author: Darrell Hickman, Justice. John I. Purtle, Justice,

text:
    Ernest Ray HICKERSON v. STATE of Arkansas
    CR 85-37
    693 S.W.2d 58
    Supreme Court of Arkansas
    Opinion delivered July 15, 1985

      Honey & Rodgers, by: Danny P. Rodgers, for appellant.

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

This is the second appeal in this case. Hickerson v. State, 282 Ark. 217, 667 S.W.2d 654 (1984). There we reversed Hickerson’s convictions for kidnapping and rape. We voided the burglary conviction because we found no substantial evidence to support the conviction. He had also been charged with the use of a firearm in the commission of each of these offenses. At his first trial, the jury found that Hickerson had not used a firearm. On remand the state elected to prosecute Hickerson in Howard County for kidnapping, with the rape charge to be brought in another county. Hickerson was convicted of kidnapping and sentenced to 20 years imprisonment and a $10,000 fine. His three arguments for reversal are meritless.

First, Hickerson argues it was error to permit this jury to hear evidence that he had used a gun because a previous jury found that he had not. The trial judge ruled that Hickerson could not again be tried for using a firearm, but the fact that he used a firearm would be admitted. The victim was allowed to testify that Hickerson had a gun. Another witness testified that Hickerson had a gun earlier that evening. The argument Hickerson made below was that the evidence should have been excluded because the issue was res judicata. On appeal he also suggests that the doctrine of the law of the case prevented mention of the gun. The argument must fail because res judicata only prevents the relitigation of issues that were litigated before or might have been litigated. Hastings v. Rose Courts, 237 Ark. 426, 373 S.W.2d 583 (1963). At the first trial, whether Hickerson used a firearm was indeed a litigated issue because he was charged with the separate offense of using a firearm; had he been found guilty of that charge, his sentence would have been enhanced. On retrial this issue was not submitted to the jury for their determination and, therefore, there was no violation of the doctrine of res judicata.

The doctrine of the law of the case prevents issues from being raised on a second appeal that were urged in the first appeal unless the evidence materially differs between the two appeals. Upton v. State, 257 Ark. 424, 516 S.W.2d 905 (1974); Mode v. State, 234 Ark. 46, 350 S.W.2d 675 (1961).

In the first appeal we ordered the burglary conviction dismissed because since the jury found Hickerson had not used a firearm we determined that there was no substantial evidence that Hickerson entered the McLaughlin home intending to commit a felony. We did not say that on retrial any evidence of Hickerson having a gun must be excluded. Therefore, the doctrine of the law of the case would not preclude us from affirming the trial court. As the trial judge found, to exclude such testimony would require the witnesses to color the facts as they perceived them. Whether Hickerson used a gun was not at issue on retrial, but the victim’s perception of the events was relevant. The evidence of the use of the gun was obviously relevant, although not essential, to the charge of kidnapping which contains the element of restraint without consent. Ark. Stat. Ann. § 41-1702 (Repl. 1977). So, the admissibility of testimony regarding the gun was not precluded by the doctrine of res judicata or law of the case on a retrial. Such evidence is often necessary to present a clear picture of the crime to the jury, McFarland v. State, 284 Ark. 533, 684 S.W.2d 233 (1985); Thomas v. State, 273 Ark. 50, 615 S.W.2d 361 (1981). This is not a case where the jury would have to believe that Hickerson had a gun in order to convict him. That fact, however, is an inseparable part of the crime as the witnesses perceived it. See United States v. Van Cleave, 599 F.2d 954 (10th Cir. 1979); State v. Varner, 329 S.W.2d 623 (Mo. 1959); see also Weinstein’s Evidence ¶ 404 (10) (1984).

Appellant argues for the first time that the identification evidence was inadmissible. This issue is one that could have been raised in the first appeal. Therefore, the appellant is precluded from raising it now. Turner v. State, 258 Ark. 425, 527 S.W.2d 580 (1975); Gibson v. Gibson, 266 Ark. 622, 589 S.W.2d 1 (1979).

The final argument is that Hickerson could not receive a greater sentence at this trial than he had at the first trial. At his first trial, the jury was incorrectly instructed that the penalty range was 4 to 10 years for kidnapping without the use of a firearm. Hickerson was sentenced there to 10 years imprisonment for kidnapping without the use of a firearm. On remand the jury was correctly instructed that the penalty range was from 5 to 20 years imprisonment if the victim was voluntarily released in a safe place, 10 to 40 years imprisonment, or life, if not so released. The appellant argues that the doctrine of the law of the case requires that the instructions should be the same on remand. We have held that the law of the case does not preclude the correction of error. Washington v. State, 278 Ark. 5, 654 S.W.2d 255 (1982).

We recently decided that a successful appellant could receive a greater sentence on remand. Smith v. State, 286 Ark. 247, 691 S.W.2d 154 (1985). A jury determined Hickerson’s sentence at both trials. There was no chance of vindictiveness by the trial judge which is the evil from which the appellant must be protected. Since the jury rendered the sentence at both trials, and the second jury was not aware of the sentence imposed by the first jury, there was no error.

Affirmed.

George Rose Smith, J., not participating.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. The majority opinion acknowledges that the appellant contends that either res judicata or the law of the case prevented the introduction of evidence relating to appellant having a gun because the jury at the first trial found he did not have a gun. The opinion then states: “The argument must fail because res judicata only prevents the relitigation of issues that were litigated before or might have been litigated.” That is a perfectly good statement of the law. Not only could the issue of the appellant having had a gun at the time of the alleged crime have been tried — it was tried and the jury determined that he did not have a gun at the time he committed the crimes. A statement that “no principle of law is more firmly settled than the rule that matters decided upon one appeal become the law of the case and govern even this court upon a second appeal” was made in Gibson v. Gibson, 266 Ark. 622, 589 S.W.2d 1 (1979). “The impact of the law of the case is as great on questions of admissibility of evidence ... as on any other question.” Upton v.State, 257 Ark. 424, 516 S.W.2d 904(1974). See also Fuller v. State, 246 Ark. 704, 439 S.W.2d 801 (1969). “The judgment of the first appeal became the law of the case and was conclusive not only of every question of law or fact actually decided, but also of questions which might have been, but were not, decided.” Jones v. Seward, 274 Ark. 339, 625 S.W.2d 443 (1981). There is no need to cite more authority for the proposition that the issue of a gun was settled with the first case. There was no gun to be considered by the second jury.

It may have been necessary to allow the victim to mention the fact that she thought she saw a gun in order to properly tell her story. However, by no stretch of the imagination can it be said that the events testified to by the independent witness, Darrell Wayne Pryor, were a part of the res gestae. When the witness was on the stand the state asked this question: “Let me ask you this. Did Ernest Ray have a gun that evening?” The appellant’s objection to the question was overruled. The witness’s only function appears to have been to establish that appellant possessed a pistol before the crime for which he has been convicted occurred.

If we are to follow the law of the case or res judicata we are bound to reverse this case because of the flagrant violation of these two well established doctrines.

The matter of a firearm having been disposed of in the first trial, it was not relevant to the issues before the trial court. The only purpose of such evidence was to inflame the jury.

I will address the double jeopardy issue now. I am aware that both this court and the United States Supreme Court have whacked away at North Carolina v. Pearce, 395 U.S. 711 (1969). We followed Pearce in Marshall v. State, 265 Ark. 302, 578 S.W.2d 32 (1979) and quoted from the opinion. “[W]e have concluded that whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear.” That statement does not mention a jury. It makes no difference whether a judge or a jury finds a defendant guilty; it is the judge who imposes the sentence. The Arkansas Court of Appeals followed Marshall in Cockerel v. State, 266 Ark. 908, 587 S.W.2d 596 (1979).

Not only does the prevention of imposition of a greater sentence protect the accused from the vindictiveness of a judge, clearly Pearce and Marshall were written to protect him from a greater sentence on the,same facts. It appears that the facts of this case were essentially the same in both trials. In fact there was probably less evidence of appellant’s conduct in the second trial than the first. There was absolutely no evidence of vindictiveness in Marshall or Cockerel. Those decisions held that in the absence of aggravating circumstances or further proof of evil on the part of the defendant the second sentence could not be greater than the first. In any event, the reasons for a greater sentence should be set out in the record.

I would reverse and remand.


source: Caselaw Access Project

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

license: Public Domain

text:
    Alexander JARMON v. Velma BROWN
    85-143
    692 S.W.2d 618
    Supreme Court of Arkansas
    Opinion delivered July 15, 1985

      Drew & Mazzanti, by: Jerry E. Mazzanti, for appellant.

      James W. Haddock, for appellee.
   John I. Purtle, Justice.

The Court of Appeals certified this case to us pursuant to Rule 29 (4) (b) of the Rules of the Supreme Court, as an issue of significant public interest is presented. The issue presented concerns the jurisdiction of county courts and chancery courts in bastardy cases. We hold that the county court has exclusive original jurisdiction in such cases. We reverse because the chancery court did not have jurisdiction to issue the order appealed from herein;

The appellant is the father of a child born out of wedlock on September 20, 1974. The natural mother died in 1981, and her relatives have maintained custody of the child. Appellant commenced an action in the Chicot Chancery Court, seeking custody of his child, which was contested by the maternal relatives. Subsequently appellant commenced proceedings in the county court which culminated in the county court issuing an order determining appellant to be the father of the child and that he was a fit and proper person to have custody of his child. Custody was granted to the father. On the same day appellee obtained an ex parte order from the chancellor enjoining any party from removing the child from the county pending a full hearing in the chancery court. The case was tried on September 10, 1984, and Velma Brown was granted custody nine months of each year and the father three months. The appeal is from this order.

The question before us is whether the county court had exclusive jurisdiction in this case and we hold that it did.

Article 7, § 28 of the Constitution of Arkansas states: “The county courts shall have exclusive original jurisdiction in all matters relating to county taxes, roads, bridges, ferries, paupers, bastardy. ...” The General Assembly dealt with this issue in 1981 by passing Act 665 which is codified in Title 34, Chapter 7 (bastardy) at Ark. Stat. Ann. § 34-718 (Supp. 1983) which reads as follows:

(a) A father, provided he has established paternity in a court of competent jurisdiction, or, a mother of an illegitimate child, may petition the countycourt wherein the child resides for custody of the child.
(b) The court may award custody to the petitioner upon a showing that:
(1) The petitioner is a fit parent to raise the child; and
(2) The petitioner has assumed his or her responsibilities toward the child by providing care, supervision, protection and financial support for the child; and
(3) It is in the best interest of the child to award custody to the petitioner.

