author: Richard L. Mays, Justice.

text:
    HILTON HILLTOP, INC. v. Paul RIVIERE, Secretary of State
    80-1
    597 S.W. 2d 596
    Supreme Court of Arkansas
    Opinion delivered April 28, 1980

      Charles R. Garner, for appellant.

      Steve Clark, Atty. Gen., by: W. Russell Meek III, Deputy Atty. Gen., for appellee.
   Richard L. Mays, Justice.

This appeal is from an order of the Circuit Court of Pope County, Arkansas, dismissing a petition seeking a contempt citation against the Secretary of State for refusing to file the Articles of Incorporation of Hilton Hilltop, Inc., appellant herein. The question before us is whether the court erred in dismissing the petition before conducting a hearing on the merits of appellant’s accusation.

On December 27, 1978, the Pope County Circuit Court approved the Articles of Incorporation of a non-profit corporation, Hilton Hilltop, Inc., which had been filed with the Pope County Circuit Court and issued an order which included the following language:

The Circuit Clerk shall therefore transmit to the Secretary of State a copy of this Order, along with the original Articles of Incorporation, in duplicate, who shall upon the payment of the required fees as prescribed by law, duly file same and make disposal thereof according to law.

On April 5, 1979 appellant filed an unverified petition in the Pope County Circuit Court alleging that a copy of the court’s order and the original articles of incorporation had been transmitted to the Secretary of State but that the Secretary of State had ignored the court’s order by refusing to file the articles of incorporation. Appellant did not allege that the required filing fees had been tendered. The petition contained a prayer requesting that the Secretary of State be punished for contempt and a copy of the petition was served upon him by regular mail. On April 20, 1979, challenging the jurisdiction of the court to hear the matter, the Secretary of State filed a motion to quash and dismiss the petition which the court granted on October 8, 1979. Although the record does not clearly reveal why the court dismissed appellant’s petition before a hearing on the merits, we find ample justification to affirm the judgment.

Disobedience of any valid judgment, order, or decree of a court having jurisdiction to enter it may constitute contempt. Punishment for such contempt is an inherent power of the court. Guyot v. State, 222 Ark. 275, 258 S.W. 2d 569 (1953); Henderson, Sheriff v. Dudley, Chancellor, 264 Ark. 697, 574 S.W. 2d 658 (1978). Even one not a party to an action who has been served with an order, or who has notice of it, may be held in contempt of the order. Whorton v. Gaspard, 240 Ark. 325, 399 S.W. 2d 680 (1966). Unless the court initiates the proceedings on its own motion, however, any proceeding to punish for contempt committed outside the presence of the court must be initiated by an affidavit of a person who witnessed the contempt or otherwise has knowledge of it. York v. State, 89 Ark. 72, 115 S.W. 948 (1909); Carl Lee v. State, 102 Ark. 122, 143 S.W. 909 (1912); Ex Parte Coulter, 160 Ark. 550, 255 S.W. 15 (1923); Henderson, Sheriff v. Dudley, Chancellor, supra. The affidavit must set forth all facts essential to the court’s jurisdiction, including facts which constitute contempt and clearly apprise the person charged of the nature and cause of the accusation. See Ex Parte Coulter, supra. If the person accused of the contempt is not otherwise before the court he must be brought before the court by the issuance and service of proper legal process. See Goodyear Tire & Rubber Co. v. Meyer, 209 Ark. 383, 191 S.W. 2d 826 (1945).

In the case at bar, appellant initiated the proceeding by an unverified petition alleging contempt which was committed out of the presence of the court. Assuming that the factual allegations were legally sufficient to establish a prima facie showing of contempt, an issue we need not decide, appellant did not make the allegations by affidavit or otherwise provide the court with a sworn statement upon which the court was obliged to act. Although a court may initiate contempt proceedings on its own motion when presented with unverified allegations of constructive contempt, the court may summarily disregard such allegations if they are not made under oath. See Henderson, supra. Although the Secretary of State did not explicitly argue this issue on appeal, we perceive the issue to be inextricably tied to the issue of jurisdiction which was raised. Moreover, even had the appellant initiated the proceedings by affidavit, a summons should have been obtained and properly served upon the Secretary of State for the court to exercise jurisdiction over him since he was not a party to the action or otherwise before the court.

Apparently in an effort to avoid the legal deficiency of the contempt action, appellant also contends that his petition can be treated as a request for a review of a state agency adjudication under the Administrative Procedure Act, Ark. Stat. Ann. § 5-701 et seq. (Repl. 1976 and Supp. 1979). Obviously, there is no merit in this argument. Even if the Secretary of State’s refusal to file appellant’s articles of incorporation could be considered an adjudication, which we seriously doubt, the petition seeks punishment, not review.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Leza PRICE, Jr. v. STATE of Arkansas
    CR 80-44
    597 S.W. 2d 598
    Supreme Court of Arkansas
    Opinion delivered April 28, 1980

      Givens & Buzbee, by: Art Givens, for petitioner.

      Steve Clark, Atty. Gen., by: Joseph H. Purvis, Asst. Atty. Gen., for respondent.
   Richard L. Mays, Justice.

The petitioner, Leza Price, Jr., was found guilty by a jury of theft of property and sentenced to 20 years imprisonment and fined $15,000.00. The Court of Appeals affirmed his conviction. We affirm the Court of Appeals.

The primary question presented by the petitioner is whether evidence of other crimes should have been admitted during his trial to prove that he was guilty of the crime charged.

The major evidence against the petitioner came from an alleged accomplice, Billy Reno, and a tape recorded telephone conversation between petitioner and a police informant, Elouise Passmore. Reno testified that the petitioner persuaded him to steal a 1977 Cadillac from Landers Auto Sales in Benton, Arkansas, on December 14, 1978, which petitioner had identified during an earlier visit to the car lot in which petitioner allegedly distracted the sales personnel while Reno secured the keys to the car. When Reno returned later that night to the car lot in a truck which was owned and allegedly driven by petitioner, he was shot in the chest as he prepared to drive the Cadillac off the lot.

Although petitioner admitted going to the car lot when Reno admittedly obtained the keys to the Cadillac, he indicated that he only went to help Reno buy a car and denied any knowledge of or participation in the car theft. However, in a telephone conversation with the police informant which the informant recorded, petitioner made statements which intimated involvement in the Reno car theft and admitted involvement in other car thefts. Arguing that the other car theft references on the tape recording were irrelevant and prejudicial, petitioner contends that they should have been excluded from evidence by the trial judge.

The legal standard governing the use of evidence of other crimes to establish the commission of another is expressly addressed by Ark. Stat. Ann. § 28-1001, Rule 404 (b) (Repl. 1979) which provides:

(b) Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof or motive, opportunity, intent^ preparation, plan, knowledge, identity, or absence of mistake or accident.

Although petitioner contends that Rule 404(b) prohibits the introduction of testimony of other criminal activity, the rule clearly permits such evidence if it has relevancy independent of a mere showing that the defendant is a bad character. In other words: “If other conduct on the part of the accused is independently relevant to the main issue — relevant in the sense of tending to prove some material point rather than merely to prove that the defendant is a criminal — then evidence of that conduct may be admissible, with a proper cautionary instruction by the court.” Alford v. State, 223 Ark. 330, 334, 266 S.W. 2d 804 (1954).

Once the independent relevancy of other crimes evidence is established, it logically follows, as the Court of Appeals properly recognized in its decision, that other crimes evidence should be scrutinized under the substantial prejudice rule of 403 of the Uniform Rules of Evidence, irrespective of whether the issue is explicitly raised by the defendant before such evidence is admitted. Rule 403 provides:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

This approach has been followed in numerous jurisdictions, United States v. Conley, 523 F. 2d 650 (8th Cir. 1975), Cert. denied 424 U.S. 920, 96 S. Ct. 1125, 47 L. Ed. 2d 327 (1979), United States v. Sangrey, 586 F. 2d 1312 (9th Cir. 1978), and we adopt it today.

Although Rule 404(b) does not expressly provide for a balancing test with respect to the prejudicial effect of other crimes evidence where independent relevancy is established, the primary reason for excluding such evidence in the first instance is its prejudicial nature. Since an objection to the admission of other crimes evidence inherently raises an issue of prejudice, it is mandatory for the trial judge to also review the objections under the evidentiary standards prescribed by Rule 403. Therefore, other crimes evidence will be admitted only if it has independent relevancy and its relevancy is not “substantially outweighed” by the danger of unfair prejudice. These are issues which the trial judge has wide discretion in deciding, and he will not be reversed on appeal unless he has abused such discretion. Arkansas Power & Light Co. v. Johnson, 260 Ark. 237, 538 S.W. 2d 541 (1976).

Following this approach in the case at bar, it is clear that the petitioner’s incriminating references on the tape recording to other criminal activity had independent relevancy. Since the petitioner denied knowledge of Billy Reno’s attempted car theft, references that “we” had “this car” or delivered “that truck” in the context of complaining about a “buddy” who was shot while trying to steal a car indicates guilty knowledge of the criminal offense with which petitioner was charged. The other crimes admissions were also particularly valuable in corroborating the testimony of petitioner’s alleged accomplice. Pace v. State, 267 Ark. 610, 593 S.W. 2d 20 (1980). Although evidence of other crimes always has some potential for prejudice, we cannot say that the potential for prejudice in this case substantially outweighs its probative value, especially in light of petitioner’s denials and his failure to request the trial judge to give a cautionary instruction, Alford, supra and Logan v. State, 264 Ark. 920, 576 S.W. 2d 203 (1979). Consequently, we conclude that petitioner’s incriminating references to other crimes were properly admitted by the trial judge.

