text:
    W. E. TUCKER OIL COMPANY, INC., et al. v. PORTLAND BANK
    84-247
    688 S.W.2d 293
    Supreme Court of Arkansas
    Opinion delivered April 29, 1985

      R. J. Brown and Lisa A. Kelly, for appellant.

      Arnold, Hamilton ir Streetman, by: Herman L. Hamilton, Jr., for appellee.
   George Rose Smith, Justice.

The appellee bank brought this suit to foreclose mortgages securing notes executed after the effective date of Amendment 60 to the Constitution of 1874. The notes bore interest at thirteen percent per annum, which was a permissible rate under Amendment 60 when the notes were given. The appellants, the debtors, defended the suit on the ground that Amendment 60 is unconstitutional, so that the original ten percent limitation is still in effect, and the notes are usurious and void. The chancellor upheld Amendment 60 and entered a decree for the bank. The appeal comes to this court for a construction of our Constitution. Rule 29(1 )(a).

The case presents questions of law, on undisputed facts. The Constitution originally had an inflexible ten percent limitation on interest rates. Amendment 60 changed that by declaring that the maximum rate shall not exceed five percent above the Federal Reserve Discount Rate at the time of the contract. The essential issue before us is whether the people of Arkansas had the power to adopt by constitutional amendment a variable maximum interest rate to be fixed from time to time by an agency of the United States government, without state action.

Needless to say, the members of this court would not assume responsibility for striking down a constitutional amendment, after its adoption by the people, without being certain of our position. In this case, however, the question is so simple, because it is so fundamental, that we have not the slightest uncertainty about the validity of Amendment 60. That being true, a long and detailed discussion of the matter is not required.

It is first argued that Amendment 60 unlawfully delegates authority to an agency of the federal government. Such a delegation of power is said to violate the Tenth Amendment to the United States Constitution, which reserves to the states all powers not delegated to the United States, and to violate the provisions of the Arkansas Constitution dividing the powers of the state government into three departments, the legislative, the executive, and the judicial. Article 4, §§ 1 and 2; Amendment 7.

This argument misconceives the basic principles of our system of self-government. The people of Arkansas adopted their own Constitution and expressly reserved the power to change its provisions by amendments approved by popular vote. Cases cited by counsel hold that the General Assembly cannot delegate legislative authority to another branch of the state government or to an agency of the United States. That is true, but under the state Constitution the people themselves are subject to no similar incapability. What they have done they can undo. They were free to anchor their interest rate to the federal discount rate unless there is some prohibition in the United States Constitution against that action.

The only such prohibition in that Constitution must be found in “some invisible radiation from the general terms of the Tenth Amendment,” to quote Justice Holmes’s words. Missouri v. Holland, 252 U.S. 416 (1920). That Amendment was drafted to limit the powers of the federal government, not those of the states. It neither commands the states to exercise their reserved powers to the fullest possible extent nor forbids them from sharing their reserved authority with the United States. If that were not so, every effort by the federal and state governments to join forces in some endeavor falling within the reserved power of the states would be subject to question. Our history of countless such cooperative and successful endeavors is itself a practical answer to the argument now being made.

Second, it is argued that Amendment 60 runs counter to the clause in the national Constitution that directs the United States to guarantee to every state “a republican form of government.” Art. 4, § 4. This argument is without weight. A republic is a political state in which the supreme power rests in the citizens entitled to vote and is exercised by them either directly or through their elected representatives. We are not persuaded that the people of Arkansas abandoned their republican form of government by approving Amendment 60. Quite the contrary. The people evidently believed, after almost a century of experience with a rigid interest limitation, that it should be replaced by a flexible limitation taking into account interest rates elsewhere. The people might have tried to create some system of their own for determining how the rate should be set, but the choice of the federal rate as a base figure had the advantages of simplicity and of uniformity with rates prevailing in neighboring states. At any rate, the choice was made by the voters themselves, by democratic means, and does not seem to us to present even a remote threat to the republican form of government in Arkansas.

Affirmed.


source: Caselaw Access Project

author: George Rose Smith, Justice.

license: Public Domain

text:
    Jerry BROYLES v. STATE of Arkansas
    CR 85-36
    688 S.W.2d 290
    Supreme Court of Arkansas
    Opinion delivered April 29, 1985

      Jeff Duty, for appellant.

      Steve Clark, Att’y Gen., by: Connie Griffin, Asst. Att’y Gen., for appellee.
   George Rose Smith, Justice.

Tried without a jury, Broyles was convicted of DWI and other offenses. Aside from the punishment imposed, the court assessed costs of $302.25, which apparently included the “additional” costs of $250 mandated by Act 918 of 1983. Ark. Stat. Ann. § 75-2531 (Supp. 1983). The appeal comes to this court under Rule 29(l)(c).

The first of two arguments for reversal is that the State failed to prove beyond a reasonable doubt that Broyles was intoxicated within the statutory definition. § 75-2502 (a) (Supp. 1983). In a criminal case the standard for review is not whether the evidence eliminates a reasonable doubt but simply whether the finding of fact is supported by substantial evidence. Gardner v. State, 263 Ark. 739, 746, 569 S.W.2d 74 (1978), cert. denied 440 U.S. 911 (1979).

Officer McCain, who first stopped Broyles, testified that Broyles had weaved into the oncoming traffic lane several times and smelled of liquor when stopped. Broyles successfully fled in his car for a few minutes, but the officer who quickly found and arrested Broyles testified that he was stumbling and staggering, he smelled strongly of intoxicants, his eyes were bloodshot, and he had trouble walking. Broyles refused to take a breathalyzer test, though he did remark at the time: “Drunker than hell.” He testified that he is an alcoholic but had not had even beer that day. He said that for a severe migraine headache he had taken medicine that was labeled 43% alcohol and also contained codeine. Even though he admitted having drunk the whole bottle instead of taking it by the tablespoonful, he said that would have nothing to do with his driving. Upon the conflicting proof there was obviously substantial evidence to support the trial court’s finding that Broyles was driving while intoxicated.

Second, it is argued that the statutory imposition of $250 in additional costs, especially the $75 of that amount that goes to the city or county, is not directly related to the cost of prosecution and must be regarded as a mandatory imposition of punishment rather than as an assessment of costs.

The statute provides that a person convicted of DWI shall pay, “as an additional cost,” the sum of $250. § 75-2531. Of that amount $75 goes to the city or county of the court levying the additional cost. Half the remainder goes to support the Highway Safety Program. That program was established by the Omnibus DWI Act and has five enumerated obj ectives, every one of which relates to drunken driving. § 75-2514 (Supp. 1983). The other half of the remainder goes to the Alcohol and Drug Safety Fund and is to be used to support detoxification services and alcohol and drug abuse rehabilitation and treatment services. § 75-2531.

The decisions elsewhere are not unanimous in deciding to what extent the costs in a criminal case must be directly related to that particular prosecution. An Oklahoma court required a direct relationship between the expense of prosecution and the fixing of costs. Ex Parte Coffelt, 93 Okl. Cr. 343, 228 P.2d 199 (1951). Other courts take a less restrictive approach. In Virginia the court sustained the levy of a fixed amount after every conviction for a traffic offense, to help support the Division of Motor Vehicles in its central record-keeping and reporting. Carter v. City of Norfolk, 206 Va. 872, 147 S.E.2d 139 (1966). It was said: “The costs collected under Code § 14.1-200.1 therefore reimburse the State for expenses incurred by it as a result of prosecutions for traffic offenses.” Quite similar to the case at bar was a Florida decision upholding a statute levying a fixed amount as costs in every case not of a civil nature, to be used for the support of the bureau of law enforcement. State v. Young, 238 So.2d 589 (Fla. 1970). The court reasoned:

It is not unreasonable that one who stands convicted of such an offense should be made to share in the improvement of the agencies that society has had to employ in defense against the very acts for which he has been convicted. We perceive here a direct relationship. . . .

Our own cases uphold the imposition of costs imposed without a precise relationship to the actual cost of the particular prosecution. In sustaining the assessment of a uniform fee for the prosecuting attorney in all cases we said: “These charges are not part of the punishment of the accused. Costs are awarded in order that the State may prosecute the guilty at their own expense.” Wellington v. State, 52 Ark. 447, 12 S.W. 562 (1889). In a civil case we rejected a contention that the unused portion of advance costs had to be returned to the litigant rather than going into the general revenue to help defray the expenses of the courts. Marshall v. Holland, 168 Ark. 449, 270 S.W. 609 (1925). Again, in McArthur v. Smallwood, 225 Ark. 328, 281 S.W.2d 428 (1955), the court upheld a statute levying a fixed amount as costs in all cases, civil and criminal, to secure bonds issued for the constrution of a building to house the Supreme Court, its clerk, its library, and the attorney general. From the opinion:

The mere fact that there are no appeals to the Supreme Court in a substantial number of cases filed in the circuit, chancery and probate courts ... is immaterial. The right of appeal is a valuable asset to any litigant and is available to all litigants. The mere fact that these rights may not be utilized in every case does not detract from their importance and there is no constitutional objection to levying costs to contribute to the expense of the maintenance of those rights.

Inasmuch as the State may prosecute guilty persons at their own expense, we perceive no good reason why the legislature may not also require drunken drivers to share in the cost of maintaining agencies that society has had to create to make its highways safe from the risks those drivers impose upon the innocent, and to attempt to rehabilitate and treat those drivers. There is no specific contention by the appellant that the amount of costs allocated to those purposes exceeds the expenses incurred by the State to achieve the purposes. Even if such a contention were made there is nothing in the record to indicate that the amounts allocated are excessive. Statutes are presumed to be valid; so the party who alleges the invalidity of a statute has the burden of proving that claim. Handy Dan Imp. Center v. Adams, 276 Ark. 268, 633 S.W.2d 699 (1982). Where, as here, proof is required to demonstrate the validity of a statute, the absence of evidence to overcome the presumption of validity requires us to sustain the statute. Holman v. City of Dierks, 217 Ark. 677, 233 S.W.2d 392 (1950). Here the appellant offered no proof on the issue.

