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

text:
    Billy D. HEADRICK v. WAL-MART STORES, INC.
    87-161
    738 S.W.2d 418
    Supreme Court of Arkansas
    Opinion delivered November 2, 1987

      Boyce R. Davis, for appellant.

      Matthews, Campbell & Rhoads, P.A., by: George R. Rhoads, for appellee.
   David Newbern, Justice.

The appellant, Billy D. Headrick, filed a complaint against the appellee, Wal-Mart Stores, Inc., in which he asserted Wal-Mart’s liability to him for malicious prosecution, false arrest, and libel. The complaint arose from Mr. Headrick’s having been arrested for giving a Fayetteville Wal-Mart store a check which was returned for insufficient funds. The circuit court awarded a summary judgment in favor of Wal-Mart, and we affirm.

The undisputed facts are as follows. Mr. Headrick gave Wal-Mart a check for $168.86 in December, 1984. On January 3, 1985, the check was returned to Wal-Mart by the bank due to insufficient funds in Mr. Headrick’s account. Thereafter, WalMart sent Mr. Headrick a certified mail notice, which was received on January 24, 1985, stating that if payment were not received within five days, the check would be turned over to the “proper authorities.” On January 29, 1985, Mr. Hulett, a WalMart employee, gave the Fayetteville prosecutor an affidavit which set out the facts with respect to the check. On February 2, 1985, Mr. Headrick went to the Wal-Mart store and paid the obligation for which the check was given. On February 11,1985, the prosecutor issued a warrant for Mr. Headrick’s arrest, and the warrant was the basis of his arrest on April 11, 1985.

From the pleadings, discovery responses, and affidavits considered by the court two possibly disputed facts emerge. First, Mr. Headrick asserts that “immediately” after receiving the notice on January 24, 1985, he called the Wal-Mart store and explained that he would pick up the check upon receiving his disability check the first of the month, presumably February 1, 1985. Discovery responses show that Mr. Headrick cannot give the name of the person to whom he spoke and that Wal-Mart, although it keeps records of all contacts with respect to dishonored checks, had no record of the call. Second, Wal-Mart asserted, and Mr. Headrick refused its request to admit, that Mr. Hulett did nothing to further the arrest or prosecution of Mr. Headrick other than give the affidavit to the prosecutor.

1. Malicious prosecution

Mr. Headrick contends that the question whether he called Wal-Mart about the check after he was notified it was bad goes to the question of Wal-Mart’s good faith in having him prosecuted. He notes, but does not suggest anything presented by him to controvert it, Mr. Hulett’s contention that nothing was done by Wal-Mart to further Mr. Headrick’s arrest or prosecution other than giving the affidavit to the prosecutor. He also notes that the record does not show he was ultimately prosecuted with respect to the check.

The last of these points displays the problem with Mr. Headrick’s malicious prosecution claim. For him to prevail he must allege and prove that he was prosecuted and that the prosecution resulted in a decision in his favor. Farm Service Cooperative Inc. v. Goshen Farms, Inc., 267 Ark. 324, 590 S.W.2d 861 (1979); Coffelt v. Gordon, 239 Ark. 619, 390 S.W.2d 633 (1965). Having failed to set forth facts upon which a claim for malicious prosecution could be based, Mr. Headrick cannot complain that the court found no disputed facts in relation to that claim and granted summary judgment. See Joey Brown Interest, Inc. v. Merchants National Bank of Fort Smith, 284 Ark. 418, 683 S.W.2d 601 (1985).

2. False Arrest

“False arrest” is a name sometimes given to the tort more generally known as “false imprisonment.” W. Prosser and W. Keeton, The Law of Torts, at 47 (5th ed. 1984). While our cases setting out the elements of false imprisonment were aided by a since-repealed statute, they nonetheless have used a fairly standard definition, (see Restatement (Second) of Torts, § 35, (1965)), that is, the unlawful violation of the personal liberty of another consisting of detention without sufficient legal authority. Moon v. The Sperry and Hutchinson Company, 250 Ark. 453, 465 S.W.2d 330 (1971); Faulkinbury v. U.S. Fire Insurance Company, 247 Ark. 70, 444 S.W.2d 254 (1969).

In the Moon case a store employee thought the plaintiff was carrying a gun in the store and summoned the police who arrested the plaintiff and searched him, finding no gun. In the ensuing false imprisonment case, we held it was proper for the trial court to hold as a matter of law that the employee’s actions were insufficient to constitute false imprisonment. Quoting our opinion in McIntosh v. Bullard, Earnheart & Magness, 95 Ark. 227, 129 S.W. 85 (1910), we said: “Where a person does no more than to give information by affidavit to an officer relative to a matter over which he has jurisdiction, such person is not liable for a trespass for false imprisonment for the acts done under a warrant which the officer issues on said charge.” 250 Ark. at 455, 465 S.W.2d at 331. This same point is made in the commentary to Restatement (Second) of Torts, § 45A, (1965), which says, in part: “One who instigates or participates in a lawful arrest, as for example an arrest made under a properly issued warrant by an officer charged with the duty of enforcing it, may become liable for malicious prosecution,... or for abuse of process,. . . but he is not liable for false imprisonment, since no false imprisonment has occurred.” Mr. Headrick’s denial that Mr. Hulett did no more than give his affidavit to the prosecutor was not sufficient to respond to Mr. Hulett’s affidavit in which he affirmatively said he did no more. A party responding to a motion for summary judgment which is supported by proof must meet that proof with proof of his own. Pruitt v. Cargill, Inc., 284 Ark. 474, 683 S.W.2d 906 (1985); Hughes Western World, Inc. v. Westmoor Manufacturing Company, 269 Ark. 300, 601 S.W.2d 826 (1980). Therefore, the summary judgment was proper with respect to the claim of false imprisonment.

3. Libel

The complaint alleged libel, but that portion of the complaint was ignored in the discovery documents and affidavits which led to the summary judgment proceeding. Although Mr. Headrick’s brief mentions the word, he does not address specifically that portion of the complaint or the trial court’s action with respect to it. The brief says only in the most general way that there are genuine, material issues of fact remaining and that they pertain to whether Mr. Headrick was libeled. No authority and no convincing argument have been offered on this point, thus we will not consider it further. Michalek v. Lockhart, 292 Ark. 301, 730 S.W.2d 210 (1987); Arkansas Louisiana Gas Co. v. Hutcherson, 287 Ark. 247, 697 S.W.2d 907 (1985); Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977).

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. The complaint in this case alleged that Wal-Mart was liable to the appellant because it had committed the tort of malicious prosecution. As soon as WalMart notified the appellant that his check had been returned for insufficient funds, appellant agreed to come in and pick it up when he received his disability check. Nine days later the appellant paid his insufficient check and paid Wal-Mart an additional ten dollars for its trouble. Although Wal-Mart accepted payment for the check on February 2,1985, it failed to so notify the prosecutor until after appellant was arrested on April 11, 1985.

When a store files an arrest warrant affidavit charging an individual with a violation of the “Hot Check Law”, and subsequently accepts payment for the check, the store should have a duty to inform the state that the check has been paid. A failure to do so is clearly evidence of false prosecution which should be considered by a trier of fact. Doing nothing can be as serious as doing something wrong.

Appellant’s affidavit states he immediately notified WalMart that he would make his check good at the first of the month. Nonetheless, Wal-Mart swore to the prosecutor that appellant had violated the “Hot Check Law”. By not bothering to contact the prosecutor again to inform him that the appellant’s check had been paid, Wal-Mart failed to disclose to the prosecutor the whole truth. Certainly the prosecutor would not have issued the arrest warrant had he known all the facts. Under these circumstances a jury could have found that Wal-Mart acted with malice after accepting payment for the check.

In my opinion there were clearly disputed facts which would support an allegation of malicious prosecution; therefore, it was error for the trial court to grant a summary judgment.


source: Caselaw Access Project

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

license: Public Domain

text:
    Brent HOLLOWAY and Ricky DELCAMP v. STATE of Arkansas
    CR 87-82
    738 S.W.2d 796
    Supreme Court of Arkansas
    Opinion delivered November 2, 1987
    [Supplemental Opinion on Denial of Rehearing December 4, 1987.]

      Joel W. Price, for appellant Brent Holloway.

      Witt Law Firm, P.C., by: R. Kevin Barham, for appellant Ricky Delcamp.

      Steve Clark, Att’y Gen., by: J. Blake Hendrix, Asst. Att’y Gen., for appellee.

      Purtle, J., would grant rehearing.

   David Newbern, Justice.

The appellants, Brent Holloway and Ricky Delcamp, were tried together on charges arising from a police drug raid on a house where both lived. They were allegedly found to be in possession of drugs and drug paraphernalia. Both were found guilty. Holloway was sentenced to fifteen years imprisonment for possession of cocaine, and Delcamp was sentenced to thirty years imprisonment for possession of cocaine with intent to deliver. Both received seven year sentences and were fined $8,000 for possession of drug paraphernalia. Each appellant has filed a brief, and each raises some points which are the same as those raised by the other. Each also raises a separate point not raised by the other. We will discuss the points the appellants have raised in common and then discuss the matters raised individually by them. We find there was no prejudicial error, and thus we affirm.