Petitioner raises one other issue concerning the trial judge’s denial of a motion for mistrial which his attorney made after the prosecutor analogized petitioner to “higher-up dope traffickers” during closing argument. The trial court has broad discretion in controlling, supervising and determining the propriety of arguments of counsel, and its exercise will not be reversed in the absence of gross abuse. Perry v. State, 255 Ark. 378, 500 S.W. 2d 387 (1973). Furthermore, a mistrial is an extreme remedy which should only be utilized as a last resort. Cobb v. State, 265 Ark. 527, 579 S.W. 2d 612 (1979). Petitioner could have minimized any possibility. of prejudice by requesting an admonition to the jury. Logan, supra. Although we do not encourage inflammatory idioms, we perceive no justification for a mistrial.

Affirmed.


author: Ernie E. Wright, Judge.

text:
    Edward R. NICHOLAS v. STATE of Arkansas
    CA CR 79-94
    595 S.W. 2d 237
    Court of Appeals of Arkansas
    Opinion delivered February 6, 1980
    Review denied March 10, 1980
    Rehearing denied March 19, 1980
    Released for publication March 19, 1980

      Lessenberry & Carpenter, for appellant.

      Steve Clark, Atty. Gen., by: Victra L. Fewell, Asst. Atty. Gen., for appellee.
   Ernie E. Wright, Judge.

The appellant was convicted by a jury of two counts of manslaughter in violation of Ark. Stat. Ann. § 41-1504 (Repl. 1977) in recklessly causing the deaths of two individuals on June 22, 1977, in an automobile accident. A sentence of four years imprisonment and a $1500.00 fine was imposed on each of the two counts, with the prison sentence on the second count suspended.

For reversal of the judgment appellant contends the trial court erred in admitting evidence of a blood alcohol test, in modifying an instruction offered by appellant on statutory presumption relating to evidence shown by a blood alcohol test and in imposing a sentence of imprisonment rather than probation.

The evidence is undisputed appellant -'as driving the car which went out of control resulting in the accident in which two individuals lost their lives. The court admitted evidence of a blood alcohol test made from samples of appellant’s blood taken approximately four hours after the accident. There was an evidentiary hearing before the court in chambers prior to trial on appellant’s motion to suppress evidence of the blood alcohol test and motion in limine, but none of that hearing is abstracted. Rule 11(f) of the Supreme Court and Court of Appeals requires the appellant in felony cases to abstract such parts of the record as are material to the points to be argued in the brief. Absent an abstract of the hearing on the motions, we look only to the abstract of the record of the trial proper to determine the asserted error on appeal in admitting evidence of the blood test. Moser v. State, 262 Ark. 329, 557 S.W. 2d 385 (1977).

The accident occurred at about 5:30 p.m., and Officer Smith of the Little Rock Police Department arrived at the scene promptly after the accident. He observed appellant still seated in the driver’s seat of the car driven by appellant at the time of the accident. Appellant identified himself to the officer, and from observing him the officer noted a strong odor of alcohol on his breath and other evidence causing him to conclude appellant was intoxicated. There was other substantial testimony indicating appellant was intoxicated. The appellant admitted at trial he had been drinking prior to the accident, but denied being under the influence of intoxicating liquor. Appellant was removed by ambulance to St. Vincent’s Infirmary. Officer Smith left the accident scene about 9:00 p.m. and went to the infirmary. He testified he placed appellant under arrest and in addition to reading to him his Miranda Rights, read to him his rights under Ark. Stat. Ann. § 75-1045 (Repl. 1979) relating to blood alcohol tests of a person a law enforcement officer has reasonable grounds to believe has been driving a motor vehicle on a public highway while under the influence of intoxicating liquor. This included a provision informing appellant if he consented to the test he had the right to an additional test to be conducted by a physician, qualified technician, registered nurse or other qualified person of his own choice. The appellant did not indicate he desired to have a test of his own made. Appellant indicated he preferred the blood test to a breath test. The officer requested a nurse, Mrs. Isaac, at the infirmary emergency room to draw two blood samples from appellant for a blood alcohol test. The nurse read a consent form to appellant providing consent for the blood samples to be taken and appellant signed the form. The blood samples were taken at 9:30 p.m. After the samples were drawn by the nurse in the presence of the officer, he placed his initials on the vials and took them to the Little Rock Detention Center where Officer Gentry placed them in a refrigerator. The following day Officer Smith took them to the Arkansas Department of Health. A chemist from that agency testified the samples were analyzed and showed a blood alcohol content of .09.

From the abstract and brief it appears appellant raises the issue for the first time on appeal that the blood samples were taken by a nurse at the request of Officer Smith and not by a physician, or a person acting under the direction or supervision of a physician as authorized by § 75-1045. It is well settled that an objection to evidence not made at trial will not be considered when raised for the first time on appeal. Ulmer v. State, 253 Ark. 106. 484 S.W. 2d 691 (1972). However, we point out that prior to a 1975 amendment to the above statute the relevant portion read, “only a physician, a registered nurse, or a registered laboratory technician or technologist may withdraw blood for the purpose of determining alcoholic content therein.” The 1975 amendment changed this provision to read, “when a person shall submit to a blood test at the request of a law enforcement officer under the provision of this section, blood may be drawn by a physician, or a person acting under the direction and supervision of a physician.” The present statute which was in effect at the time of the alleged offense is not as restrictive in governing the taking of the blood samples as the prior statute in that it refers to certain persons who may take the samples and the word only is omitted in referring to persons who may take blood samples. The testimony of the nurse reflects she was knowledgeable in taking blood samples in alcohol tests, and that she used a non-alcoholic skin prep to avoid getting alcohol in the samples when drawing blood for testing. It is not shown how the appellant was prejudiced by lack of specific directions from a physician in the taking of the samples.

Appellant raises an issue for the first time on appeal that the testimony was conflicting as to whether appellant was under arrest when the blood samples were taken. The issue is of no avail to appellant when no objection was made on this ground at trial. Even if objection had been made below, it was held in Mercer v. State, 256 Ark. 814, 510 S.W. 2d 539 (1974) that arrest is not necessarily a prerequisite for taking a blood sample for an alcohol test.

Appellant contends the evidence of the blood alcohol test should have been excluded because the blood samples were taken some four hours after the accident and the applicable Health Department regulation provides the samples shall be taken within two hours of an alleged offense. However, there was unrebutted expert evidence that the longer lapse of time had no effect on the results except to reduce the alcohol content. Therefore, the appellant was not prejudiced by the delay in taking the blood samples. Munn v. State, 257 Ark. 1057, 521 S.W. 2d 535 (1975).

Appellant argues there was a lack of evidence the blood samples were kept at a temperature of 42 degrees farenheit or below as required by the applicable Health Department regulation, and that the samples were not stored in a secure manner.

At trial counsel for appellant specifically waived any objection to the chain of custody of the blood samples, and that issue will not be considered on appeal. However, we point out there was a total absence of aqy evidence suggesting the blood samples had been tampered with in any way.

The temperature inside the refrigerator where the samples were kept was not established by the evidence. However, the Health Department Chemist gave unrebutted testimony that storing blood at a temperature higher than 42 degrees would cause more alcohol to diffuse out of the container resulting in the test showing a lower volume of alcohol in the blood. We, therefore, find no prejudice to appellant in regard to the temperature of the blood storage.

The appellant argues the court erred in modifying the following instruction offered by appellant:

Evidence of a basic fact may be considered by you along with all the other evidence in the case in determining the presumed fact but the evidence alone does not impose upon you the duty of finding the presumed fact even if the evidence is unrebutted. .

The court refused the instruction offered and over objection of appellant changed the instruction to read:

Evidence of the blood test may be considered by you along with all the other evidence in the case determining intoxication but that evidence alone does not impose upon you a duty to find that Ed Nicholas was intoxicated.

The instruction offered was abstract, and there was evidence tending to rebut evidence of intoxication. The instruction given was a correct statement of law and we find no prejudice to the appellant in the omission of the phrase, “even if the evidence is unrebutted” from the instruction given. Appellant argues a rebuttable presumption arose with reference to the blood alcohol test. However the blood alcohol test showed an alcohol content of .09 per cent, and under Ark. Stat. Ann. § 75-1031.1 (Repl. 1979) no presumption arose by reason of the test result. Therefore, there was no need for an instruction on the statutory presumption.

Appellant finally argues that even if there be no reversible error this court on appeal should modify the sentence to probation. He cites Ark. Stat. Ann. § 27-2144 (Repl. 1979) and Hadley v. State, 196 Ark. 307, 117 S.W. 2d 352 (1938). In the Hadley case the court found a maximum sentence was imposed by the jury by reason of the improper introduction of evidence of other crimes.

In Abbott v. State, 256 Ark. 558, 508 S.W. 2d 733 (1974), the court held Ark. Stat. Ann. § 43-2725.2 (Repl. 1977) which attempted to vest the appellate court with power to reduce a sentence if deemed excessive, was unconstitutional under Art. 6, § 18 and Art. 4, § 2 of the Arkansas Constitution to the extent that it might be construed as granting such power in absence of error pertaining to the sentence. In Collins v. State, 261 Ark. 195, 548 S.W. 2d 106 (1977) the court made it clear the power of the appellate court to reduce punishment under Ark. Stat. Ann. § 27-2144 (1979) is limited to cases in which there was error in the sentencing procedure.