The county court order tracked the above statute exactly.

We have previously decided an issue almost directly in point. In Rapp v. Kizer, 260 Ark. 656, 543 S.W.2d 458 (1976) we held that chancery courts did not have jurisdiction to set visitation rights and support payments for an illegitimate child. We clearly stated such matters were to be adjudicated in the county courts even though paternity be admitted.

We recently considered this same jurisdictional problem in the case of Stain v. Stain, 286 Ark. 140, 689 S.W.2d 566 (1985) and restated our holding in Rapp. In Stain we held that in divorce cases paternity of an illegitimate child, born to the parties to the divorce out of wedlock, was a matter for the county court and chancery did not have jurisdiction.

The custody order by the chancellor court was without jurisdiction and is void.

Reversed and dismissed.

George Rose Smith and Dudley, JJ., not participating.

Hays and Newbern, JJ., concur.

David Newbern, Justice,

concurring. There is no way we can avoid the controlling precedent of Rapp v. Kizer, 260 Ark. 656, 543 S.W.2d 458 (1976), thus I concur in the opinion of the majority.

Rapp v. Kizer could have been decided on a much more limited, and to me preferable, basis. The granting to the county court of exclusive jurisdiction in matters relating to bastardy, Ark. Const. Art. 7, § 28, did not require custody disputes over so-called “illegitimate” children to be decided in county courts. In my opinion that case should have held that bastardy related matters are those having to do with contested paternity suits.

But Rapp v. Kizer is now history and, more importantly, precedent. Perhaps that is fortunate, as it provides a marvellous example of the horrendous problem of concurrent and conflicting jurisdiction with respect to cases pertaining to juveniles existing in our juvenile, county, and chancery courts. It points up clearly and emphatically our need for a family court responsible for all aspects of the law as it relates to juveniles. Our constitution is badly outmoded in this aspect, as it is in some other areas which significantly affect the administration of justice. It is my hope that Arkansas will soon find a way to enact at least a new judicial article to its constitution. Restructuring the courts administering the law on juveniles will surely be an important part of that effort.

Hays, J., joins.


author: Steele Hays, Justice.

text:
    Douglas Allen MILLER v. ENSCO, INC.
    85-39
    692 S.W.2d 615
    Supreme Court of Arkansas
    Opinion delivered July 15, 1985

      Crumpler, O'Conner & Wynne, for appellant.

      Compton, Prewett, Thomas & Hickey, P.A., for appellee.
   Steele Hays, Justice.

Appellant, Douglas Miller, was employed in the material handling division of appellee Ensco’s hazardous waste disposal facility during 1983. Appellant filed a complaint against appellee alleging injuries resulting from working conditions at the facility. He alleged deliberate acts of commission or omission by the employer, claiming an actual, specific and deliberate intent to injure him because of appellee’s failure to provide a safe place to work and protection from direct exposure to polychlorinated biphenyls (PCB’s). Appellant alleged a failure to provide information and equipment to protect against PCB’s, as well as violations of safety regulations and a collective bargaining agreement. Appellee moved to dismiss under ARCP 12(b)(6) for failure to state a claim upon which relief could be granted because the action in tort was barred by the exclusivity of the Arkansas Workers’ Compensation Act. The motion was granted and the complaint was dismissed with prejudice.

On appeal appellant argues his injuries were the result of an intentional tort and, therefore, are excluded from the Workers’ Compensation Act.

Ark. Stat. Ann. § 81-1304 (Repl. 1976) makes rights and remedies under the Workers’ Compensation Act, Ark. Stat. Ann, § 81-1301 et seq., exclusive of all other remedies of the employee for injury or death arising out of and in the course of employment. We have held, however, that this section does not apply to an injury to an employee caused by a deliberate assault by the employer. See Heskett v. Fisher Laundry and Cleaners, Inc., 217 Ark. 350, 230 S.W.2d 23 (1950). Appellant asks us in effect to hold that the facts of the appellee constitute the type of activity found in Heskett, which would fall outside the exclusivity provision.

We think this case is controlled by Griffin v. George’s Inc., 267 Ark. 91, 589 S.W.2d 24 (1979), where the same argument was made. The employer was engaged in the feed and grain industry and the appellant employee was seriously injured by a grain auger. The auger was unguarded and was operated in such a manner as to constitute an extreme hazard to persons working near it. This condition could have been easily corrected, but was permitted to exist in direct violation of federal and state statutes and regulations. Although the employer was aware of the hazard and recognized the likelihood of injuries to its employees it willfully and wantonly disregarded the danger and gave appellant a dangerous work assignment which placed him in direct exposure to the auger. Griffin was ordered to perform his duties without instructions regarding the dangerous condition.

Griffin contended his complaint alleged an intentional tort and that he was not precluded from bringing a common law tort action against his employer. The trial court dismissed the complaint and we affirmed. We observed that intentional torts involve consequences which the actor believes are substantially certain to follow his actions. Prosser, Tort, (4th ed.) § 8. We distinguished Griffin v. George’s Inc., supra, where the conduct was merely gross negligence, or at most willful and wanton misconduct, from Heskett v. Fisher Laundry and Cleaners, Inc., supra, where the conduct was a deliberate and intentional assault by the employer, and not an accident so as to come within the provisions of the act. Our decision in Heskett was based on the premise that an employer severs the employer-employee relationship by committing an assault upon the employee, which frees the employee to bring a common law action for damages. We concluded that the complaint must be based upon allegations of an intentional or deliberate act by the employer with a desire to bring about the consequences of the act. Finch v. Swingley, 42 A.D.2d 1035, 348 N.Y.S.2d 266 (1973).

The complaint in the present case consists of allegations very similar to those in Griffin, i.e. the employer deliberately failed to provide a safe work place and deliberately failed to warn appellant of all the attendant dangers of the work place. Those allegations, and all reasonable inference to be drawn from them, do not assert an intentional tort that would allow an action outside the workers’ compensation act. Based on the holding in Griffin, we believe the complaint does not allege facts that show the employer committed acts with an “actual, specific and deliberate intent . . .to injure the employee,” in the nature of an intentional act by an employer who assaults his employee as in Heskett. There were no facts alleged to show the appellee had a “desire” to bring about the consequences of the acts or that the acts were premeditated with the specific intent to injure the appellant.

In Griffin we quoted from Larson’s Workmen’s Compensation Law, Vol. 2A, p. 13-18, § 68.13, which is equally applicable here:

Even if the alleged conduct goes beyond aggravated negligence and includes such elements as knowingly permitting a hazardous work condition to exist, knowingly ordering claimant to perform an extremely dangerous job, willfully failing to furnish a safe place to work, or even willfully and unlawfully violating a safety statute, this still falls short of the kind of actual intention to injury that robs the injury of accidental character.

Although appellant has framed his complaint in terms of an “actual, specific, and deliberate intent,” that is not controlling. Rather it is the nature of the acts complained of that determines the cause of action. Here, the appellee’s failure to warn of dangers or failure to provide safe conditions, deliberately placing defendant in a dangerous position and willfully violating governmental regulations, does not bring the cause of action within the ambit of an intentional tort. That type of activity by an employer, even where flagrant, does not constitute an intentional tort for purposes of the exclusivity provision of the workers’ compensation act. Griffin, supra.

In Section 5 of appellant’s complaint, fraud is alleged. Here, too, we must look at the conduct complained of and not necessarily at the language the pleader uses to describe it. The complaint reads:

That in addition to the above allegations defendant fraudulently concealed from the plaintiff the nature and extent to which he was being exposed to PCB’s and other hazardous waste so that plaintiff would continue working for defendant.

But taking the allegation of fraud as true, it is not enough to remove it from the rule in Griffin. Failure to warn the employee of dangerous conditions, or even concealing those conditions, does not create an intent to specifically injure the employee or a desire to bring about the consequences of the act.

Appellant proposes that we adopt the dual injury doctrine of Johns-Mansville Product Corp. v. Contra Costa Superior Court, 612 P.2d 948 (Cal. S.Ct. 1980) and Blankenship v. Cincinnati Milacron Chemicals, Inc., 433 N.E.2d 572 (Ohio S.Ct. 1982). In the Johns-Manville case, a divided court upheld the trial court’s refusal to grant the employer’s motion for judgment on the pleadings in an action by an asbestos worker alleging the employer had fraudulently concealed from him and from doctors retained by the employer that he was suffering from a disease caused by asbestos, thereby preventing him from receiving treatment, and inducing him to continue working under hazardous conditions. The employer had known since 1924 that exposure to asbestos was hazardous, and the employee had worked at one of its asbestos plants for twenty-nine years beginning in 1946. He died while his suit was pending. The reasoning of the decision is that once a basic compensable injury or disease has occurred, if the employer fraudulently deceives the employee as to the existence of this condition, a separate action in deceit may lie, unaffected by the exclusive remedy provision of workers’ compensation.

We decline to apply that principle here. There is no assertion that appellant’s illness or disease was concealed from him so that a “second injury” can be theorized. He does allege a physician employed by the appellee was directed not to give blood tests to determine the level of PCB’s. While we do not discount the seriousness of that allegation, we do not consider it to be the equivalent of the egregious conduct charged to the employer in the Johns-Manville case.

The Blankenship case, mentioned above, need not be discussed. It is described by Professor Larson as “markedly out of line,” Larson, The Law of Workmen’s Compensation, Vol. 2A, § 68.32(a), Chap. XIII, Note 43.9, at p. 13-46.

To apply the dual injury concept to the facts alleged in this case would appreciably blur, if not seriously undermine, the distinction between common law liability generally and the exclusive remedy provision of workers’ compensation. Any significant alteration of that distinction should not be lightly undertaken by the judicial branch. For cases consonant with this decision, see Simmons First National Bank v. Thompson, 285 Ark. 275, 286 S.W.2d 415 (1985), Sontag v. Orbit Valve Co., Inc., 283 Ark. 191, 672 S.W.2d 50 (1984); Plifer v. Union Carbide Corp., 492 F. Supp. 483 (E.D. Ark. 1980); Van v. Dow Chemical Company, 561 F. Supp. 141 (W.D. Ark. 1983).

