions of this State or the United States; and that no enactment on this subject, which neither directly nor indirectly so operates as to impair or render inefficient the means provided by the constitution for the defence of the State, can be adjudged invalid, on the ground that it is repugnant to the constitution. The act in question does not, in my judgment, detract any thing from the power of the people to defend their free state and the established institutions of the country. It inhibits only the wearing of certain arms concealed. This is simply a regulation as to the manner of bearing such arms as are specified. The practice of so bearing them, the legislative department of the government has determined to be wrong, or at least inconsistent with sound policy. So far, that department had a discretion in regard to the subject, over which the judiciary, as I conceive, has no control; and therefore the duty of the courts must be the same, whether the policy of the law be good or bad. In either event it is binding; and the obligation of the courts to enforce its provisions, when legally called upon to do so, is imperative.
In several States of this Union, the Court of the highest authority in the State has adjudicated upon the right to keep and bear arms, under and by virtue of the provisions contained in the respective constitutions of such States, in some of which, the language used appears to be different from and more comprehensive than that used either in the constitution of the United States or of this State. But I am not aware that this right has ever become the subject of any adjudication in the Federal courts, or that any of the State courts, in adjudicating upon it, have given any exposition of the article under consideration, or attempted to define the right as secured by it. It may therefore be considered as an open question; and being one of interest and importance, and as I conceive clearly within the cognizance of the Supreme Court of the United States, an adjudication of that Court upon it, by which the extent of the right may be distinctly ascertained and definitively settled, can be readily obtained, and the rule of decision in relation to it be made uniform throughout the Union.
I deem it only necessary to remark further, that the constitution of Alabama declares, that “ every citizen has the right to bear arms in defence of himself and the State.” Yet the Supreme Court of that State, in the case of The State vs. Reid, Ala. Rep. 1 vol. new series, p. 612, has decided,in favor of the validity of a law of that State, which inhibits the right of carrying about the person certain weapons concealed. The constitution of the State of Indiana also provides, “ that the people have a right to bear arms for the defence of themselves and the State;” notwithstanding which, the Supreme Court of that State, in the case of The State vs. Mitchell, 3 Blackf. Rep. 229, has sustained a law of that State, in no respect essentially different from the enactment now in question. In Kentucky, and I believe in Tennessee also, the question has been decided against the validity of such enactments. A conflict between the decisions of the State courts in regard to the question, certainly exists; but so far as I am informed, the preponderance on either side is not very great.
I am therefore, after a careful and deliberate consideration of the question, of the opinion that the enactment of the Legislature, above quoted, is in no wise repugnant either to the constitution of the United States or the constitution of this State, but is in every respect binding as a law of the land. Consequently, the Circuit Court erred in quashing the indictment, and thereupon discharging the defendant from the prosecution. And that judgment ought to be reversed.
By
Dickinson, J.
The appellee contends that the law, under which he stands indicted, is unconstitutional, and that a right, secured to him by the 2d article of the amendments to the Constitution of the United States, has been violated. This article declares, that “A well regulated militia .being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed.” The question is one of some importance, not so much, as I conceive, from any difficulty in arriving at a correct conclusion, as from the contrariety of opinions entertained by the different State Courts that have passed upon it. It is conceded by all, that the Federal Government is one of limited powers. It is not contended that the General Assembly of this State could interfere with any regulations' made by Congress, as to the organizing, arming, or disciplining the militia, or in the manner in which that militia are either to keep or bear their arms. I shall endeavor to prove that it does not do so. The class of cases to which the constitutional provision applies, is widely different from the right of a private citizen to bear, concealed about his person, deadly weapons or arms. In the one, they are kept and carried in conformity with the constitution and laws of the United States, with a certain specific object in view: in the other,"they are kept and carried for private purposes, wholly independent of any constitutional regulation, and to answer private ends, which have no bearing upon the security of the State. If this idea be correct, then it follows, that when arms are not kept or used for the defence of the State or Federal Government, the manner of carrying and mode of using them are subject to the control and authority of the State Legislature. Every citizen owes a double allegiance, and is entitled to the two-fold protection of the General and State Governments. To the first, the Constitution of the United States commits the powers of war, peace, commerce, negotiation, and those general powers relating to our external relations, and also the powers of an internal kind which require uniformity in their operation. To the second, belong all that is not included in the first, of a municipal character, particularly every thing connected with the police and economy of the State. If the provision, when it speaks of militia connected with the people, knew no exception as to the time, mode, and manner in which the right to keep and bear arms should be exercised, the present question could not have arisen. And as the whole difficulty in this case has arisen out of this blending together the terms “ well regulated militia” and “ the right of the people to keep and bear arms,” so that difficulty will be removed by a close attention to the difference in the nature and character of the constitutional prohibition and the legislative provision, and the result of their operations respectively. Whenever a question arises as to any constitutional provision, it is proper, in order to ascertain its object, to look into the manner in which it has been carried out by Congress, and to the purposes which it was intended to answer. That a “ well regulated militia is necessary to the security of a free State,” will not be questioned. The manner of regulating, was tp organize, arm, and discipline them; to do this, full power is vested in Congress by the declaration or bill of rights, and numerous laws have from time to time been passed by that body, for that purpose; thereby giving a construction to the article in question. The militia being necessarily composed of the people, as our government is opposed in principle to standing armies, the provision that they should have a right to keep their arms and use them, was a wise one, and necessary to carry out the object of the grant, in providing at all times for the security of the States. It is admitted that the laws for organizing, arming, and disciplining the militia, were passed in virtue of the power given by the Constitution of the United States to regulate them. If we look into the history of the country, we shall alike arrive at the conclusion that the power given the militia to keep and bear arms, resulted from the necessity of having a military force at all times at the command of the Federal and State governments, armed and ready to repel force by force, sustain the laws, and enforce obedience to the mandates of their courts.
The motive, then, for granting this power to keep and bear arms, could not be extended to an unlimited, uncontrolled right to bear any kind of arms or weapons, upon any and every occasion; still less the terms, for they are restrictive in their language. That a well regulated militia is necessary for fhe security of a free State, and that the right of the people to keep and bear arms ought not to be infringed, are principles not in the slightest degree encroached upon by the legislative enactment of this State prohibiting the wearing of concealed weapons.
One of the objects of the. constitution was, “ to provide for the common defence.” To legislate upon this subject, is clearly within the constitutional charter; and that the States retain the power to legislate in relation to arms, and the mode of carrying and keeping them, provided its exercise is not repugnant to the previous grant to the Federal Government, is incontrovertible. The State Governments are charged with the police of the State. They, considering acts as having a demoralizing tendency, can prohibit them. Could Congress authorize any and every persori, by express law, to carry deadly weapons concealed about his person, when not composing one of the militia, and not a part of the regulations ordained for their government? The police of a State is to be regulatéd by its own laws; and the Federal Government cannot interfere with it, so as to legalize any act which the State prohibits, and which is not necessary to carry out any of the great objects for which it was instituted. So long as the enactments of the General Assembly do not weaken the arm of the Federal Government, impair its power, or lessen its means to protect and sustain itself, and preserve inviolate the freedom of the States, they must be respected and enforced. But the slightest interference with the constitutional regulations and restrictions, in effecting these objects, becomes a violation of the compact between the State and Federal authorities, and ceases to be obligatory upon the citizen. The protection which a government owes to the States is political in its character: the municipal regulations to extend that protection to the citizen in his individual capacity, must be left to the State authority, and are such only as are consistent with the safety of others. Indeed, it is scarcely possible to look into the statute book, and not find written upon almost every page some restraints upon what are considered natural rights. The argument of the appellee, that men swayed by their interests, or governed by their passions, shall be permitted to wear a dirk, butcher-knife, <fcc., concealed as a weapon, independent of the control or authority of law, and that the General Assembly cannot, by legal enactment, when the use is at the time not required or necessary for military purposes, prohibit it, is to my mind as mischievous as it is erroneous. To assert that a citizen is entitled to protection from his government, and then deny to that government the means of securing it, is a contradiction in terms, difficult if not impossible to be reconciled. ■
The provision of the Federal constitution, under which the appellee claims his discharge, is but an assertion of that general right of sovereignty belonging to independent nations, to regulate their military force. Nor has the General Assembly attempted to interfere with the exercise of that right. The enactment in question is a mere police regulation of the State for the better security and safety of its citizens, having reference to weapons and arms of a wholly different character from such as are ordinarily used for warlike purposes. The principle contained in the provision of our constitution, which declares that “the freemen of this State shall keep and bear arms for their common de-fence,” is precisely similar to that of the United States; it stands upon the same ground, and is declaratory of the same right. The terms “ common defence,” in ordinary language, mean national defence. The reason for keeping and bearing arms, given in the instrument itself, is clearly explanatory, and furnishes the true interpretation of the claim in question. The militia constitutes the shield and defence for the security of a free Slate; and to maintain that freedom unimpaired, arms and the right to use them for that purpose are solemnly guarantied. The personal rights of the citizen are secured to him through the instrumentality and agency of the constitution and laws of the country; and to them he must appeal for the protection of his private rights and the redress of his private injuries. To deprive the ' General Assembly of the power to regulate and control those rights, when not inconsistent with the grant to the General Government, would be to take away from the State the terrors of the law and the restraint of its moral influence, upon which its prosperity mainly depends. It is true, the terms of the grant are affirmative; but affirmative words are often, in their operation, negative of other objects than those affirmed; and in the construction of an article of the constitution, the whole must be taken in view, and that construction adopted, which will consist with its words, and best promote its general intention. And we are authorized to imply a negative from affirmative words, where that implication promotes the intention. So a limitation on the broad terms of the grant is necessarily implied in other branches of this power, and in the manner in which it has been exercised by Congress.
, The grand object of the framers of the Constitution of the United States, was to establish a common government for sovereign States, and to leave that sovereignty unimpaired, wherever it could be so left without impairing the government of the Union. That Congress has never, in any one single instance, even by implication, passed any law relating to the militia, their organization, discipline, or arms, except as in reference to some known or supposed public enemy, in preesenti or in futuro, where the services of the militia might be requisite for the common defence, and for the security of the States, is to my mind a strong argument that they do not deem themselves authorized to interfere with the police regulations of a State, as to the mode or manner in which arms may be carried in time of peace, and in the ordinary associations of life unconnected with military warfare.
The act of the General Assembly of this State, rendering it penal to carry concealed weapons, does not, in my opinion, conflict with any of'the powers of the General Government On the contrary, I view it as the exercise of a power loudly called for by our citizens, and which, if strictly enforced by the public’ authorities, would add greatly to the peace and good order of society, the security of our citizens at home, and the reputation of the State abroad.
I therefore concur with the Chief Justice, that the exercise of the legislative power in the enactment of the law in question-, does not infringe either the Constitution of the United States or of this State.
By
Lacy, J.
The defendant in the court below stands indicted by virtue of the authority of the 13th section of an act of ihe'Legislature, prohibiting any person wearing a pistol, dirk, large knife, or sword-cane, concealed as a weapon, unless upon a journey, under the penalties of fine and imprisonment. Rev, StaL, p, 280.
The question now to be determined is, does this provision of the' statute violate the second article of the amendments to the Constitution of the United States, or the 21st section of our Bill of Rights? The language in both instruments is nearly similar: the two clauses are as follows: “ That a well regulated militia being necessary for the security of a free State, the right of the people to keep and bear arms shall not be infringed.” “ That the free white men of this State shall have a right to keep and bear arms in their common defence.” The inquiry is restricted to a single point; but it is not, on that account, wholly free from difficulty. Several of the highest courts of the Union have adjudged it differently, upon the construction of statutes every way like our own; and their opinions are entitled to due consideration. - The Court of Appeals of Kentucky has settled the principle against the constitutionality of the act now in question; and in this opinion, if I am not mistaken, the Supreme Courts of Tennessee and' Mississippi have concurred. The Supreme Courts of Alabama and Indiana have held a contrary doctrine. They have maintained that the Legislature has the power of prohibiting, by law, the citizen from wearing concealed weapons. I know of no opinion ever delivered of the Supreme Court of the United States, bearing directly upon the point. The question, then, so far as this State is concerned, may be regarded open for investigation1, and now brought up for adjudication upon error, for the first time. Both of my brother Judges have just pronounced separate opinions, each maintaining the constitutionality of the act. In their opinions, and the reasons upon which they are based, if I correctly comprehend them, they assert these general propositions: That all just and well regulated governments are instituted for the purpose of establishing justice, preserving domestic tranquillity, providing the necessary means for common defence, securing public liberty, and promoting the general welfare: That, to enable them to perform these high and indispensable obligations, the governments themselves inherently possess, as a portion of their sovereignty, all powers not expressly or necessarily prohibited from them by the grants of their creation: And that, under our frame of government and laws, every citizen has ample remedy and redress for a violation of all his private rights, by means of the public authorities, and to them he is bound to appeal: That the right of the people to keep and bear arms is restricted by the clause of the Constitution before quoted, and limited to the uses and objects therein specified: That it is given for the protection of public liberty, and for common defence; and that the right itself is subject to legislative control: That the words “ a well regulated militia being necessary for the security of a free State,” and the words “ common defence,” clearly show the true intent and meaning of these constitutions, and prove that it is a political and not an individual right, and, of course, that the State, in her legislative capacity, has the right to regulate and control it: This being the case, then, the people, neither individually nor collectively, have the right to keep and bear arms. Now, I take the expressions “ a well regulated militia being necessary for the security of a free State,” and the terms “common defence,” to be the reasons assigned for the granting of the right, and not a restriction or limitation upon the right itself, or the perfect freedom of its exercise. The security of the State is the constitutional reason for the guaranty. But when was it contended before, that the reason given for the establishment of a right, or its uninterrupted enjoyment, not only limited the right itself, but restrained it to a single specific object? According to this construction, the right itself is not only abridged, but literally destroyed; and the security of a free State is made to depend exclusively and alone upon the force of the militia. And, in the opinion of one of my brother Judges, it is the militia alone who possess this right, in contradistinction from the mass of the people; and even they cannot use them for private defence or personal aggression, but must use them for public liberty, according to the djsi. cretion of the Legislature. According to the rule laid down in their interpretation of this clause, I deem the right to be valueless, and not' worth preserving; for the State unquestionably possesses the power, without the grant, to arm the militia, and direct how they shall be employed in cases of invasion or domestic insurrection. If this be the meaning of the Constitution, why give that which is no right in itself, and guaranties a privilege that is useless? This construction, according to the views I entertain, takes the arms out of the hands of the people, .and places them in. the hands of the Legislature, with no restraint or limitation whatever upon their power, except their own free will and sovereign pleasure. Are great affirmative grants of political powers to be determined bj this technical rule of verbal criticism?. . If so, its rigid application to other portions of the Constitution would erase from its pages many of its most important and salutary provisions. Such a principle, I apprehend, should never be recognized or adopted by any judicial tribunal, in determining the inherent and original rights of the citizen. It goes to abridge, instead of enlarging the constitutional guaranties of personal liberty.
If the Legislature have the custody of the people’s arms and the treasury of the State, what becomes of the separation and division of the political powers of the government? Are not those powers united in the same body of magistracy ? And if this be the case, the balance of the Constitution is overthrown, and the State then possesses no real security for personal liberty. It is no answer to this árgument, to say that the people may abuse the privilege or right of keeping and bearing arms. The Constitution thought and ordained it otherwise; and therefore it was deemed far safer to entrust the right to their own judgment and discretion, rather than to the will or ambition of the Legislature; and this right was' excepted out of the general powers of the government, and declared inviolate. Now; if the Legislature had the right to forbid the people from keeping arms secretly, may they not prohibit them from carrying them openly or exposed? and if they could do this, may they not appoint the times and places when and where they shall be borne? And as the construction relied on assumes the principle that they can only be used for a specific and single purpose, then of course the whole subject matter, in regard to keeping and bearing either private or public arms, falls within the power of the Legislature, and they can control or regulate it in any manner that they think proper. This principle I utterly repudiate. I deny that any just or free government upon earth has the power to disarm its citizens, and to take from them the only security and ultimate hope that they have for the defence of their liberties and their rights. I deny this, not only upon constitutional grounds, but upon the immutable principles of natural and equal justice, that all men have a right to, and which to deprive them of amounts to tyranny and oppression. Can it be doubted, that if the Legislature, in moments of high political excitement or of revolution, were to pass an act disarming the whole population of the State, that such an act would be utterly void, not only because it violated the spirit and tenor of the Constitution., but because it invaded the original rights of natural justice ? Now, if they are private and not public arms, the Constitution guaranties the right of keeping and bearing them.'
The people are secured in their persons, houses, papers, and effects, against unwarrantable searches and seizures; but on probable cause, supported by oath or affirmation. Now, if the Legislature possesses the power claimed for it, it surely has the means of carrying it into effect. Can it, directly or indirectly, invade the sanctuaries of private life and of personal security, by authorizing a public, inquisition to search for either open or concealed weapons? Besides, private property cannot be taken for public uses, without due compensation being first made according to law. A man’s arms are his private property: how, then, can he be legally deprived of them? If they can forbid him, under the penalty of fine and imprisonment, to keep them concealed or exposed about his persdn, or on his own premises, although their unrestrained use may be necessary for all the purposes of his ordinary business and of personal defence, then certainly the right of keeping and bearing arms according to his own discretion, is infringed and violated, and his own free will in the management of this property abridged and destroyed.
If it means the public arms, then full power is given by the Constitution to Congress to organize and arm the militia, and prescribe rules for their use and regulation, when mustered into the service of the United States. Now, as full power is given to Congress over the subject, and the same power belongs to the State, which power shall be paramount, and to which of the two governments is entrusted the common defence of the country ? Is the grant of the State Constitution void, being repugnant to the Constitution of the United States, or does it abrogate and annul that power? These are questions that are to be found difficult to answer; and I leave their solution to others. But I think it is a fair inference, to presume that any construction, which leads to such consequences, is very likely to be erroneous. I have always been taught to regard the Federal and State governments as indissolubly connected together, and chat their mutual powers and authority acted in perfect harmony and in support of each other, like the gfeat principles incorporated by their enactments. According to the construction I design to give, there can be no conflict between these jurisdictions, nor any discrepancy arising from their action. I hold the doctrine that the Constitution of the United States, and the laws passed in pursuance of its authority, are supreme; and that all State constitutions and laws repugnant to them,' are utterly null and void; and that the Constitution and laws of the Federal Gov element operate directly upon the people and the States, and all are bound to respect and obey them. Again; who compose the militia? Has not the State a right to designate what part or portion of her citizens shall constitute this military corps? Then she can, by indirection, arm only those who -are in her interest, or who are swayed by her ambition; and, by denying arms to every other class of her citizens, may she not subjugate the liberties of all, by the very means the Constitution gives for their protection and defence?
By way of testing this principle, suppose the Legislature pass an ' act, that a man should not keep private arms in his own house secretly, or abput his person concealed, although they should be every way necessary, in defence of his life, liberty, or property. Can it be doubted that such an act would be a palpable infraction of the Constitution, as well as an invasion of the natural rights of society? Has not every man a natural and an unalienable right to defend his life, liberty, or property, when a known felony is attempted to be committed upon either by violence or surprise? Can any laws deprive him of this right? Upon what principle has he a right to use force to repel force, and even to slay the aggressor, if he cannot make a successful repulsion otherwise? The laws of the land being unable to protect him, the laws of nature step in, and authorize him to defend himself. Now, it has been often ruled, by the Courts of England, that an act clearly against the laws of natural justice and equity, is not binding; and that if Parliament, which is omnipotent in every thing, pass such acts,1 they are presumed to have intended no such outrage or wrong. To put this case in its true light--suppose a citizen of the State were indicted upon a charge of murder, and he could make out a clear case of justifiable homicide, the laws of nature, upon which the laws of society are presumed to be based, instead of punishing, commends him for the act; of course, he stands acquitted of all blame; but, on the trial, the evidence shows that he was compelled to take life with a concealed weapon, and the State thinks proper to indict him for this new offence, which is forbidden by an act of the Legislature; and thfe proof being clear upon the point, of course he may be convicted and rendered infamous for life. What then becomes of the righ.t of self-defence? Is it not swept away from him by legislative discretion, and the doctrine of self-preservation destroyed, which nature has implanted in. the breast of every living creature, and which no laws, either human or divine, can abrogate or annul? In such a cáse, could there be any hesitation in pronouncing the act that punished him for protecting his own life, absolutely null and void ? I think not. All the authorities, upon natural as well as constitutional law, support and prove this position. Would the act forbidding a person to carry concealed weapons be constitutional if he used them in self-defence, and unconstitutional if he did not use them at all, or kept them in a secret manner? If that be the case, then it is the intent, and not the fact of carrying concealed weapons, that makes the law either void or valid. Can so fluctuating a rule be the standard by which to test the constitutionality of the acts of the Legislature? I maintain that the simple fact of a man’s keeping and bearing private arms, whether concealed or exposed, is an act innocent of itself, and its freedom secured from all legislative interference. The act being innocent and allowed, cannot be made penal, or prohibited by law. The existence and freedom of a right is one thing, and the culpable and criminal use of it another and a wholly different thing. A right, in itself innocent and guarantied by law, cannot be made illegal or punished as a crime; and the error into which the Court has fallen in the present instance, seems to me to result from confounding these two things, which are wholly separate and independent of each other.