The jury fixed the sentences of imprisonment and the fines substantially less than the maximum authorized by law; and the court extended leniency by suspending the prison sentence on the second count. We find no prejudicial error and the court on appeal has no authority to modify the sentence.

Affirmed.


author: M. Steele Hays, Judge.

text:
    THE SECURITY BANK, Harrison, Arkansas v. Ronnie PAUL & Bonnie PAUL
    CA 79-189
    594 S.W. 2d 259
    Court of Appeals of Arkansas
    Opinion delivered February 6, 1980
    Released for publication February 27, 1980

      Walker, Campbell & Young, by: Ronald D. Young, for appellant.

      John B. Driver, for appellees.
   M. Steele Hays, Judge.

This is an appeal from a decree dismissing the appellant’s suit against the appellee, Bonnie Paul and denying the foreclosure of a mortgage on lands belonging to her.

On September 3, 1976, appellee Ronnie Paul, borrowed $60,000 from the appellant, the Security Bank of Harrison, Arkansas, on the basis of a note and a mortgage covering Bonnie Paul’s property. The money was to pay debts of a corporation, Square Deal Construction Company, of which Ronnie Paul was one of the owners. Mr. Paul signed the note and mortgage in the presence of one of the bank officers, but Mrs. Paul was not present. Explaining that Mrs. Paul was ill and unable to come in, Mr. Paul took the note and mortgage from the bank and brought them back with the signatures purporting to be Bonnie Paul’s. The instruments had been notarized by Mr. Joe Hulsey.

Upon default, appellant filed suit to foreclose. Bonnie Paul counterclaimed, alleging that the mortgage clouded her title to the property and denying that she had ever signed any such mortgage. Ronnie Paul, by deposition, admitted liability for the note and mortgage and also denied that Bonnie Paul had. ever signed the instruments.

At trial, Joe Hulsey, an employee of Mr. Paul’s construction company, testified that he was at the Paul’s home the night before the note and mortgage were executed and that he heard Mrs. Paul tell Mr. Paul to “draw up the papers” and she would sign them. The next day, Mr. Paul brought the papers to work and asked Mr. Hulsey to notarize them. He testified that Mr. Paul said Bonnie Paul was sick and was unable to leave the house, so she had already signed the instruments. Mr. Hulsey testified that he notarized the mortgage, assuming that the signatures were Mr. Paul’s. The testimony of both Bonnie Paul and Ronnie Paul was that the signature on the mortgage and note was not Mrs. Paul’s. Mr. Phillips, the bank officer, testified that the note and mortgage were recorded without witnessing the signature of Bonnie Paul. He testified that Mrs. Paul had never appeared before the bank in regard to the loan.

The chancellor found that there was not substantial evidence to indicate that Bonnie Paul had executed either the note or the mortgage, or that she had received any of the proceeds from the loan. Appellants bring this appeal, asserting that the trial court erred in dismissing the complaint for foreclosure as against Bonnie Paul. Specifically, appellant alleges that Mrs. Paul clothed her husband with the apparent authority to execute the instruments and that she received sufficient consideration from the proceeds of the note in that her husband earned his livelihood from the corporation, and the money which he borrowed was used to pay debts of the corporation. Hence, she also had a vested interest in the corporation. We cannot agree.

Ark. Stat. Ann. § 49-208 (Repl. 1971) requires that the grantor “shall appear before an officer having authority by law to take such acknowledgment, and stating that he had executed the same for the consideration and purpose therein mentioned and set forth.” Appellants contend that under the rule enunciated in Forrest City Grocer Company v. Gatlin, 193 Ark. 148, 97 S.W. 2d 910 (1936), the mortgage can be enforced even without a valid acknowledgment where the grantor has given another person the apparent authority to execute the instrument and the grantor should be estopped to deny the validity of the mortgage. Notwithstanding the rule announced in Gatlin, supra, we will affirm the judgment of the Chancellor.

We believe the facts in Gatlin and in the instant case are distinguishable. In Gatlin, the facts were similar in many respects: the wife’s property was mortgaged for a debt owed by her husband. In a suit to foreclose, she denied the existence of the mortgage and alleged that she did not sign the instrument. Her husband corroborated her testimony and accepted all liability. Nevertheless, the chancellor in the Gatlin case held that the mortgage assigned to Mrs. Warren was a valid instrument, and the Arkansas Supreme Court affirmed, stating that the chancellor’s findings were not contrary to the preponderance of the evidence. However, in Gatlin, the court observed Mrs. Warren’s testimony to be less than credible:

Without reciting this testimony, it may be said that it was evasive and uncandid, and some of it appears to be preposterous.

Also, in Gatlin, the opinion made note of the testimony of a handwriting expert who examined samples of Mr. Warren’s signatures and gave his opinion as being that all the signatures had been written by the same person.

In the instant case, there was no testimony by Mrs. Paul which led the court to believe that she had any knowledge of the mortgage on her property. Although Joe Hulsey testified that the night before the execution of the instruments, he heard Mrs. Paul say that she would sign the papers, Mrs. Paul stated that she had never indicated in any way that she would mortgage her property. This conflict creates a question of the credibility of the witnesses in which the appellate court is guided by the conclusion of the chancellor as between the uncorroborated testimony of two litigants. Cowan v. Powell, 219 Ark. 498, 243 S.W. 2d 373 (1951); Leftwich v. Cash Lumber Company, 214 Ark. 586, 217 S.W. 2d 357 (1949). The chancellor stands in a better position to review the witnesses’ testimony than the reviewing court, and where the chancellor’s findings are not against a preponderance of the evidence, his judgment will be affirmed. Apple v. Cooper, 263 Ark. 467, 565 S.W. 2d 436 (1978); Minton v. McGowan, 256 Ark. 726, 510 S.W. 2d 272 (1974); Arkansas State Highway Commission v. Troutman, 240 Ark. 424, 399 S.W. 2d 686 (1966).

In the case before us, we cannot say that the chancellor’s findings were against a preponderance of the evidence. To the contrary, we believe that the evidence and the decision of the chancellor are comportable and, accordingly, we affirm.

Wright, C.J., not participating.


text:
    Moses Edward WILEY v. STATE of Arkansas
    CA CR 79-121
    594 S.W. 2d 57
    Court of Appeals of Arkansas
    Opinion delivered February 6, 1980
    Released for publication February 27, 1980

      R. Wayne Lee, for appellant.

      Steve Clark, Atty. Gen., by: Victra L. Fewell, Asst. Atty. Gen., for appellee.
   M. Steele Hays, Judge.

Moses Edward Wiley was charged under Chapter 22 (THEFT) of the Arkansas Criminal Code (being Ark. Stat. Ann. § 41-2201 through § 41-2208). The felony information charged Wiley with violation of § 41-2203:

The . . . defendant ... on or about the 27th day of February, 1978, did . . . kndwingly, with the purpose of depriving the owner of his property, take unauthorized control over property ... of Whit Davis Lumber Company . . .

Wiley was tried by the court, found guilty and sentenced to five years in the penitentiary with two years suspended. For reversal, Wiley contends that a motion to dismiss the charges should have been granted and that he should have been credited with jail time totaling some 11 months. Our disposition of the appeal on the first point makes discussion of the second needless.

The State’s case consisted of the testimony of Mr. Whit Davis: that Wiley contacted him at the lumber company on September 1 to buy lumber and building materials on credit. Wiley proposed to build a house on a lot left to him by his grandfather. Wiley filled out a credit application and was told by Mr. Davis that he would have to supply a legal description of the property. Mr. Wiley returned on September 7 and gave Mr. Davis a tax statement to a lot in Tolbert’s Subdivision in the name of Alex Tolbert, Wiley’s grandfather, whom Wiley said had willed the property to him. Relying upon the credit application and the asserted ownership of the property, credit was extended and Wiley purchased substantial lumber and building materials on several occasions between September 7 and October 8. Davis did not receive payment on October 10, as promised, and in several telephone conversations with Wiley, Davis was told a check was on the way or would be forthcoming, which never arrived. Davis ultimately located the property and finding no construction nor any materials at the site, he concluded that he had been given false information and contacted the prosecuting attorney.

Appellee urges (1) that we should apply the rule of Dixon v. State, 260 Ark. 857 (1977), inasmuch as the single authority cited by appellant is not in point and (2) that appellant is raising an issue for the first time on appeal. We agree that Manhattan Credit Company v. Brewer, 232 Ark. 976, does not support appellant; however, we are unwilling to apply the principal of the Dixon case, if only as a matter of sufferance, because we feel it would not serve a useful end in this instance. As to the second point, it is true that appellant’s motion to dismiss the charge is not expressly based on a lack of substantial evidence and for that reason appellee’s argument gives us reason to pause, as the rule is clear that motions and objectins to the trial court must be not only timely, but specific. Ayers v. United States, 58 F. 2d 607 (8th Cir., 1932). Be that as it may, we are satisfied, from a careful study of the motion and ensuing comments between counsel and the trial court, that the motion was couched in words which, given reasonble interpretation, brought into question whether the evidence of the State sustained the charge as stated in the information. We find that it did not.