About a week before the arrests in this case, the police had arrested for drug possession a person who became a confidential informant. The informant told the police that Delcamp was trafficking in drugs, and that he, the informant, had purchased drugs from Delcamp. The testimony showed that Delcamp’s residence had been the subject of complaints by neighbors with respect to the heavy traffic in and out, especially at night. The informant was “wired” with a body mike and sent by the police to make a “controlled buy” from Delcamp at the latter’s residence, using marked currency.

After being in the residence, the informant told the police he had seen quantities of cocaine in a box on the kitchen table and on a mirror on the kitchen table as well as drug paraphernalia throughout the house. He made the purchase as he had been instructed.

Based on the information given them by the informant, a warrant was sought by the police to search Delcamp’s apartment. Circuit Judge Don Langston issued the warrant at 9:00 p.m. on March 7, 1986. The search began at 9:20 p.m. that evening. When the police entered the apartment, Delcamp was in the dining room where, on the dining room table, a bag filled with packets of what was later identified as cocaine was found. Four of the marked $20 bills were found on Delcamp’s person. Delcamp’s bedroom, identified by the personal items found there, was searched, and under a chair officers found a box containing drug paraphernalia along with more cocaine.

A bedroom identified as Holloway’s was also searched, and a number of items of drug paraphernalia were found there along with a white powder identified by the testimony of a state chemist as cocaine residue. Holloway also admitted having used cocaine at Delcamp’s residence earlier in the evening.

1. Disqualification

The most troublesome issue in this case is whether the circuit judge who tried this case should have disqualified when, in the process of a suppression hearing to determine the validity of the search warrant, it became apparent he would have to rule on the propriety of the warrant he had earlier approved. Canon 3. C. of the Code of Judicial Conduct, which was adopted by this court by per curiam order found at 255 Ark. 1075, 493 S.W.2d 422 (1973), provides:

(1) A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where:
(a) he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding; ....

In Adams v. State, 269 Ark. 548, 601 S.W.2d 881 (1980), we cited the Canon as a basis for holding that a judge should have disqualified in a criminal trial in which his nephew was the prosecutor. In Bliss v. State, 282 Ark. 315, 668 S.W.2d 936 (1984), we were faced with a situation like the one before us now. We cited Adams v. State, supra, and said:

This Canon applies even though no request to disqualify and no objection to the failure to disqualify is necessary. We think the rule applied in Adams is equally applicable to the present case. The trial judge was required to rule upon the validity of a search warrant which he had issued. We think the trial judge should have recused. . . .[282 Ark. at 321, 668 S.W.2d at 940]

The Bliss case was retried and the convictions again appealed to this court. In our second opinion in the case, we said that in reversing the first judgment we “. . . held that the trial judge had erred in not requiring the prosecutor to file a bill of particulars and in not recusing with respect to a motion to suppress a search conducted on the authority of a warrant issued by the judge himself.” Bliss v. State, 288 Ark. 546, 548, 708 S.W.2d 74, 75 (1986). Upon closer reexamination of the first Bliss opinion, however, we conclude that our reversal was based solely upon the failure to file a bill of particulars, and, although we said the trial judge should have recused from the suppression hearing, we did not say, or hold, that his failure to do so was reversible error.

We now conclude that our statement in the first Bliss opinion went too far with respect to recusal. Canon 3. C. (1) (a) does not require recusal when the judge has obtained knowledge of the facts of the case before him from previous judicial proceedings in that very case. State v. Thompson, 150 Ariz. 554, 724 P.2d 1223 (1986); Jones v. State, 416 N.E.2d 880 (Ind. Ct. App. 1981); Manning v. Engelkes, 281 N.W.2d 7 (Iowa 1979); Reading v. Ball, 291 S.C. 492, 354 S.E.2d 397 (Ct. App. 1987). See also In re Kean, 520 A.2d 1271 (R. I. 1987).

At least one court has said specifically, with reference to the canon, that participation of a judge in a probable cause determination does not necessarily disqualify him from trying the case on the merits. See State ex rel. French v. Hendricks Superior Court, 252 Ind. 213, 247 N.E.2d 519 (1969). See also Jones v. State, supra; Stiles v. State, 156 Ind. App. 675, 298 N.E.2d 466 (1973).

While we have no Arkansas case, other than the first Bliss opinion, interpreting the canon in this respect, we have earlier cases indicating that a judge is not disqualified as the result of participation as a judge in an earlier phase of the litigation. See Bates v. State, 210 Ark. 1014, 198 S.W.2d 850 (1947), in which the court said, in response to an allegation that the judge who tried the defendant for murder had participated in questioning him before the trial, “ . . . [t] he presence of the trial judge could have been in the line of his judicial duties, that is, these questions and answers could have been in a habeas corpus proceeding to consider bail, or they could have been in a hearing to see if the defendant should be committed to the State Hospital to determine his sanity.” 210 Ark. at 1024, 198 S.W.2d at 855. It was held that Bates’s proof that the trial judge was involved without showing that the involvement was “improper,” was insufficient for reversal. See also Bledsoe v. State, 130 Ark. 122, 197 S.W. 17 (1917), in which we held that Ark. Const, art. 7, § 20, did not require disqualification of a judge who had previously participated in a grand jury hearing related to the trial. We held the judge was not disqualified because the constitutional provision disqualifying a judge who has participated as an attorney or counsel in a case did not apply to bar a judge who had participated after he assumed his official duties.

We agree with the decisions of other jurisdictions holding that Canon 3. C. (1) (a) of the Code of Judicial Conduct is not meant to preclude participation of a judge who has obtained knowledge of a case through previous judicial participation in it.

2. The affidavit

The appellants argue that the affidavit upon which the search warrant was based misled the judge by not mentioning that the informant was a person who had been convicted of a previous drug offense and was under charges at the time he cooperated in this case. They rely on Ark. R. Crim. P. 13.1 and its provision that if the affidavit is based on hearsay the affiant shall “set forth particular facts bearing on the informant’s reliability and shall disclose, as far as practicable, the means by which the information was obtained.”

In United States v. Leon, 468 U.S. 897 (1984), the Supreme Court said that if the magistrate issuing a warrant is misled by information in the affidavit and the affiant knew it was false or there was a reckless disregard for the truth, the evidence may be suppressed despite the good faith reliance of the police upon the warrant. The appellants have not demonstrated that any false statement was made by the police to Judge Langston when he issued the warrant. The warrant noted that the informant made statements “with full knowledge of his penal interest.” That was surely sufficient to alert the judge that the informant had something to lose or to gain with respect to his “penal interest” by cooperating with the police. Moreover, this is not a case in which the affidavit was based solely upon the hearsay statements of the informant. The police had ascertained there were probably drugs and paraphernalia in Delcamp’s residence, and that drug selling was occurring there, through their participation in setting up the “controlled buy.” They knew that the informant, on the day the search was conducted, had entered that residence with no cocaine on his person and with $100 in marked bills, and that he had come out of the house in possession of cocaine and without the money. We have no doubt that the requirement of Illinois v. Gates, 462 U.S. 213 (1983), that the magistrate make a practical, common sense determination whether there is probable cause for a search warrant based upon the totality of the circumstances, was met in this case. See Thompson v. State, 280 Ark. 265, 658 S.W.2d 350 (1983).

3. Nighttime search

The warrant form used by the judge contained alternative wordings, in some instances with the correct ones to be checked. In other instances the incorrect phrases were to be “lined out.” The judge checked the space indicating “the warrant can only be safely or successfully executed at nighttime or under circumstances the occurrence of which is difficult to predict with accuracy.” However, he left unmarked these “line out” alternatives: “YOU ARE HEREBY COMMANDED to search the place... (at any time in the day or night) (between the hours of 6:00 A.M. and 8:00 P.M.) . . . .” The appellants contend the warrant was thus facially deficient as the basis for the search and that there was no necessity for a nighttime search even if the warrant had been sufficient to command it. Arkansas R. Crim. P. 13.2 (c) provides that a search must be conducted between the hours of 6:00 a.m. and 8:00 p.m. unless one of three special circumstances permitting a nighttime search can be shown.

The abstracts submitted by the appellants do not show that either of these matters was raised in the trial. The argument pointing out the allegation of an insufficient basis for a nighttime search was apparently raised for the first time in a post-trial motion for a new trial, and the appellants do not suggest the trial judge abused his discretion by refusing to grant a new trial. The court was given no timely opportunity to rule on an objection to the nighttime search, and no opportunity at all to rule on the question of the facial defect in the warrant. The failure to make an argument which might have been made at trial waives the argument for purposes of appeal. Campbell v. State, 281 Ark. 13, 660 S.W.2d 926 (1983); Spears v. State, 280 Ark. 577, 660 S.W.2d 913 (1983). We have held specifically that if counsel fails to request a ruling on the propriety of a nighttime search the objection is waived on appeal. Gatlin v. State, 262 Ark. 485, 559 S.W.2d 12 (1977).