Affirmed.

Smith, George Rose, J., and Dudley, Robert, J., not participating.


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

text:
    Joseph E. GOODE v. Faye GOODE
    85-29
    692 S.W.2d 757
    Supreme Court of Arkansas
    Opinion delivered July 15, 1985

      Saxton & Ayres, for appellant.

      Jake Brick, for appellee.
   David Newbern, Justice.

In this divorce case the central issue is whether a workers’ compensation claim resulting from an injury which occurred during marriage, but which was not adjudicated or paid at the time the divorce was rendered, was subject to division as marital property pursuant to Ark. Stat. Ann. § 34-1214 (Supp. 1983). As this is a statutory interpretation question, our jurisdiction arises from Arkansas Supreme Court and Court of Appeals Rule 29. 1. c.

The parties were married in 1968. The appellant suffered a work-related injury in OctQber, 1982, and he filed a Tennessee workers’ compensation claim in May, 1983. The workers’ compensation hearing was set for July 5, 1984, but it remained unadjudicated when the divorce decree was rendered after a hearing which occurred on August 6, 1,984.

The chancellor took under advisement the question whether the pending claim was marital property. After receiving briefs from the parties he ruled and ordered on October 17, 1984, that the claim was marital property to be divided equally between the parties pursuant to § 34-1214.

In his order the chancellor recited his finding that the appellant had refused a $10,000 offer to settle his claim. He ordered that upon receipt of a settlement or other payment of the claim the appellant would pay one half of it to the appellee.

Section 34-1214(B) provides that all property acquired by either spouse subsequent to the marriage is marital property. Prior to our decision in Day v. Day, 281 Ark. 261, 663 S.W.2d 719 (1984), our decisions were that unless an asset were “fully distributive” during the marriage it did not qualify as marital property. In Dayv. Day, however, we recognized that our prior holdings were incorrect because they failed to note the statute’s requirement that all property acquired subsequent to the marriage is marital property. Our position, announced in Day v. Day, was that a retirement pension which was vested but not to be paid out as an annuity until an indefinite future date was more than a mere expectancy. We noted and followed this language from Re Marriage of Brown, 15 Cal. Rpt. 633, 544 P.2d 561 (1976):“. . . the defining characteristic of an expectancy is that its holder has no enforceable right to his beneficence.”

It is clear in this case that an enforceable right to workers’ compensation benefits accrued to the appellant subsequent to the marriage and prior to its termination.

The cases cited by the appellant as ones having dealt with division of workers’ compensation benefits upon divorce are, without exception, from community property jurisdictions. The rationale used generally in such jurisdictions is that an award compensating an injured worker for lost earning capacity during the marriage is property of the marital community, but that to the extent it is for lost earning capacity after divorce, it is the separate property of the injured spouse. See Bugh v. Bugh, 125 Ariz. 190, 608 P.2d 329 (1980); Hicks v. Hicks, 546 S.W.2d 71 (Tex. Civ. App. 1976).

Arkansas, by contrast, is one of the common law property jurisdictions which have adopted an equitable distribution scheme for property upon divorce. A survey of the law on whether workers’ compensation benefits constitute marital property was conducted in Note, 10 N.Ky.L.Rev. 531 (1983). The note’s author concluded that:

In the few common law property states which have squarely met this issue, there is unanimous agreement that the pending claim is subject to equitable division as marital property. No allowance is made for any portion which may represent post-dissolution earnings. [Footnote omitted.]

The cases cited for that statement are: Smith v. Smith, 113 Mich. App. 148, 317 N.W.2d 324 (1982); In re Marriage of Dettore, 86 Ill. App. 3d 540, 408 N.E.2d 429 (1980); and Hughes v. Hughes, 132 N.J. Super. 559, 334 A.2d 379 (1975). To those cases can be added: Johnson v. Johnson, 638 S.W.2d 703 (Ky. 1982), and Quiggins v. Quiggins, 637 S.W.2d 666 (Ky. App. 1982).

The appellant also cites Lowery v. Lowery, 260 Ark. 128, 538 S.W.2d 36 (1976), in which we held that an unliquidated personal injury claim was not personal property for the purpose of property division under the former § 34-1214. That decision relied on cases holding such a claim was not-considered personal property in bankruptcy proceedings. As that case was decided well before our statute was changed to emphasize that all property acquired subsequent to marriage is marital property, we need no longer follow it.

As in Day v. Day, supra, our ruling that the chancellor was correct in this case would hardly mean that in every case workers’ compensation awards accrued during marriage would have to be divided equally. To the contrary, they may be divided as the chancellor sees fit upon application of the criteria stated in § 34-1214(A)(1). Some of them are: age, health,, occupation, amount and sources of income, and vocational skills. Obviously the chancellor will be able to consider the effect of the injury which gave rise to the claim upon the needs of the injured worker.

The Dettore case, supra, contains the following language which may have furnished the chancellor’s reason for emphasizing the unaccepted settlement offer in this case:

We cannot condone a result which invites workmen’s compensation claimants to protract the arbitration for their award so as to shield that award from equitable division by the dissolution court. We must hold that if a claim for a compensation award accrues during the marriage, the award is marital property regardless of when received.

It might be argued that pension cases such as Day v. Day, supra, Gentry v. Gentry, 282 Ark. 413, 668 S.W.2d 947 (1984), and Morrisonv. Morrison, Case No. 85-35, July 1, 1985, are distinguishable from the case before us because contributions were made by at least one spouse during the marriage to assure the future pension payments which were held to be marital property in those cases. That argument, however, ignores § 34-1214 which makes no general distinction as to the manner in which any item of property is acquired. The statute does make some specific exceptions to its requirement that all property acquired subsequent to marriage be considered marital property, and some exceptions, e.g., property acquired by gift, bequest, devise or descent, are based on the property’s origin immediately before it comes to a spouse. Workers’ compensation claims are not so excepted. See § 34-1214(B)(1).

We cannot distinguish from the workers’ compensation claim involved here the disability pension involved in Morrison v. Morrison, supra. Nor can we distinguish Morrison v. Morrison from the longevity pension in Day v. Day, supra. To make such distinctions would not only be contrary to the authorities which have decided this question, but it would be a too restrictive interpretation of the term “all property.”

Affirmed.

Chief Justice Holt and Justices Hickman and Purtle dissent.

John I. Purtle, Justice,

dissenting. The chancellor treated appellant’s unliquidated workers’ compensation claim for permanent partial disability benefits as marital property and divided the unliquidated claim pursuant to Ark. Stat. Ann. § 34-1214 (Supp. 1983). Appellant argues that the claim was not marital property, and I agree with him.

The chancellor held that Act 705 of 1979 created a new concept of marital property and that appellant’s pending workers’ compensation claim constituted marital property within the meaning of the Act. In making the award the chancellor noted that no distinction had been made regarding which portions of the pending claim were related to future medical, lost earnings, both past and future, and permanent disability. Since no distinction was made in the claim for permanent disability benefits the court held the entire claim would be treated as marital property. The only question presented to this court is whether an unliquidated claim by an injured employee for permanent partial disability benefits is marital property when a divorce is granted prior to receipt of the benefits claimed. There is no appellate decision in Arkansas on this exact issue and we must therefore construe the statute as it relates to this issue.

Act 705 is an attempt to clarify the meaning of marital property and in pertinent parts states:

(b) For the purpose of this statute “marital property” means all property acquired by either spouse subsequent to the marriage except:
(1) Property acquired by gift, [etc.] . . . ;
(2) Property acquired in exchange . . . ;
(3) Property acquired by a spouse after a decree of divorce from bed and board;
(4) Property excluded by valid agreement . . .
(5) The increase in value of property acquired prior to the marriage.

All property acquired during the marriage, except as above stated, is marital property. An unliquidated claim for damages is not one of the exceptions. The majority is now adding “or to be acquired” to the word acquired. In Potter v. Potter, 280 Ark. 38, 655 S.W.2d 382 (1983), we held that in order for property to be treated as marital property it must have been acquired during the marriage. In the case of Day v. Day, 281 Ark. 261, 663 S.W.2d 719 (1984), we restated our position on marital property. In doing so we reviewed all our cases since the passage of Act 705. We treated such matters as pensions, annuities, IRAs and contingent funds which had no loan value and could not be transferred. In Day we did award the wife a half interest in her husband’s pension plan although he could not hypothecate it at the time nor was he eligible to commence drawing benefits. The fund had a value of $95,425.03 at the time of the divorce and had accumulated during the 29 year marriage through monthly contributions from the husband’s salary and equal contributions from the employer. We specifically noted that any contributions to the plan made by Dr. Day after the divorce would not be treated as marital property.

Appellant cites Lowrey v. Lowrey, 260 Ark. 128, 538 S.W.2d 36 (1976), as supportive of his argument. The court in Lowrey stated: “Consequently, we conclude that such a personal injury claim does not constitute personal property within the meaning of Ark. Stat. Ann. § 34-1214.” The appellee contends that the reasoning in Lowrey is no longer followed and cites Day as authority. I do not think either Lowrey or Day are controlling but I do consider the reasoning in both.

Act 705 did not create any new type of property. It merely provided for a pattern of distribution of property upon the dissolution of a marriage. Workers’ compensation and personal injury claims were not specifically mentioned in the Act. The Texas Court of Civil Appeals has held that a claim for future workers’ compensation benefits is not community property because the Texas Workmens’ Compensation Act prohibits assignment. Hicks v. Hicks, 546 S.W.2d 71 (1976). A provision of the Arkansas Workers’ Compensation Act, Ark. Stat. Ann. § 81-1321 (Repl. 1976), provides that such benefits are not assignable and are not subject to garnishment, levy, attachment, execution or other legal process.

Authorities are divided upon the issue of payment of future workers’ compensation benefits to the ex-spouse. The Arizona Court of Appeals, in Bugh v. Bugh, 125 Ariz. 190, 608 P.2d 329 (1980), stated their rule as follows:

We hold that workmen’s compensation benefits paid to the injured worker after the dissolution of the worker’s marriage for injuries received during the marriage are the separate property of the worker after the dissolution.