The appellant does argue that the “additional costs” of $75 earmarked for the city or county are paid into general revenue funds instead of being allocated to a particular purpose. Even so, there is no proof either of the amount of costs already being assessed or of the essential fact that the total of pre-existing costs and additional costs exceeds the expenses incurred by the cities and counties. Without such evidence we are not in a position to say that the legislature has attempted to resort to mandatory punishment in the guise of costs. This opinion of course does not bar a future challenge to the statute, supported by the necessary proof.. See Ark. Motor Vehicle Comm’n v. Cliff Peck Chevrolet, 277 Ark. 185, 640 S.W.2d 453 (1982).

Affirmed.


author: Robert H. Dudley, Justice. Darrell Hickman, Justice, John I. Purtle, Justice,

text:
    Patricia HENDRICKSON v. STATE of Arkansas
    CR 84-164
    688 S.W.2d 295
    Supreme Court of Arkansas
    Opinion delivered April 29, 1985

      Mathis if Childers, for appellant.

      Steve Clark, Att’y Gen., by: Michael E. Wheeler, Asst. Att’y. Gen., for appellee.
   Robert H. Dudley, Justice.

The appellant, Patricia Hendrickson, stands convicted of capital felony murder. The State contends that appellant conspired with Norma Foster, a college dormitory housemother at Ouachita Baptist University, and Mark Yarbrough, a student, to hire Howard Vagi, another student, to kill her husband for $16,000.00. Vagi did in fact murder appellant’s husband and, upon a plea agreement, received a life sentence. Yarbrough was granted immunity from prosecution in return for his testimony. Norma Foster was convicted of first degree murder and was sentenced to life. Her conviction has recently been reversed. Foster v. State, 285 Ark. 363, 687 S.W.2d 829 (1985). We also reverse this case and remand for a new trial. Jurisdiction of this death penalty case is in this Court. Rule 29(1 )(b).

Appellant’s first assignment of error is that the trial judge erred in denying her motion to suppress her inculpatory statement. The contention is meritorious. Prior to her being charged in this case, appellant’s personal attorney was W. H. “Dub” Arnold. In addition, he also represented her in her capacities as personal representative of her deceased husband’s estate and guardian of her son’s estate. She testified that she frequently consulted with Arnold as her attorney in one capacity or another. Arnold also serves as Prosecuting Attorney of the district having venue in this case. Immediately before appellant was interrogated, Arnold told the police that he did not want to see appellant, and that he could no longer personally represent her. While the officers were reading appellant’s Miranda rights to her, she stated that she wanted “to talk to Dub.” The interrogating officers knew the response meant that appellant wanted to speak to her attorney but they had been told by Arnold that he could not represent her. Instead of terminating the questioning at that point, the officers told her that Arnold was not there and he could not represent her. She subsequently executed a waiver of her Miranda rights and gave the inculpatory statement.

In Smith v. Illinois, 105 S.Ct. 490 (1984), the Supreme Court clearly set forth the twofold test we are to apply in the situation before us:

An accused in custody, “having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him,” unless he validly waives his earlier request for the assistance of counsel. Edwards v. Arizona, 451 U.S., at 484-485, 101 S.Ct., at 1885. This “rigid” prophylactic rule, Fare v. Michael C., 442 U.S. 707, 719, 99 S.Ct. 2560, 2569, 61 L.Ed.2d 197 (1979), embodies two distinct inquiries. First, courts must determine whether the accused actually invoked his right to counsel. See, e.g., Edwards v. Arizona, supra, 451 U.S., at 484-485, 101 S.Ct., at 1884-1885 (whether accused “expressed his desire” for, or “clearly asserted” his right to, the assistance of counsel); Miranda v. Arizona, 384 U.S., at 444-445, 86 S.Ct., at 1612 (whether accused “indicate[d] in any manner and at any stage of the process that he wishfed] to consult with an attorney before speaking”). Second, if the accused invoked his right to counsel, courts may admit his responses to further questioning only on finding that he (a) initiated further discussions with the police, and (b) knowingly and intelligently waived the right he had invoked. Edwards v. Arizona, supra, 451 U.S., at 485, 486, n. 9, 101 S.Ct., at 1885, n. 9.

The threshold inquiry is whether appellant invoked her right to counsel in the first instance. Some courts have held that all questioning must cease upon any request for or reference to counsel, however equivocal or ambiguous. See, e.g., Ochoa v. State, 573 S.W.2d 796, 800-801 (Tex. Crim. App. 1978). Others have attempted to define a threshold standard of clarity for such requests, and have held that requests falling below this threshold do not trigger the right to counsel. See, e.g., People v. Krueger, 412 N.E.2d 537, 540 (1980) (“[A]n assertion of the right to counsel need not be explicit, unequivocal, or made with unmistakable clarity,” but not “every reference to an attorney, no matter how vague, indecisive or ambiguous, should constitute an invocation of the right to counsel”), cert. den., 451 U.S. 1019, 1981. Still others have adopted a third approach, holding that when an accused makes an equivocal statement that “arguably” can be construed as a request for counsel, all interrogation must immediately cease except for narrow questions designed to “clarify” the earlier statement and the accused’s desires respecting counsel. See, e.g., Thompson v. Wainwright, 601 F.2d 768, 771-772 (5th Cir. 1979); State v. Moulds, 105 Idaho 880, 888, 673 P.2d 1074, 1082 (App. 1983). The Supreme Court has not ruled on the matter.

We need not choose between these standards in the instant case because appellant’s statement was neither vague not indecisive. She unequivocally asked to speak to “Dub”, who was her attorney.

Invocation of the right of counsel and waiver are entirely distinct inquiries. Once the right is invoked, a valid waiver cannot be established by showing only that the accused responded to further police-initiated custodial interrogation. Edwards v. Arizona, 451 U.S. 477, at 484 (1981) . Therefore, the trial court erred in not suppressing the statement.

Because we reverse and remand for a new trial, we answer those assignments of error which are likely to arise again upon retrial.

Prior to trial, appellant filed a motion asking that the state be prohibited from “death qualifying” the jury and from challenging for cause . those jurors who expressed conscientious opposition to capital punishment. The trial court, relying upon our decision in Rector v. State, 280 Ark. 385, 659 S.W.2d 168 (1983), correctly refused to grant the motion and, upon retrial, should again refuse to grant the motion. The appellant urges us to abandon our position taken in Rector, supra, and adopt the position taken later by the Eighth Circuit Court of Appeals in Grigsby v. Mabry, 758 F.2d 226 (1985). While we have great respect for the opinions of the Eighth Circuit, we decline to change our position. Other Circuit Courts of Appeal which have considered the issue have ruled the same as we have. See Keeton v. Garrison, 742 F.2d 129 (4th Cir. 1984); Smith v. Balkcom, 660 F.2d 573 (5th Cir. 1981). The Supreme Court of the United States has not yet ruled on the issue, but may soon grant certiorari to resolve the dispute between circuits since it is a matter of significant public interest.

Next, upon remand, the trial court should again allow Mark Yarbrough to testify about statements by Norma Foster in furtherance of the conspiracy. The case of Spears, Cassell & Bumgarner v. State, 280 Ark. 577, 660 S.W.2d 913 (1983) is dispositive of this issue. Rule 801(d)(2)(v) of the Ark. Unif. Rules of Evid., Ark. Stat. Ann. § 28-1001 (Repl. 1979) provides that testimony about an out-of-court statement by a co-conspirator during the course and in furtherance of a conspiracy is not hearsay. Id. at 584. Thus, Yarbrough’s testimony about statements by Norma Foster was properly admissible.

Also, the trial court should again exclude from the penalty phase of the trial the results of a polygraph examination given to appellant. The rules of evidence are not applicable to the penalty phase of the trial. See Ark. Stat. Ann. § 41-1301(4) (Repl. 1977) and Hobbs v. State, 273 Ark. 125, 617 S.W.2d 347 (1981). However, the evidence offered must be probative of some issue to be properly considered in the penalty phase. The proffered test results were not probative of any issue in the penalty phase.

If the appellant, upon retrial, is again sentenced to death the trial court should again reject appellant’s argument that the death sentence is disproportionate in this case. It is true that the one who pulled the trigger is serving only a life sentence, but he was a young college student, while the appellant was a mature adult and, under the proof, the procuring cause of the murder. There was evidence that appellant entered into the contract to have her husband killed for a financial gain of over $600,000.00. The death sentence is not disproportionate under the circumstances of the case. In addition, there is sufficient evidence of aggravating circumstances.

Appellant argues other points but they are not likely to arise again, and therefore, we do not address them.

Reversed and remanded.

Holt, C.J., Hickman and Purtle, JJ., concur.

Hays, J., dissents.

Darrell Hickman, Justice,

concurring. The majority opinion states that the interrogating officers “knew” the appellant wanted to speak to her lawyer, as counsel, thus invoking her rights under Miranda v. Arizona, 384 U.S. 436 (1966). That is not entirely correct. They did concede, and it is not disputed, that she asked to see “Dub”. However, the question is whether she meant she wanted to talk to her lawyer, get his advice, and have him present, or to merely discuss her charges with the prosecuting attorney. Did she want to apologize for any embarrassment it might cause the prosecutor since he had acted as her attorney and knew her and her husband socially? There was considerable testimony regarding these questions. In my judgment the totality of the circumstances leads me to conclude that she was invoking her right to counsel. Considering the circumstances, her statement undoubtedly could have been interpreted by the officers as an invocation of her right to counsel. The officers did not, however, admit that they understood it that way. On its face, the statement “I want to talk to Dub” would not, as a matter of law, be a clear and unequivocal assertion of her right to counsel. However, “I want to talk to Dub, my lawyer, before answering your question” would be such an assertion.

When the burden of the state and the totality of the circumstances are considered, the police should not have proceeded further without inquiring if indeed she wanted a lawyer, or merely “to talk to Dub.” Clearly, there is a difference.

Holt, C.J., joins in the concurrence.

John I. Purtle, Justice,

concurring. I concur with the result but would also instruct the trial court on the matter of selecting a “death qualified” trial jury and on matters relating to the sentencing phase at the next trial.

First, it is, in my opinion, a stubborn, useless and expensive act to stand on the majority opinion as written in Rector v. State, 280 Ark. 385, 659 S.W.2d 168 (1983). The Eighth Circuit Court of Appeals has soundly pointed out the infirmities of our Rector opinion in Grigsby v. Mabry, 758 F.2d 226 (1985). Although there is a possibility the United States Supreme Court will reverse Grigsby, there is the possibility it will affirm. In the meantime we should follow Grigsby not only because it is the law, but also because it is fair and just. I feel there is very little difference in this court’s real standing on “death qualified” juries and the criteria established in Grigsby.