To understand our reasoning, it is necessary to examine a portion of the proceedings. At the close of the State’s case, the following occurred:

MR. LEE (counsel for defendant): Your Honor, we would move for dismissal of the charges on the ground this debt has already been dismissed. This forty-seven hundred dollar debt has already been dismissed by Bankruptcy Court. (A) It’s been dismissed by a Bankruptcy Judge as a bankruptcy debt. (B) It was sold over a period of time on an open account or on an account that wasn’t one purchase. Mr. Davis secured the property description with which to check out the premises and find out if his lumber was going out there and to secure a lien on this property ahead of time.
Mr. Wiley ran into financial difficulties after he had sold him the materials and filed bankruptcy and listed him as a creditor and he didn’t bother to respond to it. And the Federal Judge has already ordered those debts discharged.
THE COURT: We’re not suing on a debt here.
MR. LEE: I understand that, your Honor. That’s exactly my point. He had every opportunity to go into Federal Court and get his lumber back. As matter of fact, I believe the Federal Bankruptcy Judge specifically ordered that the lumber be picked up if he wanted to. Mr. Wiley was in jail all this time.
MR. HAYNES: Your Honor, I’m sure the Court is aware that whether or not a bankruptcy was filed has nothing to do with this. If this was solely a debt, Mr. Davis wouldn’t have any action in this Court anyway. His action would be through suit in Circuit Court. And, whether or not he was discharged in bankruptcy matters not. There was a fraud perpetrated and this is our position. And he’s on trial for the fraud and not for owing Mr. Davis some money.
MR. LEE: Your Honor, my contention is, though if it was not a legitimate debt and it was a fraud, by Mr. Davis not filing an answer to the bankruptcy petition, he has admitted that it was a legitimate debt and that legitimate debt’s been discharged by a Federal Judge. I think any further action on that would be in contempt of the Federal Bankruptcy Court, your Honor.
MR. HAYNES: Your Honor, I’m sure the Court’s aware that failing to file an answer in a bankruptcy don’t admit anything.
THE COURT: I don’t think anybody’s contending that the Federal Bankruptcy Court can abate and absolve criminal prosecution.
MR. LEE: No, sir. I concur with that a hundred percent. But, what I’m saying is if he didn’t file an answer to a federal bankruptcy petition on this same lumber in which he was listed as a creditor, you know, now it’s going to be a criminal matter because we didn’t collect it in Federal Bankruptcy Court.
THE COURT: He could have done both. I’ll overrule your motion, Mr. Lee.

Clearly, there appears to have been some confusion as to whether the defendant was being tried for theft by deception (formerly termed “false pretense”) as defined in § 41-2203(1 )(a) or theft by taking unauthorized control over the property of another as defined in § 41-2203 (1)(b). This confusion may have resulted in a similar misconception by the trial court, as after finding the defendant guilty he described the defendant’s conduct as a case of “gross misrepresentation of facts.” It is clear that fraud, deception and misrepresentation are not elements of the offense defined in 1(a), under which the defendant was charged. Obviously, these are elements of Section 1(b).

Whether it was a fatal defect to charge the defendant under 1(a) and try him under 1(b) we do not decide, as the point is not raised by the parties and need not be decided here. It is discussed only for the purpose of giving clarity to the ruling that appellant’s motion to dismiss should have been granted, notwithstanding the lack of clarity in the language used, for the reason that where the State has contributed to the confusion by charging one offense and trying another, the defendant should be given the benefit of some latitude in framing his motion, and, too, the motion brought adequately if not squarely before the court the issue of whether the defendant was not entitled to an acquittal under the evidence presented, as we think he was. Furthermore, the defendant was entitled to an acquittal under either 1(a) or 1(b), as essential elements of either offense were lacking.

With respect to the offense of theft by deception, there was no showing that any representation by the defendant to Mr. Davis of a past or present facts, was false or deceptive. It was not shown that Allex Tolbert did not own the property, or that he had not willed it to the defendant, or that defendant’s financial statement was knowingly false, or that any fact represented by Wiley was false. Presumably, the State regarded the deception as being founded upon the fact that the defendant represented an intention to use the materials to build a house and failed to do so. The statute itself makes clear that in the absence of other circumstances, the mere failure to perform a promised act shall not create an inference of deception (See Ark. Stat. Ann. § 41-2201(3)(e)). Nor does the fact that the defendant took the materials to his home rather than to the job site provide the missing element. That is not an incriminating circumstance nor an act of culpability. The prosecution asked the defendant if he had not sold the materials (which he stoutly denied) and had such evidence been offered there would be little difficulty in affirming, but questions are not evidence and there was no evidence from either the prosecution or the defense to show what became of the materials. Mr. Davis’s testimony in rebuttal challenged the size of the defendant’s shed, where the materials were said to have been stored, but Mr. Davis was vague and unable to even estimate the dimensions of the shed (though he insisted it was too small to house all the materials) and that disputed issue was not persuasive of the defendant’s guilt beyond a reasonable doubt.

Turning to the charge of knowingly taking unauthorized control over the property of another person, it is immediately apparent that the defendant was not properly chargeable with this offense under the facts presented. This section deals with property belonging to another person, the owner. This section is meant to apply to simple theft (or larceny) on the one hand or various offenses in the nature of theft by a bailee, embezzlement or wilful conversion, on the other (see the commentary to § 41-2203), none of which were proven. In fact, “property of another person” is defined elsewhere in the chapter (Ark. Stat. Ann. § 41-2201 [7]) as being:

. . . any property in which any person or government other than the actor has a possessory or proprietary interest, but does not include property in the possession of the actor in which another has only a security interest, even though legal title is in the secured party pursuant to a conditional sales contract or other security agreement.

Mr. Davis’s téstimony repeatedly refers to the materials as having been “sold” to the defendant, as indeed they were, and the defendant became the owner of those goods at the moment of purchase, subject of course to the rights of a materialman under the statutes dealing with materialmen’s liens. That is not to say that a purchaser of building materials cannot be subject to prosecution under § 41-2203, but where, as here, the evidence is silent as to what became of the materials, then all that remains is a broken promise which will not support conviction. Conner v. State, 137 Ark. 123; Davis v. State, 241 Ark. 646; Kirby v. State, 233 Ark. 8.

Finally, the appellee contends that appellant’s motion (being in the nature of a motion for a directed verdict) was not renewed at the close of the defendant’s case and, therefore, waived. True, the motion was not renewed. But, numerous decisions hold that the effect of a failure to renew a motion for directed verdict at the close of the defense results in the sufficiency of the evidence being judged on the entire record. Brewer v. State, 257 Ark. 51; Crow v. State, 248 Ark. 1051; Smith v. State, 241 Ark. 748. Certainly, there was nothing in the record from the defendant’s testimony that supplied substantial evidence of guilt. The defendant testified that he intended to build the house on the property, but was unable to do so because of intervening personal and financial difficulties; that the materials were stored in his shed when he was arrested in February of 1978 and while he was confined in jail for 11 months they were removed. The State failed to establish a violation of Section 41-2203.

Reversed and dismissed.


author: James H. Pilkinton, Judge.

text:
    Ronnie FLEMING and Brenda FLEMING v. WAL-MART, INC.
    CA 79-117
    595 S.W. 2d 241
    Court of Appeals of Arkansas
    Opinion delivered February 6, 1980
    Rehearing Denied March 12, 1980
    Released for publication March 12, 1980

      McMath, Leatherman & Woods, by: James B. McMath, for appellants.

      Barber, McCaskill, Amsler, Jones & Hale, for appellee.
   James H. Pilkinton, Judge.

On January 24, 1976, Mrs. Brenda Fleming of Alexander, Arkansas, was injured in the vestibule area of the Wal-Mart store located at Geyer Springs and Baseline Road in Little Rock. Mrs. Fleming and her husband,. Roland Fleming, filed this suit seeking damages against Wal-Mart Stores, Inc., alleging negligence on the part of the store. Among other things, plaintiffs claim that the doctrine of res ipsa loquitur applied to this case. At the close of plaintiffs’ testimony, Wal-Mart moved for a direct verdiet which was granted by the trial court. The Flemings have appealed.

This particular store was constructed with a large vestibule, enclosed with glass, with a pair of doors located in the north and south ends. Along the west wall, which was the outside wall of the vestibule, Wal-Mart displayed various types of merchandise. On the east or inside wall, at one end of the vestibule, Wal-Mart had placed four pinball machines.

When Brenda Fleming entered the store to do some shopping, her husband waited for her in the vestibule area where he played the southernmost pinball machine. Across the vestibule to Mr. Fleming’s left there was a display of metal utility cabinets. These cabinets were of various sizes. The height of them varied from 63 inches to 66 inches. The display of these cabinets commenced somewhere near the north set of doors and ran along the outside, or west, wall of the vestibule to a point somewhere just behind, or south of, the place where Mr. Fleming was playing the pinball machine. There is a dispute as to whether these cabinets were displayed more than one deep, as Mr. Fleming testified, or were in single file as the store manager claimed. It is agreed by all, however, that the cabinets had been placed by WalMart up off the floor on top of some type of platform or riser. The exact nature of the platform is in dispute.

While Mr. Fleming was playing the pinball machine, there was only one other person in the vestibule until Mrs. Fleming returned. This other customer was looking at the cabinets. He had started looking at the cabinets near the south end of the display, and had apparently worked his way towards the north end of the display by the time Mrs. Brenda Fleming returned to the vestibule.