It is fair to state that the majority rule is that workers’ compensation benefits are divisible property if received during the marriage. 10 N. Ky. L. Rev. 531 at 544. The benefits here certainly were not received during the marriage.

The appellant’s outstanding claim is for permanent partial disability, which means he has a diminished earning capacity in the future. When such claim is awarded it is due and payable weekly unless the claimant and the carrier jointly petition the claim in which event it is paid in a lump sum. In either event the amount received by the injured worker represents payment for future losses. The appellant received temporary total disability prior to the divorce and that money, representing a percentage of lost wages, was evidently used in the same manner as were his regular wages. The claim benefits received during the marriage are not in issue here.

A good example of the unfair prejudice the majority creates by the opinion would be when a couple marry and the next week one of them is injured in an accident covered by Workers’ Compensation and is disabled for life. The other spouse then decides to get a divorce and is awarded half the funds to be received by the injured party. The uninjured ex-spouse then remarries a person who is financially sound and earns a good salary. The ex-spouse is also employed at a salary far greater than the benefits being received by the injured party. The only way to prevent this type situation from occurring is to hold that such funds are simply income to the injured party.

I would reverse.

Holt, C.J., and Hickman, J., join in this dissent.


text:
    O.H. MULLENAX v. Don LANGSTON, Circuit Judge on Assignment to Faulkner County
    CR 85-114
    692 S.W.2d 755
    Supreme Court of Arkansas
    Opinion delivered July 15, 1985

      Mullís, Davis & Chadick, by: Bart Mullís, for petitioner.

      Chris Piazza, Prosecuting Attorney of Pulaski County, by: Leslie M. Powell, Deputy Prosecuting Att’y, for respondent.
   David Newbern, Justice.

On July 5,1985, in case number CR 8 5-104, we denied the petition for a writ of prohibition filed by Marvin Iberg who is a codefendant with the petitioner in this case. The petition before us now raises precisely the same issue as was before us in Iberg v. Langston, and we deny the writ for the reasons given in our opinion in that case.

The petitioner has given us two citations with which we did not deal in Iberg v. Langston. First, he cites us to the commentary accompanying Ark. Stat. Ann. § 41-104 (Repl. 1977) which is the basic statute of limitations section in the current criminal code. The commentary says it appears that before the adoption of the current code first degree murder was subject to a three-year statute of limitation. As we explained in Iberg v. Langston, that was true during the time the Arkansas death penalty provisions suffered from the constitutional infirmity recognized in Furman v. Georgia, 408 U. S. 238 (1972). But, as we also explained there, that temporary infirmity does not prevent application of the statute of limitations which applied in 1960 which is when the offense charged against this petitioner was committed.

The other citation is to Graham v. State, 253 Ark. 462, 486 S.W.2d 678 (1972), which the petitioner says “abolished” the death penalty for first degree murder. We do not agree with any such characterization of Graham v. State. That case was no more than a recognition of the constitutional impediment to application of the death penalty presented by Furman v. Georgia, supra.

The only additional argument made by the petitioner which is not addressed in Iberg v. Langston, is that Act 438 of 1973 repealed Ark. Stat. Ann. § 41-1601 (Repl. 1964) which was the statute of limitations applicable to offenses punishable by death. We agree it was repealed, but it was the law applicable in 1960, the date with which we are concerned.

Writ denied.

Purtle, J., dissents.

Smith and Dudley, JJ., not participating.

John I. Purtle, Justice,

dissenting. I disagree with the majority opinion for the reasons I set out in my dissent in Iberg v. Langston, 286 Ark. 390, 691 S.W.2d 870 (1985). Also, I wish to add to that dissent by quoting from the opinion of this court in Graham v. State, 253 Ark. 462, 486 S.W.2d 678 (1972) where we stated: “So long as the ruling in Furman v. Georgia, supra, is made applicable to this State, we are obliged to reduce appellant’s sentence from death to life imprisonment. . . .” Having recognized that this state had no valid death sentence in 1972, and that the highest penalty was life in prison, we are bound to apply the statute of limitations for first degree murder as stated in Ark. Stat. Ann. § 41-1602 (Repl. 1964).

I do not understand by what rationale the majority recognizes we did not have a death penalty in 1972, but implies that the 1976 Criminal Code establishing capital murder relates back to the time when there was no such law. That is ex post facto and completely unacceptable to me.

I would grant the writ.


author: Per Curiam.

text:
    Richard COZZAGLIO v. STATE of Arkansas
    692 S.W.2d 251
    Supreme Court of Arkansas
    Opinion delivered July 15, 1985

      Darrell E. Baker, Jr., Deputy Public Defender, for appellant.
    No response.
   Per Curiam.

Appellant, Richard Cozzaglio, by his attorney, has filed for a rule on the clerk.

His attorney, Darrell E. Baker, Jr., admits that the record was tendered late due to a mistake on his part.

We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our per curiam opinion dated February 5, 1979, In Re: Belated Appeals in Criminal Cases, 265 Ark. 964.

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

Smith and Dudley, JJ., not participating.


text:
    James JOHNSON v. STATE of Arkansas
    692 S.W.2d 250
    Supreme Court of Arkansas
    Opinion delivered July 15, 1985

      Joel W. Price, for appellant.

      Sieve Clark, Att’y Gen., by: Clint Miller, Asst. Att’y Gen., for appellee.
   Per Curiam.

Appellant, James Johnson, by his attorney, has filed for a rule on the clerk.

His attorney, Joel W. Price, admits that the record was tendered late due to a mistake on his part.

We find that such an error, admittedly made by the attorney for a criminal defendant, is, good cause to grant the motion. See our Per Curiam opinion dated February 5,1979, In Re: Belated Appeals in Criminal Cases, 265 Ark. 964.

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


author: George Rose Smith, Justice.

text:
    Buck WURST v. Ollie Fred LOWERY et al.
    85-67
    695 S.W.2d 378
    Supreme Court of Arkansas
    Opinion delivered September 9, 1985

      Robert E. Irvin, for appellant.

      James R. Pate, for appellees.
   George Rose Smith, Justice.

This belated challenge to a wet-dry election held on November 4, 1980, is rejected on two grounds: (1) It is too late; (2) it has no merit. Our jurisdiction is under Rule 29 (1) (g).

Local option petitions asking for an election in three townships in Logan County were certified to the county board of election commissioners in 1979. In October, 1980, two plaintiffs filed this action to enjoin the holding of the election, asserting technical defects in the petitions and a failure to publish notice of the election.

Five days before the scheduled general election the circuit court held that the complaint had merit, that it was then too late to keep the wet-dry issue olf the ballot, and that the election officials should be enjoined from counting the votes on the wet-dry issue. On the same day an appeal was taken to this court, and we entered the following order:

Petition for Stay of Order of the Circuit Court of Logan County is granted. The election will proceed and the ballots will be counted but questions raised on appeal from that order shall not be rendered moot by the election.

The election was held. Two townships voted dry and the other wet. All the original parties were apparently satisfied. In January following the election the original appellants obtained an order in this court dismissing the appeal and remanding the case to the circuit court.

The litigation seemed to be at an end, but in April, 1984, the appellant Wurst, who wants to start a winery in a township that voted dry, sought to intervene in order to argue that the trial court’s order of October 30,1980, finding that the complaint had merit, had become a final adjudication, because no appeal had been completed. The trial judge refused to allow the intervention.

The attempt to intervene is far too late. Wurst could have intervened the day after the election had he been diligent. It is in the public interest that election results become final without delay. We hold that, by analogy, Wurst’s time for intervening in the case expired with the lapse of the time allowed for filing a contest of a local option election, which is ten days after the certification of the vote. Ark. Stat. Ann. § 48-820 (Repl. 1977).

Secondly, even the original parties could not now prevail on the merits. Our stay order superseded the trial court’s action and allowed the election to proceed. None of the technical defects asserted in the original complaint would have rendered the election void. And the failure to publish notice of an election is immaterial if the election is actually held and the electors have not been deprived of the opportunity to express themselves. “ [T] he voice of the people is not to be rejected for a defect or want of notice, if they have in truth been called upon and have spoken.” Wheat v. Smith, 50 Ark. 266, 7 S.W. 161 (1887). There is no indication that the voters in the three townships did not express themselves on the wet-dry issue in the 1980 general election.

Affirmed.

Purtle, J., not participating.


author: Darrell Hickman, Justice.

text:
    Jerry SIMS v. STATE of Arkansas
    CR 85-58
    695 S.W.2d 376
    Supreme Court of Arkansas
    Opinion delivered September 9, 1985

      William D. Kelly, Jr., and Edward F. Cochran, for appellant.

      Steve Clark, Att’y Gen., by: Joel O. Huggins, Asst. Att’y Gen., for appellee.
   Darrell Hickman, Justice.

Jerry Sims was convicted of first degree murder and sentenced to life in prison by a jury for the shooting death of Curtis Cole. None of the alleged errors have merit, and we affirm.

Sims first argues that the evidence of his guilt was insufficient. On appeal we view the evidence in a light most favorable to the appellee and if there is substantial evidence to support the conviction, we will affirm. Ellis v. State, 279 Ark. 430, 652 S.W.2d 35 (1983). The evidence presented by the state was substantial, although the accounts of the incident were conflicting.

Early in the evening of the shooting, Cole had asked Sims to stop bothering a woman in Cole’s night club in Stamps, Arkansas. After that incident, Sims left. Sims returned later dressed in camouflage clothing. Two witnesses testified that after a verbal exchange between Sims and Cole, Sims fired two shots at Cole. Cole fired some shots as he was falling. Both witnesses agreed that Sims fired first and that once Cole was down, Sims stood over him and fired a shot into Cole’s chest. The medical examiner testified that this was the fatal shot. Although two other witnesses said that Cole struck Sims with his gun before the shooting, neither could say who fired the first shot. The jury resolved the conflicting accounts and found Sims guilty. There is no basis to set aside that finding. Ellis v. State, supra.

Sims also argues that the evidence was insufficient that he killed Cole with deliberation and premeditation as required by the: first degree murder statute. Ark. Stat. Ann. § 41-1502 (Repl. 1977). A witness, who saw Sims between the two incidents that night, testified that Sims said he was going to kill Cole. Another witness testified that Cole and Sims had had differences periodically for some time. In Walker v. State, 241 Ark. 300, 408 S.W.2d 905 (1966), reh. den., 387 U.S. 926 (1967), we said:

The necessary elements or deliberation and premeditation in the offense of murder in the first degree may be inferred from the factual circumstances as shown by the evidence, where those circumstances clearly warrant the jury in such an inference or conclusion.