I admit that it is somewhat difficult to determine the exact point where the freedom of a constitutional right stops, and where legislative regulation begins. I take this distinction, however, to run through the whole class of cases; that if the right be innocent of itself, it cannot be interdicted; but its unlawful exercise, degenerating into licentiousness, is subject to regulation." The principle assumed in this case is, that the fact of private arms being worn concealed is a criminal offence, and capable of being controlled by the Legislature, and that they alone have the right to judge of its criminality. The propositions I do not believe, nor can I subscribe to them. It is true that the Legislature must judge, in the first case, whether the unrestrained freedom or use of a constitutional right is criminal or not; but having passed upon the subject, it then belongs to the Judiciary to examine the question, and to declare the rule of action in regard to it. The citizen, in this instance, complains that his liberty has been improperly restrained, and he has appealed to the Judiciary to shield him from this act of legislative injustice. That department is the last arbiter of his rights; and the'point to be settled is, has the Legislature judged wrongfully, or is the mere fáct of a person’s keeping his private arms concealed, an offence against the State, and liable to be controlled by legislative discretion 1
I maintain that the act is not only lawful, but expressly secured by the Constitution, and of course cannot be controlled by ordinary legislation. I admit that, if a man uses his arms improperly, or in an unlawful manner, then it is competent for the Legislature to punish him for the improper and illegal use of them; and it is right to do so; for every one is bound so to exercise his own rights, as not to prejudice those of others. The Legislature, in doing this, does not punish an innocent act, but an unwarrantable one: it does not abridge a natural and constitutional right, or in any manner interfere with its freedom. It merely punishes an unlawful use of a right; and it can do that only whe'n the party has committed, with his own arms; unauthorized aggression upon the person or property of another. And the rights of the Constitution are guarantied upon this principle — that while their perfect freedom add enjoyment are secured, the Constitution utterly forbids any licentious or .criminal indulgence in their exercise; for when that is the case, they can no longer be said to be the perfect and inviolable rights of the Constitution, but the unlawful and unauthorized acts of individuals. For example: The freedom of the press, the liberty of speech, and the sacred inviolability of private contracts, and free toleration in religion, are secured to all men. Still, any one or all these rights may be abused or perverted, and the true object or design of the Convention defeated. But does that authorize the Legislature to place restraints or interdicts upon the rights themselves? Certainly not. Such a power will give them up to the discretion of the Legislature, and take them clearly out of the Constitution. They certainly cannot be infringed or violated, or their obligations or value weakened or impaired. A law declaring that a man might write or speak what he pleased, but should not publish or circulate what he had spoken of written; or that he should worship his Creator only on certain days and at appointed places, would surely be unconstitutional, because it would destroy the freedom and sacredness of these rights. But should he, in the exercise of them, commit any unlawful act, and prejudice the rights of others, then he would be answerable for their unwarrantable use and indulgence. For instance, if in writing or speaking, or in the exercise of his religious opinions, he should prejudice or injure the rights and liberties of others, then this wilful perversion or abuse of these rights becomes a criminal act, and consequently should be controlled. The liberty of speech and of the press, and the freedom of religious toleration, are utterly incompatible, in the true constitutional meaning of those terms, with their licentiousness or criminal indulgence; and these latter or improper acts are in no manner connected with the invaluable franchises out of which they flow. Now, the right of the people to keep and bear arms is as free and unfettered, and as inviolable and important, as the liberty of speech and of the press, or the freedom of religious toleration; and it stands upon precisely the same constitutional ground, and supported by like reasons.
Sic utere tuo, norc-Milas alienum, is a maxim that runs through the whole body~oF the English common law, and pervades every part of our entire system of jurisprudence. Our Constitution and laws, construed by this principle, cause all the great and essential rights of civil and religious liberty to coalesce and blend together for the improvement and happiness of our species. If it is disregarded or overlooked, the constitutional guarantees become contradictory or hostile to, each other: thence the necessity and importance of the rule in the construction of all laws. The application of this governing rule in the construction of laws, demonstrates and explains the reasons why it would be unlawful so to keep arms or ammunition of any kmd, as to endanger the lives or property of others; and it solves the supposed difficulty, that if there is no limitation or restriction of the power of keeping.and bearing arms, then the State has no authority to disarm a criminal- for any offence whatever. When a citizen breaks his covenant with his government, he forfeits the protection of her laws; and of course this supersedes or destroys many of his municipal rights and political franchises, which- he otherwise would be entitled to receive at her hands.
It is further contended that the right should be restricted, because it is given alone for the security of a free Stale, which means nothing more or less than the defence of public liberty. Now, what constitutes the security of a free State, or what is public liberty? Does the security of a free State consist alone in repelling foreign aggression,- or quelling domestic insurrection ? How is the public liberty of a State to be preserved, and what is it? These inquiries seem to me to lead to different results, as we view the subject from different points. The security of a free State, as I imagine, depends not only in upholding, all its political institutions, but in sacredly performing all its legal and constitutional obligations, both to the Government and to the people. Public liberty can only be secured and perpetuated by preserving, inviolable the personal franchises and immunities of the citizen, as well as guarding and protecting the sovereign attributes of the State. To suppose that public liberty cannot be in danger, except from a foreign foe or internal disorder, is virtually to deny the importance and neces-sify of written ccnstitutions. If there was no fear of our own rulers, why impose restraints upon them, and why commit the guardianship and care of the great principles of civil and religious liberty to separate and independent departments of the Government, and bind each, by the most solemn injunctions, to preserve and defend them? And why trust the Constitution, in the last resort, to the interpretation of the Courts, to expound its meaning and declare its will? For this plain and obvious reason: because the Judiciary has few temptations to err, and possesses neither patronage or power, to make it popular or dangerous. I cannot separate the political freedom of the State. /rom the personal rights of"its citizens. They arc indissolubly bound up together in the same great bond of union, and, to my mind, they are incapable of division. The distinction may be in names, but it cannot be in the nature and essence of things. It is certainly true, that, in one sense of the term, the political rights of the" State and the •personal privileges of the citizen may be contradistinguished from each other. There is a certain class of rights, which belongs to the State in her corporate character, and cannot be exercised except through the intervention of her authority. By far the most important and largest of the rights of the Constitution appertain exclusively to the person of the citizen, and concern the inherent rights of life, liberty, and property. Many of these rights lie behind the Constitution, and existed antecedent to its formation and its adoption. They are embodied in its will, and organized by its power, to give them greater sanctity and effect. They are written, that they may be understood and remembered; and then declared inviolate and supreme, because they cannot.be weakened or invaded without doing the Government and citizen manifest injustice and wrong. Among these rights, I hold, is the privilege of the people to keep and to bear their private arms, for the necessary defence of their person, habitation, and property, or for any useful or innocent purpose whatever. We derive this right from our Anglo-Saxon ancestors, and under the form of that government it has ever been regarded as sacred and inviolable. It is of great antiquity and of invaluable price. Its necessary operation, in times of convulsion and of revolution, has been the only means by which public liberty or the security of free States has been vindicated and maintained. Here, the principles of equal and natural justice, as well as the obvious meaning and spirit of the Constitution, have placed it above legislative interference. To forbid a citizen, under the penalty of tine and imprisonment, to carry hisown private arms about his person, in any manner that he may think proper for his security or safety, is, in my opinion, an unauthorized attempt to abridge a constitutional privilege, and therefore I hold the law in question to be of no effect. .
[But the majority of the Court being of a different opinion, the judgment was reversed.] | [
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By the Court,
Dickinson, J.
That the pleas are wholly defective, is abundantly proven by all the authorities; and so this Court has ruled the question, in the case of Pope vs. Tunstall and another, 2 Ark. Rep. 223. An accord must be executed in all its parts, before it can produce satisfaction. An accord executory constitutes no bar. In the present instance, these pleas can be neither termed an accord with satisfaction executed, nor accord in satisfaction executory. They certainly do not fall under the denomination of either of these classes of pleas. They endeavor to set up unliquidated damages, claimed upon mutual verbal covenants of the plaintiff in error, with one only of the obligees, in discharge of a joint contract with them both, under seal; and that, too, in a case where the plaintiff in error does not allege that he has performed any part of his agreement. He endeavors to excuse himself for his nonperformance, upon the ground that the obligee, with whom he contracted, failed to execute his part of the agreement, which was a condition precedent. These facts certainly show that the pleas were dilatory and frivolous. They tender no material issue, nor are they adapted to the form of action. They stand upon no higher ground than nil debet or non-assumpsit, in debt. These latter pleas have been held, in such cases, mere nullities, and the party might sign judgment without noticing them. The rule upon the subject we take to be this, that, if the pleas are informal, but still go to the substance of the action, then the party will not be allowed to sign judgment, but must demur; and the reason given for the demurrer is, that the defendant might obtain leave to amend; but, if they are without color of truth to support them, or where they are intended as mere instruments of delay, they ought to be stricken out. 12 Wend. 196, 223. 10 Wend. 624. 10 Wend. 672. The pleas we are considering, certainly could not be amended, because they are wholly defective in both form and substance, there being nothing to amend by, and the pleas being so palpably and manifetsly erroneous, that the law will permit the plaintiff to sign judgment as for want of a plea. Although, in these cases, it is prudent to obtain the sanction of the Court, yet the plaintiff may, in general, sign judgment without such authority.
In Gardiner vs. Webb, 17 Pick. 411, upon a promissory note, by the the endorsee against the maker, the defendant pleaded that the note was given as an indemnity against certain endorsements, made, or to be made, by the promisee, for the accommodation of the maker. The plaintiff objected, and the pleas were ordered to be stricken from the rolls. It was the old rule of the common law, if the pleas appeared to be unnecessary and improper, to strike them out, upon motion. The motion is addressed to the sound discretion of the Court, and the rejection is not made to depend merely because the facts which are set forth in the declaration would not constitute a sufficient defence, but because it is unnecessary to encumber the record with a long statement of facts, which, under no state of things, can be moulded or shaped into form so as-to bar the action. The reason here given we deem satisfactory; and we think it shows that the Court committed no error in sustaining the motion of the plaintiff below.
Judgment affirmed. | [
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By the Court,
Dickinson, J.
We can see no objection to the instructions. It is true, that our statute makes the certificate of the Notary evidence of the non-payment of the bill, and his notarial act of this fact cannot be questioned; but this provision certainly does not dispense with proof that notice of protest was duly forwarded to the defendant. That proof the holder of the bill is bound to make, and unless he establishes it upon the trial, the defendant is exonerated. It is true, that the Notary certifies that he forwarded notice of protest, by the first mail after the bill fell due, to Murfreesborough; but this is no proof that notice of protest was sent, or that Murfreesborough is the nearest post-office to the residence of the defendant. The certificate of these facts is not a notarial act, and of course they should have been established by proof aliunde; and, failing to do this, the plaintiff has not made out a cause of action against the defendant', and must, therefore, fail in her suit.
Judgment affirmed. | [
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By the Court,
Lacy, J.
It is perfectly apparent, that the proceedings in the case, by the Court below, have been exceedingly irregular, and wholly unauthor ized. A paper, purporting to be the last will and testament of Noah P. Billings, was produced before the County Court, for probaté. It was there rejected; and letters of administration were then sued out, • by Narcissa Billings, on the estate of her dceased husband. Upon this state of case, William Billings, who claimed to be appointed executor by the paper purporting to be the last will and testament of Noah P. Billings, filed his petition, and removed the cause to the Circuit Court. The Court below refused to admit her to be made a party to the proceeding, or to continue the case. An issue was then made up as to the validity of the will, ex parte, as it is termed in the record. A jury was thereupon impannelled, to pass upon it, who pronounced the paper, produced upon the trial, to be the last will and testament of Noah P. Billings, deceased; and the Court gave judgment acccordingly, and directed its opinion to be certified to the Probate Court, for further proceedings to be therein had, agreeably to the decision of the Circuit Court. A motion was then made for a new trial, which was overruled. The reason assigned was, that Narcissa Billings being no party to the suit, of course she had no right to be heard. The bill of exceptions filed, has placed these facts upon the record, and the case is now brought here, by appeal, to correct the judgment 'of the Circuit Court.
We are at a loss to conceive upon what rule of practice, or principle of justice, the Court below proceeded to make up an issue, and try the validity of a will, without proper parties, or without even affording an opportunity to those who were interested in the matter, to come in and defend. It is á principle of natural justice, as well as of municipal law, that no one, having an interest in any judicial proceeding, can be bound by it, unless he appears, or an opportunity is afforded him of coming in and defending the action. The proceeding, in this instance, is not only carried on without the proper parties, or without notice to the appellant, but in violation of her rights, and in opposition to her petition; and that, too, in a case where, at least for the time being, she was the properly constituted administratrix of her deceased husband, and, as such, had a direct and immediate interest against the paper, purporting to be his last will and testament, being established. To deny her the privilege of contesting its validity, or being heard in opposition to it, is to deprive her of an important legal right, without notice, and against her consent. Tins cannot be done. The effect of such a proceeding does not stop hero, but it indirect)/ annuls the acts of a Court of competent jurisdiction, without properly investigating and considering the grounds of its decision. Such a proceeding, on the part of the Circuit Court, has no color of law or shadow of justice to support it; and its judgment must, therefore, bo reversed, with costs, and this case be remanded to the said Circuit Court, with instructions that Narcissa Billings, if she desires it, be made a pari.y to the suit, and leave given to the appellee, within a reasonable lime, to amend his petition, and make all others, (if any there he), who are. legally interested in the matter, parties to the proceeding; and that the cause then progress, and be heard and determined according to law. | [
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By the Court,
Dickinson, J.
There are several questions attempted to be raised by the assignment of errors, but the whole case is reduced within a narrow compass. The doctrine is now too well established to need further illustration, that, after a party pleads in chief, he cannot again resort to his demurrer. The case, therefore, stands upon the count alone for money paid, laid out, and expended.
The only point to be decided, turns upon the correctness of these instructions. It is objected, that the giving of a negotiable note of hand for a prior debt, is not equivalent to payment so as to warrant a recovery upon the money count. This point has been differently ruled, but the law upon it may now be considered settled. The objection cannot prevail. The doctrine was laid down in Cornwall vs. Gold, 4 Pick. R. 44, and the cases áre all there cited and analysed; and the Court settled, that the giving of a new note was equivalent to the payment of the first, and would support an action upon the money count. The principle upon which the case proceeds is, that the execution of the second note is equivalent to an actual payment of so much money paid, laid out, and expended, for his benefit. Thesame principle was settled in Withby vs. Mann, 11 J. R. 518, and in Douglass vs. Moody and another, 9 Mass. R. 553. The whole of them rest upon the case of Barclay and another vs. Good, 2 Esp. 571. The rule is in accordance with justice and reason; for, if a party’s note has been paid up and canceled, there can certainly be no good reason shown why it is not, in every respect, equivalent to so much money paid; and should there be any hardship in the rule, it must be remembered that it was in the power of the defendant to have shown how much was actually paid; and, having failed to do so, it is to be presumed it was paid to the full extent. The court, therefore, properly overruled the first instruction, and rightly gave the last.
Whether the finding of the jury was warranted by the evidence or not, we have no right to consider, as there was no motion for a new trial.
Judgment affirmed. | [
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McCulloch, J.
Appellee sold the goods in controversy to Todd, and demands a rescission of the sale, and seeks to recover the goods on the ground that the sale was induced by a false and fraudulent written statement made by Todd at the time of the sale. Todd failed in business subsequent to the purchase from appellee, and his property was attached for debt by his creditors.
Appellee is a Missouri corporation, domiciled at St. Louis, and on January 26, 1904, through its attorney at Lewisville in Lafayette County, commenced an action before a justice of the peace against Todd to recover the price of the goods sold, and sued out an order of general attachment against the property of the latter. This was shortly after other creditors of Todd had commenced actions, and sued out attachments, and caused same to be levied.
Judgment was rendered in favor of appellee against Todd on February 6th for the amount of the debt, and the record of the judgment bears an indorsement dated Feburary 16th of satisfaction in full.
A transcript of those proceedings was introduced in evidence in this suit, and appellant, among other things, defended on the ground that appellee, by commencing suit for the price of the goods and by prosecuting the suit to judgment, ratified the alleged fraud in the procurement of the sale, and waived its right to treat the sale as rescinded and sue for the goods. Bryan-Brown Shoe Co. v. Block, 52 Ark. 467.
Appellee, in order to escape the binding effect of its former election to sue for the price and waive the fraud, undertook to show that the election of remedies was made without knowledge of all the facts, and that it was not therefore bound by the same. White v. Beal & Fletcher Gro. Co., 65 Ark. 278; Dudley E. Jones Company v. Daniel, 67 Ark. 206.
In order to establish such lack of knowledge, the attorney for appellee who brought the two suits testified that he was authorized by appellee to commence the first suit, but that he did not then know of the existence of the alleged false statement made by Todd to appellee; and that, as soon as the same was forwarded to him by his client, he commenced the present suit. He does not say that he instructed the justice of the peace to dismiss the attachment suit, but he does testify, in response to a question asked him on cross-examination by appellant’s counsel as to whether or not he had taken judgment in the attachment suit on February 6th, which was two .days after the commencement of the replevin suit, “Yes, sir; the court did that.” Doubtless, the jury understood this to mean that the justice of the peace rendered the judgment without authority from him. While the statement of the witness may fairly bear that construction, yet it nowhere appears in the testimony that appellee’s attorney dismissed the attachment suit or authorized its dismissal before the commencement of the replevin suit, or that anything was done in that direction until the attorney’s indorsement of satisfaction was made on the record on February 16th, which was after the trial of the replevin suit. So far as appears from the record, appellee was at the same time prosecuting both suits, one to recover the price of the goods and the other to recover the goods. This could not be done, as the two remedies were inconsistent.
The evidence falls short of sufficiency, in another respect, to support the verdict. 'Appellee’s attorney, who testified in the case, said that he commenced the replevin suit as soon as he received the alleged false statement made by Todd. This testimony shows that the attorney did not have the statement in his possession when he commenced the attachment suit, and that he was ignorant of its existence at that time. But, whether he knew of its existence at that time or not, his client had possession of the paper when it authorized the bringing of the suit, and of course was bound to know its contents. Appellee can not plead ignorance of that fact.
Moreover, when appellant introduced the record of the former suit brought by appellee to recover the price of the goods, a prima facie case of election of remedies was made out, and put the burden upon appellee of showing that the election was made in ignorance of the facts concerning its right to adopt another remedy. To escape the effect of the election, it was incumbent on appellee to show ignorance either of the statement made by Todd or of its falsity. Nor was it sufficient to show merely that the attorney who acted for appellee was ignorant of these facts. Appellee was bound by the knowledge of its officers and agents, as well as of the attorney acting for it in this suit; and until it is shown by competent evidence that appellee’s officers and agents did not have information of these facts when the attachment suit was commenced, it is concluded by the election of remedies thus made.
The testimony wholly failed to bring appellee within the rule laid down in White v. Beal & Fletcher Gro. Co., and Dudley E. Jones Company v. Daniel, supra.
On account of the insufficiency of the evidence in this re spect, the judgment is reversed, and the cause remanded for a new trial.
Wood, J., not participating. | [
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Battle, J.