Mrs. Fleming completed her shopping, came out of the main portion of the store, and was standing beside the pinball machine waiting for her husband to complete his game. The cabinet directly behind her toppled over, fell across the aisle, and struck her in the middle of the back. The blow caused Mrs. Fleming to fall to her knees pinning her body against the machine. Mr. Fleming attempted to lift the cabinet off of his wife but was unsuccessful. He testified that the cabinet was flimsy and twisted when he tried to lift it. The unidentified man, who had been looking at the cabinets, was the only other person in the vestibule at the time the cabinet fell. He came from the north end of the display to the south end and assisted Ronnie Fleming in lifting the cabinet off of Brenda Fleming. They replaced the cabinet on its display stand. Mrs. Fleming was shaken up but did not think at that time she was badly hurt. Ms. Linda Jo Herndon, the checkout supervisor, and Mr. Darrell Lanford, the assistant store manager, heard the noise and came out into the vestibule and talked briefly to the Flemings. Mr. and Mrs. Fleming then left the store and went home. Mrs. Fleming had trouble with, her back all that night. The next day, because of continuing problems, the Flemings decided that Brenda should seek medical attention. They returned to Wal-Mart first to inform someone in authority there that Mrs. Fleming was going to the hospital, and to notify Wal-Mart that they would expect the store to pay the medical bills. After leaving the Wal-Mart store on this occasion, Mrs. Brenda Fleming went to the hospital emergency room.

All parties seem to agree that Mrs, Fleming was an invitee on the Wal-Mart premises. As such, appellee owed her a duty to exercise ordinary care to maintain its premises in a reasonably safe condition. See Industrial Park Businessmen’s Club v. Buck, 252 Ark. 513, 479 S.W. 2d 842 (1972).

The plaintiff was struck by a relatively large piece of merchandise which fell from one of the appellee’s displays. The ultimate question then is whether Wal-Mart had exercised ordinary care in the construction and maintenance of this particular display. What constitutes ordinary care is dependent upon the relevant circumstances. See AMI 303.

The parties also seem to agree on most of the other legal principles involved in a case of this type. Certainly one of the factors to be considered in establishing and maintaining a display in a department store is that the merchandise is going to be inspected by the customers. A merchandise display constructed so that an inspection by a customer, in a foreseeable and reasonable manner, causes the merchandise to fall, is a negligently constructed display. On the other hand, a store owner is not an insurer of its customers’ safety. Certainly where a display is caused to fall, and a customer is injured by an independent act of negligence which the merchant cannot reasonably be expected to foresee or guard against, the merchant is not liable. However, ordinary and foreseeable activities of patrons, not amounting to independent acts of negligence, should not result in injury to fellow patrons or themselves; and a merchant is negligent if he has so arranged his merchandise that such activities can cause merchandise to fall resulting in injury.

This fundamental concept of a merchant’s duty has been recognized in a number of jurisdictions. Francois v. American Stores Co., 46 N.J. Super. 394, 134 A. 2d 799 (1957); Winn-Dixie Stores, Inc. v. Fredericks, 106 Ga. App. 732, 128 S.E. 2d 542 (1962); Sparks v. Allen Northridge Market, 176 Cal. App. 2d 694, 1 Cal. Rptr. 595 (1959); Baily v. American Stores Co., 71 Pa. D. & C. 613 (1950); Jepson v. Country Club Market, 279 Minn. 28, 155 N.W. 2d 279 (1967). It has even been held that actual disarrangement of displays, where this is a foreseeable result of ordinary customer inspection, should be taken into consideration; and that the merchant is liable where he constructs a display which does not take this into consideration. Francois v. American Co., supra. Also see Jepson v. Country Club Market, supra.

I.

Appellants first argue that the trial court erred in directing a verdict for appellee. They claim there was substantial evidence introduced by them upon which the jury could have based a finding that Wal-Mart was negligent in the establishment and maintenance of its display, and that said negligence caused the injuries and damage suffered by appellants. We agree with appellants that there is a factual basis in this record for a jury determination of liability on the part of WalMart.

In regards to when a trial court may direct a verdict, the rule stated in Smith v. McEachin, 186 Ark. 1132, 57 S.W. 2d 1043 (1933), applies here:

. . . where there is any substantial evidence to support the verdict, the question must be submitted to the jury. In testing whether or not there is any substantial evidence in a given case, the evidence and all reasonable inferences deducible therefrom should be viewed in the light most favorable to the party against whom the verdict is directed, and, if there is any conflict in the evidence, or where the evidence is not in dispute but is in such a state that fair minded men might draw different conclusions therefrom it is in error to direct a verdict. (Emphasis supplied)

It is undisputed that a very flimsy metal cabinet, weighing 60 to 80 pounds, which was on display in the vestibule area of the Wal-Mart store, fell across the aisle and struck appellant Brenda Fleming in the back. The evidence discloses that the cabinet was one of three sizes, the dimensions of which were (1) 24 inches wide by 12 inches deep by 63 inches high, (2) 30 inchesNvide by 19 inches deep by 63 inches high, and (3) 36 inches wide by 21 inches deep by 66 inches high. The jury could have concluded on this record that the object which struck Mrs. Brenda Fleming, was not a stable item by its very nature. The cabinets were relatively tall in relation to the size of their base. In addition, there were the results of the experiment conducted by Mr. Joe Willbanks, an employee of Wal-Mart, which are in evidence. On the day after the accident, and while the cabinets were still displayed as they were the night before, Willbanks pushed one of the cabinets. It rocked back and forth and fell into his hands.

It is not disputed that these cabinets were stacked up off the floor on some type of riser or pallet. The Wal-Mart manager, Mr. Darrell Lanford, testified that the cabinets were displayed on a 24 inch wide solid base platform. Mr. Ron Fleming testified that there were 16 to 24 of these cabinets displayed on slatted pallets, similar to one of the appellants’ exhibits; and that the cabinets were stacked on the pallets two or three deep. The jury could have concluded that it would be hazardous to display these cabinets on either of the two types of risers described. The jury could have concluded that it was hazardous to display the cabinets off of the floor on the narrow display base described by Mr. Lanford. If they were stacked two or three deep, as Mr. Fleming testified, simple arithmetic shows they would almost certainly be overhanging even when perfectly placed on the riser. So situated, the likelihood that one would topple over, even if slightly examined by a customer, or even if a door was left open, would present a hazard. Of course, if the cabinets were displáyed on pallets, two or three deep, as Mr. Fleming said, a greater hazard might have occurred. The slats in the pallets had a gap of 1 xh to 2 inches between the boards. These ran parallel with the cabinets. If a cabinet was situated on one of these pallets in such a way that its front end was hanging over one of these gaps (and possibly its back side too), it would be tantamount to hanging over the edge of the display base. Its tendency to topple would be similarly enhanced. Ms. Herndon testified that these pallets were used at times as display bases in the vestibule. The generally agreed area in which the cabinets were displayed, and the number of the cabinets shown by the evidence, would indicate they were stacked two or three deep. There would not have been enough space for a display of that many cabinets single file.

A careful examination of the evidence persuades us that the jury could have found these cabinets unstable, and potentially dangerous due to their size and weight, if displayed off the floor on elevated risers; that they were displayed in a manner which enhanced their instability; or that the type of display made it likely the cabinets would become unstable as a result of foreseeable and ordinary customer inspection. It is undisputed that they were displayed in a high traffic area of appellee’s entry vestibule.

In the circumstances, we hold that there was sufficient evidence in this record to justify the court in over-ruling appellee’s motion for a directed verdict; and that the trial court was in error in directing a verdict for appellee. The case must therefore be reversed for a new trial.

II.

The appellants also claim that the trial court erred in holding that a statement of a certain Wal-Mart employee regarding the instability of the display was inadmissible under the Uniform Rules of Evidence; and that the court incorrectly excluded it. We will discuss this point because the same question is likely to arise on retrial.

Wal-Mart made a Motion in Limine requesting that Ron Fleming not be permitted to testify concerning the statement made to him the night following the occurrence by Mr. Joe Willbanks, a Wal-Mart employee. The court granted the Motion in Limine, suppressing the testimony. In support of the trial court’s action, appellee argues that appellants failed to introduce evidence that the alleged statement of Mr. Willbanks was made in or about a matter over which he had actual or apparent authority.

The record shows that Ronnie Fleming testified at the hearing to the following:

A. We went back the next night to tell the people at the store that Brenda — her back was hurt; it was bruised, and we were fixing to take her to the emergency room to have the doctor look at it . . .
. . . And we went in to the service desk; told the lady there what had happened about Brenda and that we needed to talk to the manager of the store.
Q. Now this is the lady sitting behind the service desk?
A. Yes. And so were there a couple of minutes and finally a man came up.— they said he was the one to talk to.
Mr. Lovell: Of course, we object to all this hearsay . . .
A. (Witness continuing:) The woman called the man up there. He had gotten a medical report and taken us to the back room . . . and filled out the forms.
Q. All right then, what kind of forms, what kind of questions did he ask you?
A. He asked how old we were, name and address, where we were living, how long we had lived there; asked how the accident happened; and what was hurt; where it hit her; and how she was doing at this time and told us to go ahead and take her to the hospital.
Q. All right, now then, what else did he do?
A. We left there — he and I left and went to the front of the store and the cabinets were still standing in the same position as the night before. He took his hand and pushed it forward, it came all the way over and he caught it with both his hands and said they should not have been stacked like that and said they was top-heavy and it was unsafe.