Both Rector and Grigsby have common language in part and both rely on some of the same authorities. For example both quote from Needham v. State, 215 Ark. 935, 224 S.W.2d 785 (1949). Grigsby cited with approval the concurring opinion in Rector where it was stated:

The majority correctly states that persons who are unalterably opposed to the imposition of the death penalty should be excluded and I agree. I think Witherspoon is in accord with this view. The mistake made in some trial courts is in excluding persons who have moral or religious scruples against the death penalty but who would agree to impose it if the law and the circumstances warrant it in the case being tried. Witherspoon never intended to exclude this type juror. Neither did it indicate that only those who favored the death penalty should comprise trial juries. I think the correct procedure on this controversial issue lies somewhere between excluding prospective jurors who have scruples against the death sentence and including only those who have no scruples against imposing such a penalty.
I have never thought that all or even most people who favor the death penalty are barbarians in modern society. However, I do feel that a jury composed of only such persons is not representative of any community. Neither would a jury composed only of those having scruples against the death penalty represent the community. The selection of jurors should not favor the accused nor should it favor the state. A properly selected jury enters upon its duties slanted toward neither side. Thus selected, it would not be proper to refer to the jury as a death qualified one.

I fully believe the results of the polygraph test of the appellant should be allowed in the penalty phase of the trial. There can be no doubt that the present law allows the use of such evidence at the sentencing stage of the trial. Ark. Stat. Ann. § 41-1301 (4) (Repl. 1977) reads in part:

Evidence as to any mitigating circumstances may be presented by either the state or the defendant regardless of its admissibility under the rules governing admission of evidence in trial of criminal matters. . . .

We held, in reversing the conviction in Hobbs v. State, 273 Ark. 125, 617 S.W.2d 347 (1981), that in the sentencing phase, evidence of mitigating circumstances should be admitted if it is made under oath and the state has an opportunity to cross examine the witness. Both requirements are met in the case here under review. We stated in Ford v. State, 276 Ark. 98, 633 S.W.2d 3 (1982): “If there is any evidence of aggravating or mitigating circumstances, however slight, the matter should be submitted to the jury.”


author: Steele Hays, Justice. John I. Purtle, Justice,

text:
    Laura M. JOHNSON and Charles E. JOHNSON v. The TRUCK INSURANCE EXCHANGE
    84-230
    688 S.W.2d 728
    Supreme Court of Arkansas
    Opinion delivered April 29, 1985

      Michael Everett, for appellants.

      Reid, Burge, Prevallet & Coleman, for appellee.
   Steele Hays, Justice.

Appellants Charles Johnson and his mother, Laura Johnson, brought suit under their homeowners policy to recover the stated value of a dwelling totally destroyed by fire on May 8, 1982. Appellee insurer defended on grounds of misrepresentation, fraud and arson. The jury returned a verdict of $55,910.64, notwithstanding an instruction that told them if they found for the plaintiffs, their verdict for the loss of the dwelling should be the insured value of the dwelling — $95,000. Both sides moved for judgment notwithstanding the verdict and the trial court set the verdict aside and ordered a new trial. On appeal and cross-appeal, we affirm.

ARCP Rule 59(a) lists the grounds on which a new trial “on all or part of the issues” may be granted, including any irregularity in the proceedings preventing a fair trial. The trial court’s power under the rule is necessarily broad and will not be disturbed in the absence of abuse. Johnson v. Bowlin, 251 Ark. 950, 475 S.W.2d 885 (1972); House v. Finney, 252 Ark. 66, 477 S.W.2d 482 (1972).

We find no abuse of discretion. The verdict and the instruction cannot be reconciled. The court instructed the jury in effect that it must either find for the defendant or return a verdict for the plaintiffs of at least $95,000. In clear disregard of that instruction the jury by a vote of 9 to 3 returned a verdict of $55,910.64, which cannot be rationally explained.

Appellants also urge it was error for the trial court not to order a partial trial limited to the amount of the damages. That decision is discretionary with the trial court and where the verdict is wholly incongruent, in the face of the instruction given, a new trial on all the issues will not be easily reversed. We have said as a matter of law the verdict must be treated as an entity. McVay v. Cowger, 276 Ark. 385, 635 S.W.2d 249 (1982). That has been our rule for decades, (see cases cited in McVay v. Cowger), but we should not overlook the plain wording of Rule 59(a), contemplating new trials on only part of the issues. The rule permits partial trials in those cases where one or more of the issues has been clearly resolved by the verdict. That cannot be said of the verdict in this instance and the trial court was right.

The other arguments are moot but will be discussed for the guidance of the trial court on retrial.

Appellants ask us to reverse an evidentiary ruling with respect to other fires. The trial court permitted the introduction of proof that Charles Johnson had had three fires prior to the one in question: the 1977 burning of a building in which he operated a grocery business, the 1977 burning of a dwelling where the Johnsons had lived and where Johnson’s wife was then operating a beauty shop, and the 1981 burning of a late model automobile. Appellants’ brief denies they benefited by these fires and whether Johnson was actually paid for the losses is not brought out. It is clear from his testimony, however, that there was insurance coverage on the buildings destroyed by these fires.

Appellants rely on Houston General Insurance Co. v. Arkansas Louisiana Gas Company, 267 Ark. 544, 592 S.W.2d 445 (1980), but that case offers little guidance here. The issue involved a claim of negligence where proof of similar occurrences requires evidence of the same or substantially similar conditions. [See Houston General, supra; Arkansas Power and Light Co. v. Johnson, 260 Ark. 237, 538 S.W.2d 541 (1976)]. Reversing on other grounds, we noted that no evidence was offered of circumstances and conditions surrounding the other explosions similar to the one in question.

A different situation is presented here. Charles Johnson was shown to have experienced four fires of a major sort within a span of five years, at least three of which were insured against loss by fire. Unif. R. Evid. 401 defines relevant evidence as evidence having any tendency to make a fact more or less probable. Where the issue is whether a fire was set deliberately to claim insurance, the existence of other fires, if not too remote in time or dissimilar in circumstances, may be admissible without showing the same or substantially similar circumstances. Such evidence has relevance to show motive, intent, absence of mistake, or accident. See Unif. R. of Evid. 404(b). Unif. R. Evid. 403 requires the trial court to decide whether that relevant evidence is such that its probative value outweighs the harm which its introduction might cause. There were other circumstances this jury could have found probative of a deliberate setting of the 1982 fire, as well as proof that Charles Johnson may have knowingly given a false answer when asked if similar insurance had ever been cancelled or declined; that he first insured the dwelling only in his mother’s name, later adding his own; that he may have given false answers concerning her occupancy of the dwelling as well as occupancy by his former wife; that a few months prior to the fire he attempted to increase coverage from $60,000 to $105,000, and. did secure an increase to $95,000; and that Charles and Laura Johnson were $12,500 behind in payments to the Federal Land Bank. It must be said the appellants answered with proof of their own and, as we have said, it is impossible to determine which evidence the jury found preponderant.

The case of Hammann v. Hartford Accident and Indemnity Co., 620 F.2d 588 (6th Cir. 1980) is instructive. Hammann brought suit to recover under a fire insurance policy for damage to a barn. The insurer presented expert testimony to show the fire was intentionally started and that Hammann had had six fires over the years, four of which resulted in insurance recoveries. The trial judge excluded evidence of fires which did not result in recoveries and permitted evidence of the circumstances surrounding the four fires yielding insurance recoveries. Hartford argued the evidence was properly admitted under Unif. R. Evid. 404. The Court of Appeals found the probative value outweighed the prejudice and that no abuse of discretion occurred:

Here the evidence of prior fires was properly admitted for a number of reasons: Defendant attacked Hammann’s credibility by establishing that he had willfully concealed several occurrences of fires from the defendant. Second, the trial court properly instructed the jury that the fires were to be considered as bearing only on Hammann’s motive. See Terpstra v. Niagara Fire Insurance Co., 26 N.Y.2d 70, 308 N.Y.S.2d 378, 256 N.E.2d 536 (1970). Lastly, Hartford asserted the defense of incendiarism which included evidence of Hammann’s intent or knowledge of the occurrence. See, e.g., Trice v. Commercial Union Assurance Company, 397 F.2d 889 (6th Cir. 1968), cert. denied, 393 U.S. 1018, 89 S.Ct. 623, 21 L.Ed.2d 563 (1969).

In Raphtis v. St. Paul Fire & Marine Insurance Company, 198 N.W.2d 505 (1972) the Supreme Court of South Dakota upheld the admission of evidence of other fires in a similar suit, with this comment:

General rules of admissibility of other crimes are stated in 29 Am.Jur.2d, Evidence, § 298 through § 333, most of which deals with evidence in criminal actions. See also Arson and Related Offenses, 5 Am. Jur. 2d § 58. Evidence is admissible if it tends to show intent, motive, scheme or plan. 29 Am. Jur. 2d, Evidence, §§ 324, 325 and 326. Three fires in nine months was held admissible to show motive. Generally in a fire insurance case, where circumstantial evidence is resorted to, the objections to testimony as irrelevant are not favored, and the evidence must necessarily take a broad range. Such evidence is to be received with caution, yet in this civil action we conclude no error occurred under this record.

Two Arkansas criminal cases bear comparison. In Casteel v. State, 205 Ark. 82, 167 S.W.2d 634 (1943), we held where the defendant was charged with arson in the burning of an automobile to recover insurance, proof he had burned other cars for a similar reason was admissible. In Satterfield v. State, 245 Ark. 337, 632 S.W.2d 472 (1968), for the guidance of the trial court on remand, we said evidence of other incidents of arson would not ordinarily be admissible. However, it should be noted, the proof was “very meager, and the single witness who mentioned [another fire] never described it, never located it and certainly did not connect the defendant with it.” Thus, the proof failed for lack of a connection to the defendant.

Given the overall proof of the first trial, we cannot say discretion was abused by the reception of the evidence of other fires. Assuming the proof on retrial is at least the equivalent, we are not willing to say the proof of the other fires is so lacking in relevance as to be inadmissible per se, or that relevance is plainly outweighed by prejudice. We have recognized that the acceptance or rejection of evidence on grounds of relevance is necessarily a matter of discretion. Hamblin v. State, 268 Ark. 497, 597 S.W.2d 589 (1980); Kellensworth v. State, 278 Ark. 261, 644 S.W.2d 933 (1983).