This action was brought by Charles E. Maledon against the Ft. Smith Suburban Railway Company and Archer-Foster Construction Company. The plaintiff, after alleging'that he is in possession of certain lands as tenant, alleges in his complaint :
“That the Ft. Smith Suburban Railway Company has acquired a right of way over and across said land without the consent of this plaintiff, who owned a growing crop thereupon at the time of the acquisition of the right of way by said railway from the owner thereof. That the said railroad company has let or sublet the construction of its railroad across said property to the Archer-Foster Construction Company, and the Archer-Foster Construction Company, in the construction of the said Ft. Smith Suburban Railway over and across said tract of land, has destroyed a crop of cotton, turnips, cabbage and beans belonging to the plaintiff; that part of said crop was destroyed by reason of the actual construction of the road, and the remainder destroyed by the negligently letting down and keeping down of the fence, whereby through their negligence cattle went in upon and destroyed the same, to the plaintiff’s damage in the sum of $145. Wherefore plaintiff prays judgment for the said sum of $145 and for his costs, and all other proper relief.
“Hill & Brizzolara,
“Attorneys for Plaintiff.”
The Ft. Smith Suburban Railway Company, after denying the material allegations in plaintiff’s complaint, by way of defense says:
“The Ft. Smith Suburban Railway for further answer says that it acquired a right of way over and across the land set out in plaintiff’s complaint on the 24th of January, 1903, and that at that time neither the plaintiff, Charles E. Maledon, nor any one else had planted upon said right of way upon said land any crop or crops of whatsoever nature. And the defendant, the Ft. Smith Suburban Railway Company, charges that, at the time the deed conveying said right of way was placed upon the public records in the Ft. Smith District of Sebastian County, neither the plaintiff, Charles E. Maledon, nor any one else had planted upon said right of way any crop or crops of whatsoever nature; and that whatever crop or crops were planted upon said right of way during the year 1903 were planted there with the full knowledge that the said railway company had acquired a right of way over and across said land, and intended to construct and build its line over said right of way.”
And the Archer-Foster Construction Company, after denying the material allegations in the complaint, in a separate answer says:
“For further answer herein, this defendant says that, if the plaintiff was damaged in any manner as set out in his complaint, he was damaged by reason of his own contributory negligence in failing to take proper precautions to prevent the destruction of the said crops. That, with knowledge of the right of way having been acquired by the Ft. Smith Suburban Railway Company through and across said land, he proceeded to plant and cultivate and expend time and labor upon crops upon the right of way so acquired, after being informed of its acquisition by said railway company. And the plaintiff negligently failed and refused to take proper precautions to keep the cattle out of his said crops ; and negligently failed and refused to gather said crops at a time when he had an opportunity to do so, to the end that it might not in any manner be destroyed or injured.”
On the 16th day of September, 1902, plaintiff leased from Rena Schutheiss the lands mentioned in his complaint for the year 1903 for the sum of $70, and in the same contract, for a different consideration, rented the same land for the remainder of the year 1902, and during the fall of the year 1902 entered into and remained in actual possession • during the term of'the lease.
On the 24th day of January, 1903, plaintiff’s lessor conveyed to Ft. Smith Suburban Railway Company, by quitclaim deed, a right of way one hundred feet wide, over and across the land leased by her to plaintiff. The boundaries of the right of way were in no way described in the deed. The only limitation on the right of way was that the road should not be built within fifty feet of the improvements on the land. This deed was filed for record on the third day of April, 1903.-
“Early in April, 1903; plaintiff planted about nine acres of cotton, and thereafter, in season, planted crops of turnips, cabbages and beans.”
“In the latter part of. October, or early in November, 1903, the defendant, Archer-Forster Construction Company, as subcontractor, in performance of its contract to construct a portion of the line of defendant Suburban Railway Company. without right'of entry as against plaintiff, entered these premises, constructed the defendant railway company’s roadbed thereon, thereby destroying a jiortion of these crops, and cut and left down the fencing whereby cattle entered and destroyed the remainder.”
Evidence was adduced tending to prove that the value of the crop was $125 or $130.
The evidence as to the trespass is in substance, as follows:
Maledon, the plaintiff, testified: “Archer or his crew came down and cut the fence down after I forbid them, ran their ditches through and covered up my stuff on the right of way; left the fences all open. He came down there, and I tried to get him to keep up the fence. I never did let them go in; came in .unknown to me while I was 'off at work. Fie came through there afterwards while I was away, drove his men down there, and ran the outfit through my field.”
Cross-examination. “Don’t know when the company first surveyed its right of way through there. Several surveys were run. They ran one pretty near every day or two. McCarty made a survey there about the first of April, 1903. Had not planted any cotton at the time of McCarty .survey; was breaking up, though. Not certain at the time he ran that survey where they were going.
Q. “After this you say Mr. Archer left the fences down there, and let the stock in. When was it that the stock first got in?”
A. “That was right after breaking this fence down and going through, but what day I could not say. I never saw them put up the fence. I saw the place where the cattle got through and came out. I ran the cattle out part of the time, and the children part of the time. Did not keep count of the times. I built up the fence on the right of way to keep them out. They cut the wire fence on both sides of the right of way, and threw it up from the right of way on both sides — middle fence and outside fence. Mr. Archer told me that he cut it.”
Redirect-examination. “I put the fence up every day there for quite a while; had my children running backwards and forwards over the field running stock out. I went down there and built the fence up the best I could, and when they came along they would throw it down. They did that a number of times. There was one string of wire fence around the place, and the other rail.”
Mike Donahoe for plaintiff testified: “My brother went around the fence several times, and I think put it up once or twice, and Maledon put it up, and .the children put it up. A good many stock were in-the field. Saw Maledon and his children drive them out.”
H. J. Archer, president of defendant Archer-Foster Construction Company, testified: “Work of construction on these premises commenced October 27, 1903. I went in there against Maledon’s wish, as far as I know, as I never consulted him anything about it. Don’t know how many times we cut the wilre across the right of way. Suppose our men cut it. Anyway they had orders to. Generally cut the wire; come to a wire fence, and cut it in the center, and lay it off on each side, and you can bring it back and fasten it up in the center. Supposed to do it every night. Paid a man for doing it. Don’t know whether he did it or not; only have his word for it.”
The court, over the objection of the defendants, instructed the jury, in part, as follows: “If you believe that the plaintiff could have by reasonable exertion averted damages caused by the wrongful act of the defendant, then it was his duty to do so; and if you believe he failed in performing the full measure of his duty in regard to protecting his crops, he will be only entitled to recover such damages as were not the result of his negligence or omission. The plaintiff can charge the defendants only for such damages as by reasonable endeavor and expense he could (not) have prevented; and will be entitled, if you believe he was negligent in not protecting his crops, to recover whatever amount of damages he may show has been sustained, and what he could not avert by reasonable exertions.”
The jury returned a verdict in favor of plaintiff for $120 for damages, and the defendants appealed.
Appellants contend that there was a misjoinder of parties and of causes in this action; that appellee seeks to recover damages for taking the right of way out of the leasehold estate, and for the negligence of the employees of the construction company in leaving down fences and permitting cattle by reason thereof to destroy the crops of appellee; that the construction company could not be held for the taking of a right of way by the railway company, nor can the railway company be held liable for the negligent act of the construction company. But this is not true. This action was not brought for damages for taking a right of way or property appropriated for public use. Appellants were sued as tort feasors for the destruction of crops. Appellee was lessee of the land in question, and in possession under his lease at the time the right of way was acquired. Appellants had no right to enter the same until he was fully compensated, or consented; and, having no such right itself, the railway company could confer none upon the construction company. In employing and directing the construction company to enter the appellee’s field and commence construction, it thereby authorized and procured the commission of the trespasses, and became a trespasser, and liable, with the construction company and its servants, as a joint tort feasor for damages sustained. Railway Co. v. Knott, 54 Ark. 424; Ullman v. Hannibal & St. J. R. Co., 67 Mo. 118; Carman v. Steubenville & I. R. Co., 4 Ohio St. 399; 3 Elliott on Railroads, pp. 1590, 1594.
Appellants insist that appellee was guilty of contributory negligence in planting his crops after the railway company had filed its deed for right of way for record. But this was no reason why he should have refrained from planting and cultivating any part of his farm. He was entitled to the possession of the entire tract of land, and appellants to no part of it. Until they had acquired the right to possession, he had the right to plant such crops in such parts thereof as he saw fit, and no one had any right to interfere with him in so doing.
It is urged by appellants that appellee can recover only such damages to his crops as he could not by reasonable exertions have averted. He should reasonably have exerted himself to lessen his damages. “The measure of the duty is such care and diligence as a man of ordinary prudence would use under the circumstances.” The evidence shows that efforts were made by the appellee to keep the cattle from destroying his crops, but without success. “Whether they were such as an ordinary careful and prudent man would have made under the like circumstances, or whether the appellee was negligent in his efforts to save his crops from destruction, was properly left to the jury to determine.” Smith v. Chicago Ry., 38 Iowa, 518; Downing v. C. R. Ry., 43 Iowa, 96; 1 Sutherland on Damages (3 Ed.), § 90, and cases cited
Judgment affirmed.
Hirr, C. J., being disqualified, did not participate. | [
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McCulloch, J.
Appellee, David G. Dillard, sues to recover damages caused by being run over and injured by appellant’s train while he was crossing the railroad track in the town of Coal Hill, in Johnson County.
The only question in the case is whether or not he was guilty of contributory negligence in crossing the track in front of an approaching train without observing the necessary precaution of looking and listening for trains. The case was tried upon the testimony of the plaintiff alone as to the details of the injury- — no other witness testified as to the occurrence.
The circumstances, as detailed by the plaintiff on the witness stand, were substantially as follows:
The plaintiff was engaged in hauling coal, and on the day of the injury, about 5 o’clock in the afternoon, he was in a two-horse wagon, and drove across the railroad track at a public street crossing in the town. The track at that place runs east and west, and crosses the public street at right angles. Plaintiff was going north, and the train which struck him was crossing from the west. It was running at full speed (about 40 miles per hour), and no signals were given. As plaintiff approached the crossing, he passed between two houses, one on either side of the public road, the one- on the west side being about 50 or 60 feet from the main track of the railroad, and the one on the east side being about 25 or 30 feet from the track. When he passed the house on the west side, he could see down the track in that direction about 150 yards. He looked in that direction, but neither saw nor heard a train, and continued to listen and to look in that direction until he passed the house on the east side. He could then see down the track towards the west about 200 yards. He testified'that, as he passed the house on the east side, which put him in about 25 or 30 feet of the main track, he checked his team almost to a standstill, looked up and down the track in each direction, and listened for sound of a train, and, neither seeing nor hearing a train, he released the brakes on his wagon and attempted to drive across the track. He stated that, after passing the last house and after looking both ways, he then turned his attention toward the east, where cars were always switching, and .-\yhere he expected danger, and that he continued to listen, but did not again look toward the west until the front wheels of his wagon reached the main track, when he again looked to the west, and discovered the approaching engine about 60 yards distant; that it was then too late to turn back, and he whipped up his horses in the attempt to cross, but that the engine struck the rear end of the wagon, and overturned it, and threw him out.
It is contended on behalf of the appellant that if the appellee had looked constantly toward the west he would have discovered the approaching train in time to have avoided being injured, and, having failed to do so, the court must say, as a necessary conclusion from this fact, that he was guilty of negligence.
The proof narrows the omission of appellee to look toward the west down to the period of time consumed in driving about 25 feet after he had checked his team almost to a standstill and looked in that direction where he could see for a distance of about 200 yards, and neither saw nor heard a train coming. The train came in view and was in about 60 yards of him when he looked again. He says that he was listening for a train all the time, and explains his omission to look toward the west during this time by a statement that he was looking eastward where cars were, always switching.
Does this necessarily make a case of contributory negligence, or was that a question for determination by the jury?
It is the duty of á traveler approaching a railroad crossing to look and listen in both directions for approaching trains, and to continue his vigilance in that respect until the danger is passed, and he is deemed to have seen or heard that which is plainly to be seen or heard. We have said this so often in recent decisions of this court that the cases need not be enumerated. But the traveler can not look both ways at the same moment, and, as was recently said in a somewhat similar case, “though he was bound to look both ways, the frequency with which he was bound to change his view depended upon circumstances and the probability of danger to be apprehended, and of this the jury were the judges. The law required him to exercise such degree of care in that respect as was reasonably necessary to- discover the danger and avoid injury.” Choctaw, O. & G. R. Co. v. Baskins, ante, p. 355.
In another recent case this court approved an instruction which told the jury that it was the duty of the traveler to look and listen for trains from each direction, but that, if it appeared to him as a reasonably prudent person that greater danger was to be apprehended from one end of the track than the other, he may give more attention to that end of the track from which he apprehended the greater danger. St. Louis, I. M. & S. Ry. Co. v. Tomlinson, ante, p. 251.
The court, in discussing the instruction, said: “The instruction does not relieve such person of the duty to' look arid listen in both directions, but says he may give more attention to the end of the track from which the greater danger is apprehended. This is reasonable, and in accordance with that prudence and care which an ordinarily prudent person would exercise.”
It necessarily follows from this that when the circumstances are such as to justify the traveler in giving more attention to the direction- in which danger is most to be apprehended, he may, to that extent, relax his vigilance in the direction in which danger is least to be apprehended. When strict attention is demanded, increased vigilance in one direction necessarily requires relaxation of vigilance, to that extent, in the other direction. We would not be understood to mean that a reasonable apprehension of increased danger in one direction will justify an abandonment of vigilance in the other direction. On the contrary, we say that the obligation rests upon the traveler to constantly maintain his vigilance in both directions, as far as reasonable prudence demands; but this does not mean that he is bound under all circumstances to instantly turn from one direction to the other. If this was the legal requirement, the traveler would be the absolute insurer of his own safety; and if he crosses the railroad track at all, it would be at his own risk, regardless of any negligence on the part of the railroad employees.
Now, in this case we are asked to say, as a matter of law, that, though the plaintiff brought his team almost to a standstill in 25 or 30 feet of the track, and carefully looked and listened both ways up and down the track, and no train was in sight for a distance of 200 yards to the west, and he started across, meanwhile listening for trains and looking toward the east where he especially apprehended danger, he was guilty of negligence in failing to look again toward the west while going that distance toward the track. To so hold would be, we think, to make the traveler the insurer of his own safety and deprive him entirely of the right of recovery for injury caused by negligence of the railroad company unless he kept his eyes turned every moment, under all circumstances, towards the direction from which the train came. It is probable, from the speed at which the plaintiff says he was moving after he passed the last house and. started toward the track, that less than a fourth of a minute was consumed in traveling the distance of 25 or 30 feet to the point where he again looked toward the west. Meanwhile he was listening for trains, and was looking in the other direction where he expected switching cars. We will not say, as a matter of law that under those circumstances he was guilty of negligence .in failing, during the short space of time which intervened, to again look toward the west. That was a question, under the circumstances, for the jury. It was fairly submitted to the jury, and their verdict acquitting the plaintiff of negligence is binding upon us.
It is insisted that the statements of plaintiff were contradicted by physical facts, and should therefore have been rejected by the jury. Such, however, is not the case. Of course, he could have seen the train if he had been looking in that direction at the mo ment, but the train could have come into view and run to the point where he says he first saw it during the short space of time while he was traveling 25 or 30 feet. So, it is not a question whether he spoke the truth when he said that he did not see the engine until it approached in about 60 yards of,him, but whether he was, under the circumstances, negligent in failing to look in that direction during' that space of time.
The court, on its own motion, gave the following two instructions upon the subject of contributory negligence:
“2. Contributory negligence is the want of that care which the law requires of a plaintiff under the circumstances, and which causes or contributes to the injury sued for. Now, the question for you is, what care for his own safety did the law require of the plaintiff? On that subject I tell you that the law required of him that he should, before attempting to cross the railroad track, listen and look both ways, up and down the track, for approaching trains, and to continue to so look and listen until the crossing was passed; and if he failed to do so, and such failure caused or contributed to his injury, he can not recover.
“3. By the requirement of looking up and down the track for all approaching trains, it is intended that the traveler, as far as an ordinarily prudent and careful man can do, shall have constantly under his eye the whole track, as far as his powers of vision will permit, in order that he may avoid going upon the track at a time when there is danger of his being injured, and the law required the plaintiff in this case to do that, as well* as to constantly listen for trains, and if the plaintiff, from the proof, did not do so, then he can not recover; otherwise, he can.”
These instructions, in our opinion, fully covered the law of the case on that subject. There was therefore no error in refusing instructions asked by appellant. The same question is not involved here, as in St. Louis & S. F. Rd. Co. v. Crabtree, 69 Ark. 138, where the court gave general instructions on the subject of the duty of a traveler to look and listen for trains, and refused to give more specific instructions applicable to the particular facts of the case. The instructions given by the court were sufficiently specific to- apply to all the facts of the case, and further instructions in varying form and language were unnecessary. The court is not bound to multiply its instructions on the same subject, and it is bad practice to do so, as calculated to mislead the jury.
We find no error in the record, and the judgment is affirmed. | [
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Wood, J.,
(after stating, the facts.) The court permitted the amendment to the complaint, after decree, to conform the pleadings to the undisputed proof in the cause. To present the issue as both sides have presented it in the testimony without objection by an amendment to the pleadings after verdict or judgment is not error. Section 6145, Kirby’s Digest; Hanks v. Harris, 29 Ark. 323; Healy v. Conner, 40 Ark. 352; Ry. Co. v. Triplett, 54 Ark. 289; Frizzell v. Duffer, 58 Ark. 612; Texarkana Gas & Electric Light Company v. Orr, 59 Ark. 215; Ry. Co. v. Dodd, 39 Ark. 317; Shattuck v. Byford, 62 Ark. 431; Bank of Malvern v. Burton, 67 Ark. 426.
As we understand the pleadings, the proof, and the decree, the question for our determination is, did the court err in refusing to decree to appellant any property to which he was entitled under section 2684, Kirby’s Digest, and in allowing appellee to retain same ? That section, so far as applicable here, is as follows:
“In every final judgment for divorce from 'the bonds of matrimony granted to the husband, an order shall be made that each party be restored to all property not disposed of at the commencement of the action which either party obtained from or through the other, during the marriage and in consideration and by reason thereof.”
Section 462 of the Civil Code of Kentucky in 1854 is as follows : “In every final judgment for a divorce from the bond of matrimony, an order shall be made that each party be restored to all property not disposed of at the commencement of the actions which either party obtained from or through the other during the marriage and in consideration or by reason thereof.” Kentucky Code of Practice (1854), § 462. See Kentucky Statutes 1894 (Barbour and Carroll), p. 772, § 2121. Meyers, Ky. Code (1867), § 462.
The language of the two statutes “that each party be restored to all property not disposed of at the commencement of the action which either party obtained from or through the other during the marriage, and in consideration and by reason thereof” is almost identical.
The Supreme Court of Kentucky, in construing the word 'consideration’ in this act, held it to mean “the act of marriage, or some agreement or contract touching or relating to the act of marriage,” and the expression “by reason thereof” “to relate to such property as either party may have obtained from or through the other by operation of the laws regulating the property rights of, husband and wife.” Phillips v. Phillips, 9 Bush (Ky.), 183. In Flood v. Flood, 5 Bush (Ky.), 167, the husband conveyed to a trustee for the use and benefit of his wife a large amount of real estate. This was in pursuance of a compromise in a suit by the wife for divorce, in which a perpetual decree of divorce from bed and board was agreed upon, and the compromise was confirmed by the judgment of the court. After divorce from bed and board the wife married another man. The husband sued for a divorce a vinculo matrimonii, and also for a restoration of property. Pie obtained his divorce, but the court refused to restore the property, saying: “Our statute requires that all property remaining in kind which one party may have obtained from or through the other, during the marriage, in consideration of, or by reason thereof, shall be restored on granting a divorce. But here she did not get the property in consideration of, or by reason of, her intermarriage with him, but because they could not live in the proper conjugal relations and were severing the same.”
In the Code of Civil Practice of Kentucky of 1876, the section of the Code of 1854 under consideration was amended so as to read as follows:
“Every judgment for a divorce from the bond of matrimony shall contain an order restoring any property not disposed of at the commencement of the action which either party may have obtained directly or indirectly from or through the other, during marriage, in consideration, or by reason thereof; and any property so obtained, without valuable consideration, shall be deemed to have been obtained by reason of marriage.” Code of Practice (Ky.), 1876, § 425.