4. Instructions

Arkansas Model Criminal Instructions 3304 and 3307 deal with the distinction between actual and constructive possession. Each contains the following:

[There are two kinds of possession, actual and constructive. Actual possession of a thing is direct physical control over it. Constructive possession exists when a person, although not in actual possession of a thing, has the right to control it and intends to do so, either directly or through another person or persons. (If two or more persons share actual or constructive possession of a thing, either [or both] may be found to be in possession.)]

The appellants argue that the words, “of that thing” should have been added to the instruction, as they requested. They contend that without those additional words the jury could have found them guilty if it determined they shared possession of anything, as opposed to sharing possession of the prohibited items. We disagree with the appellants’ argument, as we are convinced that no jury would convict an accused charged with possession of prohibited drugs if it found only that he shared possession of an item, such as a piece of furniture, which was not contraband.

The appellants also wanted an additional sentence with the instruction, as follows: “However, where possession is shown by joint occupancy only, additional factors connecting the defendant to the object must be proven (established), or (shown),” citing Osborne v. State, 278 Ark. 45, 643 S.W.2d 251 (1982), and Sanchez v. State, 288 Ark. 413, 707 S.W.2d 310 (1986). The trial court in Osborne v. State, supra, rejected an almost identical proposed addition to the instruction on possession because it was incomplete. We affirmed his action as we do in the case before us now. To have given such an instruction would have left the jury wondering what additional things would have to be proved. Again, we hold the AMCI wording describing constructive possession to be sufficient.

5. Failure to sever

The appellants asked the trial court to sever their cases, and their motion was refused. They contend there were three reasons the severance should have been granted. First, they claim to have had antagonistic defenses; second, they contend the state introduced evidence against them “en masse,” and that thus the jurors could have been indiscriminate in its application, and third, Holloway argues that the evidence of prior sales by Delcamp was prejudicial to his case.

There is nothing of record to support the allegation that the defenses of the appellants were antagonistic. Neither attempted to claim innocence at the expense of the other. Nor are we persuaded that either suffered by the introduction of evidence without sufficient additional evidence to show why it was relevant to one or the other. For example, when the evidence with respect to the drug paraphernalia was found, its location at the time of seizure was noted. Nor are we persuaded that Holloway was necessarily prejudiced in the eyes of the jury as the result of the evidence of prior sales by Delcamp. Holloway was convicted only of possession.

We will not disturb the decision of a trial judge refusing to sever unless we find there has been an abuse of discretion. McDaniel v. State, 278 Ark. 631, 648 S.W.2d 57 (1983). We find no such abuse in this case.

6. Sufficiency of the evidence

Appellant Holloway contends there was insufficient evidence to sustain his conviction. The essence of his argument is that there was nothing in evidence to connect him with the sales of cocaine alleged against Delcamp. Again, it is enough to say that Holloway was not convicted of possession with intent to deliver, but of simple possession. Thus it does not matter that nothing connected him with the sales, as the evidence was clearly sufficient to show him to have been in possession of cocaine.

The paraphernalia found in Holloway’s bedroom, the cocaine residue found there, and Holloway’s admission he had used cocaine earlier in the evening while in Delcamp’s residence were sufficient to take the evidence above mere suspicion or conjecture and to compel a conclusion one way or the other. Williams v. State, 289 Ark. 443, 711 S.W.2d 825 (1986).

7. Prior drug sales

Appellant Delcamp argues it was error to have admitted the testimony of Karen Knox to the effect that he had, some nine to ten months earlier, told her if she knew anyone else needing cocaine she should refer that person to him.

Arkansas Rules of Evidence 404(b) permits evidence of prior bad acts for the purpose of proving intent. Delcamp was charged with possession with intent to deliver. The evidence was thus admissible for that purpose. Nor are we concerned with the fact that the evidence was of an indication of the intent to sell drugs nine or ten months before the events of this case. In Lincoln v. State, 285 Ark. 107, 685 S.W.2d 166 (1985), we held that proof of prior drug sales which occurred more than a year earlier could be admitted to show possession with the intent to deliver.

The convictions are affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. There was no need for the majority to establish a new rule, not supported by case law, that a judge need not recuse when he is asked to determine the validity of a search warrant he had previously authorized before the case was filed by the state. The rules stated in Bliss v. State, 282 Ark. 315, 668 S.W.2d 976 (1984), and Adams v. State, 269 Ark. 548, 601 S.W.2d 881 (1980) are correct decisions and should have been followed in this case. When the sufficiency of the evidence for probable cause for the search warrant is contested, the issuing magistrate should not review his own prior action. Even though he was most sincere and honest in upholding his prior action, such a ruling would still give the appearance of unfairness.

I agree that the first Bliss decision was not reversed solely on the issue of the judge subsequently ruling on the validity of a search warrant issued by him. We had other grounds for reversal and therefore did not have to place much emphasis on the search warrant issue. But the reasoning of the majority for overruling Bliss is unconvincing.

The cases from other jurisdictions which are relied upon by the majority are inapposite. The first case is State v. Thompson, 724 P.2d 1223 (Ariz. App. 1986). I quote from page 1225 of the above case: “The only argument raised in this appeal is that the trial court erred by denying the motion for a change of judge” because the trial judge had presided over the trial of a co-defendant. It is essential to note that a different judge heard this motion and denied it. Thus it would seem to me that the Arizona case supports the dissent in this case.

The majority cites State ex rel. French v. Hendricks Superior Court, 247 N.E. 2d 519 (Ind. 1969) and I must admit it addresses the issue of probable cause when it states: “Further, the mere fact that a judge has ruled upon a showing of probable cause does not necessarily disqualify that judge from trying that case on its merits.” However, the French case arose out of a situation where no probable cause hearing had been held before an arrest warrant had been issued. Therefore, it is very obvious that the judge hearing the probable cause issue was not the issuing judge because no judge issued the warrant. Because the affidavit of probable cause for arrest was not filed until thirty days after French had been arrested, the Indiana appellate court held the warrant to be null and void. In any event, the judge ruling on the validity of the warrant was not ruling on the reliability of his previous action.

Reading v. Ball, 354 S.E.2d 397 (S.C. App. 1987), concerned a divorce proceeding in which a woman tried to get the presiding judge to recuse because she alleged that he was biased against her. Certainly Reading stands for the proposition that a judge need not recuse from considering its prior action in the same case, but it in no manner relates to a judge ruling upon his own prior action in determining probable cause for a search warrant.

The only other foreign case relied upon by the majority is Stiles v. State, 298 N.E.2d 466 (Ind. App. 1973). This holding is the same as the French case inasmuch as it holds that the mere fact that a judge has ruled upon a showing of probable cause does not necessarily disqualify him from hearing the case. Stiles relied on the earlier Indiana decision of French. However, neither case holds that a judge need not recuse when ruling on the validity of his prior action in determining probable cause for issuance of a warrant.

The final case relied upon in the majority opinion is Bates v. State, 210 Ark. 1015, 198 S.W.2d 850 (1947). The question argued by Bates was raised for the first time in a motion for a new trial. The Bates Court stated: “Under the circumstances in this case, such motion comes too late. . . .In the case at bar it was not shown that the trial judge was disqualified, and furthermore the point was not raised in apt time, and was waived.” One thing that is clear from Bates is that the basis argued for reversal on the disqualification issue was some questions and answers between the accused and the judge a few days after the arrest. Obviously such questions were the type and kind usually occurring in habeas corpus or probable cause hearings. However, there is not even a hint in the opinion that there was ever a determination of probable cause for an arrest or search warrant.

I agree with every case cited in the majority opinion on the disqualification issue. However, not one of them concerns the issue of a judge ruling on probable cause to issue a search warrant when the same judge issued the warrant. Bliss was and still is the better rule.

I would reverse this case for the trial judge’s prejudicial error in failing to recuse. Moreover, probable cause to support the search warrant was not shown. Without the evidence that would have been suppressed after a finding of no probable cause, Holloway could not have been convicted.

The “facial” defect in the search warrant referred to by the majority was that it did not authorize a nighttime search. That defect was fatal — not facial. Our rules of criminal procedure require that a search warrant must be served between the hours of 6:00 a.m. and 8:00 p.m., unless it is specifically authorized to be done in the nighttime. Thus, the search warrant in question should not have been served during the night. Such error is equivalent to serving a search warrant that does not contain an address or serving an arrest warrant that leaves off the name of the person to be arrested.

I am puzzled by the statement in the majority opinion that the court was given no timely opportunity to rule on an objection to the night time search or an opportunity to rule on the question of the facial defect in the warrant. A timely pre-trial motion to suppress was filed on March 26, 1986, alleging that the scope of the search exceeded that authorized by the warrant. The motion stated in part as follows:

[T]he seizure was based on the authority of the search warrant issued as aforesaid, and the scope of the search by which things were seized or discovered, exceeded that authorized by the warrant ....

This specifically brought the matter of the unauthorized nighttime search warrant to the trial court’s attention six months before the trial. Searches during the night must be specifically authorized. This one did not authorize such a search. How could the appellant have been more specific?

The most prejudicial error in the proceedings below, however, was the failure of the trial court to sever the defendants’ trials. Antagonistic defenses were apparent on the face of these charges and were evident throughout the trial. Holloway had never before been arrested. Severance should always be granted whenever either defendant is unduly jeopardized. McDaniel v. State, 278 Ark. 631, 648 S.W.2d 57 (1983).