Two additional arguments are made on direct appeal; the trial court erred in denying a motion for a directed verdict in favor of Laura Johnson and in instructing the jury that Laura Johnson was bound by the conduct, acts and representations of Charles Johnson.

The argument that Laura Johnson was entitled to a directed verdict is predicated on an absence of proof she was guilty of wrongdoing. Appellants cite Mechanics Insurance Co. v. Intersouthern Life Ins. Co., 184 Ark. 625, 43 S.W.2d 81 (1931) and urge that arson by one co-insured is no defense to a claim by the other, if the latter is innocent of such wrong. Richardson v. Hanover Insurance Co., 299 S.E. 2561 (Ga. 1983); Fuston v. National Mutual Insurance Co., 440 N.E.2d 751 (Ind. App. 1982); St. Paul Fire & Marine Insurance Co. v. Molloy, 291 Md. 139, 433 A.2d 1135 (1981); American Economy Insurance Co. v. Liggett, 426 N.E.2d 136 (Ind. App. 1981); “Insurance Law: Innocent Spouse’s Right to Recover in Arson Cases,” 17 Wake Forest L. Rev. 1022 (1981).

We will not attempt to settle that issue here. For one thing, apart from the separate consideration of her innocence with respect to arson, the jury could have concluded this policy would not have been issued in the first instance if Charles Johnson, acting for himself and Laura Johnson, had given truthful answers concerning the cancellation of similar insurance. For another, this record does not reflect that appellants presented an instruction to the trial judge which preserved this issue on appeal. ARCP Rule 51. We are unable to say, therefore, the proof was such that the trial court was obliged to direct a verdict for Laura Johnson. Farm Bureau Mutual Insurance Co. v. Henley, 275 Ark. 122, 628 S.W.2d 301 (1982).

Nor do we think the trial court erred in instructing the jury as it did. Charles Johnson testified that he handled all the affairs affecting insurance with the approval of Laura Johnson, that she left these matters entirely in his hands. She did not know with whom the coverage was placed, the amount of coverage, the amount of premium (which Charles paid), or anything else concerning coverage. Her testimony nowhere refutes the testimony of Charles Johnson on this issue. In short, we cannot say the trial court should not have given the instruction on the basis of the testimony.

By cross-appeal appellee asserts there was no substantial evidence to support any verdict in favor of appellants. The argument generally is that Charles Johnson willfully concealed material facts concerning the application for insurance. We concede there are discrepancies in some of his answers, but we are not prepared to substitute our view for that of the trial judge on the basis of a printed record of a trial lasting three days. The trial judge hears the witnesses and we recognize his advantage in passing on the weight of the evidence. Garrett v. Puckett, 252 Ark. 233, 478 S.W.2d 48 (1972).

The order appealed from is affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. I respectfully dissent from that part of the majority opinion which discusses the evidence relating to other fire losses experienced by Charles E. Johnson. He was not charged with the responsibility of causing the other fires which destroyed property in which he held an interest. We held in Houston General Ins. Co. v. Arkla Gas Co., 267 Ark. 544, 592 S.W.2d 445 (1980) that evidence of similar occurrences is admissible only when it is demonstrated that the events arose out of the same or substantially similar circumstances. In Houston we also held that the burden rests on the party offering such evidence to prove that the necessary similarity of conditions exists. There was no attempt to comply with this holding in the case here under consideration. If the insurance carrier has evidence that Charles E. Johnson was the author of the previous fire losses, it should be allowed to introduce that evidence at the next trial. However, the fact that fire losses occurred on property in which Johnson had an interest is, in and of itself, not proper evidence. It will be necessary to show that Charles E. Johnson set the fires or caused them to be set before the exclusion in the policy is applicable. Farmers Ins. Exchange v. Staples, 8 Ark. App. 224, 650 S.W.2d 244(1983). Certainly such losses would not be relevant unless it were shown that Johnson received pecuniary gain from them. There is no such evidence in the present record.

The majority state: “Where the issue is whether a fire was set deliberately to claim insurance, the existence of other fires, if not too remote in time or dissimilar in circumstances, may be admissible without showing the same or substantially similar circumstances.” This statement is not supported by any type of authority and I am of the opinion that it is simply pulled out of the air.

Even if it were provén that Charles E. Johnson deliberately set fire to this property, the insurance company would still be obligated to pay Laura M. Johnson the face amount of the policy. No one disputes that she had an insurable interest. The fact that she asked her son to obtain the insurance in no manner reflects any intention on her part to cause the property to be destroyed by fire.

In Satterfield v. State, 245 Ark. 337, 432 S.W.2d 472, (1968), where a person was charged with arson, we stated: “Evidence of other incidents of arson would not be admissible unless that evidence can be shown to meet the test announced in many decisions.” The court then cited Alford v. State, 223 Ark. 330, 266 S.W.2d 804 (1954) and approved language from C.J.S. as follows: “[E]vidence which shows or tends to show that accused has committed another crime wholly independent of, and unconnected with, that for which he is on trial, even though it is a crime of the same sort, is irrelevant and inadmissible.”

I believe the valued policy law is applicable to the faqts of this case.

       T. 237-238. (The record is silent concerning coverage on the automobile.)


author: Steele Hays, Justice.

text:
    Tommy MASON v. STATE of Arkansas
    CR 84-217
    688 S.W.2d 299
    Supreme Court of Arkansas
    Opinion delivered April 29, 1985

      Paul Johnson, for appellant.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

Tommy Mason contends on appeal that his conviction of first degree murder with a sentence of life imprisonment must be reversed because of insufficient evidence. We disagree.

The test for determining the sufficiency of the evidence is whether there is substantial evidence to support the verdict. Substantial evidence must be forceful enough to compel a conclusion one way or another beyond suspicion and conjecture, Perry v. State, 277 Ark. 357, 642 S.W.2d 865 (1982), and circumstantial evidence can present a question for the jury and provide the basis to support a conviction. Yandell v. State, 262 Ark. 195, 555 S.W.2d 561 (1977).

Some four months before the dismembered remains of Elbert Jones were found, Jones was last seen getting into Mason’s car. By Mason’s account, the two men argued over Elaine Grandy, Jones’s girlfriend, Mason’s former girlfriend. As they fought in the front seat of the car Mason reached under the seat for a pistol and in the struggle the pistol went off, striking Jones in the left temple. Afraid to report the incident, Mason cut off Jones’s head, arms and legs and deposited the parts in different places. He later retrieved the head and smashed it into pieces small enough to be disposed of indiscriminately.

Mason submits there was no proof the shooting was deliberate. There was proof that on the day Jones disappeared Mason was looking for him, and had asked several people where Jones might be. When Jones was told Mason was looking for him he said he would meet Mason to show him he was not afraid of him.

Elaine Grandy testified that she had gone with Mason for about two years. She described him as jealous. She said he would choke her when he was angry and had told her if she ever broke up with him he would do something to her and no one would ever find her again. She tried to end the relationship because Mason was seeing another woman and she started going with Elbert Jones. She said Mason tried to continue the relationship but she refused..

We find the evidence enough to support the conviction. The jury could have inferred the shooting was deliberate. Mason wanted Elaine Grandy to be his girlfriend again; he sought Jones out, concealing a loaded pistol under the driver’s seat. Even by Mason’s version the jury could have concluded from the case as a whole that Mason drew the pistol, not to defend himself, but to kill Jones. Other circumstances point to that conclusion. After his arrest, Mason escaped but was recaptured. We have consistently held that flight to avoid arrest or trial is admissible as a circumstance in corroboration of evidence tending to establish guilt. Norton v. State, 271 Ark. 451, 609 S.W.2d 1 (1980); Smith v. State, 218 Ark. 725, 238 S.W.2d 649 (1951); Stevens v. State, 143 Ark. 618, 221 S.W. 186 (1920).

Too, Mason denied having seen Jones on the day Jones disappeared, both to the police and to Jones’s relatives. Though Mason claimed Jones came looking for him, there was proof it was Mason who sought out Jones, whom he did not know. Even the macabre method of disposing of Jones’s body suggests more than the mere fear of discovery, particularly in light of the comment to Elaine Grandy that if she ever tried to break up with Mason no one would ever find her again. When the evidence is viewed most favorably to the state, the proof creates a permissible inference that Jones’s death was the result of a deliberate act.

Premeditation and deliberation and intent may all be inferred from the circumstances, such as the character of the weapon used, the manner in which it was used, the nature, extent and location of the wounds inflicted, the conduct of the accused and the like. McLemore v. State, 274 Ark. 527, 626 S.W.2d 364 (1982).

We have examined all other objections made during the trial pursuant to Rule 11(f), Rules of the Supreme Court, Ark. Stat. Ann. Vol. 3A (Repl. 1977) and find no error. See Earl v. State, 272 Ark. 5, 612 S.W.2d 98 (1981).

The judgment is affirmed.


author: Per Curiam.

text:
    Ronald McDONALD v. STATE of Arkansas
    CR 85-75
    688 S.W.2d 302
    Supreme Court of Arkansas
    Opinion delivered April 29, 1985
    Pro Se Petition for Writ of Certiorari; denied.
    Appellant, pro se.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   Per Curiam.

Petitioner Ronald McDonald pleaded guilty on February 18, 1982, to aggravated robbery. On March 6, 1985, he filed a petition for writ of error coram nobis which the trial court denied. Petitioner filed a timely notice of appeal; but upon being advised by an attorney that a petition for writ of certiorari was the proper means to challenge the denial of a petition for writ of error coram nobis, he also filed the petition now before us.

Petitioner’s so-called petition for writ of error coram nobis raised grounds to vacate his guilty plea which are covered by A.R.Cr.P. Rule 37. Petitioner states in the error coram nobis petition that it was filed instead of a Rule 37 petition because Rule 37 was no longer available to him, apparently because more than three years had passed since his guilty plea was entered. Rule 37.2(c).

Obviously a petition for writ of error coram nobis cannot be used as a substitute for a Rule 37 petition. Since no grounds were alleged which would entitle petitioner to any relief under a petition for writ of error coram nobis, the petition for writ of certiorari is denied.

Petition denied.


text:
    Russell McKINNON v. STATE of Arkansas
    687 S.W.2d 849
    Supreme Court of Arkansas
    Opinion delivered April 29, 1985

      Patricia Tucker, for appellant.
    No response.
   Per Curiam.