In Irwin v. Irwin, 52 S. W. 927, a husband had deposited a Louisiana lottery ticket in a certain bank, probably in the name of his wife. The ticket drew $15,000, and the proceeds were invested in real property in the name of his wife. Afterwards, in a suit between them in which both parties asked for divorce, the husband also sought restoration of the real property, contending that the property was not obtained by the wife directly or indirectly from or through the husband during marriage, in consideration or by reason thereof, and therefore that the provision of the Code of 1876, § 425, did not apply. The court, in disposing of that contention, said: “The earlier cases, under section 462 of the Civil Code of Practice of 1854 tended to support this theory. Citing Flood v. Flood, and Phillips v. Phillips, supra. “But,” the court continues, “in view of the decision in Phillips v. Phillips, the words directly or indirectly, were inserted in section 425 of the present Code (1876) and it was further provided that “any property so obtained without valuable consideration shall be deemed to have been obtained by reason of marriage.” And the court further said: “If the property was obtained directly or indirectly through the husband, and there was no valuable consideration moving from her, it must have been obtained by reason of the marriage, and the statute must apply, ’ etc. _ ,
_ , The Legislature in passing our statute, section 2684, Kirby s Digest (act of 1893), instead of adopting the provisions of the Code of Ky. of 1876, chose rather to adopt the language of the Code of Ky. of 1854; and as this provision of the Code had been construed by the Kentucky Court of Appeals in the manner indicated supra, we must presume that the Legislature adopted it with that interpretation. McKenzie v. State, 11 Ark. 594; Nebraska Nat. Bank v. Walsh, 68 Ark. 433, 438.
In Massachusetts, under a statute authorizing the court after a divorce to make a decree restoring to the wife the whole or any part of her personal estate that had come to her husband by reason of the marriage, it was held “that the statute did not apply to property which came to a husband by a trust deed made by his wife after marriage and in settlement of differences between them.” Phillips v. Culliton, 26 N. E. Rep. 137.
The proof sliowed that on account of “unhappy differences” the appellant and appellee, long before the institution of -this suit', had signed articles of separation, in which, among others, occurred the following paragraphs:
“It shall be permitted either party at any time to sue for an absolute divorce, but in such suit no alimony shall be prayed for or granted, the considerations herein given being given, accepted and received in full for all interest either one may' have in the estate of the other.”
“The said husband has and nbw pays to the said wife the sum of $4,141.50 in cash, being a full one-third of the worth of. all the property, money or choses in action of the said husband; and the same is here and now accepted by the said wife in full of all her dower or marital rights in the present or any future estate of the said husband, and the balance of the present or future estate of the said husband shall belong absolutely to him free from any interference or claim! by the said wife thereto.”
A few weeks after their separation, they concluded to live together again, upon condition that the husband would deed her one-half of the farm on the “State Line,” and that she should be satisfied, do “what was right” by her husband and the children, and would “help to improve the farm with the money she had.” The deed was executed by him to a third party, and by this party conveyed, according to previous understanding, to appellant and his wife jointly. Some time after that he purchased another place, and had the deed made to himself and wife jointly. At the time of the separation he paid her in cash, according to his testimony, $3,719. The proof showed that she had an insurance policy on her husband’s life worth $1,150. “She did not turn over to her husband, when they resumed living together, any of the property she got o'n separation.-”
It follows from what we have said that the property in controversy was not in consideration and by reason of the marriage, and can not be restored to appellant under the statute. But appellant contends that the consideration upon which the property was given and conveyed to appellee failed when appellee failed to live with appellant and conduct herself properly as his wife, and that the property should be restored to him, regardless of the statute. ' -
In Kinzey v. Kinzey, 115 Mo. 496-502, the Supreme Court of Missouri said: “A court of equity can and will interfere to restore to a party injured property which has been obtained from him by imposition or deceit. But in this case no property was obtained from the plaintiff by imposition or deceit. He was simply mistaken in the moral worth and virtue of one of the objects of his bounty. From the consequences of such a mistake of judgment a court of equity can not relieve him.” The only assignment of fraud and imposition is in the amendment to the complaint, where appellee is charged with “having failed and refused to return the insurance policy or any of the other property as she agreed to do when said agreement was set aside and they resumed living together and said last conveyance of the ‘State Line’ property made.” There is no definite allegation in this that the conveyance of the State Line farm was made in consideration that appellee would return the insurance policy or any other property. But the proof upon this point is more indefinite than the allegation. Appellant testifies that i-t was agreed upon the separation that he was to have the insurance policy, and it was after that, and when they had agreed to live together again, that the conveyance of the State Line farm was made. There is no clear preponderance of the evidence in appellant’s favor, to say the least of it, thqt appellee acquired her interest in the State Line farm upon consideration that she would return the insurance policy, or any other property, and that she practiced a fraud upon appellant in failing to perform her agreement.
The proof fails to show by a preponderance that there was any such agreement. Appellee testifies positively that there was no such agreement.
As we gather from the whole of appellant’s pleadings and proof, he seems to have relied mainly upon the statute for a restoration of property, and, as we have already shown under the statute, he can not recover. The decree is therefore affirmed.
Hill, C. J., and Riddick, J., not participating. | [
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Wood, J.,
(after stating the facts.) The facts sought to be established by the witness Page by the examinátion in chief were competent. Witnesses for appellant had testified that there was a negro boy on the wagon at the time appellee was hurt, and they gave the description of the negro as a “black-looking negro.” This was in contradiction of the testimony of appellee, which tended to show that the boy was in the car with him at the time he was hurt, and that the boy that was with him was a mulatto. The testimony of Page tended to corroborate the testimony of appellee. The fact that the boy was seen by him that evening after the accident with bruises upon his arms and limbs, and that he was a mulatto instead of a black-looking negro, tended to corroborate and strengthen the testimony of appellee that the boy was with him in the car at the time of the accident. This testimony tended, therefore, necessarily to disprove the testimony of appellant’s witnesses that the boy was upon the wagon at the time of the injury to appellee. There is no contention that the witnesses for appellee and appellant were testifying about a different boy. It is assumed that they were talking about the same boy, and there is no contention that there were two boys there besides appellee. Page was asked about “the boy that was working down there with plaintiff at the time of the accident,” and his answers show that this was the boy he was describing. The testimony was competent, relevant and material.
But it was discovered on cross-examination that Page only found out that the boy was injured when he took him to the doctor, two or three days after the accident, and he only knew about how it was done from what the boy told him. This rendered that part of his testimony incompetent, and too remote. It was hearsay evidence, and prejudicial. But appellant, after thus bringing out these facts; did not ask the court to exclude the evidence. It elicited the evidence itself on cross-examination, and ib waived all objection to its incompet'ency by not moving the court to exclude it after such incompetency was discovered.
The court’s ruling was correct. Instructions numbered eight and fifteen assume, as matter of law, that the appellant had exercised ordinary care to prevent the injury to appellee if it notified the boy on the wagon that it was about to couple on to the car. This proposition assumes the existence of too many facts which should be left to the jury-to ascertain. And then,, after ascertaining the facts, it was still a question for the jury to determine whether appellant, under the facts proved, was negligent. For instance, these instructions assume that, if appellant’s servants saw a boy on the wagon, they had a right to presume that no one was in the car. Non sequitur. The facts were, as the proof showed, that there were two boys there. The evidence conflicts as to whether or not they were both in the car at the time of the accident. It was a question for the jury to determine whether the boys were in the car, or whether one was in the car and the other on the wagon at the time of the injury; and if there were two, what was their status to each other and the company; and it did not follow at all that, if one boy was on the wagon, there was no one in the car. And the company had no right to assume, as the instructions indicate, that if there was a boy on the wagon he would communicate the notice to the boy in the car. There was no proof that the boy in the car and the one on the wagon, if there was one also on the wagon, held such status to each other as to warrant the assumption that the boy in the car was responsible for the conduct of the boy on the wagon, and vice versa, or that the conduct of the boy on the wagon was imputable to the boy in the car. This instruction No. 15 assumes,
We see nothing in the evidence to warrant the conclusion, as matter of law to be told the jury, that if there was a boy on the wagon it was his duty to warn the appellee, who was in the car, and that, if he failed to do so, he was guilty of negligence which should be imputed to appellee, and that the railway company had the right to assume that the boy on the wagon would notify the boy in the car, and to act accordingly. The whole tenor and legal effect of the instructions were to take from the jury the very question which it should determine, namely, as to whether or not the appellant, under all the facts which the jury might find from the evidence, was guilty of negligence.-
The questions involved in these instructions were elaborately presented to the jury in general terms, in proper form, in other instructions. We find no error in the court’s charge.
The verdict was not excessive. Appellee in his regular calling, for which the accident unfitted him, had earned as much as $75 per month. At the time of the accident he was earning $1.50.per day. He was before the injury a vigorous young man. Since, most of the time, he has been helpless as a child. His injuries were serious, painful and probably permanent. The suffering- was intense.
Considering all the elements for which damage should be allowed, we do not feel authorized to disturb the verdict as to the amount.
Affirm. | [
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Andree Layton Roaf, Judge.
Appellant Paul Moore was convicted of four counts of rape and was sentenced to thirty years’ imprisonment on each count, to be served concurrently. On appeal, Moore argues that the trial court erred in (1) denying his motion to dismiss for lack of speedy trial based upon pre-arrest delay; (2) permitting the State to introduce character evidence in violation of Arkansas Rule of Evidence 404(b); and (3) denying his motions for a mistrial. We affirm.
Because Moore does not challenge the sufficiency of the evidence supporting his conviction, only a brief recitation of the relevant facts is necessary. In June 1999, an arrest warrant was issued for Moore. The issuance of the warrant stemmed from the Little Rock Police Department’s investigation of allegations that in November 1998, a man driving a red-orange Chevrolet pickup truck had followed Megan Welsh and her siblings home and attempted to enter her bedroom window; that in December 1998, two victims, J.S. and K.H., had reported that a man forcibly entered J.S.’s home, placed duct tape on the girls, undressed them, and forced them at gunpoint to perform sexual acts on each other and then on him; that in December 1998, the Welshes saw the same pickup truck that had followed Megan, and wrote down its license-plate number and reported the information to the police; and that when presented with a photo spread the victims and witnesses all identified Moore as the perpetrator. Moore was not arrested until November 2001, and the criminal information charging him with four counts of rape was not filed until January 8, 2002. The delay was caused by the Little Rock Police Department’s failure to enter the 1998 warrant in the ACIC system.
At the pretrial hearing, Moore moved to dismiss the case, arguing that his right to a speedy trial under the Sixth Amendment of the Constitution had been violated because of the more than two-year delay between the issuance of the arrest warrant and his actual arrest. During his argument, Moore cited Doggett v. United States, 505 U.S. 647 (1992), and Barker v. Wingo, 407 U.S. 514 (1972). The State responded that while the period between the issuance of the warrant and Moore’s arrest was two years and five months, Moore was brought to trial within one year of his arrest. The State also argued that the statute of limitations permits the State to commence prosecution for rape, a class Y felony, within six years of the alleged occurrence. The trial court denied Moore’s motion to dismiss, finding that the delay in Moore’s arrest was not a speedy trial issue and further finding that the statute of limitations did not bar prosecution of this case.
At trial, the State presented testimony regarding the investigation of the two cases. James Sloan, a detective with the Little Rock Police Department, testified that on December 7, they did a walk-through at J.S.’s home and found duct tape in a garbage can outside. The following colloquy occurred next:
State: And were you able to develop a suspect in this case?
A: Yes, eventually we did.
State: And who was that person?
A: Mr. Anthony Moore, Paul Anthony Moore.
State: Okay. And did you have any other names that you —
Defense: Your Honor I’m going to —
State Continuing: — understood to be associated with him?
Defense: — object
Court: Sustained.
State: Well, can I ask if they were any —
Defense: May we approach?
<Outside of the jury’s hearing>
Court: Aliases?
At this point, defense counsel moved for a mistrial, arguing that the State was asking for additional names. The court sustained the objection, but denied the motion for mistrial. But, the court indicated, “I don’t know about the prejudice; so, let’s stay away from that [the aliases].”
Sloan continued his testimony, explaining that based on the license plate information provided by the Welshes, more information was discovered. The following colloquy occurred:
State: All right. And, based on that information, what did you do?
A: Based on that information, a vehicle description was given. I ran that vehicle description through our system and came up — based on the license plate information, it came back to the suspect. At that point, I made contact with the Department of Revenue and also Pulaski County Jail and was sent a picture of the suspect.
Moore’s counsel again moved for a mistrial, arguing that the witness’s testimony that he contacted the Pulaski County jail to obtain a picture of Moore suggested that Moore had a criminal record. Defense counsel also reminded the court that the State had previously raised the issue of aliases and argued that the additional reference to the county jail created the implication that Moore had a criminal record. The court stated that there was no clear implication that the witness had obtained the picture from the jail because he also mentioned contacting the Department of Finance and Administration. The trial court denied the motion, instructing the State to advise its witness not to mention the Pulaski County jail. Sloan then testified that he had contacted the Department of Finance and Administration and that he had been able to obtain a 'photograph of Moore.
Sloan also testified that he showed the photo spread to Barbara Welsh, Richard McKinnie, Megan Welsh, K.H., andJ.S., and they all identified Moore as the perpetrator. Following Sloan’s testimony, the State presented evidence showing that a 1975 red and white Chevrolet pick-up truck with license plate number “208CTS” was registered to Paul Moore, in November 1998.
At the conclusion of the State’s case and at the conclusion of all of the evidence, the defense renewed its motion for mistrial, requested that the trial court consider the cumulative effect of the errors, and challenged the sufficiency of the evidence. The motions were denied.
On appeal, Moore first argues that the trial court erred in denying his motion to dismiss based upon the Sixth Amendment right to speedy trial. In his brief Moore states, “The issue raised in this case but not addressed by any Arkansas case ... is whether one’s right to a speedy trial under the Sixth Amendment accrues with the issuance of an arrest warrant.” Moore requests that this court find that the trial court erred when it held that his Sixth Amendment right to a speedy trial had not been violated and that this court reverse and dismiss his case pursuant to Doggett v. United States, supra.
In United States v. Marion, 404 U.S. 307 (1971), the Supreme Court considered whether a three-year delay between the alleged criminal act and the filing of the indictment required dismissal of the defendants’ case. The appellees moved to dismiss their case for violation of their due process rights and speedy trial rights under the Fifth and Sixth Amendments. The Supreme Court stated, “In our view, however, the Sixth Amendment speedy trial provision has no application until the putative defendant in some way becomes an ‘accused,’ an event that occurred in this case only when the appellees were indicted.” Id. at 313. The Court further observed that the Sixth Amendment was not intended to cover “pre-accusation” delay. Id. at 315. Thus, it is either a formal indictment or information or an actual restraint that triggers the protections of the Sixth Amendment. The Court “decline[d] to extend the reach of the amendment to the period prior to *the arrest.” Id. at 329.
Ten years later in United States v. MacDonald, 456 U.S. 1 (1982), the Supreme Court again addressed the difference between the Sixth Amendment right to speedy trial and the Fifth Amendment due process right that may be violated by pre-indictment delay. The appellee had alleged that a two-year delay between the submission of the investigation for murder to the Justice Department and a federal indictment charging him with murder violated his Sixth Amendment right to a speedy trial.
Citing Marion, supra, the Court reiterated that the Speedy Trial Clause of the Sixth Amendment does not apply to the period before a defendant is indicted, arrested, or otherwise officially accused. “Although delay prior to arrest or indictment may give rise to a due process claim under the Fifth Amendment ... or to a claim under any applicable statute of limitation, no Sixth Amendment Right to a speedy trial arises until charges are pending.” Id. at 7. (Citations omitted.) Pre-arrest delay must be scrutinized under the Due Process Clause.
Notwithstanding the Supreme Court precedent excluding pre-indictment delay from Sixth Amendment Speedy Trial analysis, Moore relies on Doggett v. United States, 505 U.S. 647 (1992), for the proposition that the Sixth Amendment now encompasses pre-arrest delay. In Doggett, supra, the appellant was not arrested until 8 1/2 years after his indictment, due to the government’s negligence. In analyzing the case, the Supreme Court concluded, “that the Sixth Amendment right of the accused to a speedy trial has no application beyond the confines of a formal criminal prosecution. Once triggered by arrest, indictment, or other official accusation, however, the speedy trial enquiry must weigh the effect of delay on the accused’s defense just as it has to weigh any other form of prejudice.” Id. at 655.
Clearly, there is not a Sixth Amendment speedy-trial right due to pre-indictment or pre-arrest delay. Moore relies heavily on Doggett, supra, in which the appellant had been indicted but not arrested; however, in this instance Moore had not been arrested or indicted. In Marion, supra; and MacDonald, supra, the Supreme Court made it clear that pre-indictment delay arguments are more appropriately analyzed under a Fifth-Amendment Due Process argument, and expressly declined to extend the reach of the Sixth Amendment to the period prior to arrest. The Court specifically held that the Sixth Amendment does not cover pre-accusation delay, which includes pre-indictment and pre-arrest delay. See Marion, supra. Thus, Moore’s argument must fail under a federal constitution analysis.
Turning to Arkansas case law, we likewise have not recognized a Sixth Amendment speedy trial right for preaccusation delays. In Young v. State, 14 Ark. App. 122, 685 S.W.2d 823 (1985), and Forgy v. State, 16 Ark. App. 76, 697 S.W.2d 126 (1985), this court analyzed claims of pre-indictment and pre-arrest delay under the due process clause. Forgy, supra, cites Marion, supra, and holds that a due process violation resulting from pre-arrest delay does not arise until the defendant can demonstrate prejudice. In Young, supra, the court discussed the burdens in a due process analysis based on pre-indictment delay.
The Young court also discussed the statute of limitations as it relates to the analyses of pre-indictment and pre-arrest delay. In Young, supra, the defendant was accused of rape, a class Y felony, for which the statute of limitations is six years. See also Ark. Code Ann. § 5-14-103 (Repl. 1997); Ark. Code Ann. § 5-1-109 (Repl. 1997). The court stated, “It is clear from [the] cases that mere pre-indictment delay is not a sufficient ground for aborting a criminal prosecution within the period of limitation. The accused has the burden of first showing prejudice.” Young, 14 Ark. App. at 127, 685 S.W.2d at 826.
More recently, in Jones v. State, 347 Ark. 455, 65 S.W.3d 402 (2002), the Arkansas Supreme Court held, “The Constitutional right to a speedy trial is violated only by vexatious, capricious, and oppressive delays manufactured by the ministers of justice.” Id. at 463, 65 S.W.3d at 407. Quoting MacDonald, supra, the court wrote, “Although a delay prior to arrest or indictment may give rise to a due process claim under the Fifth Amendment, or to a claim under any applicable statute of limitation, no Sixth Amendment right to a speedy trial arises until charges are pending.” Id. at 462, 65 S.W.3d at 407.
In this regard, Moore has asserted his claim of error only under the Sixth Amendment. Moore has made no Fifth Amendment argument, and we cannot consider arguments not raised below or specifically argued on appeal. Howard v. State, 348 Ark. 471, 79 S.W.3d 346 (2002).
Further, Moore was charged with rape, which carries a six-year statute of limitation. As the trial court observed, the charge was brought within the limitation period. The State commenced prosecution within six years of the alleged offense. Accordingly, the trial court properly denied Moore’s pre-trial motion to dismiss. Young, supra; Jones, supra; Ark. Code Ann. § 5-1-109 (Repl. 1997); Ark. Code Ann. § 5-14-103 (Repl. 1997).
Moore next argues that the trial court erred in denying his two motions for mistrial. Moore couches his argument in terms of Ark. R. Evid. 404(b) character evidence; however, he in essence argues that the trial court erred in failing to grant his motions for mistrial when the State made reference to his aliases and when its witness intimated that he obtained a picture of Moore from the Pulaski County jail. Moore did not object below based on Rule 404(b) character evidence, and we cannot consider this aspect of his argument for the first time on appeal. Howard, supra.