Practically all of the evidence indicated that the person possessing and dealing drugs was either Delcamp or Francis R. Gallant. There was not the slightest effort to limit the evidence of prior drug sales by Delcamp solely to the question of his guilt. The record does not reveal any evidence linking Holloway to the sale or possession of drugs found in the house. Holloway simply rented a room in which he had used drugs on a couple of occasions in the past. Nothing uncovered in Holloway’s room established possession or sale of cocaine. The majority opinion seems to imply that usable quantities of cocaine were found in Holloway’s room. There was no such evidence.

I think this issue is governed by Osborne v. State, 278 Ark. 456, 43 S.W.2d 251 (1982), where we stated: “The problem of joint occupancy arises because of the rule that when joint occupancy is the only evidence the state has, there must be some additional link between the accused and the contraband.” The record showed that Holloway had no control or authority over Delcamp’s house other than the room he rented. The jury had to resort to speculation, obviously influenced by the substantial evidence against Delcamp, to find that Holloway was in possession of the drugs found in Delcamp’s house. The state failed to supply the missing link in a joint occupancy situation.

In the interest of justice and fair play this case should be reversed and remanded with directions to grant Holloway a separate trial.

Supplemental Opinion on Denial of Rehearing

December 14, 1987

742 S.W.2d 550

1. Search & seizure — search warrant — validity. — Where a search warrant showed that a nighttime search was authorized but the judge neglected to line out the appropriate alternative at another place on the face of the warrant, this technicality will not invalidate the warrant.

2. Search & seizure — search warrant should normally be executed during the day — exception. — A search warrant should provide for execution between the hours of six a.m. and eight p.m. unless the judge has reasonable cause to believe, among other things, that the objects to be seized are in danger of imminent removal. [Ark. R. Crim. P. 13.2(c).]

3. Search & seizure — nighttime search — justification. — A nighttime search was justified where the judge had been told of the heavy traffic and use of drugs during the evening hours at the place to be searched, and the affidavit stated that the controlled buy of cocaine earlier in the evening had been made with photographed bills and the chances that these same bills would be in the possession of the suspects would diminish with the passage of time.

David Newbern, Justice.

Appellant Brent Kevin Holloway has correctly pointed out that our initial opinion was incorrect in stating that he had not given the trial court an opportunity to rule upon the facial validity of the search warrant which led to evidence used against him and upon his objection to the insufficiency of evidence to justify a nighttime search. Both were argued by him at a pre-trial hearing.

The Face of the Warrant

In our original opinion we discussed the fact that the warrant at one point showed that a nighttime search was authorized although the judge neglected to line out the appropriate alternative at another place on the face of the warrant. We are satisfied that the warrant showed that a nighttime search was authorized. This sort of technical attack on the warrant is not favored. Watson v. State, 291 Ark. 358, 724 S.W.2d 478 (1987).

Basis of Nighttime Search Order

We have no doubt that the judge could reasonably have concluded that a nighttime search was justifiable in the circumstances presented to him. The affidavit of Detective Robert Ross of the Fort Smith Police Department showed that he had learned, through information obtained in the process of making the controlled cocaine buy at the residence to be searched, that illegal drug sales were taking place there. The controlled buy had been made “during the evening hours” on the very evening the warrant was sought. It was then that the “additional quantities of cocaine” were observed. The affidavit stated that information had been obtained that “numerous vehicles [were] coming and going from this residence especially at night.”

According to Ark. R. Crim. P. 13.2(c), a search warrant will provide for execution between the hours of six a.m. and eight p.m. unless the judge has reasonable cause to believe, among other things, that “the objects to be seized are in danger of imminent removal.” In Murray v. State, 275 Ark. 46, 628 S.W.2d 549 (1982), we held that a nighttime search was justified on the basis of an affidavit showing that the suspect had said he had drugs which could easily be sold. While no such statement was before the judge in this case, he had been told that the drugs had been observed in the evening hours and that that was when the traffic in and out of the dwelling to be searched was heavy. The affidavit presented to the judge also noted that the controlled buy of cocaine earlier in the evening had been made with bills which had been photographed by the police beforehand. Given the evidence that sales were occurring, and presumably currency was changing hands, it was obvious that the chances that these same bills would be in the possession of the suspects would diminish with the passage of time. We deem the totality of this information provided a sufficient basis for permitting the search after eight p.m. See Boyd v. State, 13 Ark. App. 132, 680 S.W.2d 911 (1984); Lewis v. State, 7 Ark. App. 38, 644 S.W.2d 303 (1982).

While we agree with the appellant that both these issues were presented to and ruled upon by the trial judge, we conclude his rulings on them were not erroneous. Therefore, the petition for rehearing is denied.

Purtle, J., would grant.


author: Per Curiam.

text:
    Ray SCOTT and Walt PATTERSON v. Judson C. KIDD
    87-270
    738 S.W.2d 421
    Supreme Court of Arkansas
    Opinion delivered November 2, 1987

      Breck G. Hopkins, Deputy General Counsel, Department of Human Services, for appellants.

      Perroni, Rauls & Looney, P.A., by: Stanley D. Rauls, for appellee.
   Per Curiam.

Ray Scott in his official capacity as Director and Walt Patterson in his official capacity as Deputy Director of the Arkansas Department of Human Services (“Directors”), have filed a petition for writ of prohibition.

On May 19, 1987, Heritage Center, Inc. (“Heritage”) petitioned the Pulaski County Circuit Court for a writ of mandamus to compel the Directors to review its application for a license to conduct a long-term health care facility. By its application, Heritage requested authorization to add an additional thirty-five beds to its existing nursing home facilities.

In the circuit court’s order of June 2, 1987, dismissing the suit, the court noted in its findings that the Directors agreed to review the application under Act 593 of 1987, which was in effect at the time of submission. On June 5, 1987, the legislature amended Act 593 by passing section 6 of Act 40 of the First Extraordinary Session of 1987. The effect of this amendment was to place a moratorium on the issuance of licenses except under certain specified circumstances. Pursuant to section 6, the Directors refused to recognize the agreement recited in the findings of the court’s order of June 2, 1987, to review the application.

On August 5,1987, in the same action which Heritage had previously filed on May 19, 1987, Heritage filed a motion to compel compliance with the agreed order of June 2, 1987, or in the alternative to hold the Directors in contempt for their refusal to comply with the terms of the order and to issue a writ of mandamus to compel the Directors to review the application. On September 10,1987, the circuit court granted the motion for writ of mandamus. On September 18, the Directors appealed the order of the circuit court and filed an application for supersedeas to stay the mandamus pending outcome of the appeal. By its order of September 21, 1987, the circuit court denied the application. On September 28,1987, the Directors filed a petition for a writ of prohibition asking us to direct the circuit court judge to desist from any further action in the case.

A writ of prohibition is an extraordinary and discretionary writ which should not be granted unless the petitioner is clearly entitled to it and the court against which it is sought is wholly without jurisdiction. Arkansas State Highway Comm’n v. Roberts, 248 Ark. 1005, 455 S.W.2d 125 (1970). It is never issued to prohibit a lower court from erroneously exercising jurisdiction but only where a lower court is wholly without jurisdiction or is threatening to act in excess of its jurisdiction. Springdale School Dist. v. Jameson, Judge, 274 Ark. 78, 621 S.W.2d 860 (1981).

Rule 60(b) of the Arkansas Rules of Civil Procedure provides the following:

To correct any error or mistake or to prevent the miscarriage of justice, a decree or order of a circuit, chancery or probate court may be modified or set aside on the motion of the court or any party, with or without notice to any party, within ninety (90) days of its having been filed with the clerk.

Pursuant to Ark. R. Civ. P. 60(b), the trial court loses jurisdiction to modify or set aside a judgment ninety days after judgment is filed with the clerk unless the exceptions in Ark. R. Civ. P. 60(c) are applicable. See Mullen v. Couch, 288 Ark. 231, 703 S.W.2d 866 (1986). Although the circuit court’s order of June 2, 1987, made findings as to certain agreements between the parties, these agreements are of no consequence since they were not ordered into effect by the circuit court. The court’s order dismissed Heritage’s cause of action, nothing more. In order to have revived Heritage’s cause of action, the circuit court would have had to set aside the June 2, 1987, order of dismissal within ninety days under Rule 60(b). This was not done. Accordingly, the circuit court was wholly without jurisdiction to issue the writ of mandamus in its order of September 10, 1987, to compel the Directors to review the application.

For these reasons, we grant the Director’s petition for writ of prohibition.

Granted.


author: John I. Purtle, Justice.

text:
    Amanda KILCREASE v. James BUTLER
    86-173
    739 S.W.2d 139
    Supreme Court of Arkansas
    Opinion delivered November 9, 1987

      Witt Law Firm, P.C., by: R. Kevin Barham, for appellant.

      Daily, West, Core, Coffman & Canfield, by: Ben Core and Jan West Whitt, for appellee.
   John I. Purtle, Justice.