Appellant, Russell McKinnon, by his attorney, has filed for a rule on the clerk.

His attorney, Patricia Tucker, 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.

A copy of this opinion will be forwarded to the Committee on Professional Conduct.


text:
    Walter MASON v. STATE of Arkansas
    CR 85-64
    687 S.W.2d 849
    Supreme Court of Arkansas
    Opinion delivered April 29, 1985

      Robert S. Blatt, for appellant.
    No response.
   Per Curiam.

Petitioner Walter Mason was found guilty by a jury of first degree murder and sentenced to a term of twenty years imprisonment in the Arkansas Department of Correction. The Court of Appeals affirmed. Mason v. State, CA CR 84-160 (March 20, 1985). Petitioner now seeks permission to proceed in circuit court for postconviction relief pursuant to A.R.Cr.P. Rule 37. He has also filed a motion seeking to remain free on his appeal bond pending disposition of the Rule 37 petition.

Rule 37.1 provides that relief under the rule is available only to prisoners in custody. See Burkhart v. State, 271 Ark. 859,611 S.W.2d 500 (1981). An appellant whose conviction is affirmed on appeal is not entitled to remain free merely because he files a petition to proceed under Rule 37. Our postconviction rule was patterned after federal habeas corpus procedure for prisoners in federal custody to provide a procedure whereby state prisoners could raise claims in state courts of violation of constitutional rights, jurisdictional questions, claims of excessive sentence and other claims which subject a judgment or sentence to collateral attack. It was not intended as a continuation of the direct appeal.

Since petitioner here is not a prisoner in custody, the petition must be dismissed even though we find grounds for an evidentiary hearing on some allegations contained in it. The petition is dismissed without prejudice to filing with this Court a properly verified petition for postconviction relief when petitioner is taken into custody. See Knappenberger v. State, 278 Ark. 382, 647 S.W.2d 417 (1983). The motion to remain free on bond is denied.

Petition dismissed without prejudice.

Hays, J., concurs; Purtle, J., dissents.


author: Jack Holt, Jr., Chief Justice.

text:
    Alan Loyd BREWER v. STATE of Arkansas
    CR 84-214
    688 S.W.2d 736
    Supreme Court of Arkansas
    Opinion delivered May 6, 1985

      Larry W. Horton, for appellant.

      Steve Clark, Att’y Gen., by: Alice Ann Burns, Dep. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

The appellant was convicted of driving while intoxicated, second offense, and sentenced to 90 days in jail, fined $500 plus costs, and his driver’s license was suspended for one year. It is from that conviction that this appeal is brought. Our jurisdiction is pursuant to Sup. Ct. R. 29(1)(a).

The appellant was arrested by two auxiliary deputies in Brinkley, Arkansas. The deputies issued a citation charging the appellant with DWI. No other information was filed against the appellant, nor was he charged in open court with the offense.

Prior to the trial, the appellant filed a motion to dismiss the charges on the grounds that his arrest was illegal. The basis of his contention was that the auxiliary deputies were not under the direct supervision of a law enforcement officer when the arrest was made. That motion was denied.

At the close of the State’s evidence, the appellant renewed his motion and further contended that he had not been legally charged with an offense. After hearing evidence on the lack of supervision of the deputies, the court refused to dismiss the charges, but held that the arrest was illegal and was therefore made with the authority of a private citizen only. The appellant’s first argument on appeal is that the court erred when it tried the appellant when he had not been formally charged with an offense. We agree.

Arkansas Stat. Ann. § 42-1405 (Supp. 1983) provides:

(a) An auxiliary law enforcement officer shall have the authority of a police officer . . . when the auxiliary law enforcement officer is performing an assigned duty and is under the direct supervision of a full-time certified law enforcement officer.
(b) When not performing an assigned duty and when not working under the direct supervision of a full-time certified law enforcement officer, an auxiliary law enforcement officer shall have no authority other than that of a private citizen.

Any auxiliary law enforcement officer who is not supervised as required “shall not take any official action as a law enforcement officer and any action taken shall be held as invalid.” Ark. Stat. Ann. § 42-1403 (Supp. 1983) (emphasis added). The evidence at trial was that the deputies turned on their blue lights and spotlights and pursued the vehicle driven by the appellant. After determining that the appellant was intoxicated, the deputies issued a traffic citation charging him with DWI. The deputies’ conduct was unquestionably an “official action as law enforcement officers” as provided by the statute, and must be held invalid.

While it is true that a private citizen may make an arrest when the citizen believes that a felony has been committed, Ark. R. Crim. P. 4.1(b); Ark. Stat. Ann. § 43-404 (Repl. 1977), there is no similar authority to arrest for a misdemeanor. Since DWI, second offense, is a misdemeanor, the unsupervised auxiliary deputies did not have the authority as citizens to make the arrest and issue the citation. Thus the appellant was never properly charged with an offense.

Article 2, § 8 of the Arkansas Constitution provides that “ [n]o person shall be held to answer a criminal charge unless on the presentment or indictment of a grand jury, except in . . . cases such as the General Assembly shall make cognizable by justices of the peace, and courts of similar jurisdiction . . .”

Amendment 21 to the Arkansas Constitution provides that offenses which had to be filed by grand jury indictment may now be filed by an information by the prosecuting attorney.

The General Assembly conferred upon law enforcement officers the authority to charge a person with a misdemeanor DWI offense by issuing a citation. Ark. Stat. Ann. § 75-2508 (Supp. 1983); Lovell v. State, 283 Ark. 425, 678 S.W.2d 318 (1984), supplemental opinion, 283 Ark. 434, 678 S.W.2d 395 (1984); Thompson v. City of Little Rock, 264 Ark. 213, 570 S.W.2d 262 (1978). However, the auxiliary deputies, lacking the proper authority, were unable to lawfully charge the appellant with the offense of DWI. We follow the general rule as enunciated in Clayborn v. State, 278 Ark. 533, 647 S.W.2d 433 (1983) that a party “cannot be found guilty of a crime with which he was never charged.”

Accordingly the trial court’s verdict is reversed and the charge is dismissed. Our holding makes it unnecessary to address the other issues raised by the appellant.

Reversed and dismissed.


author: Jack Holt, Jr., Chief Justice. John I. Purtle, Justice,

text:
    Johnny Wayne HENDERSON v. STATE of Arkansas
    CR 84-199
    688 S.W.2d 734
    Supreme Court of Arkansas
    Opinion delivered May 6, 1985

      John W. Achor, for appellant.

      Steve Clark, Att’y Gen., by: Velda P. West, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

The sole issue raised in this appeal concerns the failure of the trial judge to instruct the jury on a lesser included offense. Our jurisdiction is pursuant to Sup. Ct. Rule 29(1)(b).

The appellant was convicted of rape and found to be an habitual offender. He was sentenced to 40 years imprisonment. On appeal, he argues that the trial court erred by not instructing the jury on public sexual indecency as a lesser included offense of rape.

The appellant was charged by information with rape pursuant to Ark. Stat. Ann. § 41-1803(1)(a) (Repl. 1977) for engaging in deviate sexual activity with another person by forcible compulsion. The charge stemmed from an incident that occurred at 9:30 p.m. August 31, 1983 when vice squad officers with the Little Rock Police Department saw the appellant allegedly force a woman to engage in deviate sexual activity with him in Riverfront Park. The appellant’s defense at trial was consent by the victim.

At the close of the trial, the appellant requested a jury instruction on public sexual indecency, which was properly refused. Arkansas Stat. Ann. § 41-1811 (Repl. 1977) provides:

(1) A person commits public sexual indecency if he engages in any of the following acts in a public place or public view:
(b) an act of deviate sexual activity;

Lesser included offenses are provided for in Ark. Stat. Ann. § 41-105 (Repl. 1977) as follows:

(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 charged;

Here, the two offenses each contain an element that the other does not. Rape requires proof of forcible compulsion, while public sexual indecency requires proof that the activity occurred in a public place or in the public view. Therefore, the two crimes do not meet the statutory definition of an included offense since public sexual indecency is not established by proof “of the same or less” than the elements required to prove rape.

Furthermore the indictment charging the appellant did not state that the deviate sexual activity occurred in a public place. In Caton & Headley v. State, 252 Ark. 420, 479 S.W.2d 537 (1972), this court held it was not reversible error to refuse to instruct the jury on shoplifting when the appellant was charged with grand larceny. In so holding the court noted that the information did not charge that the merchandise taken was offered for sale by a store. We stated:

Where the indictment for a greater offense does not contain allegations of all the ingredients of the lesser offense, a conviction of the lesser cannot be sustained, even though the evidence may supply the missing element.

We are faced with the same situation here. The information charging the appellant did not allege that the deviate sexual activity occurred in a public place or in the public view. That allegation is a necessary element to a charge of public sexual indecency and it could not be provided by the evidence at trial. Caton & Headley, supra. Therefore a conviction of the lesser offense could not be sustained.

This court has recently addressed the subject of lesser included offenses in Thompson v. State, 284 Ark. 403, 682 S.W.2d 742 (1985). In that case the appellant contended she was entitled to an instruction on theft as a lesser included offense of robbery. We held that an offense is not a lesser included offense solely because a greater offense includes all of the elements of an underlying offense.

The lesser included offense doctrine additionally requires that the two crimes be of the same generic class and that the differences between the offenses be based upon the degree of risk or risk of injury to person or property or else upon grades of intent or degrees of culpability.

Thompson, supra.

The court in Thompson found theft — the wrongful appropriation of the victim’s property — to be of a different nature than robbery — the threat of physical harm to the victim — and therefore not of the same generic class. Here, a charge of public sexual indecency emphasizes the public nature of a deviate sexual act while rape emphasizes the forcible nature of a deviate sexual act. As such they are of a different nature and not of the same generic class. The trial court did not err when it refused to give the requested instruction.

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. The circumstances of this case cause me to believe that the trial court erred in refusing to give an instruction on public sexual indecency as a lesser included offense of rape by engaging in forcible deviate sexual activity. Arkansas Stat. Ann. § 41-181 1(1)(b) (Repl. 1977) provides that a person commits the offense of public sexual indecency if the person engages in an act of deviate sexual activity in public. Arkansas Stat. Ann. § 41-1803(1)(a) provides that the crime of rape is committed by engaging in deviate sexual activities by forcible compulsion. The only difference in these two described crimes is that one is required to be in public and the other by force. The proof in this case tended to show that the appellant forcibly engaged in deviate sexual activity in public. His defense was that the act was voluntary or without force. Both offenses are codified in Chapter 18 (sexual offenses; Ark. Stat. Ann. § 41-1801 — 41-1825).