In regard to the denial of the motions for mistrial, it is well-settled that a mistrial is a drastic remedy, which should only be used where there has been an error so prejudicial that justice cannot be served by continuing the trial or when the fundamental fairness of the trial itself has been manifestly affected. Barr v. State, 336 Ark. 220, 984 S.W.2d 792 (1999). The trial court is in the best position to decide the issue of prejudice because of its first-hand observation. Id. The trial court has wide discretion in granting or denying a motion for a mistrial, and absent an abuse of that discretion, the trial court’s decision to deny a motion for a mistrial will not be disturbed. Id. Even assuming that the prosecutor made inappropriate comments, when the evidence of guilt is overwhelming and the error is slight, we can declare that the error was harmless and affirm. Id. Lastly, an admonition has been held sufficient to cure improper statements made during a witness’s testimony. Smith v. State, 351 Ark. 468, 95 S.W.3d 801 (2003). But, it is the defendant’s obligation to request a curing instruction, and a failure to request one will not inure to the defendant’s benefit on appeal. Id.
We cannot say that the trial court abused its discretion in denying Moore’s motions for mistrial. Regarding the inquiry about aliases, the trial court denied Moore’s motion, but instructed the State to stay away from that line of questioning. Consequently, because there was no testimony about any alleged aliases, Moore cannot demonstrate prejudice. Further, Detective Sloan’s testimony that he obtained Moore’s picture from the Department of Finance and Administration cleared up any inference that it might have been obtained from the county jail. Even assuming that the jury understood Sloan’s testimony as suggesting that he attempted to obtain a photo of Moore from the jail, such testimony would not necessarily indicate that Moore had a prior criminal conviction. More importantly, Moore never asked for an admonition. Finally, in light of the testimony regarding the rape of J.S. and K.FL, the incident involving Megan Welsh, the vehicle and license-plate information, the presence of duct tape in J.S.’s garbage can, and the unequivocal identification by the victims and other witnesses of Moore as the perpetrator, the error, if any, would be only slight. Barr, supra.
Moore also argues that a mistrial was warranted due to cumulative errors throughout the trial. An argument of cumulative error is entertained in only rare and egregious cases. Childress v. State, 322 Ark. 127 (1995) (citing Alexander v. Chapman, 289 Ark. 238, 711 S.W.2d 765 (1986) (where there were twenty-eight objections and repeated admonitions, but the appellee’s conduct did not stop)). Here, the two instances complained of would hardly constitute egregious conduct even if error had occurred. No testimony about Moore’s aliases was ever presented, and the testimony regarding the source ofMoore’s photo made it clear that' the photo was obtained from the Department of Finance and Administration. Accordingly, the argument based upon cumulative error is without merit.
Affirmed.
Bird and Crabtree, JJ., agree. | [
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Battle, J.
This action was brought in the Randolph Circuit Court by Wynne, Love & Company against A. Z. Schnabaum. Plaintiffs allege in their complaint that they are cotton factors and commission merchants, located in the city of Memphis, in the State of Tennessee; that the defendant was a merchant, doing business at Pocahontas, in this State, and was engaged in buying-selling and shipping cotton; that on the 18th of June, 1900, they entered into a contract with him, by which they were to advance and lend to him $2,000, and he was to ship to them 200 bales of cotton, or one bale for each $10 loaned, in default of which shipment he was to pay plaintiffs one dollar and twenty-five cents per bale for each bale he failed to ship according to the terms of the contract; that they loaned him $1,889.50, and he shipped to them only forty-two bales of cotton, and refused to ship the remainder or pay the dollar and twenty five cents as he agreed to do. They asked for judgment against him for $183.75, with interest, on account of such failure to ship.
The defendant answered, and admitted the allegations in the complaint, but denied that he wrongfully failed to ship them more than forty-two bales of cotton, and for defense says that plaintiffs sold the cotton shipped to them for less than its market price, and less than they could have sold it for, and that thereby he suffered and sustained a loss of $10 on each bale of cotton shipped, and that for this reason plaintiffs forfeited their right to insist upon a performance of said contract.
The issues in the case were tried by a jury. The evidence shows that the shipments of the cotton extended from October 25, 1900, to April 8, 1901,'and the sale thereof extended from November i,- 1900, to July 3, 1901. J. E. Love, of Wynne, Love & Company, testified that thirty-four bales of it were sold for more than their market price, and two bales of it were sold for less than the market price of such cotton, on account of the extreme low grade thereof and the poor demand for that class of cotton. At another time he testified that “the cotton could not have been sold for any more than plaintiffs got for it; for the market during the entire season of 1900 and 1901 was a dull dragging market, and quotations hard to realize; but quotations in Memphis market were not the market value in every instance during the season of 1900 and 1901, owing to the poor demand for cotton, and concessions had to be made to effect a sale. Some of the cotton was so low in grade, and handled so badly, that there was absolutely no demand for it. Therefore we were unable to realize any premium over quotations, and had to make concessions in order to effect a sale.” He made a statement of the grades of the cotton which shows only nine bales grade middling. Another statement, which was admitted to be correct except wherein it was 'in conflict with the testimony of Love, was admitted as evidence. It .shows that eight bales were sold at market price of middling, six for more, and twenty-eight for less. The testimony of the purchasers of the cotton, except one who did not testify, corroborates the testimony of Love.
Defendant testified, in part, as follows: “During that season I handled about 1200 bales of cotton. I sold some at Pocahontas, some at Newport, and some at Memphis, and during that year other parties than the plaintiffs sold cotton for me in Memphis. My reason for not shipping more cotton to plaintiffs that year was that I was realizing more for my cotton by selling at home than they were getting for me for the same. * * * During the time the plaintiffs were handling this cotton, I made sales to other parties, and in all cases realized more for cotton than they did for me. I sold most of my cotton that year at Pocahontas, and got from % of a cent to a cent per pound more for it than plaintiffs sold for. During the time that plaintiffs were selling cotton for me at Memphis I sold cotton to other parties in'Memphis, and realized more for it than the plaintiffs allowed me for what they sold. I had shipped about 600 bales of cotton to another party, and _ sold it myself to a buyer who came here to Pocahontas.”
The plaintiffs asked, and- the court refused, to instruct the jury as follows:
“2. The fact, if proved, that defendant sold cotton in Pocahontas for more than he realized for the cotton shipped to and sold by plaintiffs would be no defense in this suit, nor would it be a defense that defendant sold cotton in Memphis for which he realized more than for the cotton sold by the plaintiffs.
“3. Defendant by way of defense claims that the plaintiffs sold his cotton for less than the market price. Before you could find for him on this issue, he must show, by a preponderance of the evidence, either that plaintiffs failed to use care and skill in the sale of the cotton, or that they, corruptly sold it for less than its value, and the fact, if proved, that defendant sold cotton in Pocahontas, so that he realized more for it than for cotton shipped to and sold by plaintiffs, or that he sold cotton in Mem phis otherwise than in the customary manner, for more than he realized for cotton sold by plaintiffs would be no defense in this action.
“5. Defendant claims by way of defense in this suit that plaintiffs sold cotton shipped them for less than he realized for it here in Pocahontas, and for less than he sold cotton in Memphis. You are instructed that this of itself would be no defense to this suit.”
The jury returned a verdict in favor of the defendant, and plaintiffs appealed.
Wynne, Love & Company were commission merchants, located in the City of Memphis, in the State of Tennessee. Appellee consigned to them for sale forty-two bales of cotton, without instructions. They thereby became bound, and bound only, to exercise a fair and reasonable discretion, under the circumstances. By consigning cotton without instructions, the presumption is that he relied upon the sound discretion of appellants. If they exercised it fairly and in good faith, and sold the cotton within a reasonable time after they received it, they discharged their duty. But appellee complains only of the price for which they sold the cotton. The measure of their duty in that respect was to sell for the fair value or market price. They were not bound to consult the market of Pocahontas. The cotton was shipped to Memphis, to be sold there according to the market of that city. Gregory v. McDowel, 8 Wend. 435; Wemple v. Stewart, 22 Barb. 154; Durst v. Burton, 47 N. Y. 167; McCarty v. Quimby, 12 Kan. 494. Neither were they governed by one or two sales of cotton in Memphis, probably unknown to them. Proof of a single sale or two sales in a city like Memphis is not sufficient evidence to establish the market value of the cotton sold. Such evidence could not show that they failed to discharge their duty to appellee. See Mechem on Agency, § § 1016, 1018, 1019; 2 Clark & Skyles on Agency, § § 856-858, and cases cited.
Appellee testified that "during the time that appellants were selling cotton for him in Memphis he sold cotton to other parties in that city and realized more for it than appellants received for what they sold.” The time during which appellants were selling cotton for him extended from November 1, 1900, to July 3, 1901, a period of eight months. He fails to show that the sales made by him in Memphis approximate any of the days on which appellants sold. This evidence does not tend to show that they failed to exercise a reasonable degree of discretion and judgment in reference to the time of selling, or that they failed, to get the fair value or market price for the cotton sold; and this was the full measure of their duty in that respect. The prices of cotton are too unsteady, and fluctuate too much, for this evidence to have such effect.
On account of the evidence adduced the instructions asked by the appellants and refused by the court should have been given.
Reverse and remand for a new trial. | [
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Wood, J.,
(after stating the facts.) Appellant in its brief contends that evidence of a conversation between the conductor and the engineer before the train started out in which the conductor asked the engineer “if he was not drunk,” and the engineer’s reply thereto, and of the appearance of the engineer, that “he seemed excited,” was improper and. prejudicial. The appellant does not abstract the evidence at all bearing upon the question of whether or not the conductor was negligent in allowing the engineer to start up and move the train and engine without first adjusting the switch so a£ to let the construction train on to the main line. This was the gravamen of the charge as to the negligence of the company. Without this, even if the above testimony were irrelevant or incompetent, it would be impossible for us to say whether or not it was prejudicial. Because, if the uncontradicted proof should show that the appellant’s conductor was negligent in the manner charged, it would be wholly- immaterial whether the engineer was drunk or sober just before the train started to pull out. The objection therefore could not avail appellant on the abstract he makes, and for the further reason that there is no reference to the motion for new trial in appellant’s abstract, without which it is impossible for us, without “exploring the transcript,” to determine whether his exception to the court’s ruling was preserved. Appellant’s objection to this testimony, therefore, could not avail here. But appellee has not seen proper to object to appellant’s abstract, and ask for an affirmance for defects therein. On the contrary, he has set out a full abstract of the testimony from his standpoint on the question of appellant’s negligence. From this, it appears, quoting from the language of one of the witnesses, that “it was the duty of the conductor to look after the condition and position of the switches. It is the duty of the conductor to see that the switches are thrown and properly adjusted with the main line before starting out of the. side track. The engineer has control of the fireman and brakeman around the engine pertaining to the company’s property and safety of the train. The fireman is subject to the command of the engineer. The engineer has control of the head brakeman when he is on the engine. This flagman or head brakeman is compelled to obey the orders of the engineer.” This testimony is undisputed, and appellant does not deny that a failure on the part of the conductor to perform that duty would be negligence. Conceding, therefore, without deciding, that the testimony of what the conductor asked the engineer about his being drunk, and the appearance of the engineer, was irrelevant and incompetent, it did not go to the question of the negligence of the conductor in failing to throw the switch, and could not have been prejudicial. If the proximate cause of the injury was the negligence of the conductor in failing to see that the switch was thrown before starting the train out of the side track, and this was conclusively established, then it was wholly immaterial whether the engineer was drunk or sober, and the testimony could not have been prejudicial.
The same may be said of the remarks of counsel for appellee in his opening statement to the jury, which were as follows : “I have an idea that the whole crew was drunk and drinking. They had been to Van Burén the night before, and it is reasonable to suppose that they laid in a supply of whisky.”
Appellant presents in its abstract testimony tending to prove that it was a “very common thing” for engines to approach switches and continue their movements, and for brakemen to run ahead and throw the switch, while the train continued to move, and that such had been the custom on this train, and that, such was attempted by a brakeman on this train when the injury occurred, but that the attempt failed because the “switch point hung, and it raised the flange, and the engine, tender, and one pair of trucks of the ledgerwood, backed off the end of the rail.”
On this testimony appellant asked the following: “If you find that it was known to plaintiff that in leaving side tracks it was common for engines to not stop, but to slow down before reaching switches, and for a brakeman or other employee to jump from engine or tender, and run ahead and open the switch while the engine moved ahead, and with this knowledge, without protest, plaintiff continued to work with a crew known to him to so act, then the court tells you that plaintiff assumed the risk of accidents and injury from such movement of trains in leaving side tracks; and if he was injured by reason of such movement being pursued, then you will find for the defendant.”
Appellant’s counsel say in their brief that “the court refused to give this instruction. Defendant excepted, and the court gave no other instruction presenting this theory of the case to the jury.” Here again the abstract is so fatally defective that it is impossible for us without going through- the transcript to determine whether the court erred in refusing this request. We do not know whether appellant preserved its exceptions to the court’s ruling on this instruction in the motion for new trial.
Moreover, appellant has failed to abstract the other instructions given by the court. True, its counsel say that no other was given presenting this theory, and as they are able and truthful attorneys, they are doubtless correct. Such, at least, is their opinion. But the court might differ with them, and must determine the correctness or incorrectness of the contention of counsel from the record, and, under the rules, must have an abstract of it to see whether there is error. Chief Justice Cocicrirr, speaking along this line, said: “The appellant argues that the court erred in refusing to charge the jury as requested by him, but his exception on that score has not impressed him as being serious enough to require him to point out the error by setting out the prayers in his abstract in accordance with the rules. We therefore take it as a waiver of the objection.” Koch v. Kimberling, 55 Ark. 547; Carpenter v. Hammer, 75 Ark. 347; Jacks v. Reeves, post, p. 426. See also on sufficiency of abstracts, Neal v. Brandon, 74 Ark. 321; and Shorter University v. Franklin, 75 Ark. 571.
This disposes of the objection to the ruling of the court in refusing other prayers asked by appellant. But, aside from this, the uncontradicted proof in the record from the abstract as presented by appellee shows that the proximate cause of appellee’s injury was the failure upon the part of the conductor to see that the switch was thrown. This was a duty devolving upon the master, and the servant did not assume the risk incident to the negligence of the master in failing to perform that duty. In this view there was no error in refusing requests for instructions set out in appellant’s brief.
The court gave at the request of appellee the following:
“Should your verdict be for the plaintiff, then you should assess his damages at such a reasonable sum of money as you believe from the evidence will fully compensate him for the damages he has sustained, if any, and in determining this amount you may take into consideration his loss of time, if any, from his ordinary and usual avocation, his diminished capacity, if any, to work and earn money at his usual and ordinary avocation in the future, and the amount of money, if any, he has laid out and expended for services of a physician, and in buying medicine, if any, in procuring or attempting to effect a cure of said injuries, if any, the mental and physical pain he has, or may have to endure, if any; but in no event should your verdict be for more than $2,000, the amount sued for.”
We, might dispose of the objection of the counsel to the giving of this instruction as we have the others, for it appears from brief of counsel for appellee that the language set out in brief for appellant is only an excerpt from an instruction. But, as counsel for appellee have abstracted enough of the instruction to make the ruling of the court below clear, we will proceed to pass upon it. Treating appellant’s objection to the ruling of the court in giving this request as having been preserved in a motion for new trial, we see no error in that part of the instruction to which objection is urged here, towit: “And in no event should your verdict be for more than $2,000, the amount sued for.”
In Fordyce v. Nix, 58 Ark. 140, this court said: “The trial court should not have told the jury, however, that, if the conduct of appellants was willful, etc., they may allow him additional vindictive or punitive damages, not exceeding the amount sued for,” the objection being to the words, ‘not exceeding the amount sued for.’ ” Learned counsel for appellant urge this as! authority for their position that the court erred in giving the instruction containing the language pointed out supra. An examination of that case -will discover that it is not in conflict with the instruction given by the court in this case. In that case the jury were not directed to base their verdict upon the evidence. There were no limitations and no directions except that it was their province to find an amount not exceeding the amount laid in the complaint, regardless of whether the amount laid in the complaint was reasonable or unreasonable and “commensurate with the wrong done as shown by the evidence adduced.” In the present case the instruction duly circumscribed the jury within the limits of reason, and directed that their findings should be based on the evidence. Moreover, the instruction in Fordyce v. Nix was held not to be prejudicial, because the verdict was shown not to be excessive, the jury having found for less by $1,500 than the amount claimed, which finding was amply sustained by the proof. So here.
Affirm. | [
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Riddick, J.,
(after stating the facts.) This is an appeal from a judgment of the chancery court of Pulaski County refusing to enjoin the Special School District of Little Rock from issuing certain bonds of the district. The question involves the validity of the act of the Legislature authorizing the district to borrow money for the purpose of erecting a-high school building, and the further question whether the act, if valid, authorized the issuance of the bonds.
Now, the act expressly authorizes the district to borrow money for the purposes named in the act, to issue evidences of debt therefor, and to mortgage the real property of the district as security for the loan. Acts 1905, c. 55, p. 154. The express power to borrow ’money and to issue evidences of indebtedness therefor, we think, includes the power to issue negotiable bonds of the district with interest coupons attached. 1 Dillon, Municipal Corporations, § 127, and cases cited.
The power to issue these bonds having been granted by this act,.if the act was valid, the district, in attempting to issue the bonds for the purpose of completing the high-school building, was acting under the authority of law, and should not be enjoined.
So far as we can see, the act was regularly passed, and the only objection urged against its validity is that it would be in violation of a provision in the State Constitution which declares that, no “county, city, town or municipality” shall issue any interest-bearing evidences of indebtedness. Const. 1874, art. 16, § 1. But this court has recently held that a levee district, though it may possess corporate powers, is not a municipality within the meaning of this provision of the Constitution. Memphis Trust Co. v. St. Francis Levee District, 69 Ark. 284. We think that it is equally clear that the Special School District of Little Rock is not a municipality within the meaning of that provision. The school district is, it is true, a public corporation, but the mere fact that it is a public corporation does not make it a municipal corporation or, in other words, a municipality. In speaking of this question, Judge Dillon says: “All corporations intended as agencies in the administration of civil government are public, as distinguished from private, corporations. Thus an incorporated school district or county, as well as a city, is a public corporation; but the school district or county, properly speaking, is not, while the city is, a municipal corporation.” i Dillon's Municipal Corporations, § 22. A municipality, properly speaking, is a corporation that has the right to administer local government, as a city or incorporated town. But a school district is only an agency of the State with limited corporate powers belonging to a class of corporate bodies known as quasi corporations. These are not muncipalities, within the meaning of the constitutional provision referred to. It follows, therefore, that the act in question is not in conflict with the Constitution, and is a valid law.
It is said that the act does not authorize the district to mortgage a part only of the real property of the district. The language of the act is that the district is authorized “to borrow money and mortgage the real property of the district therefor ’’ This, to our mind, obviously empowers the district to mortgage all or part of the real property of the district as the school board may deem advisable.
'Again, it is contended that one of the directors was not notified of the meeting. But the clerk of the board who kept the records of the board testified on this point that all directors of the board were present except Mehaffy, and that he had been “notified by mail three days previous.” This, we think, was sufficient to support the finding of the chancellor that all the directors were notified.
Lastly, it is contended that the recitals in the bond pledge the revenues of the district for their payment. The act under which the bonds were issued provides that the evidences of indebtedness issued by the district shall be “paid • out of the building fund in the order of their date, as the building fund is provided and collected by successive levies.” This, in effect, pledges the building fund of the district, whatever that may be, to the payment of the bonds. Besides, as the bonds are valid obligations, it was evidently the intention of the Legislature that they should be paid out of the revenues of the district, and they are therefore a charge against such revenues as any other valid debt would be. But, if we concede that the directors had no authority to pledge the revenues of the district in that way, this would not justify us in enjoining the issuance of the bonds, for, if the directors exceeded their powers in that respect, this provision of the bond would not estop the district, or bind the successors in office of the directors who issued the bonds. For, the question of whether the district has power to pledge its revenues was not committed to those directors for ascertainment and decision. Their decision on that matter is no more binding than their opinion on any other question of law affecting these bonds. Citizens Assoc. v. Perry, 156 U. S. 709.