On cross-examination Mr. Fleming said: “We thought he was the manager of the store”. Appellants later learned that the person to whom they talked was Joe Willbanks, the in-house security guard. Wal-Mart had coverage, regardless of liability, and some of the medical bills were paid based on the information Mr. Willbanks obtained.

Appellants claim this statement by Mr. Willbanks was admissible under the Uniform Rules of Evidence, 801(d)(2)(iv), the pertinent part of which reads as follows:

... A statement is not hearsay if: . . . the statement is offered against a party and is. . .a statement by his agent or servant concerning a matter within the scope of his agency of employment, made during the existence of the relationship. . .

Although appellee says that Mr. Willbanks, as a security guard, was not authorized to investigate accidents, the facts are that he did investigate this particular occurrence. Under the circumstances here, Mr. Willbanks made the statement about a matter over which he had apparent authority. At least in this particular incidence, if not generally, Mr. Willbanks had the authority to investigate this claim. A principal can be bound by the apparent authority of its agent, and can ratify an agent’s unauthorized actions. Lakeside Bridge and Steel Co. v. DeVall, 179 Ark. 963, 19 S.W. 2d 1107 (1929). We are persuaded that Mr. Willbanks, the Wal-Mart in-house security person, at least on this occasion did have authority to investigate this occurrence. His action in so doing was ratified by the appellee. Wal-Mart subsequently made payments, through its insurance carrier, for medical bills. No one else attempted to make an investigation of this occurrence. Appellee acted solely on what Mr. Willbanks did on behalf of the firm. Under the circumstances, the statements made by Mr. Willbanks concerning that investigation are admissible under Rule 801(d) (2) (iv) of the Uniform Rules of Evidence.

III.

Appellants contend that the trial court erred in holding that the doctrine of res ipsa loquitur did not apply to this case.

The doctrine of res ipsa loquitur has its origins in a case which involved the unexplained falling of an object. See Byrne v. Boadle, 2 Hurlst & C 722, 159 Eng. Reprint 299, 3 New Reports 162 (1863). Numerous jurisdictions have since recognized the applicability of the doctrine in cases involving falling merchandise in the contemporary department store. Munzert v. American Stores Co., 232 Md. 97, 192 A. 2d 59 (1963); Chapman v. Redwine, 149 Colo. 515, 370 P. 2d 147 (1962); Copher v. Barbee, Mo. App., 361 S.W. 2d 137 (1962); Perito v. Sunrise Supermarket Corp., 33 Misc. 2d 627, 229 N.Y.S. 2d 667 (1961); Motte v. First National Stores, Inc., 76 R.I. 349, 70 A. 2d 822, 20 ALR 2d 88 (1950); Winn-Dixie Stores, Inc. v. Fredericks, supra. See also 38 ALR 3d 363.

There seems to be little disagreement between the parties as to the law on this point. However, they do disagree as to whether res ipsa loquitur should apply in this case. Appellee correctly points out that the mere happening of an accident does not justify recourse to the res ipsa loquitur doctrine in a personal injury suit. Appellee also is correct in saying that the basic components of the doctrine of res ipsa loquitur include exclusive control by the defendant. See AMI 610. Mr. Fleming testified that there was an unidentified customer looking at the cabinets before one of them fell. Fleming said that he heard this unidentified man opening and shutting some of the doors to the cabinets. Appellee claims that the doctrine of res ipsa loquitur cannot be properly applied here because of appellant Fleming’s testimony that this unidentified customer was handling the merchandise. Therefore, appellee argues the instrumentality (cabinet) which produced the injury complained of was not, at the time of the injury, under the exclusive control of Wal-Mart or its agents or servants. Appellee contends that the evidence presents a clear possibility of an intervening cause. We do not agree. Wal-Mart owed the appellants the duty to exercise ordinary care to maintain its display in a reasonably safe manner and condition; and the opening and closing of the doors on cabinets of this type is a foreseeable result of customer inspection. Winn Dixie Stores, Inc. v. Fredricks, supra. The issue here is whether the actions of the unidentified customer, looking at the cabinets, would operate to destroy the appellee’s exclusive control. We hold that it did not, and the trial court’s ruling was in error. The testimony in the record given by both appellants concerning the activities of the unidentified person in question is quite detailed and simply described this man as doing exactly what one would expect an interested customer to do relative to the inspection of the cabinets so displayed. There is no evidence in the record that shows any mishandling of the merchandise, or rearranging of the display in any way, by this customer. At most, this was an unexplained toppling of a merchandise display as a result of ordinary and foreseeable customer handling. What this record shows certainly did not constitute customer abuse.

The evidence also shows that the unidentified man was at the far north end of the display at the time this one cabinet fell at the south end of the display. He had done nothing except look at the cabinets and open and shut some of the doors. Such an inspection of displayed merchandise by a customer or potential buyer was an ordinary, customary and foreseeable aspect of Wal-Mart’s operation. Wal-Mart was charged with the responsibility of taking this into consideration in establishing and maintaining this display.

Absent some evidence of customer abuse or some other unforeseeable or uncontrollable event, which would explain the occurrence in question without negligence on the part of the defendant, it is only logical to conclude that the cabinet fell as the result of the negligence of Wal-Mart, and the doctrine of res ipsa loquitur is applicable. The burden of going forward with the evidence was thus shifted to the defendant at the close of plaintiffs’ case, and the verdict should not have been directed.

Reversed and remanded.


author: Marian F. Penix, Judge. David Newbern, Judge,

text:
    Joseph BENEDETTI v. STATE of Arkansas
    CA CR 79-96
    594 S.W. 2d 61
    Court of Appeals of Arkansas
    Opinion delivered February 6, 1980
    Released for publication February 27, 1980

      John B. Driver, for appellant.

      Steve Clark, Atty. Gen., by: Dennis R. Molock, Asst. Atty. Gen., for appellee.
   Marian F. Penix, Judge.

On May 30, 1979 appellant Benedetti was convicted on three counts. He was sentenced to 4 Vi months on possession of marijuana which was to run concurrent with a second sentence of two years on the sale of marijuana. He was sentenced to two years on an additional sale of marijuana. The judge determined the second two year sentence was to run consecutively with the first two year sentence. Benedetti appeals.

On September 13, 1978 Jerry Roberts, a criminal investigator in the narcotics division of the Arkansas State Police, accompanied by an investigator Johnson, went to Benedetti’s house to discuss a transaction involving the purchase of fifty pounds of marijuana. Benedetti gave Officer Roberts a small amount of marijuana, explaining he didn’t have enough to sell. He told Roberts to return in six days to buy the fifty pounds. When Roberts returned Benedetti related he had sent the marijuana élsewhere and could let him buy only a small quantity. Roberts bought approximately one ounce and paid Benedetti $10 which amount was supposed to cover also the “gift” of marijuana received on the September 13 visit. On December 3, 1978 Roberts and Bill Gage, another State Police officer, visited Benedetti to make a large purchase. Benedetti informed them he could sell only a small amount, approximately one ounce. He told Roberts and Gage his connection in Conway had been busted. Gage paid $5 to Benedetti.

I

Benedetti contends the court erred in refusing to declare a mistrial. The appellant moved for a mistrial when Officer Roberts related:

He told us his connection had got busted, his partners had been arrested in Conway, Arkansas, with 125 pounds of marijuana. Therefore, he would not be able to sell the marijuana like he previously had arranged to do with us because his people had got busted and he said we are laying low, all the dope about is gone, he said we are not doing any business, my partners ain’t doing any business, the heat is on heavy, they have got arrested, so I don’t know whether they are gong to link that to me or anything, he said but my partners got busted that is why I can’t . . .

Bendetti’s motion for a mistrial was upon the grounds that Officer Roberts volunteered information about other crimes that were outside the questions asked by the Prosecutor and would leave a bad impression with the jury. Appellant relies upon Moser v. State, 266 Ark. 200, 583 S.W. 2d 15 (1979), in which the Supreme Court restated the general rule that evidence of other crimes by the accused, not charged in the indictment or information and not a part of the same transaction, are not admissible. Here the incidents referred to were the arrests of persons referred to as the accused’s “contacts”. Such arrests certainly were relevant to the transaction between Roberts and the accused. They prevented the accused from having 50 pounds available for sale to Roberts.

We fail to find error justifying the granting of a mistrial. The presumption is in favor of the trial court’s ruling on the motion for a mistrial. Benedetti has not met his burden of demonstrating error.

II

Benedetti contends the court erred in failing to suppress an alleged confession made by Benedetti because ample notice the confession would be introduced was not given Benedetti. Also he contends a Denno hearing should have been held to determine whether or not to suppress.

We find no merit in Benedetti’s contention. Benedetti has not presented any argument nor cited any authority. Further, in reviewing the record we find there was discovery procedure. The defense attorney admits he knew the confession was in the prosecutor’s file. He did not move to suppress. He also admits to having received the calendar order notifying him of Docket Day on May 8, 1979 for “arraignment, presentation of all pre-trial matters and all motions and scheduling of all cases for jury trial. Motions must be filed before Docket Day.”

Benedetti contends it is the State’s duty to initiate a Denno hearing even though the defense has not challenged the voluntariness of the confession.