Turning now to the lesser included offense statute, Ark. Stat. Ann. § 41-105, we find the following language:

(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 charged . . .

It seems clear to me that proof of public sexual indecency must necessarily be proven in this case to prove deviate sexual activity by forcible compulsion. Indeed I think it is not possible to prove the offense charged in this case was committed without also proving all the elements of public sexual indecency. Obviously the offenses are of the same generic class. The jury may have believed the appellant committed the lesser offense but they were not given the opportunity to decide whether he did or not.

I would reverse and remand for a new trial at which the instruction on the lesser included offense would be given.


text:
    Melvin DAVIES v. STATE of Arkansas
    CR 85-60
    688 S.W.2d 738
    Supreme Court of Arkansas
    Opinion delivered May 6, 1985
    [Rehearing denied June 6, 1985.]

      Jerry E. Mazzanti, for appellant.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   George Rose Smith, Justice.

On January 5,1984, at a time when the appellant Melvin Davies and his wife were separated, he went to see her at her place of employment in Eudora. After about two hours of conversation the couple got into an argument, and Davies shot her in the chest with a .357 magnum pistol. He was charged with first-degree battery by having caused serious physical injury. Upon trial by jury he was found guilty and sentenced to a term of 15 years. His appeal comes to this court as presenting an issue of statutory interpretation. Rule 29(l)(c).

The first of Davis’s three arguments for reversal is that the trial judge should have complied with the mandatory language of Ark. Stat. Ann. § 41-605 (Repl. 1977). That statute provides that whenever a defendant charged in circuit court files notice (which Davies did not file) that he will put in issue his mental fitness to proceed, or “there is reason to doubt his fitness to proceed, the court. . . shall immediately suspend all further proceedings in the prosecution.” The court may retain the jury or declare a mistrial. Upon suspending the proceedings the court shall direct that the defendant be examined at a regional mental health center or by a psychiatrist appointed by the court or be examined at the State Hospital or be committed to that hospital for not exceeding 30 days, for examination. In this case no such action was requested or taken.

Under the statute the trial judge may suspend the proceedings himself if he has reason to doubt the defendant’s fitness to proceed and certainly must do so in many situations. Such a situation, however, did not arise in this case.

It is plain that the defense did not want a suspension of the trial. There was no request for a pretrial examination of Davies. On voir dire defense counsel questioned the jurors about their willingness to give Davies the benefit of the defense of mental disease or defect, about which they would be instructed. No request for a suspension was ever made. The defense came to court prepared to offer proof of two defenses: mental disease or defect and justification for the use of deadly physical force in self defense. Eventually both defenses were submitted to the jury by AMCI instructions. Davies testified that when he shot his wife she was coming at him with a pair of scissors. He also testified, at age 31, that he had been taking medication for epilepsy for 16 years. He sometimes forgot to take it. His doctor testified that Davies had been taking phenobarbital for his epilepsy, that the drug could be addictive, that an addicted patient could stop using the drug and suffer withdrawal effects, and that it is theoretically possible that such a person could not control himself or be responsible for his conduct. The doctor did not know whether Davies was suffering from withdrawal when he shot his wife; if so, it was because he made the choice not to take his medication. The jury’s verdict rejected the two defenses. There was no motion for a new trial or other postjudgment relief. Upon this record Davies is not in a position to invoke the statute for the first time on appeal, after having taken his chances upon the possibility of a favorable verdict.

The second point for reversal is that the court should not have denied a pretrial defense motion to strike certain parts of a written statement by the State’s medical witness, introduced by stipulation. The matter objected to is typified by this excerpt from the statement:

Q. Were the injuries which you found Irma Davies to have and which you described potentially life threatening?
A. Very life threatening. In fact, it’s really a miracle she ever got to the hospital in the first place and that she survived. She was in profound shock when she came in. She had to be given twenty-two units of packed cells during surgery. . . and we have to give her platelets of blood after surgery.

Counsel asked that all of the answer be stricken except the first three words: “Very life threatening.” The trial judge ruled that since the State had to prove the infliction of serious physical injury, the entire answer was admissible, and its probative value outweighed any possible prejudice. His ruling was right. All the matter in the two-page statement was admissible. We do not find any of it to have been unnecessarily or prejudicially inflammatory.

Finally, it is argued that the prosecutor should not have been permitted to cross-examine a defense witness, Dr. Talbert, on the basis of a book not shown to be reliable. The prosecutor began this part of his cross examination by saying that to learn a little about epilepsy he had gotten at a drugstore a book, “Seizures, Epilepsy and Your Child,” by a medical doctor, George Lago. The witness was not familiar with the author or the book and could not concede that Lago is an expert in the field. Upon objection the court ruled that the prosecutor could quote from the book and ask if the witness agreed with it. The prosecutor then summarized a few sentences in the book, one being that addiction to phenobarbital has not been a problem in children with epilepsy who have received the drug for several years. The witness said he could not agree completely, because it takes less time to become addicted to barbiturates such as Seconal that act more rapidly than others. Dr. Talbert added: “I do not agree with the statement that phenobarbital is not addictive, because it is.”

The trial judge was mistaken in allowing counsel to read from a book not shown to be established as a reliable authority. The Uniform Rule of Evidence permits learned treatises to be used in the cross examination of an expert witness, but the treatise must be established as a reliable authority “by testimony or admission of the witness or by other expert testimony or by judicial notice.” Rule 803(18). That necessary foundation for the use of Lago’s book as a basis for cross examination was not laid; so the objection should have been sustained when it was made.

Even so, the question is whether the error was prejudicial, for we order a new trial only for prejudicial error. Berna v. State, 282 Ark. 563, 670 S.W.2d 435 (1984). The use of the book at most brought before the jury a basis for believing that phenobarbital is not addictive. Nevertheless, with or without Lago’s statement, it was not sufficient for Davies to prove merely that he was in fact addicted to the drug. To sustain the defense of mental disease or defect he had to go a step farther by showing that as a result of his addiction he lacked capacity to conform his conduct to the requirements of law or to appreciate the criminality of his conduct. Ark. Stat. Ann. § 41-601 (Repl. 1977).

That additional proof is lacking. Davies’s expert medical witness, Dr. Talbert, did not so testify. Davies himself remembered the shooting, but he attributed his action to self defense. He said he had been a deputy sheriff and for that reason had a pistol with a hair trigger. For some time before the shooting he had been carrying the gun, in a holster, because of incidents around his house at Lake Village. He testified that during the argument he got up to leave, “and she grabbed the pair of scissors, she told me that I had threatened her for the last time. . . . And she kicked her shoes off, started around this table with the scissors. I met her on the corner and tried to take the scissors from her. When I reached for the scissors she just drew them back and just charged at me, and I just. . . . (Crying).” When the witness resumed his testimony he did not complete his statement. Later, on cross examination, he again failed to complete his thought, the record reading: “I don’t know if I pointed that gun or not, I just jerked the gun out and with it . . .”

The point is, Davies described the incident in detail, but he said nothing to establish the defense of mental disease or defect by attributing the shooting to possible drug addiction. The use of Lago’s book to negate that possibility was harmless error; so there is no basis for a new trial.

Affirmed.


author: Darrell Hickman, Justice.

text:
    Troy COLEMAN v. TEXACO, INC., et al.
    84-310
    688 S.W.2d 741
    Supreme Court of Arkansas
    Opinion delivered May 6, 1985
    [Rehearing denied June 10, 1985.]

      Barrett, Wheatley, Smith & Deacon, for appellant.

      Jack M. Short and Frierson, Walker, Snellgrove & Laser, by; G.D. Walker, for appellee.
   Darrell Hickman, Justice.

This is the second appeal of this case and concerns a procedural issue. Hurst v. Feild, 281 Ark. 106, 661 S.W.2d 393 (1983). In 1962 Vepale, Inc., built a service station in Jonesboro, Arkansas, and leased it to Texaco, the appellee. The lease provided, inter alia, that Texaco would be liable for repairs not exceeding $50.00. Vepale agreed to do all other repairs and to keep the premises in good repair during the term of the lease. At some point Vepale transferred its interest to Roscoe A. Feild, Jr., Palmer Miller, and the James B. Gilbert Trust. In 1970 Texaco subleased the station to Leon Hurst, who operated the station. In 1978 Troy Coleman, the appellant, subleased the station from Texaco. The lease between Coleman and Texaco provided that Coleman would maintain the premises in good repair and in a clean, safe and healthful condition. It further stated that the lease was subject to all the covenants and restrictions contained in the lease between Texaco and Vepale. Coleman, in turn, orally subleased the station to Leon Hurst.

On January 8, 1980, a portion of the stone facade of the station collapsed and injured Hurst’s neck and back. Hurst sued the property owners, Texaco, Lee Krigbaum, Texaco’s representative, and Troy Coleman. Troy Coleman cross-complained against all the other defendants for contribution and indemnification in the event judgment was rendered against him. All the defendants moved for summary judgment and the cross-defendants moved to dismiss the cross-complaint. The motion to dismiss was not acted upon, but the trial court did grant summary judgment in favor of all the defendants. Hurst appealed and we reversed only as to Troy Coleman. We held in Hurst v. Feild, supra, that no liability could be imposed upon any of the defendants, with the exception of Coleman, because Hurst was not a party to any of the leases. We did find that there was a genuine issue of material fact as to whether the oral sublease between Coleman and Hurst imposed a duty on Coleman to repair.

Coleman continued to pursue his cross-complaint against the other defendants. All the cross-defendants moved to dismiss. The court granted the motion on the basis that our decision in Hurst v. Feild, supra, had dismissed all defendants other than Coleman and that that was the law of the case. Coleman now appeals the decision only as to Texaco. We find the trial court’s ruling to be error and reverse.

The only issue before us in the former appeal was whether the trial court erred in granting summary judgment in favor of all defendants. No issue was raised or decided as to Coleman’s cross-complaint. Texaco concedes that the issue was not specifically discussed but argues that our disposition necessarily dismissed the cross-complaint.