The facts in this case warrant the jury’s finding of first degree murder.

Finally, Sims contends that the jury should have been instructed that Sims’ reasonable belief that Cole was committing or about to commit a battery with force or violence is a defense to the charges against him. The instruction is based on AMCI4105. The model instruction, which sets out justification for the use of deadly force in self-defense, contemplates two situations: one where the victim is about to commit a felony with force or violence and another where the victim is about to use unlawful deadly physical force. The instruction Sims contends should have been given is based on the first alternative, whereas the instruction that was given is based on the latter. The choice was obviously the correct one since the victim, Cole, had a gun. The instruction given was as follows:

Jerry Sims asserts as a defense to the charge of Murder 1st degree that deadly physical force was necessary to defend himself. This is a defense only if: First: Jerry Sims reasonably believed that Curtis Cole was using, or was about to use unlawful deadly physical force. And second: Jerry Sims only used such force as he reasonably believed to be necessary.
A person is not justified in using deadly physical force if he knows that the use of deadly physical force can be avoided with complete safety by retreating.
Jerry Sims, in asserting this defense, is required only to raise a reasonable doubt in your minds. Consequently, if you believe that his defense has been shown to exist, or if the evidence leaves you with a reasonable doubt as to his guilt of murder 1st degree, then you must find him not guilty.

However, we do not consider Sims’ argument because there is nothing in the record to indicate there was a proper objection or proffer. The offered instruction appears in the record with the pleadings and is marked that it was filed nine days after the trial. The record does not reflect that the trial judge was ever given an opportunity to rule on the instruction. Since the argument was not preserved for appeal, we will not rule on it. Wilson v. State, 277 Ark. 43, 639 S.W.2d 45 (1982).

Under Ark. Stat. Ann. § 43-2725 (Repl. 1977), as put into effect by our Rule 11 (f), we consider all objections brought to our attention in the abstracts and briefs in appeals from a sentence of life imprisonment or death. In this case we find no prejudicial error in the points argued or in the other objections abstracted for review.

Affirmed.

Purtle, J., not participating.


author: Robert H. Dudley, Justice.

text:
    Curtis Ray HOWARD v. STATE of Arkansas
    CR 85-78
    695 S.W.2d 375
    Supreme Court of Arkansas
    Opinion delivered September 9, 1985

      William R. Simpson, Jr., Public Defender, by: Jerome T. Kearney, Deputy Public Defender, for appellant.

      Steve Clark, Att’y Gen., by: Mary Beth Sudduth, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

Appellant was found guilty of aggravated robbery and theft of property. His sentence was enhanced to life plus twenty years because of prior convictions. The length of the sentences places jurisdiction in this court. Rule 29(l)(b). The issue is whether fingerprint identification alone is sufficient evidence to sustain the conviction. We hold that it is sufficient and affirm.

On January 28,1983, at 11:00 p.m., two masked men robbed the Kroger store on Cantrell and Polk streets in Little Rock. One held a pistol and stood guard at the check out counters while the other vaulted over a 12-inch rim of glass atop the 6 8-inch wall of the nearby office booth, aimed a pistol at the manager’s head and took $2,568.00 in cash. Later that night George Moore was identified as the robber who stood guard. He was arrested and pleaded guilty.

Witnesses in the store stated that the robber who vaulted into the booth did so by placing his hand on the glass rim of the office wall and pivoting over it. Detective Ivan Jones, who investigated the robbery, lifted three latent fingerprints and smudges from the inside of the glass rim and a part of a latent palm print from the outside of the glass rim. He transferred the prints to a card for comparison. Jim Beck, an expert in the field of fingerprint identification, compared the latent prints with appellant’s known prints. He positively identified one of the latent prints as being made by appellant. In addition, he testified that the latent print was made by a person exerting a twisting pressure on the glass, as distinguished from someone placing their hand on it in a normal manner.

One of the witnesses of the robbery testified that appellant fit the description of the robber who vaulted over the top of the booth, although the witness could not identify appellant as the robber. The appellant did not take the witness stand.

We have held that fingerprints can constitute evidence which is sufficient to sustain a conviction. Ebsen v. State, 249 Ark. 477, 459 S.W.2d 548 (1970). Here, appellant’s fingerprint, made with a twisting pressure, was removed from the exact place where the robber was seen placing his hand as he vaulted into the booth. Such print identification constitutes substantial evidence that appellant was the robber in the booth.

Appellant contends that in Holloway v. State, 11 Ark. App. 69, 666 S.W.2d 410 (1984), the Court of Appeals held that a fingerprint is insufficient to support a conviction, and that we should reach the same result. Appellant’s reliance on the Holloway case is inappropriate. In that case the Court of Appeals merely held that an appellant’s fingerprints, which were found on a piece of glass outside of a house, did not constitute substantial evidence that appellant went into the house. We need not decide whether we would follow the case for it is clearly distinguishable from the case at bar.

Affirmed.

Purtle, J., not participating.


author: David Newbern, Justice.

text:
    Hayes HOGUE v. AMERON, INC. and Carl A. HARNED
    85-58
    695 S.W.2d 373
    Supreme Court of Arkansas
    Opinion delivered September 9, 1985

      Tom F. Donovan, for appellant.
   David Newbern, Justice.

This is a defamation action. The appellant, Hogue, is an Arkansas State Police trooper. The appellee, Harned, wrote to the directdr of the state police complaining that Hogue had driven an unlicensed vehicle and, in connection with an attempt by one Crawford to gather evidence of that event, had yelled obscenities in the presence of Crawford and others. Summary judgment was entered,in favor of Ameron, Inc., and it is not a party to this appeal. After Hogue had presented his evidence, a motion for directed verdict was granted to Harned on the ground that Hogue had proven no damages. We reverse and remand.

The appellant presents two issues. Was the directed verdict proper in view of his having alleged libel per se and in view of testimony the appellant contends was sufficient to show damages? Did the court err in allowing testimony about statements contained in a police investigative report?

1. The Directed Verdict

The record shows Hogue’s father-in-law and Harned’s father had engaged in a bitter boundary line dispute of long duration. It also showed that there was some community division on Petit Jean Mountain where Hogue, Harned, and their families lived caused by an application several years ago by Hogue’s wife for a retail beer permit. There had been allegations of harassment by Hogue of persons who had successfully opposed awarding the beer permit. The libel complaint, however, is based strictly on the letter from Harned to Hogue’s state police superior complaining about the driving of the unlicensed vehicle and the yelling of obscenities. The letter said Crawford took pictures of Hogue driving an unlicensed vehicle. That turned out to be untrue. The state police investigation revealed that Hogue’s wife had driven her father’s unlicensed truck, and Hogue was ultimately admonished to prevent members of his household from doing it again.

The appellant contends this allegation was actionable perse because it accused him falsely of committing two crimes, i.e., driving an unlicensed vehicle and disorderly conduct. The appellant contends it was thus not incumbent upon him to present evidence of damages. He also contends the court was wrong because he did present evidence showing injury to his reputation caused by the investigation which ensued from Harned’s letter.

We tend to agree with the appellant that there was some evidence of injury to his reputation, and it was enough to get that issue to the jury. Note, 38 Ark. L. Rev. 899 (1985). Hogue testified clearly that his reputation had been harmed by the investigation. Another witness testified, rather vaguely, that Hogue’s reputation changed for the worse at about the time of the investigation. Our decision on that narrow question is in favor of the appellant, and thus we reverse and remand.

The appellant argued that no proof of injury to reputation was required because the concept of libel per se has not been abolished in a case of a non-media defendant by Gertz v. Welch, 418 U.S. 323 (1984). Little Rock Newspapers, Inc. v. Dodrill, 281 Ark. 25, 660 S.W.2d 933 (1983), is cited by the appellant for the proposition that Gertz v. Welch, supra, does not apply to non-media defendants. We did not so hold, and that question remains open in this jurisdiction.

Another open question which should arise on retrial of this case is the extent, if any, to which the common law qualified privilege to criticize anofficer [see W. Prosser and W. Keeton, Torts, pp. 830-831 (5th ed 1984)] has been affected by New York Times v. Sullivan, 376 U.S. 254 (1964), and by Gertz v. Welch, supra. To overcome such a privilege, if it still exists, should we define “actual malice” as it has come to be defined in the cases dealing with defamation and the First Amendment?

These questions are alluded to and illuminated in R. Smolla, Intertwining the Constitution and the Common Law: Evolving Doctrines of Defamation in Arkansas, Arkansas Law Notes, p. 49 (1983).

The record in this case demonstrates that the parties argued and briefed well appellee’s motion for summary judgment on the ground that the appellant is a public official or public figure, and thus “actual malice” must be shown. However, the motion was denied on the basis that the accusations of criminal conduct were not directed to the appellant’s official conduct as a policeman. The denial of the summary judgment motion is not on appeal, but we should note that the letter which formed the basis of the complaint was sent only to the plaintiffs state police superior. It was clearly an attempt to call attention to the alleged incidents because they were unworthy of a state policeman rather than because they were crimes to be investigated and prosecuted as such. We do not say the summary judgment should have been granted, but it is well for us to point out the issues should have been whether there was a privileged communication, whether the privilege was overcome by a showing of some form of malice, and, in these contexts, whether there were any remaining genuine issues of material fact. Ark. R. Civ. P. 56(c).

2. Admissibility of Police Report

We address this point in case it comes up again on retrial. When a state police captain was on the witness stand, he was asked by the appellee’s counsel what was told to him by persons to whom he spoke during his investigation of Hogue. The appellant’s counsel raised a hearsay objection and noted that a police investigative report is not excepted from the hearsay rule in Ark. Stat. Ann. § 28-1001 (Repl. 1979), Uniform Evidence Rule 803. The court’s response was, “[i]t’s part of the investigative report. . . . That’s what we’re here testifying about.”

While the court’s statement was cryptic, we cannot interpret it as being a reference to any exception to the hearsay rule. We can hardly agree with the appellant that the court’s admission of the evidence unduly influenced him to direct a verdict, but we can see no basis for saying the evidence admitted was not hearsay. In view of the outcome of this case, it was not prejudicial error.