Ark. Stat. Ann. § 43-2105 (Repl. 1977)
Issues of Fact — How tried — Confessions —
Issues of fact shall be tried by a jury, provided that the determination of fact concerning the admissiblity of a confession shall be made by the court when the issue is raised by the defendant; . . .

The burden to prove the voluntariness by a Denno hearing does not become the State’s unless the defense challenges the voluntariness and moves to suppress.

Whenever the accused offers testimony that his confession was induced by violence, threats, coercion or offers of reward, then tlie burden is on the State to produce all material witnesses who were connected with the controverted confession or give adequate explanation for their absence. Smith v. State, 254 Ark. 538, 494 S.W. 2d 489 (1973)

Here the defense offered no testimony. The confession was uncontroveted. He cross-examined the police officer about the confession but never objected to the authenticity of the statements.

We find no error for which we can reverse the judgment of the lower court.

Affirmed.

Wright, C.J., and Howard and Newbern, JJ., concur.

David Newbern, Judge,

concurring. The majority opinion might lead readers to conclude this court requires only that evidence of previous misconduct be “relevant” to be admissible. It was not our intent to go that far in Price v. State, 268 Ark. 535, 597 S.W. 2d 598 (1980), which we decided just last week (January 30). I believe that in any case where prior misconduct is at issue, Ark. Stat. Ann. § 28-1001, Rules 404(b) and 403 (1979), should be applied, and the probative value of evidence of previous offenses which is determined to be admissible should be balanced against whatever prejudicial impact the evidence might have.

I concur in the result reached by the majority because I believe the evidence in question here, i.e., that of previous sales of marijuana made through “contacts” with suppliers is independently probative that the appellant’s business was that of selling marijuana, and his intent was to sell it to the officers. Thus, one of the exeptions of Rule 404(b) is satisfied as the evidence goes at least to the intent of the accused if not to an overall plan or scheme to commit the offense with which he was charged. Balanced against this probative value, I find the prejudicial impact of the evidence to be outweighed.

Chief Judge Wright and Judge Howard join in this concurring opinion.


author: George Howard, Jr., Judge.

text:
    Charles L. DANIELS, Director of Labor of the State of Arkansas and Cecil PUGH v. HILLCREST HOMES, INC.
    CA 79-271
    594 S.W. 2d 64
    Court of Appeals of Arkansas
    Opinion delivered February 6, 1980
    Released for publication February 27, 1980

      Thelma M. Lorenzo, for appellants.

      Honey & Rodgers, by: Danny P. Rodgers, for appellee.
   George Howard, Jr., Judge.

This is an appeal from a decision of the Nevada Circuit Court reversing the decision of the Board of Review sustaining the Appeals Tribunal in reversing the Agency’s denial of benefits to appellant, Cecil Pugh, under Section 5(b) (1) of Employment Security Law for purported misconduct in connection with her work. Section 5(b) (1) provides in material part:

“. . . [A]n individual shall be disqualified for benefits:
(b)(1) If he is discharged from his last work for misconduct in connection with the work. Such disqualification shall be for eight (8) weeks of unemployment . . .”

Cecil Pugh was discharged on November 18, 1978, from her employment with Hillcrest Nursing Home where she served as an aide for the following purported reasons:

1. Claimant did not cooperate with other nurses’ aides; and,
2. She did not report to work as scheduled; and,
3. She was abusive to patients; and,
4. Claimant’s boyfriend had on occasions interfered with her work by coming on the job.

Cecil Pugh denied, under oath, all of the charges of misconduct and further testified that Robert Smith, her boyfriend, simply came on the job to pick up a trunk key and that he did not interfere with her work assignment. She testified that Donna Stuart, L.P.N., had a personal pique against her which was centered around her boyfriend; that shortly after Donna Stuart placed a note under the administrator’s door, the content of which is unknown to claimant, claimant was discharged from her employment. She testified emphatically that she at no time abused any patients. Moreover, claimant stated that she had never been called into question about any abusive treatment accorded the patients; that she believes that there has never been a report of mistreatment from a patient.

The evidence submitted in support of the charges against claimant are three unsworn handwritten statements of the administrator, Donna L. Stuart, L.P.N., and Bobbie Fuller, R.N. The patients purportedly abused by the claimant did not testify nor is there a statement of any sort in the record from the patients.

The trial court in reversing the Board of Review found, among other things: “The Board of Appeals rubber-stamped the referee’s findings .... The only evidence in this record supporting the claimant’s position is a denial of the alleged misconduct. Statements by the employees as well as by a supervising LPN and registered nurse verified that the conduct of the claimant towards patients placed the patients in fear and that the patients have requested that the claimant not be sent back to their rooms.”

We are persuaded that the trial court exceeded the scope of its jurisdiction in evaluating the weight and credibility of the evidence. It is plain that, the trial court’s responsibility is limited solely to determining whether or not the findings and conclusions of the Board , of Review are supported by substantial evidence. Credibility of witnesses and the weight to be accorded the testimony are matters to be resolved by the Administrative Agency. The trial judge could reverse if the findings of the Board of Review were arbitrary, capricious, unreasonable and without substantial evidence to support them or in fraud or corruption. Moreover, a reviewing court may not substitute its findings for those of the Administrative Agency even though the court might reach a different conclusion if it had made the original determination upon the same evidence considered by the Agency. Even if the evidence is undisputed, the drawing of inferences is for the Agency, not the courts.

After carefully examining the record, we believe there is substantial evidence to support the decision of the Board of Review. Claimant offered live testimony under oath, while appellee offered three unverified statements which are predicated on hearsay.

Reversed and remanded with directions to the Circuit Court of Nevada County to enter an Order reinstating the decision of the Board of Review.

Pilkinton, J., not participating.


text:
    Lillie Ruth OLIVER v. STATE of Arkansas
    CA CR 79-119
    594 S.W. 2d 261
    Court of Appeals of Arkansas
    Opinion delivered February 6, 1980
    Released for publication February 27, 1980

      John W. Achor, Public Defender, by: William H. Patterson, Jr., Deputy Public Defender, for appellant.

      Steve Clark, Atty. Gen.; by: Victra L. Feyvell, Asst. Atty. Gen., for appellee.
   George Howard, Jr., Judge.

Appellant was found guilty of theft by receiving by the trial judge sitting as a jury. She was sentenced to three years to the Department of Correction.

On January 20, 1979, someone took Russell Settlers’ 1975 Ford Econoline Van, which was parked at his business establishment, Sims Barbeque. The keys were in the ignition and the van contained 750 pounds of ribs. Settlers testified that he paid $3,000.00 for the van in August, 1978.

Officer Allen Quattlebaum of the Little Rock Police Department said he observed the van at approximately 2:47 a.m. on January 21, 1979, traveling east on Roosevelt Road and commenced pursuit after recognizing that the van fitted the description of a van reported stolen earlier. The vehicle was traveling between 55 an 60 miles per hour, ran a red light, sideswiped a vehicle, while narrowly missing another head-on and finally collided head-on with a pickup truck. Appellant was occupying the driver’s seat and was wedged in between the dash board and the 750 pounds of ribs which had moved forward on impact.

Officer James A. Middleton of the Little Rock Police Department testified that an ambulance was summoned to carry appellant to the University of Arkansas Medical Center; that he smelled a moderate odor of alcohol on appellant’s breath; that she was mobile, but staggered when she walked; and she had sustained facial wounds as a consequence of the accident; that appellant “was pretty intoxicated” and that an attempt was made to take a blood sample, but “because she was too violent”, the doctor refused to proceed further.

Martha Harris, a niece of appellant, testified that appellant arrived at her home at approximately 8:00 p.m. on January 20, 1979, and “it was about 1:00 when she left”; that appellant consumed “about two drinks at the most, two or three” and that appellant was not intoxicated when she left her home and was acting as a normal person.

Appellant testified that during the course of the evening, while in the home of her niece, she drank a large quantity of gin, vodka, whiskey and beer; and that she was also taking aspirins and “pain pills” that she had purchased from a drug store, on the advice of a physician, for a “fractured skull”; that she left her niece’s home “about one something” and within a few minutes, after she exited the house, she “passed out” and does not remember what happened afterwards until she discovered that she was in the hospital.