Texaco is right as to Coleman’s claim for contribution. When we decided that the defendants, other than Coleman, could not be held directly liable to Hurst, we, in effect, held that they could not be liable for contribution as joint tortfeasors. There is no right to contribution from one who is not liable in tort to the injured person. See Welter v. Curry, 260 Ark. 287, 539 S.W.2d 264 (1976).

Our holding did not affect the claim for indemnity. If Troy Coleman can prove, as he contends, that Texaco was liable for the repair of the wall that injured Hurst, then Texaco might be liable for indemnification of part or all of any judgment rendered against him in favor of Hurst. “. . . [T]he doctrine of indemnity is based upon the equitable principles of restitution which permit one who is compelled to pay money, which in justice ought to be paid by another, to recover the sums so paid unless the payor is barred by the wrongful nature of his own conduct.” Larson Machine, Inc. v. Wallace, 268 Ark. 192, 600 S.W.2d 1 (1980). Such liability has been found as between lessors, lessees, and sublessees. See, e.g., Nicks v. Joseph, 82 App. Div. 2d 768, 440 N.Y.S.2d 218 (1981 )Prescott v. Le Conte, 83 App. Div. 482, 82 N.Y.W. 411 (1903), 178 N. Y. 585,70 N.E. 1108 (1904); Olson v. Schultz, 67 Minn. 494, 70 N. W. 779 (1897).

Since our holding in Hurst v. Feild, supra, did not dismiss Coleman’s cross-complaint, the case must be reversed.

Reversed and remanded.

       The case between Coleman and Hurst has not yet been tried.


text:
    Pamela Kay GATHRIGHT, Individually and as Parent and Next Friend of Chris NEWTON, and Minor v. LINCOLN INSURANCE COMPANY, as Liability Carrier for the Pulaski County Special School District, and Louise McCUMBER
    84-277
    688 S.W.2d 931
    Supreme Court of Arkansas
    Opinion delivered May 6, 1985
    [Rehearing denied June 10, 1985.]

      Gary Eubanks & Associates, by: Gary L. Eubanks and James Gerard Schulze, for appellant.

      Wright, Lindsey & Jennings, for appellee.
   Darrell Hickman, Justice.

Chris Newton, 8, was severely brain damaged when he hanged himself at school with a “bathroom pass” made and provided by this third grade teacher, Jack Taylor. The pass was made from quarter inch plywood, was approximately four inches wide and eight inches long, and had an 18 to 20 inch nylon cord attached. Students in Taylor’s class used the pass, often wearing it around their necks, to show they were authorized to be out of the classroom. According to Greg Peters, a third grade student and the only eye witness, Chris said he was going to hang himself and, after several attempts, finally lodged the pass in the restroom partition. Chris put his head and neck through the looped cord. Greg left because he said he thought Chris was only teasing and was standing on his toes. Two other students found Chris. The principal was ultimately called and Chris was hospitalized. Chris’ mother sued the teacher, the principal, the school district and Louise McCumber, a district employee in charge of planning, research, and safety. The teacher, Jack Taylor, and principal, Douglas Newkirk, consented to judgment in the amount of $400,000 and were dismissed from the suit. A summary judgment was entered for the district’s liability carrier, Lincoln Insurance Company, and Louise Mc-Cumber and that ruling is appealed.

The appellees moved for summary judgment on the basis that the cause of the accident was the intentional act of Chris, thus exonerating them from any liability. The trial judge agreed. The judge also ruled that the testimony of a safety expert was not needed to aid the jury in deciding if there was negligence. The appellant questions both rulings.

In the appellant’s argument it is contended that “the school district should have ordered the superintendent to establish a safety program. The superintendent of schools should establish a policy that there will be systematic hazard identification and hazard control. He should also hire a professional adequately trained in safety engineering. He should have made sure that the person in charge of school property recognized his or her responsibility to identify and recognize potentially catastrophic hazards.” The appellant argues that the failure to institute an adequate safety program was the cause of the injury. During his deposition the superintendent said that the school board has certain safety policies with regard to such things as playground apparatus, fire drills, and transportation. He stated that the local schools have their own authority to make rules concerning student control.

Louise McCumber, coordinator of research, planning and safety, visited the schools to observe and determine possible needs with regard to safety or health. She served as liaison between the administration and the superintendent and school board. Ms. McCumber has a high school education as well as training through the American Society of Safety Engineers and the National Safety Council. She is a member of both organizations and has taught courses in safety in elementary schools since 1963. She was hired by the school district in 1966.

The parties agree that the duty owed by the district is that of ordinary care. That has been defined as “adequate general supervision” not constant supervision. Woodsmall v. Mt. Diablo Unified School Dist., 188 Cal. App. 2d 262, 10 Cal. Rptr. 447 (1961)..“The duty of reasonable supervision does not require the appellee to provide personnel to supervise every portion of the school buildings and campus area.” Miller v. Yoshimoto, 56 Hawaii 333, 536 P.2d 1195 (1975). “. . . [S]chools are not intended to be insurers of the safety of their pupils. . . .” Miller v. Griesel, 261 Ind. 604, 308 N.E.2d 701 (1974). “Broadly speaking, what is reasonable and what is foreseeable are the criteria in supervising classes. The standard is again one of ‘ordinary prudence.’ ” Proehl, Tort Liability of Teachers, 12 Vand. L. Rev. 723 (1959). Nor does ordinary care require a safety program such as that suggested by the appellant. See Morris v. Ortiz, 103 Ariz. 119, 437 P.2d 652 (1968). A school is not a factory that might have rigid safety regulations. We have said “an attempt to shelter a growing child from every possible danger is manifestly futile.” Ising v. Ward, 231 Ark. 767, 332 S.W.2d 495 (1960). We decline to rule that the lack of a more detailed supervisory safety program than that used by the district was a breach of its duty. The question of what duty is owed is always one of law and never one for the jury. Keck v. American Employment Agency, 219 Ark. 294, 652 S.W.2d 2 (1983).

Before an act can be said to be the proximate cause of an injury, the injury must be the probable and natural consequence of that act. Cragar v. Jones, 280 Ark. 549, 660 S.W.2d 168(1983). There was no issue for the trier of fact because we find that reasonable minds could not differ as to whether the lack of comprehensive safety programs contemplated by the appellant or Ms. McCumber’s training was the proximate cause of Chris Newton’s injury. Keck v. American Employment Agency, supra.

The sub-issue presented, whether reasonable minds could differ that the issuance of that type of pass was negligence which was the proximate cause of the injury, must be rejected because the theory of vicarious liability is unavailable to the appellant for the following reason. After the consent judgment was entered, the insurance carrier specifically requested a ruling that, by virtue of the settlement, neither they nor the district could be held liable for any negligent act of the principal or teacher. The trial court granted the request and ruled “that upon settling such cause no liability of either Mr. Taylor or Mr. Newkirk could be imposed upon Lincoln Insurance Company.” This ruling was not appealed nor argued to be erroneous. In order to reverse we would have to find either that the ineffectiveness of the district’s safety program was a breach of the duty the district owed to its students which was the proximate cause of the injury or that the district was vicariously liable for the negligent act of its employees. Since we reject the first basis and since the second was rejected by the trial court and that decision was not appealed, we affirm.

We realize that our conclusions differ somewhat from the trial court’s in that we do not consider whether Chris’ acts were the efficient intervening cause of the injury. It is unnecessary to reach that point. Since we find that reasonable minds could not differ that the proximate cause of the accident was not the district’s safety program, no genuine issue of material fact was presented and summary judgment was proper. ARCP Rule 56. Our decision makes the issue as to admissibility of expert testimony moot.

Affirmed.


author: John I. Purtle, Justice.

text:
    Charles W. CORY, et ux. v. MARK TWAIN LIFE INSURANCE CORPORATION
    84-326
    688 S.W.2d 934
    Supreme Court of Arkansas
    Opinion delivered May 6, 1985
    [Rehearing denied June 10, 1985.]

      Friday, Eldredge & Clark, by: John Dewey Watson and Jerry V. Elliott, for appellant.

      Davidson, Horne & Hollingsworth, A Professional Association, by: Allan W. Horne and Patrick E. Hollingsworth, for appellee.
   John I. Purtle, Justice.

The trial court dismissed appellants’ complaint with prejudice pursuant to his interpretation of the mandate of this court on first appeal of this case. Mark Twain Life Ins. Corp. v. Cory, 283 Ark. 55, 670 S.W.2d 809 (1984). The trial court misinterpreted the mandate of this court.

The first sentence in our first opinion stated: “This appeal presents the question of what constitutes a previous filing of the same suit between the same parties in the face of a motion to dismiss the complaint pursuant to ARCP 12(b)(8).” The last mentioned rule provides for the dismissal of complaints because of the pendency of another action between the same parties arising out of the same transaction or occurrence.

This action was commenced on January 20,1980, when the appellants filed suit against the appellee, in the Pulaski County Circuit Court, to collect the proceeds of a life insurance policy. Appellants then took a voluntary nonsuit and refiled in the Saline County Circuit Court. Appellants then decided Pulaski County was the proper venue after all and refiled the case in Pulaski County. The case proceeded to trial over appellee’s objection and the jury rendered a verdict for the present appellants. We reversed and remanded with directions to proceed in accordance with the opinion.

In the first opinion we reviewed a number of cases relating to venue and jurisdiction. In response to the Corys’ argument that no action could be pending in Saline County because the venue was not proper, we noted that the action would have to be considered pending as it had not been dismissed. We also noted that if a defendant fails to object to improper venue the objection is waived, thus it was possible to try the case in Saline County even if the venue statutes were not satisfied.

While the order of the Pulaski County Circuit Court did not say why the action was being dismissed with prejudice, we presume it was because of the provisions of ARCP Rule 41(b). That rule provides:

Involuntary Dismissal. In any case in which there has been a failure of the plaintiff to comply with these rules or any order of court or in which there has been no action shown on the record for the past 12 months, the court shall cause notice to be mailed to the attorneys of record, and to any party not represented by an attorney, that the case will be dismissed for want of prosecution unless on a stated day application is made, upon a showing of good cause, to continue the case on the court’s docket. A dismissal under this subdivision is without prejudice to a future action by the plaintiff unless the action has been previously dismissed, whether voluntarily or involuntarily, in which event such dismissal operates as an adjudication on the merits.