On the whole case, we are of the opinion that the judgment of the chancery court should be affirmed, and it is so ordered. | [
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Riddick, J.,
(after stating the facts.) This is an appeal from a judgment of the Pulaski Chancery Court, holding that the German National Bank had a lien on certain rails claimed by defendant Greeson. The rails were at one time the property of the Eongview Eumber Company, and, while they were the property of that company, the company borrowed $3,000 from the bank, gave a note therefor, and executed a bill of sale for the rails to the bank to secure the note. Afterwards the company became bankrupt, and the rails were sold by the trustee in bankruptcy, and purchased by Greeson. The $3,000 note to the bank has been paid, but the bank claims that, by virtue of the note and bill of sale above referred to, the bank had a lien on the rails, not only for the $3,000 and interest, but also for subsequent loans made by it to the lumber company.
Now, in the first place, there is no claim that there was any subsequent agreement by the lumber company with the bank that the bank should hold the rails for these subsequent advances. These subsequent advances were in each instance secured by transfer’ of bills of lading for shipments of lumber. When the cashier of the bank was asked whether at the time they were made anything was said about the rails standing as security for them also, he replied that he did not remember that anything was said about it at the time the loans were made, but he said that on several occasions when the bank refused to make such advances to the company, Howell, the president of the company, had said that the bank had the rails, which were greater in value than the specific obligation they were given to secure. This testimony, which is all the evidence on that point, shows clearly that there was no agreement, subsequent to the execution of the note for $3,000, that these rails should he held by the bank as security for subsequent advances. So, if the bank has any lien on these rails, it must rest on the note and bill of sale given at the time the loan for $3,000 was made to the company.
This bill of sale, though in the form of an absolute transfer of title, was exectited to secure a debt, and was in equity only a mortgage. In the case of Martin v. Holbrooks, 55 Ark. 569, Chief Justice Cockriee said that “an unequivocal agreement in a mortgage that the instrument shall secure all indebtedness of whatever nature that may be due from the mortgagor to the mortgagee at a future date named would not be invalid between the parties for want of certainty.” Now, we agree with the contention of the bank that, as the bill of sale was absolute in form, there was no requirement that the note given at the same time should be recorded, for equity would not set aside such conveyance and permit a redemption without requiring the mortgagee or party holding under him to do equity by paying the debt secure by the absolute bill of sale. The bill of sale was recorded, and that was sufficient to notify all persons dealing with the property conveyed that the bank claimed an interest in it. But, to create a lien on this property for subsequent debts, it should appear that there was, to quote the language of Judge Cockrile, “an unequivocal agreement to that effect.” Now, there does not appear to be an express stipulation in the note sued on that the bank should have a lien on these rails for subsequent debts. The note is, no doubt, in the usual form required by the bank of borrowers where collateral was deposited to secure the loan. It speaks of these rails as having been deposited with the bank as security for the payment of the note and interest, though as a fact the rails were never delivered to the bank.
The only reference to the subsequent debts in the note is found in that part of the note which deals with the disposition of the proceeds of the rails in the event they were sold to pay the debt. The language of the note clearly intimates that the debtor has the right to redeem the rails at any time before such sale by paying the amount of the three-thousand-dollar loan and interest. But the note provides, in the event that the debt is not paid, and the rails are sold by the bank, that “the surplus, if any, * * * shall be paid to the drawer of the note, or, at the election of the holder thereof, be paid on any other obligation of the drawer hereof.” This language seems to give the bank a lien, not on the rails, but on any funds arising from the sale of the rails by the bank, in the event that the note was not paid. But, if we treat this rather equivocal language as creating a lien on the rails in favor of the bank for any subsequent debts due from the lumber company to the bank, it was a lien that the bank could waive. If the rails had been sold by the bank, and after payment of the note a surplus had remained, it could, perhaps, under this provision have applied it to other debts due it from the company. The note says that it could be done at “the election” of the bank. But if, instead of making such a disposition of the proceeds, it had elected to return such funds to the maker of the note, it is clear that afterwards the bank could not recall such action and demand the return of such funds. In this case the rails were never sold, for the party who purchased the rails at the sale by the trustee in bankruptcy, and who succeeded to the rights of the owner thereof, paid the note and interest in full. The bank thereupon returned to him the bill of sale and the note marked “Paid.” This was an election by the bank not to claim any lien on the rails for other indebtedness; and if it had any lien for such debts, it thereby waived it. But this action of the bank, together with the doubtful language of this note and the other circumstances under which the note was made, convinces us that this bill of sale was executed to the bank as security only for the loan of $3,000 and interest, and that the bank has now no right to hold these rails for loans made to the lumber company after the execution of the bill of sale in question. After consideration of the matter, we are of the opinion that there is no equity in the complaint.
The judgment is therefore reversed, and the action of plaintiff is dismissed for want of equity. | [
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Battle, J.
Planters’ Mutual Insurance Association of Arkansas insured certain property of Jettie Driver against fire, and received his note for $88 for the premium. The policy of insurance in reference to the note provided: “If paid on or before'maturity, all interest waived, said amount being for cash premium on my insurance this day applied for; and it is further agreed that, if this note is not paid at maturity, the whole amount of assessment on said insurance shall be considered as earned, and the contract be null and void, so long as this note remains overdue and unpaid.”
The property insured was destroyed by fire. The question is, was the note paid ?
The note was sent to the bank at Osceola, Arkansas, about the latter part of October, 1903, for collection. The insurance company and the bank notified Driver that the note was sent there. The proof on the part of Driver was that he went to Osceola after he had been notified and before the fire; that he “went to the bank and found no one there, but he met the cashier some two hundred yards from the bank, and told him to pay the note, and he promised to do so; that Driver had money on deposit in the bank sufficient to cover the note; that no check was drawn,’, and no entries made on the books of the bank charging Driver with the amount of said note, and no credit given to the Insurance Company until after the fire occurred. Several days, and perhaps several weeks, according to the contention of Driver, had inter vened between the time he told the cashier to pay the note and the date of the fire, and he made no effort to see whether the note had really been paid or not until after the fire.”
The money to the credit of Driver in the bank was never applied to the payment of the note. The bank gave no credit to the insurance company on its books for the note or charged Driver with the amount thereof until after the fire, but until then treated it as unpaid and uncollected. There was no payment. Hatch v. Hutchinson, 64 Ark. 119; Sutherland v. First National Bank of Ypsilanti, 31 Mich. 230; Hecksher v. Shoemaker, 47 Pa. St. 249; Phillips v. Mayer, 7 Cal. 81; Cavanaugh v. Buehler, 120 Pa. St. 441, 453; Pease v. Dibble, 57 Ga. 446; Price v. White, 70 Ga. 381; Kenny v. Hazeltine, 6 Humph. 62.
The effort to pay the note after the fire was too late to save the insurance.
Judgment affirmed. | [
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McCulloch, J.
This is an action brought by appellee against appellant to recover commissions on sales of goods earned by him as traveling salesman of appellant, and for prospective commissions which he was prevented by wrongful discharge from earning under the following written contract:
“contract.
“Chattanooga, Tenn. December 29, 1902.
“We agree to pay Dan Hall fifty per cent, on sales amounting to $10,000, twenty per cent, of this sum to be spent by him in advertising and to pass through our office. Commissions due when orders are accepted. This contract terminates when the amount of $10,000 has been reached.
“Spencer Medicine Company.
“By C. C. Nottingham, Secretary.”
The plaintiff sued for $65 commission on sales made, and $1,500 on prospective commissions as damages for breach of contract. Pie testified that defendant owed him a balance of $64.05 on earned commissions, including two orders which defendant declined to ship. He also testified that, judging from past experience, he could have made sales amounting to $2,000 in 'sixty days, and could have sold $10,000 in about one hundred days — that he made sales of $336 in the four days that he worked, and that he made more than his expenses in selling “side lines,” which did not interfere with his sales for defendant.
The defendant denied that it had failed or refused to comply with the contract, or that it had refused to allow plaintiff to comply with the contract. It also denied that plaintiff had complied with the terms of the contract', or had earned the commissions claimed, or had paid the stipulated amount in advertising.
The court gave the following instructions at the request of plaintiff, to each of which the defendant objected:
“2. It is not only an absolute refusal in words to perform a contract, but also manifestations by words or acts of an intention not to perform it according to its terms, that will authorize the other party to treat it as a repudiation and bring his action; and if you find from the evidence that the Spencer Medicine Company manifested its intention by words or acts not to perform the contract in question according to its terms, then Hall had a right to treat it as at an end, and is entitled to damages, if any be shown by the evidence to have accrued to him thereby, providing he himself had performed his part of the contract.
“3. If you find for the plaintiff (Hall), you will allow him whatever sum, if any be shown by the evidence to be due him, for commissions earned and not paid, and you will also allow him whatever profits he would have made, if any be shown by the evidence, had the contract been carried out according tó its terms.
“4. If you find from the evidence that orders were taken by Dan Hall from parties who were ready, willing and able to pay same, and that said Hall complied with the instructions of the Spencer Medicine Company in determining whether said parties were entitled to credit, then you will allow Hall his commissions on such orders, notwithstanding the fact that said orders were not accepted by Spencer Medicine Company, 'unless such non-acceptance was for good business reasons.”
The court also gave the following instructions at the request of defendant:
“1. The plaintiff, in order to recover for the amount alleged to have been due him when he left defendant’s employment, must show that he did spend 20 per cent, of the amount of his sales in advertising defendant’s goods and report the same to its office and return all articles charged to him, if you find there was an agreement to that effect, and in his hands belonging to them, unless the performance of same has been waived by parties.
“3. If the jury find in this case that the defendant discharged the plaintiff from its service, but that the plaintiff habitually and regularly violated the terms of the contract, and could not be induced to comply with it, they will find for the defendant.
“4. If the jury find from the evidence that by a mutual understanding between plaintiff and defendant the plaintiff retired from its services, they will find for the defendant.
“7. If the jury find for the plaintiff for damages because of his discharge, they will assess his damages at what he would have earned, judging by his past success, less what he did thereafter earn, during the term he would have been engaged in fulfilling his contract.”
The following instructions asked by defendant were refused:
“2. The court instructs the jury that if it finds that the defendant without proper cause discharged the plaintiff from its employment, and that under his terms of contract he was selling goods upon a commission, he can not recover for the damages therefor because the damages are too uncertain.
“5. The court instructs the jury that the plaintiff in this case can not recover in this action for the amount of the wages for his services while in the employment of the defendant company, and at the same time for damages for a breach of the contract for future employment.
“6. The court instructs the jury that there is no evidence in this case that the defendant discharged the plaintiff, Dan Hall, from its employment, and he is therefore entitled to no damages for a breach of the contract.”
The jury returned a verdict in favor of the plaintiff for $65 commissions on sales and $500 damages for breach of contract.
It is argued that the second instruction given at the instance of plaintiff was erroneous, but we do not think so, especially when this instruction is considered in connection with those given at the instance of defendant. It is sufficient, where a party to a contract has, either by words or conduct, distinctly and unequivocally manifested his intention not to perform the contract, to justify the other party in treating it as at an end for the purpose of suing for breach thereof.
It is insisted by appellant, in this connection, that the evidence was insufficient to support a finding that it had discharged the plaintiff, and thereby repudiated the contract, but we are unable to reach a conclusion in accord with either of the contentions that the instruction on the subject was erroneous or that the evidence was insufficient. The evidence on the point is far from satisfactory, but, considering the correspondence between the parties which was put in evidence, the conversations between the plaintiff and the secretary of defendant company as detailed by the former in his testimony, and the transaction with reference to the refusal of defendant to fill certain orders sent in by plaintiff for goods, we can not say that the jury were not warranted in reaching the conclusion that the defendant plainly evinced an intention not to perform the contract. This was a question peculiarity for the jury upon all the proof.
“The true test, stated generally,” says Judge Mitchell in Armstrong v. St. P. & P. C. & I. Co., 48 Minn. 113, “is whether the acts and conduct of the party evinced an intention no longer to be bound by the contract; and the fair result of the authorities is that it is not only an absolute refusal in words to perform a contract, but also any clear manifestation by words or acts of an intention not to perform it according to its terms, that will authorize the other party to treat this as a repudiation and bring his action.” See also Paine v. Hill, 7 Wash. 437; Pinet v. Montague, 103 Mich. 516; Lake Shore & M. S. Ry. Co. v. Richards, 152 Ill. 59; Nicholls v. Scranton Steel Co., 137 N. Y. 471.
Withers v. Reynolds, 2 Barn. & Adol. 882, is a leading English case on the subject of damages for breach of contract. The contract was for sale of straw to be furnished at stated periods and paid for as delivered. After a portion of it had been delivered, the purchaser refused to pay for the. last load until the next load should be delivered, thus holding the price of one load in hand so as to insure the delivery of another load. The court held that the refusal to pay for the straw upon delivery as agreed and the 'announcement not to pay for future delivery except by that method was an abandonment of the contract.
In Franklin v. Miller, 4 A. & E. 599, Coleridge, J., commenting on Withers v. Reynolds, said: “ Each load of straw was to be paid for on delivery. When the plaintiff said that he would not pay for. the loads on delivery, that was a total failure, and the plaintiff was no longer bound to deliver. In such a case it may be taken that the party refusing has abandoned the contract.”
It is next contended that the court improperly gave instructions allowing a recovery for earned commissions on goods which defendant refused to ship, and also for damages for breach of the contract. It is said by learned counsel for appellant that there can not be a recovery for both in the same action, and they cite Van Winkle v. Satterfield, 58 Ark. 621, in support of their contention. In that case the court said: “A servant who has been wrongfully discharged by his employer before the time for which he was hired has expired has these remedies: First, he may consider the contract as rescinded, and recover on a quantum meruit what his services were worth, deducting what he had received for the - time during which he had worked. Second, he may wait until the end of the term, and then sue for the whole amount', less any sum which the defendant may have the right to recoup. Third, he may sue at once for a breach of the contract of employment. Fie, however, can adopt only one.” But the court did not say that the recovery must be limited to the amount of compensation due up to the time of the commencement of the suit. On the contrary, it was held that wages up to the date of the trial might be recovered; citing McDaniel v. Park. 19 Ark. 671. The contract in that case was for employment of the servant for a stated period at a fixed salary, and the court held that there could be no recovery for wages to accrue after the date of the trial, for the obvious reason that they could not, in advance, be assessed as damages, as the plaintiff “might, after the recovery of the judgment, obtain employment from other persons and receive for the residue of the term for which he was hired in the first instance as much as or more than he would have been entitled to under the broken contract, had he served his time out; or he might die before his term expires.”
In the case at bar the testimony tends to show that the plaintiff could have fulfilled the contract by sale of $10,000 worth of goods before the date of trial, if he had been permitted to continue in the service of the plaintiff.
In Frost v. Knight, L. R. 7 Exch. 111, Lord Cockburn, in discussing the rights of a party whose contract has been repudiated, said: “The promisee, if he pleases, may treat the notice of intention as inoperative, and await the time when the contract is to' be executed, and then hold the other party reponsible for all the consequences of nonperformance; but in that case he keeps the contract alive for the benefit of the other party as well as his own; he remains subject to all his own obligations and liabilities under it, and enables the other party not only to complete ths contract, if so advised, notwithstanding his own previous repudiation of it,-but also to take advantage of any supervening circumstance which would justify him in declining to complete it. On the other hand, the promisee may, if he thinks proper, treat the repudiation of the other party as a wrongful putting an end to the contract, and may at once bring his action as on a breach of it; and in such action he will be entitled to such damages as would have arisen from a non-performance of the contract at the appointed time, subject, however, to abatement of any circumstances which may have afforded him the means of mitigating his loss.”
Some of this language of the learned judge has been criticised because it appears to involve a contradiction of terms, it being said in criticism that a contract could not be regarded as at an end, and at the same time be made the basis of a suit for damages ; but, giving it the meaning that he doubtless intended, that the contract could be treated as at an end except for the purpose of being sued upon, a conclusion is stated that under those circumstances a recovery may be had upon the repudiated contract for all the damages sustained by the breach, that which have already accrued as well as that which is anticipatory. That view is sustained by the weight of authority. Roper v. Johnson, L. R. 8 C. P. 167; Johnson v. Milling, 16 Q. B. Div. 460; Lake Shore & S. M. Ry. Co. v. Richards, supra; Wells v. National Life Assn., 99 Fed. 222; United States v. Behan, 110 U. S. 338; Cutter v. Gillette, 163 Mass. 95; 1 Clark & Skyles on Agency, pp. 828, 829.
The most difficult question presented in the case is whether the plaintiff should have been permitted to recover, at all, commissions on prospective sales under the contract. The defendant asked an instruction saying that such prospective commissions were too uncertain to become the basis of a recovery of damages. While the question is not free from doubt, we think that the doubt arises more in the application of the doctrine of required certainty of recoverable damages. As said by this court in Border City Ice Co. v. Adams, 69 Ark. 219: “The difficulty is not so much in determining whether or not the appellee has a cause of action, for his damages by reason of loss of profits which he would have enjoyed, had appellant fulfilled his contract, but rather in determining with any degree — that is, with the proper degree — of certainty the amount of such damages and how to measure them.” In the anxiety of the courts to measure damages by the most certain estimate, profits on future transactions, are rejected as too remote to be the proximate result of the breach of contract, and a more definite and certain estimate adopted' as the damages which the parties had in contemplation when they entered into the contract. The courts are therefore inclined to reject the more uncertain admeasurement of damages in a given case, and seize upon that which is most certain as the less remote damages; and for this reason the courts are led to refuse to allow prospective profits on sales of property and confine the recovery to the difference between the market value and the 'contract price. But when, as in this case, there is a breach of a contract in which the parties expressly contracted for the earning of profits by way of commission on sales of goods to be made by the agent, they must necessarily have had in contemplation the loss of such profits as an element of damages upon breach of the contract. They can not, therefore, be said to be either too uncertain of assessment or too remote to be considered as the proximate result of the breach of the contract. Wells v. National Life Assn. supra; United States v. Behan, supra; Dennis v. Maxfield, 10 Allen, 138; Mueller v. Bethesda Mineral Spring Co., 88 Mich. 390; Hitchcock v. Supreme Tent K. of M., 100 Mich. 40; Wakeman v. Wheeler & Wilson Mfg. Co., 101 N. Y. 205; Cranmer v. Kohn, 7 S. D. 247, 76 N. W. 934; Kenney v. Knight, 127 Fed. 403; Ramsey v. Holmes Elec. Pro. Co. (Wis.), 55 N. W. 391; Somers v. Wright, 115 Mass. 292; Fell v. Newberry, 106 Mich. 542; Schumaker v. Heinemann, 99 Wis. 251; Wolcottt v. Mount, 38 N. J. L. 496.
In Howard v. Stillwell & Bierce Mfg. Co., 139 U. S. 199, Mr. Justice Tamar, in delivering the opinion of the court, after stating the general rule that speculative profits are excluded from estimates of damages, said: “But it is equally well settled that profits which would have been realized had the contract been performed, and which have been prevented by its breach, are included in the damages to be recovered in every case where such profits are not open to the objection of that of uncertainty and remoteness, or where from the express or implied terms of the contract itself, or of the special circumstances under which it is made, it may be reasonably presumed that they were within the intent and mutual, understanding of both parties at the time it was entered into.”
In Fell v. Newberry, supra, the court said: “The general and simplest rule of damage is that the injured party is entitled to compensation for the loss sustained. In actions on contract this rule is so far qualified as to limit the recovery to such damages as can be said to have been in the contemplation of the parties. * * * It has been frequently held by this court that when the breach of contract results in the loss of profits to the plaintiff, and the contract is one in which a profit accruing to the plaintiff was contemplated, the amount of such profit is recoverable.”
We are aware that some courts of great ability have held that prospective profits on sales of goods, under contract similar to one we have under consideration now, are not recoverable as damages upon breach of the contract; but we think that the other view is more consonant with reason, and is sustained by the weight of authority. It is also in harmony with the previous decisions of this court. Border City Ice & Coal Co. v. Adams, supra; Railway Co. v. Beard, 56 Ark. 309.
Instruction number seven given at the request of appellant was more favorable to it than the proof justified. It told the jury that they should determine the amount the plaintiff would have earned, “judging by his past success, etc.” This was not necessarily the test, though it was one of the means of arriving at a correct estimate of his future earnings. Nor was the instruction correct in telling the jury that a deduction should be made of “what he did thereafter earn during the time he would have been engaged in fulfilling his contract.” The evidence showed that he was selling goods for defendant in connection with other lines of goods not in competition with defendant’s goods, and without any additional expense or time. As no additional time was consumed in selling defendant’s goods, no deduction should have been made for value of his-time saved, unless he procured a similar line of goods, instead of that of which defendant deprived him by the breach of contract. Appellant can not, however, complain at the instruction being too favorable.