The trial court granted appellee’s separate motion to dismiss for lack of jurisdiction pursuant to ARCP 12(b)(2). Appellant argues that the trial court erred in holding that the appellee did not have substantial contacts with the state sufficient to give Arkansas jurisdiction over the appellee without offending due process. We find that the trial court did not commit error in granting appellee’s motion.

The appellant, whose husband died of histoplasmosis capsulatum, brought a wrongful death action alleging that two Arkansas physicians and appellee, a Texas physician, were negligent in failing to test for the disease. The appellant’s husband was a resident of Arkansas who sought treatment from the Arkansas doctors. One of these doctors sent the husband’s tissue sample to the appellee in Houston, Texas. The appellee is a salaried employee of the University of Texas M.D. Anderson Hospital where he works in the pathology department examining tissue at the request of physicians around the country. The appellee analyzed the tissue and mailed a report of his findings back to the doctor in Arkansas. This was the fourth time in two years the appellee had so consulted with an Arkansas doctor.

Arkansas Statute Annotated § 27-2502(C) (1) (d) (Repl. 1979) provides for service against anyone who causes a tortious injury within the state by an act or omission outside the state if he regularly does or solicits business in this state, or engages in any other persistent course of conduct in this state, or derives substantial revenue from goods consumed or services performed in this state. The purpose of the Arkansas long arm statute is to allow such personal jurisdiction over nonresidents as is allowed by the due process clause of the United States Constitution. S.D. Leasing, Inc. v. Al Spain and Associates, 277 Ark. 178, 640 S.W.2d 451 (1982); and Nix v. Dunavant, 249 Ark. 641, 460 S.W.2d 762 (1970).

The issue of whether or not a trial court committed error by dismissing a cause of action against a nonresident for lack of jurisdiction was considered by this Court in Marchant v. Peeples, 274 Ark. 233, 623 S.W.2d 523 (1981). In Marchant a Texas lawyer was allegedly hired by an Arkansas resident to answer a divorce complaint filed against her in Texas. A default judgment was entered against the Arkansas resident and the subsequent suit that was brought against the Texas lawyer in Arkansas was dismissed by the trial court for lack of jurisdiction.

The Marchant court affirmed the trial court’s decision relying in part on World-Wide Volkswagen Corp. v. Woodsen, 444 U.S. 286 (1980). There the United States Supreme Court explained that the foreseeability that is critical to due process occurs when the nonresident’s conduct and connection with the forum state are such that he should reasonably anticipate being haled into court in the forum state. When a business purposefully avails itself of the privilege of conducting activities within the forum state, it has clear notice that it is subject to a suit in that state.

A state does not abuse due process when it asserts jurisdiction over a business that delivers its product into the stream of commerce within a state with the expectation that it will be purchased by consumers in that state. However, when a business does not market its product to the forum state and there is no evidence that its products are sold to retail customers in the forum state, the mere foreseeability that a product may be used in the forum state is not enough of a contact to satisfy due process. World-Wide Volkswagen Corp. v. Woodsen, supra.

After discussing the necessary elements which give the state personal jurisdiction over nonresidents, the Marchant court stated:

In our judgment it is virtually inconceivable that a lawyer in Peeple’s position, assuming the facts we have recited, could have forseen that he could be sued in Arkansas for any negligent act he performed in Texas. The constitutional requirement that ‘minimum contacts’ exist has not been met in this case.

We think the reasoning in the Marchant opinion is controlling in the present case. It is clear that the only contact appellee had with Arkansas was to mail the reports of his tissue examinations to Arkansas doctors. It was not shown that the appellee was paid for these reports, or that his reports contained advice on the treatment of the Arkansas patients, or even that the Arkansas doctors relied on his reports. Thus, we find that the appellee’s contacts through the mail with Arkansas doctors did not put him on notice that he could be subjected to a lawsuit in Arkansas. The appellee’s contacts with Arkansas do not satisfy the minimum necessary to assert jurisdiction under the due process clause of the United States Constitution.

Affirmed.

Glaze, J., concurs.


author: Robert H. Dudley, Justice.

text:
    AMERICAN CASUALTY COMPANY OF READING, PA. and Ruben GOSS, Individually and in his official capacity as Faulkner County Clerk v. QUITMAN SCHOOL DISTRICT, Wetzel STARK, et al.
    87-158
    739 S.W.2d 144
    Supreme Court of Arkansas
    Opinion delivered November 9, 1987
    [Rehearing denied December 14, 1987.]

      Wright, Lindsey & Jennings, for appellants.

      Wilson, Engstrom, Corum & Dudley, by: Stephen Engstrom, for appellees.

      Anderson & Kilpatrick, by: Joseph E. Kilpatrick, Jr., for appellee Lawyers Surety Company.
   Robert H. Dudley, Justice.

The appellee, Quitman School District, filed suit against the appellants, Ruben Goss, the County Clerk of Faulkner County, and the American Casualty Company, the surety company. Also named as defendants were the Clerk of Cleburne County and his surety. The basis of the complaint against appellant Goss was that he failed to properly extend taxes and, as a result, the school district lost tax revenues. The jury returned a verdict finding appellant Goss had negligently failed to extend the taxes and that he was 90% responsible for damages of $24,104.62. In addition, the jury found the superintendent of schools was 10% responsible for the damages. The trial court entered an amended judgment against appellants for 90% of the damages. We affirm.

The Quitman School District lies primarily in Cleburne County, where it is domiciled, but the district also overlaps into parts of Faulkner and Van Burén Counties. Real estate taxes produced from lands within the district constitute part of the funds to maintain and operate the district. Those real estate taxes are extended on the tax books by the county clerk in each county.

Although, the real estate in the different counties within the district had not been equally appraised, the taxing scheme equalizes the taxes. In 1984, the Cleburne County real property had been reappraised and, in the Quitman School District, carried a rollback school rate of 14.4 mills. Faulkner County land, in this school district, which had not been reappraised, carried a rate of 57 mills. That year the voters elected to increase the school millage to 19 mills in Cleburne County and 75 mills in Faulkner County. The Cleburne County Court canvassed the returns and entered the result of record.

Ark. Stat. Ann. § 80-318 (Repl. 1980) requires county clerks in the domicile county, Cleburne County, to file election results with county clerks in the outlying counties where school districts overlap. The Cleburne County Clerk testified that he mailed the results to the Faulkner County Clerk, the appellant. The Faulkner County Clerk testified that he never received the results, and naturally they were never filed in Faulkner County. However, Ark. Stat. Ann. § 84-802 (Repl. 1980) requires a county clerk to “determine the sums to be levied upon each tract or lot of real property in his county. . .,” There was substantial evidence to show that in an effort to determine the proper millage to be assessed for the 1984 tax to be collected in 1985, appellant Goss sent a questionnaire to the superintendent of the school district requesting the appropriate millage rate. The superintendent, Wallace Sneed, answered that the rate for 1984 was “19 mills reappraised.” Appellant Goss testified that the term “reappraised” meant nothing to him, that he had never seen a questionnaire answered in that way, and that he just assumed there was no change in the millage. Therefore, he extended the taxes at the rate of 57 mills, when the proper rate would have been 7 5 mills. This mistake resulted in a net loss of tax revenue to the school district of $24,104.62.

The appellants first argue that the trial court committed error in failing to grant a directed verdict in their favor as there was no substantial evidence from which the jury could reasonably find for the school district. The argument is without merit. Ark. Stat. Ann. § 84-802 (Repl. 1980) requires a county clerk to “determine the sums to be levied upon each tract or lot of real property in his county. . . .” In his testimony, appellant Goss admitted that he decided to extend only 57 mills because he did not understand what the school superintendent meant by “19 mills reappraised,” and he chose to assume there had been no change. He admitted that the “19 mills reappraised” meant “nothing to me.” The fact that he simply assumed that there had been no change from the year before, even when faced with an answer to his questionnaire which baffled him, would constitute negligence. Appellant does not argue that the school superintendent was not the proper authority to determine the sums to be levied, and we do not address that issue. In addition, the parties all contend that the county clerk levies the taxes, and we do not reach the ramifications of that possible issue.

Appellants next argue that a directed verdict should have been granted because the Cleburne County Clerk alone was absolutely liable since he failed to file a copy of the election results in Faulkner County in violation of Ark. Stat. Ann. § 80-318 (Repl. 1980). They argue: “If the outlying-county clerk is not informed of the increase and levies the tax at the unincreased rate, the resulting loss should, as a matter of law, be attributed to the home-county clerk.” The argument is without merit. Violation of the statute would not establish absolute liability, it would only be evidence of negligence which the jury could accept or reject as it saw fit. Berkeley Pump Co. v. Reed-Joseph Land Co., 279 Ark. 384, 653 S.W.2d 128 (1983); AMI 601.

During the trial, an article about the case appeared in the local newspaper. The appellants contend that, because of the article, the trial court erred in refusing to grant their motion for a mistrial.

Individual voir dire revealed that only one juror saw the article, and he did not read all of it. He was unafffected by what he read. He stated that he did not learn anything from the article that he had not learned earlier from voir dire of the panel. He said that nothing he read would affect his impartiality.