Reversed and remanded.

John Purtle, J., not participating.

Steele Hays, J., dissents.


text:
    Jerry ATKINS v. STATE of Arkansas
    696 S.W.2d 306
    Supreme Court of Arkansas
    Opinion delivered September 9, 1985

      Mark W. Corley, for appellant.

      Steve Clark, Att’y Gen., by: Clint Miller, Asst. Att’y Gen., for appellee.
   Per Curiam.

Appellant, Jerry Atkins, by his attorney, has filed for a rule on the clerk.

His attorney, Mark W. Corley, admits that the record was tendered late due to a mistake on his part.

We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our Per Curiam opinion dated February 5, 1979, In Re: Belated Appeals in Criminal Cases.

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

Purtle, J., not participating.


text:
    Carleton WRIGHT v. STATE of Arkansas
    696 S.W.2d 306
    Supreme Court of Arkansas
    Opinion delivered September 9, 1985

      Carleton C Wright and Kenneth G. Fuchs, for appellant.
    No response.
   Per Curiam.

Appellant, Carleton C. Wright, by his attorney, has filed for a rule on the clerk.

His attorney, Kenneth C. Fuchs, admits that the record was tendered late due to a mistake on his part.

We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our Per Curiam opinion dated February 5, 1979, In Re: Belated Appeals in Criminal Cases, 265 Ark. 964.

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

Purtle, J., not participating.


text:
    Desmond BRYAN v. STATE of Arkansas
    696 S.W.2d 306
    Supreme Court of Arkansas
    Opinion delivered September 9, 1985

      John R. Mercy, for appellant.

      Steve Clark, Att’y Gen., by: Clint Miller, Asst. Att’y Gen., for appellee.
   Per Curiam.

Appellant, Desmond Bryan, by his attorney, John R. Mercy, has filed a motion for rule on the clerk.

The motion admits that the record was not timely filed and it was no fault of the appellant. His attorney admits that the record was tendered late due to a mistake on his part.

We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our Per Curiam opinion, In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979).

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

Purtle, J., not participating.


author: Jack Holt, Jr., Chief Justice.

text:
    TOWNSHIP BUILDERS, INC. v. KRAUS CONSTRUCTION CO., INC.
    85-64
    696 S.W.2d 308
    Supreme Court of Arkansas
    Opinion delivered September 16, 1985

      Richard L. Smith, P.A., by: Daniel R. Carter, for appellant.

      Hardin, Jesson & Dawson, for appellee.
   Jack Holt, Jr., Chief Justice.

The sole issue presented by this appeal concerns the propriety of the trial court’s order granting the appellee’s motion for summary judgment. Our jurisdiction is pursuant to Sup. Ct. R. 29(l)(c) as we are being asked to interpret and construe the statute of frauds, Ark. Stat. Ann. § 38-101 (Repl. 1962).

The facts giving rise to this litigation are as follows. The appellant, Township Builders, Inc., (Township) filed suit against appellee, Kraus Construction Co., (Kraus) seeking damages for the breach of an alleged oral contract. Specifically, Township maintained that Kraus agreed on September 15, 1983, to retain Township as a subcontractor on the Lake Hamilton Sewer Improvement District (LHSID) project, and then refused to do so. Kraus filed a motion for summary judgment on the ground that the oral contract alleged by Township was not to be performed within one year and was therefore barred by the statute of frauds. The trial court granted summary judgment. Although the existence of the oral contract was also disputed, for purposes of determining the appropriateness of summary judgment, the parties agree that we should assume the oral contract between Kraus and Township was in effect when the breach occurred.

The origination date of the oral contract between Township and Kraus was September 15,1983, although the LHSID project contract was not formally awarded to Kraus until December 30, 1983, with notice to proceed given on January 20, 1984. The LHSID project consisted of three schedules with each schedule divided into sections which were further subdivided into items. The oral contract between Township and Kraus was for 23 of the 53 items of section 3 of schedule 1.

In its motion for summary judgment, Kraus offered evidence that the contract could not be performed within one year. In response, Township produced testimony that it was possible to complete the contract within one year, by September 14, 1984.

The trial judge, in a letter opinion, found that the oral contract was entered on September 15, 1983, and that the evidence offered showed the minimum time for completion would have been 365 days. Since work did not begin until January 23, 1984, the trial court held the contract could not have been performed within one year and was therefore barred by Ark. Stat. Ann. § 38-301. Accordingly, summary judgment was granted to the appellee.

“It is well-settled that summary judgment should be granted only when a review of the pleadings, depositions and other filings reveals that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.” Cummings, Inc. v. Check Inn, 271 Ark. 596, 609 S.W.2d 66 (1980); Ark. R. Civ. P. 56. Summary judgment is an extreme remedy and any proof submitted must be viewed most favorably to the party resisting the motion and any doubts and inferences must be resolved against the moving party. Leigh Winham, Inc. v. Reynolds Ins. Agency, 279 Ark. 317, 651 S.W.2d 74 (1983). In order to be entitled to a summary judgment, the moving party has to show there is no issue of fact. Hurst v. Feild, 281 Ark. 106, 661 S.W.2d 393 (1983).

The question presented on this appeal is whether there was a genuine factual dispute as to the possibility of completing the contract within one year which was sufficient to present a question for a jury. We find that there was and reverse the trial judge.

Both parties offered evidence in the form of affidavits and depositions in support of their respective viewpoints. Township offered the affidavit of Spence Churchill, president of the company, in which he stated that at the time of contracting he contemplated it would take less than one year for Township to complete its portion of the work. Charles F. Jones, a professional engineer, stated in an affidavit that it is his professional opinion based on observation and experience that it is possible that the items of work Township was to perform could have been completed within 365 days. In an oral deposition, Jones further explained that the work could have been completed within 365 days from September 15, 1983. Kraus’ witness, William J. Malone, a consulting engineer who prepared the specifications and plans for the LHSID project, testified that 450 days was the shortest time possible to complete Schedule 1. He admitted however that it is possible that the contract between Kraus and Township could be completed by September 14, 1984 if there were some special incentives, but not under normal circumstances.

We have held that a contract was not within the provisions of the statute of frauds where the proof demonstrated that the contract was capable of performance within one year. In Valley Planting Co. v. Wise, 93 Ark. 1, 123 S.W. 768 (1909) the court found that if weather and labor conditions were favorable, a crop of cotton could be made and gathered within one year and therefore an oral contract for such was not prohibited by the statute of frauds. In Valley Planting, the court quoted the following general rules from Railway Co. v. Whitley, 54 Ark. 199, 15 S.W. 465 (1891):

In determining when contracts come within the one-year statute of frauds, courts have been governed by the words, “not to be performed.” They have treated them as negative words. In construing them it is said: “It is not sufficient to bring a case within the statute that the parties did not contemplate the performance within a year, but there must be a negation of the right to perform it within the year.” . . . [I]t is well settled that the statute only includes those contracts. . . . which, according to a fair and reasonable interpretation of their terms in the light of all the circumstances which enter into their construction, do not admit of performance in accordance with their language and intention within a year from the time they were made; and that it includes no agreement if, consistently with its terms, it may be performed within that time.

These rules still apply.

In Robertson v. Ceola, 255 Ark. 703, 501 S.W.2d 764 (1973), the court found that there was evidence that by employing additional help, the job could be completed within the necessary time frame and the contract therefore was not prohibited by the statute of frauds.

In Reed Oil Co. v. Cain, 169 Ark. 309, 275 S.W. 333 (1925) the court stated that a contract does not come within the statute of frauds where the testimony shows it could be performed within a year, although there was a possibility or even a probability that it might require a longer time. The statute only applies to agreements which are incapable of performance.

Here the testimony clearly raised a question of fact as to the possibility of performing the contract within a year. The purpose of summary judgment is not to try the issue but to determine if there are issues to be tried. Trace X Chemical v. Highland Resources, 265 Ark. 468, 579 S.W.2d 89 (1979). Accordingly the trial judge erred when he held that the oral contract could not have been performed within one year. We reverse and remand for a trial on the merits.

Reversed & remanded.

Purtle, J., not participating.


text:
    James H. WILLIAMS, Jr. v. STATE of Arkansas
    CR 84-30
    696 S.W.2d 307
    Supreme Court of Arkansas
    Opinion delivered September 16, 1985

      Law Office of Jim Lyons, by: Scott Emerson, for appellant.

      Steve Clark, Att’y Gen., by: Clint Miller, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

The appellant, James H. Williams, Jr., was charged on May 27,1983 with capital murder in the stabbing death of Earl Johnson, of Jonesboro. He was convicted and sentenced to life in prison without parole. It is from that conviction that this appeal is brought. Our jurisdiction is pursuant to Sup. Ct. R. 29(l)(b).

The appellant raises four points in this appeal, but we decline to address them at this time because of the failure of both the appellant and the attorney general’s office to properly address one of the points argued.

In his third issue, the appellant claims the trial court erred in holding that two statements he made to law enforcement officers were admissible into evidence. The appellant bases this argument on the fact the statements were post-indictment statements made in the absence of counsel and therefore violative of the sixth and fourteenth amendments to the United States Constitution.

A Denno hearing was conducted to determine the voluntariness of the statements. Subsequently, the appellant’s statement was ruled voluntary and admissible. The state, however, never introduced it during the course of the trial. Instead, the appellant’s attorney placed it in evidence during his case in chief by having the police officer who took the statement play a tape recording of the statement for the jury. Before the statement was played, the following colloquy took place:

Mr. Lyons'. Your honor, at this time, I would like to play it before the jury.
The court: Just a minute.
(Whereupon, an off the record discussion was held at the bench)
Mr. Lyons: For the record, the defense attorney states he is waiving any objection, based on voluntariness of this confession.
The court: The previous hearing, having been had before the court where the question of voluntariness had been raised, the court having ruled the confession to be voluntary. Now Mr. Lyons is attempting to introduce the statement which the court will allow. As indicated for the record, the previous motion has been withdrawn, and he consents to it and agrees that it was voluntarily made. You may proceed.

It is obvious from a perusal of the record that the appellant, through counsel, attempted to waive any objection, based on the voluntariness of this confession. Does placing appellant’s statement into evidence during the course of the trial effectively waive appellant’s sixth amendment right to counsel during the taking of the statements?