Judgment affirmed.
Hill, C. J., not participating. | [
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Hill, C. J.
Samstag was employed by the Arkansas Stables, a corporation, as bookkeeper. Pie sued the corporation and the president thereof, Mrs. Julia Simon, for unpaid wages. The president was sued upon the ground that she had failed to file the annual statement of the corporate affairs required by section 848, Kirby’s Digest, and had become liable for the debts of the corporation, as provided by section 859.
No objection was made, until after trial, to the joinder of the causes of action, and none is presented here. The jury returned a verdict for the plaintiff, Samstag.
It is urged that it is not sustained by the evidence, and further that the trial court should have granted a new trial on account of newly-discovered evidence. It would serve no useful purpose to review the evidence on these questions. Suffice it to say that there was ample evidence to go to the jury and support the verdict, and its credibility has been weighed by the tribunal constituted to weigh it. The newly-discovered evidence was all cumulative; and, while it would have strengthened appellant’s case, it presented no new features, and much of it was as easily procurable by diligence before trial as after it. Some interesting questions of law are presented.
Mrs. Simon, the president of the corporation, is a married woman, and it is contended that this statutory liability is a secondary liability, and in the nature of a suretyship, and not for the benefit of the married woman’s separate estate, and her coverture prevents its attaching to her. A married woman, under modern statutes giving her a separate estate, may be a stockholder, director and officer of a corporation. 3 Thompson, Corporations, § 3857; 2 Purdy’s Beach on Priv. Corp. § 708.
The rule is that when statutes are general, and apply to and include married women, the courts can work no exception in their favor. This doctrine has been applied by the Supreme Court of the United States in holding married women liable as stockholders in national banks for the liability to creditors of such banks when insolvent, imposed by statute. Keyser v. Hitz, 133 U. S. 138. Similar statutory liabilities are enforced whenever the question has been raised. 3 Thompson on Corporations, § 3103; 1 Purdy’s Beach on Priv. Corp. § 390.
The reasoning which has led the courts to treat married women as stockholders subject to statutory liability necessarily leads to the same conclusion when they assume corporate office. In virtue of their stockholding, they are eligible to corporate office, which is always desired for its emolument or to protect, care for and watch over the interest in the corporation owned by che officer, or for both reasons. It follows that she is acting in behalf of her separate estate or earning a separate income, and in these respects she is freed of her coverture. Kirby’s Digest, § 5214.
It is said that a married woman could not be sued without her husband being joined. It is expressly provided that a married woman may sue alone or be sued in respect to her separate property, business or individual earnings. Kirby’s' Digest, § 5214.
It was no more necessary to join her husband herein than it would be for her to join him in any action she might be capacitated to bring in her official character as a corporation president. See Rodgers, Dom. Rel. § 217.
Appellant contends that the pleadings fail to disclose the coverture of Mrs. Simon, which was brought in the case in the motion for new trial for the first time, and that she is entitled to have the judgment vacated under section 4431, Kirby’s Digest, as construed in Richardson v. Matthews, 58 Ark. 484. This statute only applies to erroneous proceedings against married women; and as the court holds it was not error to subject Mrs. Simon to this liability, this statute can not be invoked.
Finding no error in the judgment, it is affirmed. | [
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McCulloch, J.,
(after stating the facts.) The court properly sustained exceptions to the testimony contradicting the terms of the written contract. It was a contract for rent, and not for sale of the land (Carpenter v. Thornburn, 76 Ark. 578), and oral testimony was not admissible to contradict or vary its terms. Colonial & U. S. Mortgage Co. v. Jeter, 71 Ark. 185.
According to the express terms of the contract, time being of the essence thereof, the defendants, having failed to pay the rent for the year 1897, were not entitled to hold possession for the succeeding year, nor to claim reimbursement for improvements made on the leased premises.
The chancellor found that the plaintiff did not take possession of the crop on the farm, nor interfere with the defendants or their tenants in gathering the crop. The findings of the chancellor seem to be supported by the preponderance of the testimony and should not be disturbed. - The rent was past due, and defendants, acording to their own admissions, had gathered and sold six bales of cotton without paying the rent. Plaintiff, there fore, had the right to go upon the premises to look after the collection of rent, and the threat to attach the crop for the rent was not an unwarranted interference with the tenants. The evidence does not establish an interference to any further extent.
Plaintiff received the sum of $14.25 of the proceeds of cotton, and the same should have been credited on the note. This small item was- doubtless overlooked by the chancellor. The decree will be modified by reducing the amount decreed to the extent of that sum with interest from the date of payment. In all other respects the decree is affirmed. | [
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Riddick, J.,
(after stating the facts.) This is an appeal from a judgment of the circuit court, which affirmed a judgment of the county court that refused to order a road opened over the land of defendant to connect the homestead of plaintiff with the public highway.
Our statute provides that “when the lands, dwelling-house or plantation of any person is so situated as to render it necessary for the owner thereof to have a private road from such lands, dwelling-house, or plantation to any public road or watercourse over the lands of any other person, and such person shall refuse to allow such owner such private road, it shall be the duty of the county court, on the petition of such owner. * * * to appoint viewers to lay off the same.” Kirby’s Digest, § 3010.
Now, this court in an early case held that, although these roads were called by the statute “private roads” because the cost of opening and keeping them in repair was not to be borne by the general public, but by the individual who petitioned for their establishment, and who was specially benefited thereby, yet that they were in fact public roads. Roberts v. Williams, 15 Ark. 43.
This view is sustained by the decisions of the courts of other States, which hold that such roads are but branches of the main public roads of the State, and that, when established, they are for the use and benefit of the public at large, as well as the citizen to whose plantation or dwelling-house they lead. They do not become attached to his land, or a part of his property as a way that is strictly private may be owned, but, on the contrary, they are established for the use of the public as well as petitioner, and may be discontinued or changed when the public interests require it. Belk v. Hamilton, 130 Mo. 292; Denham v. County Comrs., 108 Mass. 202; Davis v. Smith, 130 Mass. 113; Wolcott v. Whitcomb, 40 Vt. 40; Johnson v. Supervisors, 61 Iowa, 89; 1 Lewis, Eminent Domain, § 167.
“The character of a road, whether public or private, is not determined by its length or the places to which it leads, nor by the number of persons who actually use it. If it is free and common to all citizens, it is a public road, though but few people travel upon it.” Elliott’s Roads & Streets, §11; Taft v. Commonwealth, 158 Mass. 526; Roberts v. Williams, 15 Ark. 43.
The road which petitioner sought to have established in this case would have been for the use of the public generally whenever they saw fit to use it as well as petitioner, and, had it been established, would have been in law a public road, though the cost of maintaining, it would have rested on petitioner. It being a public road, it was not, we think, required that'plaintiff should establish an absolute necessity for such road by showing that he had no other means of reaching the public highway. The fact that there is already a road leading from his place to the public highway does not conclusively show that the road that he petitioned for is not necessary.
We agree with the circuit judge that the mere fact that the road that the petitioner now has is some longer than the one he seeks to have established does not justify the court in ordering this road opened if to do so will result in great injury and inconvenience to the defendant:- But if the road that he now has is not only longer but, on account of the wet and swampy condition of the land across which it is located, is at certain seasons of the year boggy and difficult to travel and very expensive to keep in good condition, and if the proposed road is better located, and can be established without great injury to the defendant, we think that, within the meaning of the statute, it is necessary.- If such are the facts, the petition should be granted, and viewers appointed to locate the road and assess the damages.
In determining whether such a road is necessary, the court must, of course, take into consideration, not only the convenience and benefit it will be to the limited number of people it serves, but the injury and inconvenience it will occasion the defendant through whose place it is proposed to extend it. After considering all these matters, it is for the court to determine whether the road is, within the meaning of the law, necessary or not.
The'evidence in this case is not such as would justify us in disturbing a finding of the court against the petitioner, but it appears that the court did not pass on the quéstion of whether the road was necessary within the meaning of the statute as above defined, but held that there must be an absolute necessity for such a road, and that, if the public highway could be reached by plaintiff in any other way, np relief could be granted. There are, no doubt, cases in other States to sustain this view, but, following the case of Roberts v. Williams, above cited, we are of opinion that the law of this State is different, and that the statute of eminent domain can be used to establish this road if the present road is, on account of its location, impracticable and insufficient.
The judgment is therefore reversed, and the cause is remanded for a new trial. | [
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McCulloch, J.
This is an action brought by the White Sewing Machine Company, a foreign corporation doing business at Cleveland, Ohio, against the St. Louis Southwestern Railway Company to recover, by way of damages, the price of a -lot of sewing machines shipped over defendant’s road to a firm of merchants at Buffalo, Texas. It is alleged chat the consignees became' insolvent, and that the plaintiff, in exercise of its right to stop the goods in transit, notified the defendant, while it had the machines in its possession, to hold them subject to their (plaintiff’s) order, but that the defendant negligently failed to comply with the instruction, and delivered the machines to the insolvent consignees, to the damage of the plaintiff in the sum of the price of the machines.
The facts are that the machines were shipped from Cleveland, Ohio, over the Cleveland, Cincinnati, Chicago & St. Louis Railway Company, commonly designated in the testimony as the “Big Four Railroad.” That company executed a through bill of lading to the point of destination, Buffalo, Texas. The Big Four Railroad operated from Cleveland, Ohio, to Cairo, Illinois, and the machines were transported by it to the latter point, whence they were conveyed by transfer steamer across the Mississippi River and delivered to the defendant company at Bird’s Point, Mo.; that place being about six miles distant from Cairo, where the office of the Big Four Railroad was located. Whilst the machines were in custody of the defendant at Bird’s Point, the plaintiff notified the Big Four Railroad to hold the machines and not to deliver them to the consignee. It is claimed that this notice was communicated by telegraph from the office of the Big. Four at Cairo to the agents of defendant at Bird’s Point. This is denied by defendant, and the case turns upon this question alone' The court submitted the question to the jury upon proper instructions, and the jury found in favor of the plaintiff on the issue.
It is contended by the defendant that there is no evidence at all that the notice was ever communicated to or received by it, and that the court should have given a peremptory instruction to return a verdict in favor of the defendant.
All of the agents and employees of defendant in the Bird’s Point office who could have received the notice or known of its receipt, if it had been sent, testified that no such message or notice was ever received; and the question whether or not there was any evidence tending to show the communication of the notice depends upon a construction of the testimony of witness R. H. York, who was a telegraph operator in the Big Four office at Cairo.
A telegraph message was, at the time of the taking of proof in the case, found on file in the Big Four office at Cairo, purporting to give directions from the freight agent of that company at Cairo to the agent of defendant company at Bird’s Point, to hold the freight shipment in question for further instructions. The original message is shown to be in the handwriting of Brown-, ing, a clerk in the Big Four office, who testified that he wrote the message on the date it purports to have been sent out. The service marks on the message, “E. M.,” indicating the sending operator, and “B. D.,” indicating the receiving operator, are proved to be in the handwriting of York. York testified that the marks were in his handwriting, but that the fact that they were written in ink and apparently with his right hand indicated that he did not send the message. Pie testified positively that he did not send the message himself. Plis deposition, taken sometime before the date of the trial, was read in evidence by the plaintiff, and contained the following statement: “A message (referring to the message in question) was sent to H. A. Williamson at Bird’s Point on that day, but was not sent by me. The service marks are in my handwriting, but telegram was sent by operator E. M., whose name I do not recall. I would not have written the service marks on message until I knew that message had been transmitted and was received O. K.” At the trial of the cause the defendant introduced York as a witness, and he again testified concerning the service marks, that he did not send the message himself, and did not know which operator in the office sent it. He stated, however, that “every indication is on the message to show that it was sent,” and that “I must have had some knowledge of the transmission of the message, or I would not have put it (the service mark) there.”
Was this sufficient evidence to go to the jury that the message was sent to and received by appellant’s agent at Bird’s Point, to whom it was directed? No objection was made as to the competency of the statements, the only question being as to its sufficiency.
Learned counsel for appellant contend that the service marks were inadmissible, as well as insufficient, as evidence of the transmission of the messagej because, according to customs prevailing in the telegraphic offices, they should have been made by the operator who sent the message, and whose duty it was to note the service marks upon it. They cite authority, perhaps sustaining their contention, to the effect that where original entries upon shop books and the like are sought to be introduced as evidence, the entries must be shown to have been made by the person whose duty it was to make them — that such entries are not, of themselves, admissible as evidence of the facts recited. 1 Greenleaf, Ev. § 120.
It will be observed, however, that the entries alone are not relied upon as proof of the transmission, but they were introduced in connection with the testimony of York, the man who made them. He says, in effect, that, though he has no present recollection of the transmission of the message, he had personal knowledge of its transmission when he made the notation of the service marks.
“Some courts are willing to receive such entries where the person making them verifies their correctness on the stand and the original observer, salesman, etc., is dead or otherwise unavailable. Other courts go even, further, and admit them without accounting for the original observer, on the sound consideration that it is practically impossible in mercantile conditions to trace and procure every one of the many individuals who reported the transaction.” 1 Greenl. Ev. (16 Ed.), § 120a.
This principle is fully recognized by this court in the case of Stanley v. Wilkerson, 63 Ark. 556.
The notation or memorandum was competent as evidence of the past recollection of the witness York. He said, in effect: “I did not send the message myself, and have no present recollection that it was sent, but I state, from this memorandum appearing in my handwriting, that I knew when I made it that the message had been sent." 1 Wigmore on Ev. § § 744-752; 1 Greenleaf on Ev. § 439; Chamberlin v. Ossipee, 60 N. H. 212; Lawson v. Glass, 6 Colo. 134; Acklen’s Ex’or v. Hickman, 63 Ala. 494; Insurance Companies v. Weides, 14 Wall. 375; Russell v. Hudson River Rd. Co., 17 N. Y. 134; Green v. Caulk, 16 Md. 556.
“It is today generally understood that there are two sorts of recollection which are properly available for a witness — past recollection and present recollection. * * * In the former sort, the witness is totally lacking.in present recollection and can not revive it by stimulation, but there was a time when he did have a sufficient recollection and when it was recorded, so that he can adopt this record of his then existing recollection and use it as sufficiently representing the tenor of his knowledge on the subject. * * *
“(1) The record * * * must have been made at or about the time of the event recorded. Whether in a given case it was made so near that the recollection may be assumed to have been then sufficiently fresh must depend on the circumstances of the case. (2) The witness need not have made the record himself ; the essential thing is that he should be able to guaranty that the record actually represented his recollection at the time, and this he may be able to do, either by virtue of his general custom in making such records, or‘ (as in the common case of an 'attesting witness) by an assurance that he would not have made the record if he had not believed it correct.” 1 Greenl. Ev. (16 Ed.), § 439a, 439b.
The rule is concisely stated by the Supreme Court of Alabama in Acklen’s Ex’or v. Hickman, supra: “If, however, the witness go further, and testify that at or- about the time the memorandum was made he knew its contents, and knew them to be true, this legalizes and lets in both the testimony of the witness and the memorandum. The two are the equivalent of a present, positive statement of the witness, affirming the truth of the contents of the memorandum.”
This doctrine finds approval in the decision of this court in the recent case of Petty v. State, 76 Ark. 515, though the precise question 'we have now was not involved, and we entertain no doubt, that it is sound, and is well supported by authority.
The testimony of witness York brings itself squarely within the rule stated above. It is urged that the witness may have recorded only his information as to the transmission of the message, and not his personal knowledge of that fact. We must, however, accept the statement as we find it in the language of the witness, and give it the strongest probative force which the jury might have accorded it. He said that he must have had knowledge of the transmission, or he would not have written the service marks on the message. We can not presume that the witness meant information when he said knowledge. It was possible for him to have had personal knowledge of the transmission of the message without having transmitted it himself. He may have been present and heard it. He was.not examined as to his means of knowledge, and we can not say what they were, but the jury were warranted in accepting his unqualified statement that he did know. If the message was sent, it must have been received by the telegraph operator in the office of appellant at Bird’s Point. The testimony of York was sufficient to justify the jury in finding that it was sent and received.
With the weight of the evidence, we have nothing to do. There was sufficient evidence to go to the jury on this question, and their finding upon the disputed issue of fact is conclusive upon us.
Teamed counsel for appellant also contend that the case should be reversed because there was no proof of the insolvency of the consignee, and the consequent right of appellee to stop the goods in transit, nor that the whole price of the machines was lost to appellee by the delivery to the consignee. It is too late to raise that question here, as in the trial below appellant’s counsel expressly declared in open court when the case was submitted that no other question was involved in the case except that of notice to the defendant of the directions to stop.
The case must be determined here upon questions raised and determined below.
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John Mauzy Pittman, Judge.
The appellants in this medical-malpractice case filed a complaint alleging that they had been injured as a result of medical malpractice by the appellee, and seeking damages in the amount of $2,150,000.00. In his answer, appellee requested that the case be dismissed, asserting that appellants’ claim for a specific amount of damages was in contravention of the Arkansas Medical Malpractice Act, and that appellants’ complaint failed to state facts upon which relief can be granted. Appellants amended their complaint to remove the reference to a specific amount of damages. Appellee responded by filing an amended answer in which he again moved for dismissal on the same grounds asserted in his initial answer. The trial court granted appellee’s motion to dismiss, and this appeal followed.
Appellants contend on appeal that the trial court erred in granting appellee’s motion to dismiss. We agree, and we reverse and remand.
First, we note that appellants did amend their complaint to remove their claim for a specific amount of damages prior to appellee’s second motion to dismiss and the trial court’s order of dismissal; consequently, we discount this ground as a basis for the trial court’s ruling. Refusal to permit the amendment under these circumstances would be an abuse of discretion. Travis v. Houk, 307 Ark. 84, 817 S.W.2d 207 (1991).
In determining whether to dismiss a complaint under Rule 12(b)(6), it is improper for the-trial court to look beyond the complaint to decide the motion to dismiss. In order to properly dismiss the complaint, the trial court must find that the complaining parties either (1) failed to state general facts upon which relief could have been granted or (2) failed to include specific facts pertaining to one or more of the elements of one of its claims after accepting all facts contained in the complaint as true and in the light most favorable to the nonmoving party. Bethel Baptist Church v. Church Mutual Insurance Co., 54 Ark. App. 262, 924 S.W.2d 494 (1996).
A pleading must contain, inter alia, a statement of facts, in ordinary and concise language, showing that the pleader is entitled to relief. Ark. R. Civ. P. 8(a). A pleading is deficient if it fails to set forth facts pertaining to an essential element of the cause of action. Wiseman v. Batchelor, 315 Ark. 85, 864 S.W.2d 248 (1993). Arkansas is a state that requires fact pleading, and a pleading which sets forth mere conclusions is not sufficient under the Arkansas Rules of Civil Procedure. Mann v. Orrell, 322 Ark. 701, 706, 912 S.W.2d 1 (1995). Nevertheless, pleadings are to be liberally construed and are sufficient if they advise a party of its obligations and allege a breach of them. Bethel Baptist Church v. Church Mutual Insurance Co., supra.
Pursuant to Ark. Code Ann. § 16-114-206 (1987), the elements to be proven in any action for medical injury are the applicable standard of care; that the medical provider failed to act in accordance with that standard; and that such failure was a proximate cause of the plaintiffs injuries. National Bank of Commerce v. Quirk, 323 Ark. 769, 918 S.W.2d 138 (1996). The standard of care applicable to a medical malpractice case is defined by statute as “the degree of skill and learning ordinarily possessed and used by members of the profession of the medical care provider in good standing, engaged in the same type of practice or specialty in the locality in which he practices or in a similar locality.” Ark. Code Ann. § 16-114-206(a)(l) (1987).
In their complaint, appellants asserted that there was an existing standard of care, as defined by statute, in the community; that the care and treatment received failed to meet that standard by failing to timely schedule and perform a caesarean section; and that this failure was the proximate cause of neurological damage to the child.