The mere reading of a newspaper account of an occurrence will not disqualify a juror for cause. Davis v. State, 251 Ark. 771, 475 S.W.2d 155 (1972). The trial judge had considerable discretion in determining whether to order a mistrial because of the article. Back v. Duncan, 246 Ark. 494, 438 S.W.2d 690 (1969). He did not abuse his discretion in denying the motion for a mistrial under these circumstances.

Last, appellants argue that the trial court erred in denying their motion for a mistrial because of jury confusion which was evidenced by an inconsistent answer to an interrogatory. We need not dwell on this point because when the parties’ attorneys and the trial judge realized there was an inconsistency in two of the answers, the trial judge, at appellants’ request, questioned the jury foreman about the inconsistent answers. The foreman explained what the jurors intended. The trial judge then reduced the damages assessed against appellants by 10%, in line with the jury’s intended apportionment of fault. The trial court did not abuse his considerable discretion in denying the motion for mistrial under these circumstances.

Affirmed.

Purtle, J., not participating.


text:
    NEWTON COUNTY, Arkansas v. Don WEST, Administrator, Estate of Sue S. MORAK, deceased; and Steve CLARK, Attorney General for the State of Arkansas
    87-153
    739 S.W.2d 141
    Supreme Court of Arkansas
    Opinion delivered November 9, 1987
    [Rehearing denied December 14, 1987.]

      Thomas A. Martin, for appellant.

      Steve Clark, Att’y Gen., by: R. B. Friedlander, Solicitor General, for appellees.
   Robert H. Dudley, Justice.

The primary issue in this case is whether the decedent’s estate escheated to the State of Arkansas or to the County of Newton. We affirm the probate judge’s ruling that the property went to the State.

This is the fourth appeal involving this estate. See Newton County v. West, 288 Ark. 432, 705 S.W.2d 887 (1986); Newton County v. Davison, 289 Ark. 109, 709 S.W.2d 810 (1986); and Adams v. West, 293 Ark. 192, 736 S.W.2d 4 (1987). The facts necessary to an understanding of the primary issue now on appeal are simple. Sue Morak died intestate and without heirs in Newton County on July 8, 1984. At that time, estates escheated to the State. However, Act 703 of 1985, effective on March 28, 1985, changed the law so that estates now escheat to the County where the decedent resided at death. Ark. Stat. Ann. § 61-150 (Repl. 1971 & Supp. 1985), and Ark. Stat. Ann. § 62-1833 (Supp. 1985). The probate court order holding that there were no known heirs and that the estate must escheat was entered after the effective date of the act. The obvious issue is whether escheat occurs immediately upon the death of the intestate, or whether it occurs when the probate court enters its order finding the estate must escheat. While it is a question of first impression in Arkansas, courts in other jurisdictions have ruled both ways. See generally, 27 Am. Jur. 2d Escheat § 21 (1966); Annot., 23 A.L.R. 1237 (1922).

We hold that under our escheat statutes, title vests immediately. As Justice Cardozo explained in Re Melrose Avenue, 234 N.Y. 48, 136 N.E. 235 (1922):

Ej ectment. . ., or inquest of office, “does not constitute an escheat.” [Citations omitted.] It is the remedial expedient by which the fact of escheat is authenticated where there is uncertainty or contest. The fact, and not the record, is the origin of title.
Later scholarship has thought it the better view “that an inquest of office is only a proceeding to ascertain the title of the Crown by escheat, and not an essential condition to the vesting of such title, ‘or else the freehold should be in suspense, which may not be.’ ”
Neither entry upon the land nor the judgment of a court is necessary, when the alien dies, to consummate the title. This has many times been held. [Citations omitted.] We think they remain unnecessary when the owner is a citizen. In neither case, of course, may the state enter with a strong hand, if its title is contested by one in peaceable possession. The statute gives a remedy in such circumstances by action of ejectment. [Citation omitted.] None the less, as in other cases of contested right, the judgment does not create the title which it registers.

Justice Cardozo was interpreting a State constitution which provided that, “all lands, the title to which shall fail from a defect of heirs, shall revert, or escheat to the people.” Our statutes governing escheated estates by reason of defect of heirs are codified at Ark. Stat. Ann. §§ 61-149 and -150 (Repl. 1971 & Supp. 1985); and Ark. Stat. Ann. §§ 62-1801 to -1833 (Repl. 1971 and Supp. 1985). For ease of discussion, we set out the pre1985 statute, and place the 1985 change in parentheses.

Ark. Stat. Ann. § 61-149 provides in pertinent part that the heritable estate of an intestate “shall upon his death” pass in accordance with the tables of descent set forth in the statute. The last paragraph of this statute provides that if heirs capable of inheriting the estate cannot be found within the prescribed classes, then the intestate’s property shall pass according to § 61-150. Ark. Stat. Ann. § 61-150 sets out three additional classes of potential takers, the third of which is the State (County):

Third, if there be no person capable of inheriting under First or Second, the estate shall escheat to the state (county wherein the decedent resided at death).

Clearly, the legislature intended for these two statutes to operate in concert, and the introductory clause contained in § 61-149, stating that the heritable estate of an intestate “shall upon his death” pass in accordance with the statute, carries over into § 61-150.

Further, Ark. Stat. Ann. § 62-1801 provides:

When property escheats. — If any person die seized of any real or personal estate, without any devise thereof, and leaving no heirs or representatives capable of inheriting the same, or the devisees be incapable of holding the same, and where there is no owner of real estate capable of holding the same, such estate shall escheat to and vest in the State (County wherein the decedent resided at death).

(Emphasis added.) This statute clearly ties escheat to the death of the person seized of the estate.

Ark. Stat. Ann. § 62-1810 (Repl. 1971) provides:

Proceedings for escheat of real property. — When the prosecuting attorney for the circuit shall be informed or have reason to believe, that any real estate within his circuit hath escheated to the State (county), and such estate shall not have been sold, according to law, within three [3] years after the death of the person last seized, for the payment of the debts of the deceased, he shall file an information, in behalf of the State (county), in the circuit court of the county in which such estate is situated, setting forth a description of the estate, the name of the person last lawfully seized, the names of the terre-tenants, and persons claiming the estate, if known, and the facts and circumstances in consequence of which such estate is claimed to have escheated and alleging that, by reason thereof, the State of Arkansas (county) hath right to such estate.

(Emphasis added.) This statute deals with the initiation of the process to judicially establish the fact of escheat, yet it refers to escheat in the past tense.

Ark. Stat. Ann. § 62-1811 requires any claimants listed in the information filed by the prosecuting attorney to appear at the next term of court to “show cause why such estate should not be vested in the State (county). . . .” Similarly, Ark. Stat. Ann. § 62-1812 requires the court to publish for four weeks an order setting out the contents of the information and requiring all persons interested in the estate to show cause why it shall not be vested in the State (County). Any such claimants “may traverse the facts stated in the information, or the title of the State (county) to the lands and tenements therein mentioned.” Ark. Stat. Ann. § 62-1813. With these statutes, as well as others to be mentioned subsequently, the legislature established a procedure by which the State’s (County’s) claim to title may be contested.

Further, Ark. Stat. Ann. §§ 62-1816 and -1818 simply provide for the form of the judgment in cases where the fact of escheat has been judicially established in favor of the State:

62-1816. Judgment for state (county) — Costs.—If, after the issues are tried, it appears, from the facts found or admitted, that the State (county) hath good title to the lands and tenements in the information mentioned, or any part thereof, judgment shall be rendered that the State (county) be seized thereof, and recover costs against the defendant.
62-1818. Form of judgment for state (county) —Effect.—When any judgment shall be rendered that the State (county) be seized of any real estate, such judgment shall contain a description of such estate and shall vest the title in the state (county).

As Justice Cardozo explained, “as in other cases of contested right, the judgment does not create the title which it registers.” Re Melrose Avenue, 234 N.Y. 48, 136 N.E. 235, 237 (1922).

Finally, Ark. Stat. Ann. §§ 62-1823, -1825, and -1826 establish a procedure by which claimants who were not parties to the earlier proceedings, where title was judicially established to be in the State (County), may still divest the State of its interest if they are successful in establishing their claims to the property. The time limit within which they may do so is measured in terms of “seven years after the death of the intestate,” not seven years after the judicial confirmation of the State’s interest in the property.

Summarizing, in the instant case the probate court was correct in finding that escheat occurred immediately upon the death of Ms. Morak on July 8, 1984. Since her estate escheated prior to March 28,1985, the court was also correct in determining that Act 703 did not apply and that the estate therefore escheated to the appellee State, and not to the appellant County. The clear expression of legislative intent that estates escheating prior to March 28, 1985 were to go to the State, and our holding that escheat occurs immediately upon death, makes it unnecessary to address appellant’s arguments that Act 703 should be given retroactive effect.

The prosecuting attorney for the district which includes Newton County apparently recognized that the County and the State had conflicting interests. While he testified that he thought under the 1985 Act the property should escheat to the County, he did not formally take either side. Under these conditions the probate judge allowed the Attorney General to represent the State’s interest. The appellant argues that the trial court’s “ruling that the Attorney General was the proper officer to represent the State of Arkansas was a usurpation of the office of the Prosecuting Attorney and is clear error.”