The court is unable to address this issue since neither the appellant, nor the attorney general has abstracted the record concerning the introduction of the appellant’s statement into evidence, nor have they briefed this issue.

In cases such as this involving a criminal defendant who has been sentenced to life without parole, our policy is to search the record for errors. See Sup. Ct. R. 11(f). Under the circumstances it is only appropriate that this potential error be called to the attention of both appellant and appellee for further discussion.

Accordingly, a rebriefing is ordered. The appellee is given 15 days to rebrief the issue in question, such brief not to exceed 15 pages; appellant has 10 days to reply with the reply not to exceed 10 pages.

Rebriefing ordered.

Purtle, J., not participating.


text:
    Edward L. WING v. STATE of Arkansas
    CR 85-43
    696 S.W.2d 311
    Supreme Court of Arkansas
    Opinion delivered September 16, 1985

      Darrell E. Baker, Jr., for appellant.

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

The appellant Wing was convicted of burglary and theft of property and was sentenced as an habitual offender to prison terms of 35 and 25 years. The sufficiency of the evidence is not questioned. The appellant argues that the trial court erred in denying a motion for a continuance and in directing the sentences to be served consecutively.

First, the issue of the requested continuance. Wing’s “rap sheet,” of which defense counsel was aware weeks before trial, showed ten or more prior felony convictions. The prosecutor at first charged four or more prior convictions, but on the day before trial he received proof of six additional out-of-state convictions. Defense counsel was notified of the prosecutor’s intention to amend the information to conform to the new proof.

After the jury had been selected and sworn the trial judge, in chambers, permitted the proposed amendment. Defense counsel asked for a continuance, not for surprise but because counsel said he had not questioned the jurors about previous convictions. “Now, 4 prior convictions is one thing, and if there are larger numbers I would be more interested in inquiring about what they think about that.”

The trial judge properly refused to grant a continuance. Since the jury had already been chosen and sworn, it was too late to supply questions omitted on voir dire. Moreover, Wing did not choose to testify; so it is most unlikely that counsel would have decided to inform the jurors about Wing’s long criminal record, which would not otherwise have been brought to their attention until the second stage of the bifurcated trial. No substantial possibility of prejudice is shown.

Second, the trial judge decides whether sentences are to run consecutively, but he must actually exercise his discretion in making the decision. Acklin v. State, 270 Ark. 879, 606 S.W.2d 594 (1980). That case was followed in Wing v. State, 14 Ark. App. 190, 686 S.W.2d 452 (1985), which was decided after the case at bar had been tried. There Judge Gibson made the sentences consecutive, saying:

If it had been left to me in the first instance, I feel I would have had a lot more leeway to act. I think it is somewhat presumptuous of me to go against a jury verdict. I have never done that except in a rare case where it’s clearly out of line. I’m going to set and fix punishment 20 years on the Burglary, 10 years on the Theft of Property, and direct that they run consecutive. I think if the jury had wished otherwise, they would have noted otherwise.

The Court of Appeals remanded that case for resentencing, finding that Judge Gibson tried to implement what he perceived the jury wanted rather than exercising his own discretion.

The case at bar is so similar that we cannot distinguish it. Here Judge Gibson said:

[M]y practice has been, if it is left to me in the first instance, I try to use my own judgment both as to guilt or innocence, and also as to punishment. . . . But when a case is submitted . . . to a jury, then I think they have the right and the prerogative ... to view the case in the manner in which they see it. Now, I feel it is somewhat presumptuous for me to interfere with their judgment as long as it is within the guidelines of the law. I think I have no choice . . . but to accept their verdict. . . and direct they run consecutively.

We agree with the Court of Appeals and remand the case for resentencing, without implying that consecutive sentences are not warranted.

Affirmed in part and remanded.

Purtle, J., not participating.


text:
    Linda M. BURGESS v. Richard P. BURGESS
    85-75
    696 S.W.2d 312
    Supreme Court of Arkansas
    Opinion delivered September 16, 1985

      Robert M. Wilson, Jr., for appellant.

      Clarence W. Cash, for appellee.
   Steele Hays, Justice.

This appeal challenges the power of a chancellor to modify an order under the provisions of Rule 60 of the Arkansas Rules of Civil Procedure.

These parties were divorced by a decree which made no mention of marital property. From the record it appears the parties spent several months attempting to reach a property settlement and evidently had agreed on some, though not all, of the disputed items.

On July 23,1984, an order was entered either by agreement or by ruling of the court, we cannot determine which. The order awarded Linda Burgess, appellant, a one-fourth interest in real property in Texas and a judgment of $17,374.94 against Richard Burgess, appellee.

Some six months later Richard Burgess moved to amend the order, followed by two similar motions, asserting errors and ambiguities in the original order allegedly requiring clarification. The Chancellor granted the motion upon a finding that a court’s inherent powers allow it to correct or interpret any order previously entered. The second order corrected the amount of the judgment to $15,606.68, and recited that upon payment of that amount the appellant would no longer have an interest in the Texas property.

Linda Burgess has appealed on two points of error: 1) The court had no power to modify the original order because the ninety days permitted by ARCP 60(b) had expired and no grounds for modification under ARCP 60(c) were alleged; and 2) The court may apply its inherent powers to modify an order only by the entry of a nunc pro tunc order, which, she argues, was not done in this case.

Rule 60 of the Arkansas Rules of Civil Procedure, RELIEF FROM JUDGMENT, DECREE OR ORDER, was intended to retain Arkansas law in effect at the time the rules were adopted. In substance, section (a) permits the correction of clerical mistakes and errors arising from oversight or omission at any time by the court on its own motion or on the motion of any party.

Section (b) permits the court to correct any error or mistake, or to prevent the miscarriage of justice, within ninety days following the filing of the judgment. Section (c) sets out the grounds by which a judgment may be changed after ninety days have elapsed. Neither section (b) nor (c) is involved here.

Linda Burgess makes no claim that it was intended that she receive some $17,000 in addition to the interest in the Texas property and the record indicates that that was not the intent, though we can arrive at no definitive conclusion. However, we will not attempt to decide whether the Chancellor was simply correcting the order to make it conform to what was intended, which he has the inherent power to do under Rule 60(a), or was attempting to revise the order in an impermissible manner except in accordance with 60(b) or (c), because the appellant has not provided an abstract which would enable us to make that decision, a difficult one at best. Rule 9(e)(2) of the Rules of the Supreme Court and the Court of Appeals provides that where the abstract is flagrantly deficient the appeal is subject to affirmance for noncompliance with the rule. In numerous cases we have stressed the necessity of an abstract that permits an adequate comprehension of the arguments on appeal. Farrco v. Goleman, 267 Ark. 159, 589 S.W.2d 573 (1979). Smith, Arkansas Appellate Practice; Abstracting the Record, 31 Ark. L. Rev. 359 (1977).

The abstract in this case gives us nothing in the way of information concerning the marital properties, nor anything that would enable us to determine how the original order was arrived at, or whether it may have failed to reflect what the parties, or the court, actually intended. The orders of July 23, 1983 and February 22,1984, and the motions for modification, are crucial to any clear understanding of the arguments on appeal, yet the abstract gives us only the sketchiest impression. They are not abstracted in the first person, as required, and such abstract as exists consist merely of a brief description in the third person. To illustrate, the abstract describes the first motion as follows:

Counsel for Appellee filed this Motion for Amended Decree setting out the grounds for the original trial on distribution of the property held on July 23, 1984. The motion did not contain a prayer for relief. (Abstract, p. 5).

The record reveals a motion consisting of eleven paragraphs identifying numerous assets belonging to the parties, and listing credits or debits claimed by appellee. It explains what had been distributed to Linda Burgess and what was still due, and finally, it calculates a balance of $12,879.94 assertedly still due her.

When appellant moved to dismiss the motion pursuant to Rule 60(b) and (c), appellee filed an amended motion which the abstract describes merely as “identical to the [earlier] motion. However this one included a prayer requesting that the ambiguity of the Decree be clarified to reflect the findings of the Court that the Judgment included the interest of the Plaintiff in the Texas real estate.” (Abstract, p. 6).

From the record we find that the second motion enlarges considerably on the first, and refers to a proposal filed on July 9, 1984, which is not abstracted, allegedly the basis of the $17,374.94 judgment in the original order. The motion details mathematical errors alleged to have occurred in arriving at the judgment and claims appellant received $5,162.94 from Stewart Title Company, of which $4,494.00 was applicable to the judgment. Finally, the motion alleges that the judgment is subject to an interpretation contrary to the actual findings of the court and needs clarification.

The abstract makes no mention of the second order being entered nunc pro tunc. To the contrary, appellant argues at some length that because the order was not entered nunc pro tunc this “clearly illustrates” that it should be reversed since it was not done in accordance with Rule 60(b) or (c). But the fact is the second order plainly provides that it is entered nunc pro tunc, as the abstract should have shown. (See Record, p. 53).

As we have often pointed out there is but one record and, as a practical matter, seven judges cannot take turns scrutinizing a single record in an effort to determine whether reversible error has occurred. It is the appellant’s burden to present an abstract that sufficiently demonstrates reversible error. United States v. Davidson, 14 Ark. App. 144, 686 S.W.2d 455 (1985); Knabe v. Ball, 253 Ark. 351, 485 S.W.2d 769 (1976). Appellant has failed to do that in this case and, accordingly, the order appealed from is affirmed.

Affirmed.

Purtle, J., not participating.

       For cases dealing with the inherent power of courts to correct judgments, see: McGibbony v. McGibbony, 12 Ark. App. 141, 671 S.W.2d 212 (1984); Harrison v. Bradford, 9 Ark. App. 156, 655 S.W.2d 466 (1983); Southern Farm Bur. Cas. Ins. Co. v. Robinson, 238 Ark. 159, 379 S.W.2d 8 (1964); Fitzjarrald v. Fitzjarrald, 233 Ark. 328, 344 S.W.2d 584 (1961); King & Houston v. State Bank, 9 Ark. 185 (1848).


text:
    Carl AUTRY v. John LAWRENCE
    85-44
    696 S.W.2d 315
    Supreme Court of Arkansas
    Opinion delivered September 16, 1985
    [Rehearing denied October 21, 1985.]