The appellees argue that this complaint set forth mere conclusions and was therefore properly dismissed. We do not agree. To the contrary, the appellants’ complaint contained a detailed recitation of the facts alleged to constitute negligence and proximate cause, including the facts that appellant was a very small woman; that the baby was very large and in a breech position; that appellant requested a caesarean section throughout; that, despite his knowledge of these facts, the defendant required her, after achieving maximum dilation, to go through over four hours of hard labor before performing a caesarean section; that defendant’s failure to timely schedule and perform a caesarean section was a breach of the applicable standard of care that constituted negligence; and that, as a result of defendant’s failure to timely schedule and perform a caesarean section, there ensued a long and difficult labor that caused the child to suffer neurological damage and the mother to suffer injury to her bladder and associated nerves.
There is no question that appellants’ complaint did not recite, as mere conclusions of law, that the treatment rendered by appellee was negligent and that appellants were injured as a result. Compare Rabalaias v. Barnett, 284 Ark. 527, 683 S.W.2d 919 (1985). Instead, the complaint clearly and concisely relates certain events alleged to have happened at a particular time that would support such conclusions. Whether appellants can prove these alleged facts depends upon the evidence that they marshal at trial, but appellants have in their complaint alleged facts sufficiently specific to enable the reader to picture particular events, and the results thereof, in sufficient detail to state a cause of action for medical malpractice.
Reversed and remanded.
Stroud, C.J., and Griffen, J., agree. | [
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Terry Crabtree, Judge.
In this one-brief appeal, the Office of Child Support Enforcement appeals from an order that allowed appellee to credit the payment of social security disability benefits made to his adult daughter against a child-support arrearage. Appellant argues on appeal that the trial court erred in ruling that the payment of benefits to the child, as opposed to the mother, satisfied the arrearage. We affirm.
In May 1991, an order was entered requiring appellee, James Harris, to pay $72 a week in support of his minor children based on a petition filed by appellant on behalf of the children’s mother, Diedra Harris. In March 1995, appellee’s support obligation was increased to $82 a week. In March 1996, appellant filed a motion for contempt alleging an arrearage in support. In April 1997, an agreed order was entered that granted appellant judgment in the amount of $4,076 for the accrued arrearage and that reduced appellee’s obligation to $62 a week.
The present motion for contempt was filed by appellant in March 2003. The motion again noted that the mother had assigned her rights to child support to appellant; that appellee’s support obligation had abated as of August 8, 2002, when the youngest child, Mary, attained the age of majority; but that appellee had accumulated a substantial arrearage in support.
At the hearing, it was disclosed that the arrearage was $4,295.28. It was further revealed that appellee had become disabled and that Mary had received a lump-sum payment of social security disability benefits in the amount of $5,051.25. Of that amount, she gave $1,300 to her mother. Appellant conceded that appellee should be given a $1,300 credit against the arrearage, but it argued that appellee was entitled to no further credit because “the mother hasn’t gotten it. She is the one over the years that paid to raise the child out of her pocket, feeding the child, clothes, rent.” The trial court ruled that the disability payments made to the child completely discharged the arrearage. This appeal followed.
In Hinton v. Hinton, 211 Ark. 159, 199 S.W.2d 591 (1947), the supreme court held that military allotments assigned to a child could be credited toward the father’s child-support obligation. The court ruled, however, that the father could not use any overpayments to offset future support. In Cash v. Cash, 234 Ark. 603, 353 S.W.2d 348 (1962), the court held that a father was entitled to credit social security retirement benefits received by the child against his child-support payments. In so holding, the court observed that such benefits were not gratuitous but earned, and the court was persuaded that the equities tipped in favor of allowing credit to the father under the circumstances of the case. See also, e.g., Davis v. Davis, 79 Ark. App. 178, 84 S.W.3d 447 (2002); Cantrell v. Cantrell, 10 Ark. App. 357, 664 S.W.2d 493 (1984). Cf. Thompson v. Thompson, 254 Ark. 881, 496 S.W.2d 425 (1973).
Appellant accepts that it is settled law in Arkansas that social security benefits can be substituted for child-support payments. Appellant argues, however, that this case presents a unique situation because the lump-sum payment was not made during the child’s minority and was paid directly to the adult child and not her mother to whom the child support was owed. Appellant further argues that the trial court erred by not considering factors such as the financial impact on the mother, the financial standing of the appellee, and the length of appellee’s disability.
A trial court’s ruling on child-support issues is reviewed de novo by this court, and the trial court’s findings are not disturbed unless they are clearly erroneous. Allen v. Allen, 82 Ark. App. 42, 110 S.W.3d 772 (2003). We are not convinced that the trial court clearly erred. An order of support is for the benefit of children, even though it is directed to be paid to the mother or other custodian. Miller v. Miller, 929 S.W.2d 202 (Ky. Ct. App. 1996). Our law provides that, once a child turns eighteen, he or she may file a petition to collect unpaid support from the non supporting parent. Ark. Code Ann. § 9-14-105(c) (Repl. 2002). Thus, the trial court’s decision is not without justification. With respect to the factors appellant contends the trial court failed to consider, appellant did not present those arguments to the trial court. It is well-settled that we will not hear arguments raised for the first time on appeal. Judkins v. Hoover, 351 Ark. 552, 95 S.W.3d 768 (2003). We affirm the trial court’s decision.
Affirmed.
Bird and Vaught, JJ., agree.
Appellant has made no argument that an assignment has any effect on the outcome of this case.
There are differing views as to whether social security benefits can be credited toward arrearages in child support. Some courts do not allow it. See, e.g., Mask v. Mask, 620 P.2d 883 (N.M. 1980); Fowler v. Fowler, 244 A.2d 375 (Conn. 1968); McLaskey v. McLaskey, 543 S.W2d 832 (Mo. Ct.App. 1976); Fuller v. Fuller, 360 N.E.2d 357 (Ohio Ct.App. 1976). Others permit it, but allow credit only for arrearages that accrue during the period of disability. See, e.g, Frens v. Frens, 478 N.W2d 750 (Mich. Ct.App. 1991); Miller v. Miller, 929 S.W2d 202 (Ky. Ct.App. 1996); Children and Youth Services of Allegheny County v. Chorgo, 491 A.2d 1374 (Pa. Super. Ct. 1985). Appellant did not argue below that arrearages, per se, were not subject to discharge. For this reason and because the record was not developed on this issue, we leave that question for another day. | [
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Olly Neal, Judge.
John Ramsey worked for appellant Arkansas Electric Cooperative. While cutting a tree on May 22, 2001, Ramsey sustained severe injuries that ultimately led to his death. His wife, appellee Leigh Ramsey, sought benefits. The administrative law judge (ALJ) determined that (1) Ramsey’s accident occurred in the course and scope of his employment, (2) Ramsey failed to prove by a preponderance of the evidence that Ark. Code Ann. § ll-9-102(4)(B)(iv) (Repl. 2002) is unconstitutional, (3) Ramsey’s survivors failed to prove that they were denied due process in the manner in which the drug screen was conducted, and (4) Ramsey’s injury and death were substantially occasioned by the presence of illegal drugs in his system. Ramsey’s wife appealed to the full Commission.
The Commission reversed the ALJ’s finding that Ramsey’s accident and death were substantially occasioned by the use of illegal drugs detected in his urine specimen. This appeal followed.
On appeal, appellant argues that the Commission’s finding that appellee is entitled to benefits is not supported by substantial evidence. Appellee cross-appeals, arguing that there is no substantial evidence to support the Commission’s conclusion that use of routine hospital drug screens taken for purposes of treatment did not violate the due process rights of Ramsey’s survivors. We affirm.
In reviewing a decision of the Workers’ Compensation Commission, this court views the evidence and all reasonable inferences in the light most favorable to the findings of the Commission. Magnet Cove Sch. Dist. v. Barnett, 81 Ark. App. 11, 97 S.W.3d 909 (2003). These findings will be affirmed if supported by substantial evidence. Id. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id.; Wheeler Constr. Co. v. Armstrong, 73 Ark. App. 146, 41 S.W.3d 822 (2001). If reasonable minds could reach the result found by the Commission, we must affirm the decision. Wal-Mart Stores, Inc. v. Brown, 73 Ark. App. 174, 40 S.W.3d 835 (2001). In making our review, we recognize that it is the function of the Commission to determine the credibility of witnesses and the weight to be given their testimony. See Williams v. L & W Janitorial, 85 Ark. App. 1, 145 S.W.3d 383 (2004). Furthermore, the Commission has the duty of weighing medical evidence. See id.
Arkansas Code Annotated section 11 — 9— 102(4)(B)(iv)(a) (Repl. 2002) provides that an injury is not compensable if it is the result of an accident that is substantially occasioned by the use of alcohol, illegal drugs, or prescription drugs used in contravention of physician’s orders. “The presence of alcohol, illegal drugs, or prescription drugs used in contravention of a physician’s orders shall create a rebuttable presumption that the injury or accident was substantially occasioned by the use of alcohol, illegal drugs, or prescription drugs used in contravention of physician’s orders.” Ark. Code Ann. § 11-9— 102(4)(B)(iv)(b) (Repl. 2002). Whether the rebuttable presumption is overcome by the evidence is a question of fact for the Commission to determine. Woodall v. Hunnicut Constr., 340 Ark. 377, 12 S.W.3d 630 (2000).
Í. Direct Appeal
Ramsey’s wife, Leigh Anne Ramsey, testified that she had been married to Ramsey since October of 1995 and that they had one child. She explained that she and Ramsey were separated at the time of the accident and were going through a divorce. She noted that during the separation, Ramsey still cared for her and their child, and that prior to his accident, she and Ramsey had reconciled. Leigh Anne testified that, after the reconciliation, Ramsey had moved back into the family home. Leigh Anne testified that she knew about Ramsey’s drug use and that his drug use was one of the issues in their marriage. On the morning of the accident, however, Leigh Anne noted that Ramsey did not appear intoxicated or impaired.
Eric McGinty testified that he worked with Ramsey on the day of his death. He testified that he was on Ramsey’s crew on the day of the accident and that Ramsey was his supervisor. He explained that there were generally three men in the crew, but that one of the men was on vacation. McGinty testified that Ramsey was “totally safety conscious.” He noted that he had never seen Ramsey do drugs in the two months that he had worked for him. He further testified that he had observed people he knew to be impaired after taking drugs like marijuana or methamphetamine, but that Ramsey did not appear to be impaired. McGinty testified that the tree was in a “tight spot” and that he and the other crewman had passed on it the week before because it was too difficult for them to cut. He stated that the plan was to go back and take the tree down. He testified:
I remember this tree being situated, you had a power line running in between the back of the houses, and it fed all the houses down this strip. You have a storage building on one side of the tree, you got a service wire around the other side of the tree, the side of the service wire, you’ve got a fence and I believe it was a little mobile home,' or a recreational home. And on the other side of the tree, you had the mobile home of the resident. We only had a few feet to play with, to drop the tree in. The employer expected us to remove trees without damaging the property of the customers.
* *• t-
Sam was on vacation and I was the only other person that was present. John and I were working together. The work proceeded by him going up in a bucket truck and starting to trim the low-lying limb around the tree to take the tree out without causing too much damage to the property or the property owner’s trees in the area. After that, I believe he called William Ammons that he knew was in the shop and asked if he could borrow one of his guys. I’m talking about William Ammons, Jr. He is another crew foreman. I believe he made the phone call around 10:45. John and I had worked together from the time of arrival at the scene until this point. My function during this period of time was to make sure that John was not doing anything unsafe and if something did happen I was there to assist him in any medical or mechanical needs that was necessary.
McGinty testified that he did not observe John doing anything unsafe during that period of time; Ramsey had his harness on and his lanyard attached. He testified that Ramsey came down, and they went to pick up another crewman, Craig Willis. He noted that the drive was thirty minutes, that they rode together, and that Ramsey did no drugs. They picked Craig up, went back to the location, and “topped out” a section of the tree. They then broke for lunch. McGinty testified that Ramsey excused himself during lunch to make a phone call. He did not observe Ramsey using any drugs during that break and did not find Ramsey to be impaired in any way. He testified:
We loaded back up in a tmck and drove out to the line where we were working, the same one as in the morning, and proceeded to top out the rest of the tree. When I say, “top out the rest of the tree,” we rig the ropes again like I’ve described. It was the same basic plan. The ropes would break the fall and then let it down. It worked according to plan. John did all that rigging and he done the cutting.
Next, he came down out of the bucket truck, and from what I remember, he went and got a drink of water because it was a pretty warm day that day. When he climbed back in the bucket truck, I asked him if he wanted a rope to put in the last stob that we were going to fall, and he said no and me and Craig asked him again if he wanted a rope to put in the top of the stob that we were going to fall; he said, “No, I got it. It is going to fall where I need it to.”
Next, McGinty testified that Ramsey got back in the bucket to make his cut. He stated:
After he made his notch cut, he began cutting on the back side of the tree, his falling cut. And at that time — up until the tree started rotating around towards his position, the tree was going the exact way we planned on falling it. There was lean in the tree that would have aided in the falling of the tree. The lean was somewhere around probably 15 degrees off the tree. It was in the direction that the tree was intended to fall. In my experience of tree cutting, it is generally beneficial if the tree is leaning in the direction you want it to fall.
He started his back cut and proceeded to cut the tree and was working his meat, which allows you to fall the tree in the area you want. Meat on a tree is the wood part on the inside of the tree. . . . And apparently, he missed just a few splinters of meat on his side... . John reacted by saying a cuss word, dropped his chainsaw in the bucket, and proceeded to try to push the tree off the boom truck to keep it from hitting him. . . .
He put his hands on the tree and was proceeding to try to push it off enough to keep it from falling on his boom. And, apparently, when that was not going to succeed, right before it hit the boom, I seen him grasp the sides of the bucket and prepare for impact. I observed the tree hit the boom; I believe it compressed the hydraulics. . . . John left up in the air. You know, it knocked the boom all the way down to the ground, left John in the air; when the log rolled off, the boom came back up, slapped John up about 45 feet in the air. When he came down, he hit his head on the bucket track and bounced to the ground.... Ido not believe he was conscious when he hit the track. When he was on the ground, he was not conscious. He was not able to speak to me. I tried to regain contact to him while he was on the groundf.]
William Ammons, Sr., also testified at the hearing. He testified that he had known Ramsey for six years and that he had seen Ramsey twice on the day of the accident. He testified that he took lunch with him and that he was with Ramsey the entire time, except for when Ramsey went to use the phone. Ammons, Sr., testified that Ramsey did not use drugs in his presence and that he did not appear to have been impaired when he came back from using the phone.
William Ammons, Jr., testified that he also saw Ramsey on the day of the accident when he came by to get one of his men, Craig Willis. Ammons, Jr., stated that John did not appear to be acting unusual and that he had never seen Ramsey use drugs. He testified:
As far as being friends with John Ramsey, I was pretty much with him 24/7. Not only did we work together when I was a crew person, but we also socialized. Me and my wife would socialize with him and his family. I never saw him do drags. I did not know he did drugs. But I was with him 24/7.
Thereafter, appellants put on the evidence of pharmacologist/toxicologist Doctor Kim Edward Light. Dr. Light testified that he reviewed Ramsey’s medical records for appellants and that as far as his opinion:
I can’t say he was under the influence of THC within the past seven hours. I believe he was under the influence of methamphetamine within the past seven hours. Within use of seven hours, I would expect the same kind of results on Mr. Ramsey as I described previously as the general effects that you would see with someone that has ingested methamphetamines.
Dr. Light testified on cross that “I’m not in a position to express an opinion as to whether or not the reactions specific to John Ramsey himself and his actions at the time would evidence impairment or being affected by the drug.”
Larry Harp, manager of safety and loss control at Arkansas Electric Cooperative, testified that he received a call that Ramsey had been involved in an accident and that he went to the site to investigate. He found that at the time of the accident the harness was not buckled into the lanyard or the ring on the bucket truck. He testified, “[Ramsey] was wearing the harness and the lanyard was attached to the harness, but the other end of the harness was not snapped into — the strap that holds it to the aerial lift [device].”
Richard Hink testified that he supervised Ramsey’s crew and that the use of a rope is a “judgment call, pretty well, because there’s nothing that — every job we do is different. So it’s a judgment call.” He testified that had he done the cut, he would have “most definitely used a rope.”
Following its review of the evidence, the Commission determined that:
There is no evidence before the Commission that the claimant was impaired at this point. McGinty testified, “apparently, he missed just a few splinters of meat on his side .... I observed the tree lean, then stop, then kind of rotate back towards John and the bucket track.” Ramsey had the presence of mind to try to push the falling tree away from him, but of course the 1,100 pound section fell against the boom, catapulting the claimant out and causing injury leading to the claimant’s death.
Richard Hink, the claimant’s boss, arrived at the scene shortly afterward. Mr. Hink agreed that the crew should have used ropes in felling the tree, but he also testified, “it’s a judgment call.” In hindsight it is apparent that the claimant probably used poor judgment in not attaching ropes before cutting down this heavy tree on May 21, 2001. However, there is nothing before the Commission indicating that amphetamine, methamphetamine, or marijuana (THC) caused this poor judgment. We note Mr. Hink’s credible testimony after looking at pictures, “the cut is not so bad a cut, I mean, it would have worked fine how it was. The main problem with what John did, and that happens all the time, is the tree was cut plum off and just turned loose free, standing up.”
We can find no indication on the date of the injury that illegal" drags were in any way the cause of the fatal accident. None of the hospital records show a causal connection between the claimant’s alleged drug use and the accidental injury. This issue arose after a urine sample detected methamphetamine and marijuana. Nevertheless, not one of the expert toxicologists could state when the claimant had ingested these drugs. None of the claimant’s coworkers, out of four witnesses, saw the claimant use drugs or otherwise exhibit signs of impairment. Even Dr. Light, the respondents’ expert witness, conceded that he was not in a position to personally opine whether illegal drug use caused the fatal injury. Any conclusion that the claimant’s arguable deviation from routine safety precautions was substantially occasioned by the presence of illegal drugs in his urine specimen appears to be based on speculation and conjecture, which can never be permitted to supply the place of proof.
The Pull Commission recognizes that the presence of illegal drugs in the claimant’s physical specimen created a statutory rebuttable presumption that the accident on May 21, 2001 was substantially occasioned by the use of illegal drugs. The burden shifts to the claimant to prove, by a preponderance of the evidence, that the illegal drugs did not substantially occasion the accident. Whether the rebuttable presumption is overcome by the evidence is a question of fact for the Commission to determine. Woodall v. Hunnicutt Construction, 340 Ark. 377, 12 S.W.3d 630 (2000). Based on the record before us, the Full Commission finds that the claimant has proven by a preponderance of the evidence that the illegal drugs did not substantially occasion the accident, thus rebutting the presumption. Much emphasis has been placed on the fact that the claimant had apparently not re-attached a safety lanyard when he got back into the bucket and resumed his employment services on the afternoon in question. It has been suggested that the claimant might still be alive if he had attached the lanyard. Whether or not that is true, we cannot find from the evidence that use of a lanyard would have prevented an accident after the 1000-plus pound tree fell on the boom truck. The claimant still would have been injured, perhaps seriously. The Full Commission notes the case of ERC Contractor Yard & Sales v. Robertson, 335 Ark. 63, 977 S.W.2d 212 (1998). In that case, the Supreme Court held that substantial evidence supported the Commission’s finding that the claimant’s accident was not substantially occasioned by the claimant’s use of alcohol. The Commission in Robertson had relied on credible witness testimony, which we do in the present case.
The Full Commission reverses the decision of the administrative law judge. Pursuant to Ark. Code Ann. § 11-9-102(4)(B)(iv)(d), we find that the claimant proved by a preponderance of the evidence that illegal drugs did not substantially occasion the accident on May 21, 2001. Our finding in this regard effectively renders moot the claimant’s arguments relating to constitutionality, admissibility of the drug screen, and chain of custody.
As substantial evidence supports the Commission’s decision, we affirm.
2. Cross-appeal
Appellee cross-appeals, arguing that substantial evidence did not support the Commission’s decision that use of routine hospital drug screens taken for purposes of treatment did not violate the due process rights of Ramsey’s survivors. Because we affirm appellee’s award of benefits, we do not reach her cross-appeal.
Affirmed.
Stroud, C.J., and Crabtree, J., agree.
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