If the dismissal was said to be prejudicial because of this rule, the decision was erroneous. There was no finding that the plaintiff had failed to prosecute, failed to comply with the rules or failed to comply with any order of the court. This section was intended to allow the trial courts to clean up their dockets and get stale cases off the active docket. Professional Adjustment Bureau, Inc. v. Strong, 275 Ark. 249, 629 S.W.2d 284 (1982).

Rule 41(a) also clearly does not apply as the dismissal in the Pulaski County Circuit Court was at the instance of the defendant, Mark Twain Insurance Corp.

When a case is dismissed because of pendency of another action, the pending action may be pursued. We are not suggesting that venue is properly laid in^Saline County. As far as we know, the trial court has not yet made that determination. Our decision here is simply that the dismissal of the Pulaski Circuit Court case is dismissed without prejudice to the action in Saline County.

The order of the Pulaski County Circuit Court is affirmed as modified by this opinion.


author: Robert H. Dudley, Justice.

text:
    Russell SIMS v. PRESCOTT FEED MILLS, INC.
    84-287
    688 S.W.2d 743
    Supreme Court of Arkansas
    Opinion delivered May 6, 1985

      Wilson, Walker & Short, P.A., by: Charles M. Walker, for appellant.

      Pedigo & Jontz, P.A., by: Jim Pedigo, for appellee.
   Robert H. Dudley, Justice.

The single issue in this case involves service of process. The defendant and his brother lived in the same dwelling. A deputy sheriff attempted to complete service of process by handing a copy of the summons and of the complaint to the defendant’s brother, not at their dwelling, but at the law offices of the plaintiff’s attorney. The trial court held that the purported substituted service of process was valid. We reverse. Jurisdiction to interpret the rules of civil procedure is in this Court. Rule 29(l)(c).

ARCP Rule 4(d)(1) provides, among other things, that one form of substituted service may be had by leaving a copy of the summons and of the complaint at the defendant’s “dwelling house or usual place of abode with some person residing therein who is at least fourteen years of age. . . .” Substituted service is a departure from the common law, and rules or statutes providing for it are mandatory and to be complied with exactly. Edmonson v. Farris, 263 Ark. 505, 565 S.W.2d 617 (1978). The undisputed proof shows the purported service was attempted at an attorney’s office and not at the defendant’s dwelling. The rule providing for substituted service was not complied with, and the service is void.

This construction of our substituted service rule is not arbitrary. All rules are framed and construed with a view to their general operation. Our rule was framed and is now construed as being the most certain mode of conveying actual notice to an absent defendant. Under our construction the general operation will be for the other resident to leave the suit papers at the dwelling for the defendant. The opposite would be true if service would be allowed at some other place. This case provides a good example, for here, the papers were left at the plaintiffs attorney’s office, and the defendant never saw them.

Reversed and remanded for entry of orders consistent with this opinion.


author: David Newbern, Justice. John I. Purtle, Justice,

text:
    Winnie MARCHANT v. STATE of Arkansas
    CR 85-68
    688 S.W.2d 744
    Supreme Court of Arkansas
    Opinion delivered May 6, 1985

      William R. Simpson, Jr., Public Defender, Deborah R. Sailings, Deputy Public Defender, by: Jerry J. Sailings, Deputy Public Defender, for appellant.

      Steve Clark, Att’y Gen., by: Alice Ann Burns, Deputy Att’y Gen.; for appellee.
   David Newbern, Justice.

The appellant was convicted in municipal court of violation of Ark. Stat. Ann. § 75-225 (Repl. 1979) which prohibits displaying on a vehicle “a number belonging to any other vehicle, or fictitious registration number.” In her de novo trial in the circuit court, her conviction was affirmed. As we must interpret the statute, our jurisdiction rests on Arkansas Supreme Court and Court of Appeals Rule 29. 1. c.

At the circuit court trial the appellant testified the license plate on her car when she was stopped by the police had been on another car. The plate was placed by a car dealer on the car in which she was stopped. She stated she had not had the record “changed over.” The license plate was issued in 1977, according to her testimony. The policeman who stopped the appellant on October 27, 1983, testified the license had expired in October, 1975. The appellant was driving a 1981 vehicle.

The circuit judge stated that because the license displayed by the defendant was outdated it was therefore fictitious and the defendant was thus guilty.

We agree with the appellant that the mere fact the license plate was not current was no evidence of its fictitiousness. However, the appellant’s own testimony places her squarely in violation of the statute, as she admitted the license plate was not issued for the car on which she had displayed it.

While the trial judge was in error in his reason for the conviction, the correct result was reached. The error of the trial court in referring to inapplicable statutory language and not to the applicable language was thus harmless. When the error is harmless, we affirm. Curtis v. State, 279 Ark. 64, 648 S.W.2d 487 (1983); Rice v. State, 216 Ark. 817, 228 S.W.2d 43 (1950).

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. The license plate on appellant’s vehicle had expired. It had been expired since 1977 according to appellant’s testimony. The officer said the license expired in 1975. In any event the license was expired and appellant knew it. Arkansas Stat. Ann. § 75-225 (Repl. 1979) makes it illegal to display on a vehicle “a number belonging to any other vehicle, or fictitious registration number . . .” It is a violation of another law to display a license tag which has expired. Arkansas Stat. Ann. § 75-226 (Supp. 1983).

The numbers displayed on the license plate did not belong to another vehicle nor was it proven that there was a fictitious registration number displayed. The number displayed was originally a legal one. It became illegal only when the appellant failed to properly transfer the tag and to renew and attach the decals. So far as the record is concerned all the license tag needed was a proper transfer and correct year decals.

I also take exception to the state continuing the incarceration of a person for failure to pay a fine unless it first be shown that such act is wilful. We had to overrule the trial court before the appellant could even have her case heard on appeal. Perhaps we did her no favor in the long run. After appellant complied with the registration, licensing and inspection laws she was still ordered to jail for not paying her fine. We accepted her appeal as a pauper. Therefore, we are now saying paupers may be jailed for failing to pay a fine.

As to the fictitious registration conviction I would reverse and dismiss.


author: David Newbern, Justice.

text:
    Vernon Dale TRAVIS v. STATE of Arkansas
    CR 84-218
    688 S.W.2d 935
    Supreme Court of Arkansas
    Opinion delivered May 6, 1985

      Faber D. Jenkins, for appellant.

      Steve Clark, Att’y Gen., by: Connie Griffin, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

The appellant, Travis, was convicted of first degree murder in 1974. On June 8, 1984, he filed with the circuit court a motion to be allowed to withdraw his guilty plea, alleging he was misled by his counsel into thinking he could receive the death penalty if he did not plead guilty. The charge of first degree murder did not carry with it the possibility of a sentence to death. He also alleged the court did not ascertain the voluntariness of his plea as is required by Boykin v. Alabama, 395 U.S. 238 (1979).

The circuit court refused to allow withdrawal of the guilty plea. In his order the judge mentioned that the motion was untimely, having been filed some nine and one half years after the conviction, and there was no showing of diligence by the movant. The order also recited that the motion accused the court of failure to follow procedural rules which were not in effect when the plea was entered. Lastly the order stated the motion did not support a finding that any manifest injustice had occurred in the case.

The appellant has appealed from denial of his motion to set aside his guilty plea. Our jurisdiction rests upon Criminal Procedure Rule 37 as this is the appeal of the denial of a petition for postconviction relief. On appeal, we affirm the trial court’s decision to deny a petition for postconviction relief unless the court’s findings are clearly against a preponderance of the evidence. Thomas v. State, 277 Ark. 74, 639 S.W.2d 353 (1982).

The motion to withdraw the plea of guilty was filed pursuant to Ark. R. Crim. P. 26.1. That rule permits withdrawal of a guilty plea upon a timely motion. If there is a showing of a manifest injustice, which the rules say may result from ineffective assistance of counsel, the motion is timely if it is made with “due diligence.” However, our cases have held clearly that a motion to withdraw a guilty plea pursuant to Rule 26.1 must, in any event, be made before sentencing. Rawls v. State, 264 Ark. 954, 581 S.W.2d 311 (1979); Shipman v. State, 261 Ark. 559, 550 S.W.2d 424 (1977).

The appellant’s motion could have been considered in the trial court pursuant to Rule 37, our rule permitting collateral attacks on convictions. Walker v. State, 283 Ark. 339, 676 S.W.2d 460 (1984). Rule 37.2 (c), however, states that an attack on a conviction pursuant to Rule 37 must be made within three years from the date of commitment, unless the ground for relief would, if proven, render the conviction “absolutely void.” The conviction was obviously not attacked within the three-year period. Nor could the trial court have found the conviction “absolutely void.”

A ground sufficient to void a conviction must be one so basic that the judgment is a complete nullity, such as a judgment obtained in a court without jurisdiction to try the accused or a judgment obtained in violation of the provisions against double jeopardy. See Rowe v. State, 275 Ark. 37, 627 S.W.2d 16 (1982). Issues not sufficient to void the conviction are waived even though they are of constitutional dimension. Hulsey v. State, 268 Ark. 312, 595 S.W.2d 934 (1980). The burden is on the petitioner to demonstrate that the judgment entered was a nullity. See Cronic v. State, — U.S -, 104 S. Ct. 2039 (1984). The presumption that a criminal judgment is final is at its strongest in collateral attacks on the judgment. Strickland v. Washington, — U.S. —, 104 S. Ct. 2052 (1984). Petitioner here has not overcome that presumption. Petitioner’s allegations which come to us more than nine years after his counseled plea of guilty was entered in open court do not establish that his conviction was in any way unreliable. Clearly, he has not established that the judgment in his case was absolutely void.

The trial, the direct appeal of the judgment and the safeguards afforded by our postconviction rule give the defendant ample opportunity to be heard. Our three year limitation for raising claims under Rule 37 protects the rights of the accused while respecting the legitimate interest of society in the finality of criminal judgments. At some point we are entitled to presume that the convicted defendant has exhausted his state remedies and stands fairly and finally convicted. See United States v. Frady, 456 U.S. 152 (1982). The need for stability of judgments in criminal cases requires that the petitioner raise whatever issues he may desire to raise within the reasonable time set by our procedural rules. As petitioner failed to raise the issues in his petition within the three-year period allowed for asserting such claims and advanced no ground sufficient to render his judgment of conviction absolutely void, he was not entitled to postconviction relief.

Affirmed.