      Welch & Devine, for appellant.

      Mark Stodola, City Att’y, by: Victra L. Fewell, Asst. City Att’y, for appellee.

       Purtle, J., not participating.

   David Newbern, Justice.

This is a malicious prosecution case. The judge directed a verdict and granted a summary judgment to the appellee at the end of the appellant’s case for two reasons. First, he found no evidence to show a lack of probable cause and no evidence showing malice. Secondly, he found that the appellee was a Little Rock city police officer acting in his official capacity when he presented evidence to the prosecutor which resulted in the appellant’s arrest and thus the defendant was immune from this tort action under Ark. Stat. Ann. § 12-2901 (Repl. 1979). Either of these reasons would have been sufficient to support the judgment in favor of the appellee. We affirm on the basis of immunity.

The appellant’s argument is that the evidence showed that when the appellee went to the prosecutor with evidence that the appellant had committed theft by deception he did not present all of the evidence in his possession. He argues further that there can be no immunity because the duty to present all known, relevant evidence to the prosecutor is one the appellee had in common with all other people. The basis of this argument is found in Grimmett v. Digby, 267 Ark. 192, 589 S.W.2d 579 (1979), and Kelly v. Wood, 265 Ark. 337, 578 S.W.2d 566 (1979). In those cases we denied writs of prohibition which had been sought to prevent circuit courts from proceeding with trials resulting from allegations of negligence against state policemen involved in traffic accidents. At issue there was whether the immunity of the state required the claims against the state troopers be brought before the claims commission. We held the immunity of the state did not extend to those state troopers because their alleged acts violated a duty they shared with all other people, i.e., the duty not to drive a vehicle negligently, despite the fact that the accidents occurred while the troopers were on duty.

In Matthews v. Martin, 280 Ark. 345, 658 S.W.2d 374 (1983), we reviewed the history of immunity of municipalities and their agents and employees and concluded that § 12-2901 immunized them when they were accused of negligence in the performance of their official duties. The source of immunity for municipalities and their agents and employees is different from that for the state and its agents and employees. The latter is Ark. Const. art. 5, § 20. However, that may be a distinction without a difference, as our decision in Grimmett v. Digby, supra, recited Ark. Const. art. 2, §§ 7 and 15, which provide respectively for the right to a jury trial in cases at law and for a remedy for every wrong. We interpret the case, however, as having been based on the same point as Kelly v. Wood, supra, i.e., that the duty allegedly violated was not one stemming from the official status of the trooper involved in the accident, but was one shared by all people.

The case before us is like Matthews v. Martin, supra. We recognize the cases the appellant cites holding that when a citizen reports a crime to the prosecutor he must tell all to be absolved of liability for malicious prosecution. Crockett Motors Sales, Inc. v. London, 283 Ark. 106, 671 S.W.2d 187 (1984); Jennings Motors v. Burchfield, 182 Ark. 1047, 34 S.W.2d 455 (1931). That duty is not the same as the duty of a police officer who routinely, and as required by his job, reports evidence to a prosecutor in doubtful cases to get a professional opinion on whether there is probable cause to make an arrest.

As we pointed out in Matthews v. Martin, supra, it was the intent of the General Assembly in § 12-2901 to grant immunity to municipal agents and employees for acts of negligence committed in their official capacities. The appellee’s duty here arose from his official capacity, and he is thus immune from suit alleging a breach of that duty.

Affirmed.

Purtle, J., not participating.


text:
    Frederick PENNINGTON v. STATE of Arkansas
    697 S.W.2d 85
    Supreme Court of Arkansas
    Opinion delivered September 16, 1985

      Appellant, pro se.

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

On December 18, 1984 petitioner, who pleaded guilty in 1978 to first degree murder, first degree battery and four counts of aggravated robbery, filed a petition pursuant to A.R.Cr.P. Rule 26.1 to withdraw the guilty pleas and a petition for writ of habeas corpus which the trial court treated as a petition under A.R.Cr.P. Rule 37. The petitions were denied December 28, 1984 without a hearing on the ground that a motion under Rule 26.1 must be addressed to the trial court before sentencing and a Rule 37 petition which does not raise an issue sufficient to void the judgment must be filed within three years of the date of commitment. Petitioner did not file a notice of appeal until April 5,1985 and now asks this Court to allow a belated appeal because he was not informed that his petitions had been denied until it was too late to file a timely notice of appeal.

When a petition for postconviction relief is denied, the clerk of the court must promptly mail to the petitioner a copy of the court’s order. Rule 37.3(d); Scott v. State, 281 Ark. 436, 664 S.W.2d 475 (1984). Since petitioner is entitled to appeal the adverse ruling, in accordance with Rule 37.3(b), this Court will grant a belated appeal in accordance with A.R.Cr.P. Rule 36.9 if the clerk failed to mail the order to the petitioner, but the burden is on the petitioner to establish the clerk’s failure to comply with the rule. We need not reach the issue of whether petitioner has met that burden, however, because neither petition filed in the trial court was timely filed.

A motion to withdraw a guilty plea pursuant to Rule 26.1 must be made before sentencing. Travis v. State, 286 Ark. 26, 688 S.W.2d 935 (1985); Rawls v. State, 264 Ark. 954, 581 S.W.2d 311 (1979); Shipman v. State, 261 Ark. 559, 550 S.W.2d 454 (1977). As petitioner filed his Rule 26 motion after the sentence was executed, he was not entitled to relief under that rule.

Rule 37.2 (c) provides that a petition claiming postconviction relief must be filed within three (3) years of the date of commitment, unless the ground for relief would render the judgment of conviction absolutely void. Collins v. State, 271 Ark. 825, 611 S.W.2d 182, cert. denied 452 U.S. 973 (1981). Petitioner pleaded guilty in 1978 but did not seek to vacate the pleas until 1984, which was more than six (6) years after the date of commitment. Appellant alleged no grounds that would render the judgment void in his case. Petitioner’s request for a belated appeal is denied.

Motion denied.

Purtle, J., not participating.


text:
    Russell Hillman McKINNON v. STATE of Arkansas
    CR 85-81
    695 S.W.2d 826
    Supreme Court of Arkansas
    Opinion delivered September 23, 1985
    [Rehearing denied October 28, 1985.]

      Tucker & Thrailkill, by: Patricia A. Tucker, for appellant.

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

       Purtle, J., not participating.

   George Rose Smith, Justice.

The appellant was convicted

of rape and was sentenced as an habitual offender to imprisonment for 40 years. The sufficiency of the State’s proof is not questioned, it having been shown that McKinnon had engaged by forcible compulsion in deviate sexual activity with a girl (who was eleven years old at the time). Two points for reversal are argued.

First, it is insisted that the prosecution should not have been allowed to cross-examine McKinnon about his past use of aliases. He admitted that he had used the name Steve Owens to conceal his whereabouts from his wife. He implied that he had used other aliases, by stating that if he had used a name close to Ralph Hillman, he didn’t remember it.

Uniform Evidence Rule 608 provides that specific instances of misconduct, if probative of truthfulness or untruthfulness, may be inquired into on cross-examination. We have construed this to mean a lack of veracity rather than dishonesty in general. Rhodes v. State, 276 Ark. 203, 634 S.W.2d 107 (1982). The federal courts, in construing the similar federal rule, hold that cross-examination about the use of false names or identities is permissible to show a lack of truthfulness. United States v. Mansaw, 714 F.2d 785 (8th Cir. 1983), cert. denied 104 S.Ct. 403, 434; United States v. Reid, 634 F.2d 469 (9th Cir. 1980) cert. denied 454 U.S. 829 (1981). As was said in a case before the adoption of the federal rules of evidence: “If a man lie about his own name, might he not tell other lies?” Lyda v. United States, 321 F.2d 788 (9th Cir. 1963). We agree with those decisions.

Second, the trial judge instructed the jury on rape (AMCI 1803), carnal abuse in the first degree (AMCI 1804), and sexual abuse in the first degree (AMCI 1808), which are all felonies. It is argued that the lesser included misdemeanors of carnal abuse in the third degree (AMCI 1806) and sexual misconduct (AMCI 1807) should also have been submitted, because there was evidence from which the jury might have found McKinnon guilty of either of those misdemeanors.

We might dispose of this argument by simply saying that no prejudice has been shown, because we have frequently held that when the jury convicts a defendant of a serious offense, here rape, rather than a less serious included offense, here first-degree carnal abuse, about which the jury was also instructed, the court’s refusal to submit a third offense that is included but is even less serious than the other two cannot be prejudicial. Sherron v. State, 285 Ark. 8, 684 S.W.2d 247 (1985); Outler v. State, 154 Ark. 598, 243 S.W. 851 (1922); Jones v. State, 102 Ark. 195, 143 S.W. 907 (1912). This case falls within that principle.

On the merits, however, counsel is mistaken in arguing that the evidence would have justified the trial court in submitting to the jury the misdemeanors of third-degree carnal abuse and sexual misconduct. The court submitted the offense of first-degree carnal abuse, which does not involve forcible compulsion and is committed when a person aged 18 or older engages in deviate sexual activity with a victim less than 14 years old. It is undisputed that at the time of the offense the victim was 11 years old and McKinnon at least 37. Thus the proof would have supported a finding of first-degree carnal abuse. Carnal abuse in the third degree, by contrast, is committed when a person aged 20 or older engages in deviate sexual activity with a victim less than 16 years old. As between the two offenses, there was no rational basis for a verdict acquitting McKinnon of first-degree carnal abuse but convicting him of third-degree. That is so because the legislature meant to create a lesser offense when the victim is between 14 and 16 than when the victim is under 14. Since the victim here was 11, the lesser offense was not involved. The requested submission was therefore properly refused on its merits. Ark. Stat. Ann. § 41-105(3) (Repl. 1977).

There was also no basis for submitting the offense of sexual misconduct, which by definition is committed when a person of any age engages in deviate sexual activity with a victim less than 16 years old. § 41-1807. Obviously this definition overlaps that of other related offenses in the Code. The Commentary to the section explains that it is inserted as a useful plea-bargaining tool and that its only substantive purpose is to fill gaps in other sections that would otherwise occur when the offender is less than 18 or less than 20 years old. McKinnon was almost twice those ages; so the offense of sexual misconduct had no place in this trial.

Affirmed.

Purtle, J., not participating.