In Parker v. Murry, 221 Ark. 554, 254 S.W.2d 468 (1953), we wrote that the office of Attorney General is a constitutional one, but that the duties are statutory. We then interpreted Ark. Stat. Ann. § 12-701 (Repl. 1979) to mean that the Attorney General could represent the state in a civil suit when his services were judicially found to be “necessary and desirable.” The trial court found his services to be necessary and desirable in this case.

The prosecuting attorney was faced with a conflict between the interest of the County and the interest of the State. He did not formally represent either entity. The County hired an attorney to represent it, and the State was without representation. Under such circumstances, the finding that it was necessary and desirable for the Attorney General to represent the State was correct.

We note that the Attorney General has not attempted to do any of the acts which are statutorily reserved to the office of prosecuting attorney, such as filing an information of escheat of property. See Ark. Stat. Ann. § 62-1810.

Affirmed.


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

text:
    UNITED BONDING COMPANY, INC., through its President, Roger RICHMOND v. Floyd JOHNSON, Sheriff of Craighead County, Arkansas, and Bill WEBSTER, Municipal Judge, Craighead County, Arkansas
    87-164
    739 S.W.2d 147
    Supreme Court of Arkansas
    Opinion delivered November 9, 1987

      Wilson & Castleman, for appellant.

      Henry, Walden & Davis, for appellees.
   Robert H. Dudley, Justice.

Appellant, a licensed bail bond company pursuant to Ark. Stat. Ann. §§ 43-734 to -747 (Repl. 1977 &Supp. 1985), has previously engaged in posting bail in the City of Jonesboro, in the county of Craighead, and in the Second Judicial Circuit. In February of 1987, appellee Floyd Johnson, acting in his capacity as Sheriff of Craighead County, issued a directive to all of the personnel of his office not to accept bail bonds from appellant. The Sheriff had reason to believe that one of appellant’s agents had bribed one of his employees. At the same time, appellee, Judge Bill Webster, acting in his capacity as Judge of the Municipal Court of Jonesboro, issued a similar directive to all employees of the Municipal Court. The appellant petitioned the Circuit Court of Craighead County for a Writ of Mandamus to compel the appellees to accept bail bonds from the appellant. The circuit court held that the actions taken by the appellees were within their discretionary authority and denied the writ. However, the circuit court, on its own motion, went further and entered an order suspending the appellant from issuing any bail bonds in the entire Second Judicial Circuit, which is comprised of six counties, for a period of forty-five days. After the expiration of the forty-five day period, the trial court entered its order making the suspension permanent in Craighead County only. We affirm the action of the' trial court in denying the Writ of Mandamus, but reverse the order suspending appellant from issuing bail bonds in Craighead County.

We first discuss the trial court’s suspension of appellant’s authority to issue bonds. The ruling was the same as a suspension of the appellant’s license. In fact, the court stated in its finding of facts: “And I just want to point out that this court feels it has any power that the Insurance Commissioner would have in that regard, and that is the power of suspension. . . .” Although a trial court may regulate the business of bail bondsmen acting in its court, the power to suspend such a license is in the Department of Insurance. Miller v. Pulaski County Circuit Court, 284 Ark. 55, 57, 679 S.W.2d 187, 189 (1984); Ark. Stat. Ann. § 43-740 (Repl. 1977). In an analogous federal situation, the Eleventh Circuit wrote:

To the extent that the disqualification policy of the Southern District reflects the court’s discretionary decision not to deal with a recalcitrant surety, it is not inconsistent with federal regulation. However, to the extent that it purports to bar the surety from writing any bonds in the district, without complying with the statutory method of disqualification, the court arguably engages in a practice reserved to the Secretary of the Treasury. Although the court always retains the discretion to create appropriate bail and bond conditions with respect to particular criminal defendants, the regulation of corporate sureties is basically an administrative function. The key to achieving the appropriate balance is to assure that the court actually is exercising the discretion anticipated for individual bond approval.

American Druggists Ins. Co. v. Bogart, 707 F.2d 1229, 1233-34 (11th Cir. 1983).

Similarly, to the extent that the trial court in the case at bar attempted to suspend the appellant’s license, it engaged in a practice reserved to the Commissioner of Insurance. Ark. Stat. Ann. § 43-740. Accordingly, we reverse on this point.

Since we hold that appellant’s license cannot be suspended by the trial court, we must reach the other issue of whether the trial court erred in refusing to command the sheriff and the municipal judge to accept appellant’s bonds. We find no error in the denial of the writ of mandamus.

Appellant first argues that it was a violation of his due process rights for the appellees to prohibit a licensed bonding company from engaging in its occupation without prior notice and an opportunity to be heard. The argument may well have merit, but we do not reach it since the appellant did not ask the circuit court to compel appellees to give the appellant a hearing. Instead, the appellant asked the circuit court to compel the appellees to “withdraw their administrative edicts and accept the company or its agents as sureties on bonds.” Thus, the issue on appeal is whether the trial court erred in refusing to compel the appellees to accept the appellant as a surety on bonds. That issue is determined, in turn, by whether the appellees’ duties are discretionary or ministerial, since mandamus will not lie to control an officer in a discretionary act.

In Miller v. Pulaski County Circuit Court, 284 Ark. 55, 679 S.W.2d 187 (1984), we pointed out generally that the admission to bail is part of the operation of trial courts. Specifically, it is the placing of an accused in the custody of someone selected by the accused to be his friendly custodian. The surety upon the bail has the power to arrest the accused. Ark. Stat. Ann. § 43-718 (Repl. 1977). The whole purpose is to insure the appearance of the accused at his trial date. Whether the bondsman will do his best to see that the accused makes his designated appearance, or whether the bondsman will make a timely forfeiture of the bond, is an important matter to be considered in the operation of the judicial system in this state.

In addition, with regard to appellee Webster, the municipal judge, Ark. Stat. Ann. § 43-745 (Repl. 1977) provides in part:

[Njothing herein [the licensing act] shall be construed to preclude the presiding officer of a court from refusing to accept an insurer, professional bail bond company or professional bail bondsman as a surety on a bond, if in the judgment of the court such insurer or licensee has bail bond commitments exceeding that reasonably warranted by the insurer or licensee’s net worth.

Accordingly, we hold, that the passage of the general licensing act regulating the bail bond business does not remove the power of a court to reject a bond made by a licensed surety. The acceptance or rejection of a bondsman is a discretionary act, and mandamus will not lie to compel its performance.

With regard to appellee Sheriff Johnson, Ark. Stat. Ann. § 43-713 provides:

The sheriff arresting a person under a warrant or other process, in which it shall appear that the person is to be admitted to bail in a specified sum, may take the bail and discharge the person from actual custody. A sheriff taking bail shall be officially responsible for the sufficiency of the bail as in taking bail in civil actions.

In addition, Ark. Stat. Ann. §§ 43-704 to -705 (Repl. 1977) provide:

43-704. Examination of persons offered as bail. — The person or persons offered as bail shall be examined on oath in regard to their qualifications as bail, and any officer authorized to take bail is authorized to administer the oath, reduce the statements on oath to writing, and require the person offered as bail to sign the statement. Other proof may be also taken in regard to the sufficiency of bail.
43-705. When accepted. — No person shall be taken as bail unless the court, magistrate, or officer, is satisfied, from proof and examination on oath, of the sufficiency of such person according to the requisitions of the preceding section.

In light of the general duty of the sheriff to see that the bondsman is someone who will insure the appearance of the accused, and the sheriffs statutory duties set out above, we hold that the taking of bail by a sheriff is a discretionary act and mandamus will not lie to compel its performance. We affirm the refusal of the trial court to issue the writ of mandamus.

Affirmed in part and reversed in part.

Purtle, J., concurs.

John I. Purtle, Justice,


author: Steele Hays, Justice.

text:
    Royce Everette DAVIS v. STATE of Arkansas
    CR 87-79
    739 S.W.2d 150
    Supreme Court of Arkansas
    Opinion delivered November 9, 1987

      Larry D. Vaught, for appellant.

      Steve Clark, Att’y Gen., by; Clint Miller, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

Appellant Royce Davis was convicted of murder in the first degree and possession of a controlled substance. He was sentenced to forty years for murder and ten years for possession. On appeal he challenges the validity of an arrest warrant issued for his arrest and the rejection by the trial court of an instruction on the defense of insanity.

On April 23, 1986, Mike Hardin was shot and killed in a beauty salon in Little Rock. The next day, based on descriptions of eyewitnesses and on information supplied by a friend of the appellant, the Little Rock police obtained an arrest warrant for appellant’s arrest for first degree murder. The warrant was issued by the clerk of the Little Rock Municipal Court on the basis of an information filed by the prosecutor in accordance with A.R.Cr.P. Rule 7.1(c). Pursuant to the warrant, appellant was arrested at a Little Rock motel and charged with murder and possession of cocaine. He moved to suppress the evidence based on an invalid arrest warrant and the motion was denied.

Appellant first argues the trial court erred by denying his motion to suppress evidence which was seized pursuant to an invalid arrest warrant, issued on the basis of A.R.Cr.P. Rule 7.1(c). Rule 7.1(c) provides:

The clerk of a court or his deputy may, when authorized by the judge of that court, issue an arrest warrant upon the filing of an information or upon affidavit sworn to by the complainant and approved by the prosecuting attorney. Any such information or affidavit shall be indorsed by the prosecuting attorney approving the issuance of the warrant.

Appellant argues that under Shadwick v. City of Tampa, 407 U.S. 345 (1972) and as more recently discussed in Fairchild v. Lockhart, No. PB-C-85-282 (D.C. Ark. Sept. 11, 1987), constitutional requirements are such that a warrant issued under Rule 7.1(c) must be issued by a detached, neutral officer who makes an independent determination of probable cause. We agree and we so held in Webb v. State, 269 Ark. 415, 601 S.W.2d 848 (1980), as the district court noted in the Fairchild case.

Here the warrant requirements were not met. The arrest warrant shows only that it had been issued by the clerk of the Little Rock Municipal Court upon the presentation of a prosecutor’s information. There is nothing to indicate the warrant was issued or approved by a judicial officer as we found was necessary in Webb, supra, and we cannot assume that such was the case. Id.

Nor can we expand the holding in Shadwick, supra as the state suggests. There, the court found on the basis of specific statutes and procedures that a clerk was competent and sufficiently detached and neutral to make probable cause determinations on “common offenses” covered by a municipal code. At issue here is the power of the clerk to have general authority over arrest warrants. Given our holding in Webb, we are unwilling to expand the holding in Shadwick beyond the circumstances of that case in order to find the warrant valid in this case. Furthermore, the supporting affidavit in this case was insufficient to find probable cause. The statement in its entirety provided:

Acting on information from a variety of witnesses, the defendant was seen at the parking lot, told people he was going to the beauty shop, and was clothed in a manner and carrying a briefcase similar to that of the suspect.

Without further circumstances surrounding the murder, the statement tells us little. The affiant may have given further information in sworn testimony at the time of the issuance of the warrant which would have made the above statement significant for determining probable cause. A.R.Cr.P. Rule 13.1; Lunsford v. State, 262 Ark. 1, 552 S.W.2d 646 (1977). However, there is nothing in the record reflecting such testimony and the burden is on the state to produce the necessary record to show the affidavit is in compliance with the law. Lunsford, supra. We find the warrant was not issued pursuant to the requirements of the law nor was it sufficient to support a finding of probable cause.

Whether the good faith defense under United States v. Leon, 468 U.S. 897 (1984) is available to the state is not necessary to a determination of this case. See Fairchild, supra. For even if the warrant must fail, the arrest itself is valid as it was supported by probable cause. Allen v. State, 277 Ark. 380, 641 S.W.2d 710 (1982). Detective Ivan Jones obtained the arrest warrant. His information came primarily from Ricky Croon, a friend of appellant. Jones obtained additional information from witnesses at the scene of the crime and from an undercover officer.

The murder took place about 11:00 a.m. at a beauty salon in the Colony West Shopping Center where the victim, Mike Hardin, was employed. The day after the shooting Ricky Croon contacted the police department to say that he had gone to appellant’s house off Barrow Road about 10:00 a.m. the morning of the murder. Appellant asked Croon to take him to the shopping center which he did. Appellant told Croon he would be about twenty minutes and said “something about a beauty shop around the corner.” Croon did some shopping and returned to his car about twenty to thirty minutes later and appellant was waiting for him. Croon then dropped him off at La Quinta Motel. Croon stated that earlier appellant had told him he thought his wife was having an affair with Mike Hardin. Croon thought appellant “wanted, to get even.” Croon described appellant as a very average looking black man in his mid-thirties, about 145 lbs., 5’6”-5’7” and light-complected. On the day of the shooting, Croon said appellant was wearing gray warm-up pants and was carrying a black briefcase.

Witnesses to the murder gave varying descriptions of the assailant, but the general pomposite description was of a black man in his twenties to thirties, light or medium complected, about 150-170 lbs., 5’ 5 ” to 5T 0” tall and wearing gray clothes or a gray warm-up suit and carrying a black briefcase.

Officer Tappan was an undercover narcotics agent and talked to Jones about 8:00 o’clock on the evening of the murder. Tappan told Jones he thought appellant was a suspect because of drug usage, because of conversations Tappan had had with appellant’s wife, because appellant matched the description of the suspect given by witnesses, and because appellant frequently carried a black briefcase. In sum, the police knew appellant was taken to the shopping center at about the time of the murder, that appellant indicated he was going to the particular shop where the murder occurred, that descriptions of the assailant matched that of appellant, specifically the clothes he was wearing that day, plus the black briefcase he had with him at the time. Coupled with the foregoing was the possible motive, i.e. the victim’s involvement with appellant’s wife. The undercover agent had expressed interest in appellant as a suspect based on conversations he had had with appellant’s wife. These circumstances provided probable cause and the arrest can be sustained on that basis alone. Allen v. State, supra.

Appellant also argues that the trial court erred by refusing to instruct the jury on the defense of mental disease or defect. The defense requested the following instruction found in Ark. Stat. Ann. § 41-601:

It is an affirmative defense to a prosecution that at the time the defendant engaged in the conduct charged, he lacked capacity, as a result of mental disease or defect, to conform his conduct to the requirements of law or to appreciate the criminality of his conduct.

Appellant’s defense was that at the time of the murder he was suffering from cocaine psychosis which he contends brings him within the statute. Relying on testimony of several lay witnesses and one expert witness, appellant argues there was a sufficient factual basis from the testimony to justify the giving of the instruction.

A party is entitled to an instruction on a defense if there is sufficient evidence to raise a question of fact, Lair v. State, 19 Ark. App. 72, 718 S.W.2d 467 (1986); Hill v. State, 253 Ark. 512, 487 S.W.2d 624 (1972), or if there is any supporting evidence for the instruction. Riggins v. State, 17 Ark. App. 68, 703 S.W.2d 463 (1986); Johnson v. State, 252 Ark. 113, 482 S.W.2d 600 (1972).

Here, there was essentially no conflict in the testimony that would raise a question of fact as to appellant’s sanity, rather, it is a question of whether there was any supporting evidence for the requested instruction. From what was presented, we can find insufficient evidence to support the requested instruction. The expert witness, a psychologist, went into some detail describing cocaine psychosis, and how it developed. However, nothing in his testimony indicated that a person who had the disease would lack the capacity to conform his conduct to the requirements of law or to appreciate the criminality of his conduct. He described four progressive stages, the fourth being the psychosis stage. The three prior stages involved certain physical symptoms such as increased heart rate and blood pressure and certain mental symptoms such as being energized, lethargic, apathetic, irritable, diminished ability to concentrate and so on. In the last stage of the psychosis, afflicted individuals will begin to experience hallucinations.

Even if we were to agree that the psychosis would qualify, there is not sufficient evidence to show that appellant was so afflicted. The doctor was asked a hypothetical question:

If a person used cocaine regularly for a period of time and was snorting it originally but then started smoking it and over a three or four day period smoked it almost continuously, getting little or no sleep during this period of time, eating very little during this period of time and during this time he was observed as becoming increasingly paranoid, had delusions, committed an extremely violent act, would that in your professional opinion describe a cocaine psychosis and the result of that cocaine psychosis?

The doctor answered that it would, and was not consistent with any other explanation. However, the evidence does not support the hypothetical question. There was testimony that appellant had started to use cocaine about four months before the murder, but there was no testimony on the frequency of his use or to the effect that he was a heavy user. Witnesses expressed their concern that they knew he was smoking, but it was not in relationship to his heavy use, but just his using it at all. There was no evidence that appellant smoked almost continuously for three to four days before the murder. The murder occurred on a Wednesday, and there was only testimony to his smoking cocaine on two occasions prior to the murder — he was observed smoking on the previous Saturday night and on the previous Monday. There was only scant reference to appellant’s lack of sleep or food prior to the murder.

There was testimony by appellant’s witnesses that he had become increasingly moody, irritable, withdrawn and nervous. There was no testimony that he was suffering hallucinations prior to the murder. Appellant makes reference to the record, but in the cited testimony witnesses refer to incidents at a time after appellant was out on bond for the murder.

Appellant’s case is similar to that of Briggs v. State, 18 Ark. App. 292, 715 S.W.2d 223 (1986), where the defendant had requested and was refused the insanity defense instruction. In Briggs, there was testimony by a VA therapist that the defendant had been diagnosed as having post traumatic stress syndrome and was being treated for that condition. She further testified that his symptoms included depression, suicidal ideation and flashbacks from his Vietnam combat experiences. His wife testified he was giving things away when it was indicated that others wanted them, including his own children’s bicycles. The court found that with this evidence the defendant had failed to produce evidence to justify the instruction on mental disease or defect. As with the case before us, there was simply no testimony touching on the essence of the insanity instruction — the lack of capacity to conform conduct to the requirements of the law or the ability to appreciate the criminality of one’s conduct. Evidence of moodiness, irritability and nervousness does not go to the substance of the instruction. There must be some indication from the evidence that the appellant lacks the appreciation that sane men have of what it is they are doing and of its legal and moral consequences. See Commentary, § 41-601. The appellant in this case failed to produce that evidence.

Affirmed.