The thrust of appellant’s argument for reversal is the trial judge denied appellant “A FAIR AND IMPARTIAL TRIBUNAL BEFORE WHICH TO HAVE HER CASE TRIED, GUILT DETERMINED AND SENTENCE PASSED.” This contention stems from the trial judge’s examination of the appellant, at the close of the State’s cross-examination, whereby the trial judge indicated his disbelief in appellant’s testimony regarding her alleged intoxicated condition. We deem it appropriate to set out the closing phase of the State’s examination and the relevant exchange between the trial judge and appellant:

Q. Okay. So, you had two drinks at her house?
A. Uh huh.
Q. And then you left there at one.
A. Uh huh.
Q. And you only walked a short ways and you don’t remember what happened after that?
A. Uh huh.
Q. But you remember taking the bottle with you when you left her house?
A. Right.
Q. What type of bottle was it. Was it a fifth or a half pint or a pint?
A. It was a fifth.
A. What kind was it?
A. It was some Seagram’s Seven. The same kind of whiskey I —
Q. That you normally drink?
A. Uh Huh.
Q. And other than that that’s all you remember about that night, you woke up in the hospital?
A. That’s all.
MR. RODDEY;
Okay. Thank you, Lillie.
THE COURT:
Just a moment. I have some questions. Mrs. Oliver, I want you to tell me again — You understand you’re under oath, don’t you?
THE WITNESS:
Sir?
You understand you’re under oath? You took an oath to tell the truth, the whole truth, nothing but the truth, so help you, God?
THE WITNESS:
Yes, sir.
THE COURT:
You understand what that means, don’t you?
THE WITNESS:
Yes, sir.
THE COURT:
Tell me again what you told the Court the first time when you said all that stuff you had to drink. Now, tell me again what you had to drink.
THE WITNESS:
Okay. I left the hospital about two, like I said. I called a cab.
THE COURT:
That was about two in the afternoon?
Uh huh. Okay. First I started off with some gin. Okay. Some gin. Then some I. W. Harper. Some gin. Okay. We had a little wine. Okay. Then we drunk about three six packs. Okay. Time went on and at the time I’m drunk. Well, I was good and high before her boyfriend got there about 6 o’clock and it’s dark then. Okay. And, after he got there, he said ‘I’m fixing to go home.’ I said, ‘Where’s Martha Ann?’ He said, “Well, she’ll be in, I guess, about eight or maybe ten.’ Okay. We go out. I was staggering then. I was drunk then. I was falling on the ground. So, we stopped by the liquor store. They got a half pint of Seagram’s Seven.
THE COURT:
Which liquor store?
THE WITNESS:
The one on Arch Street Pike.
THE COURT: ;
Who was with you?
THE WITNESS:
Her boyfriend and another dude.
THE COURT:
Was she with you?
THE WITNESS:
No.
THE COURT:
Okay. Gó ahead.
THE WITNESS:
And. so, after we got to her house, I poured half of it out of the bottle. I poured me a glassful and poured some coke in it. I drunk that on down. So, that went on a while. So, he went back in the back room and got a fifth of that Seagram’s Seven and some vodka and I was mixing it up.
THE COURT:
Okay. If you had whiskey in the back room, why did you go to the liquor store to buy it?
THE WITNESS:
Well, see, he asked me did I want anything from the liquor store and I said yes.
THE COURT:
Are you getting all this down, Mr. Prosecutor?
MR. RODDEY:
No, sir.
THE COURT:
I want you to issue some office subpoenas for this girl and her boyfriend and that other dude that was there and put them under oath and see if this witness is lying.
All right. Go ahead.
THE WITNESS:
So, after we got to their house, so, you know, we started drinking again. So, we had some vodka. So, I started mixing mine up. I did. So, I just kept like I was going to sleep or passing out and I said Tm going to go home.’ So, you know, I got up and I grabbed the bottle and I went out the door. And I sit out there. I grabbed my head. I couldn’t hardly see at all. So, I started up the street. I said — I kept saying, T can’t make it, I can’t make it.’ And I started drinking again. I just passed out. When I woke up, I was in the hospital.
THE COURT:
What was wrong with you, physically wrong with you to cause you to have to go to the University Med Center that day?
THE WITNESS:
Well, see I was sick all that week. My head kept —
THE COURT:
What was wrong with you?
THE WITNESS:
Well, I couldn’t eat anything. This side of my head kept hurting and I couldn’t eat. And the doctor told me, said —
THE COURT:
Don’t tell me what the doctor told you. What doctor did you see?
THE WITNESS:
Well, I don’t know his name.
THE COURT:
All right. Did you check into the emergency room at the University Medical Center?
THE WITNESS:
Uh huh.
THE COURT:
And this is on the day that this alleged theft occurred?
THE WITNESS:
Yeah, same day.
THE COURT:
And that’s what?
MR. PHILLIPS:
That’s the day before. It would be the 19th.
MR. RODDEY
January 19th.
THE COURT:
Subpoena the emergency room records at the University of Arkansas Medical Center for the 19 th and find out if this Defendant was treated in the emergency room and, if so, the doctor’s name. Get an office subpoena for him.
All right. Go ahead.
THE WITNESS:
And, so, he told me, said, ‘Miss Oliver, you could have a fractured skull.’ He said, ‘Go home and take two aspirins.’ And he said, ‘Before you do it,’ he said, ‘eat as you take that.’ But I didn’t. I bought me some potato chips but I didn’t eat them. I gave them to some more little kids that live next door to me. And, after I went over to their house, they was drinking. I said, ‘Y’all give me some,’ I said, ‘Wait a minute.’ I said, ‘I want to take this here first before I do that.’ So, I took them two aspirin tablets and the pain pills. So, after I took them two, I just started drinking.
THE COURT:
I’ve heard enough. You can step down.
MR. PHILLIPS:
Miss Oliver, come on down.
THE COURT:
Anything else, Mr. Phillips?
MR. PHILLIPS:
No, sir, your Honor.
THE COURT:
Any rebuttal, Mr. Prosecutor?
MR. RODDEY:
No, sir.
THE COURT:
Everybody through?
MR. PHILLIPS:
Yes, sir.
THE COURT:
The Court finds Miss Oliver guilty.
Mr. Phillips, you have anything to say before I decide on a sentence?
MR. PHILLIPS:
No, sir, your Honor.
THE COURT:
You have anything to say, Mr. Prosecutor?
MR. RODDEY:
No, sir.
THE COURT:
Any prior involvement with the law?
MR. PHILLIPS:
I don’t believe she has any felonies, your Honor.
MR. RODDEY:
No felony convictions.
MR. PHILLIPS:
Your Honor, the Defendant does have four children.
THE COURT:
Well, she wasn’t too concerned about them when she was drinking all that whiskey and beer and gin and wine and vodka and all that stuff.
All right, Miss Oliver, you may stand up at the lectern.
THE COURT:
Miss Oliver, the Court finds you guilty and I think that there is a good likelihood that you may have committed perjury in this Court today but I’m going to reserve judgment on that and let the Prosecutor look into it. But, if he can prove perjury, I’m going to order him to file perjury charges in this case. But I’m not going to punish you for that until I know better. But I do think that you stole this truck and I do think you wrecked it. I do think you knew what you were doing. I don’t believe you were drunk. Even your own niece says you weren’t.
It is the judgment and sentence of this Court that you be taken by the Sheriff of Pulaski County and delivered to the department of Correction, there to serve at hard labor for a period of three years. It is the further order of this Court that you serve at least one-third of that sentence before you become eligible for parole.
And I guarantee you, Miss Oliver, when they send me a request saying that they’re putting you up for parole, if it’s anything less than one year, I’m going to object to it seriously and do what I can to keep you in jail.

While a trial judge is not a mere umpire and may interrogate witnesses in an action before him, he may not act in a dual capacity as judge and advocate. The two roles are not concentric. The presentation of a litigant’s case in an adversary proceeding should be left to the initiative of counsel who has the responsibility to represent the interest of his client.

It is understandable, from the exchange between the trial judge and appellant, the trial judge could have easily developed a negative opinion regarding the credibility of appellant’s testimony, and firmly believed appellant had committed perjury. But court proceedings must not only be fair and impartial, they must also appear to be fair and impartial not only for the benefit of the litigants directly involved, but this is necessary in order to maintain the public’s confidence in the judiciary. Burrows v. City of Forrest City, 260 Ark. 712, 543 S.W. 2d 488 (1916); Bolden v. State, 262 Ark. 718, 651 S.W. 2d 281 (1978); Canons 2 and 3 of Code of Judicial Conduct. Furthermore, another difficulty we face is reconciling the trial court’s belief that perjury had been committed with the extent and the relative vigorous examination that the judge subjected appellant to in order to confirm his belief, It is plain, a judge “. . . cannot, by virtue of his office, resolve himself into a court of inquiry for the investigation of real or. supposed misconduct that may have come to his attention in his courtroom.” Ex parte Burton, 237 Ark. 441, 373 S.W. 2d 409 (1963). Indeed, it is universally recognized that it is the role of the prosecuting attorney, in the interest of the State, to investigate and bring a supposed offender to the bar of justice to be dealt with within the concept of due process.

We perceive that the better approach, when a trial judge is persuaded that a litigant, in a proceeding before him, has committed perjury is to conclude the proceeding and invite the prosecuting attorney to conduct an investigation to determine if perjury charges are warranted. In this way, not only does the court avoid the appearance of impropriety, but the appearance of subjecting a litigant to á form of intimidation as well.

At the close of appellant’s trial, the trial judge made the following observation:

“And I guarantee you, Miss Oliver, when they send me a request saying that they’re putting you up for parole, if it’s anything less than one year, I’m going to object to it seriously and do what I can to keep you in jail.”

We are not unmindful that a trial judge has a heavy responsibility in the performance of his adjudicative duties and, at times, a judge may inadvertently make observations that might reflect upon his patience. We believe a trial judge should not commit himself to a course of action without having the benefit of all relevant and applicable facts available in order to permit an intelligent and knowledgeable decision which involves the fundamental rights and privileges of a litigant.

It is generally recognized that a parole is not a full release of an offender, and it is not regarded as a form of leniency. The stated purpose of a parole is reformatory; it is a means of restoring to society an offender who is a good risk. This facilitates the offender’s reintegration into society by the time his sentence expires. In other words, a parole permits an early release from prison based on a determination that the defendant can live in society without violating the law: See: 67A, C.J.S., § 39 Pardon and Parole at page 54.

While the trial judge may have had valid reasons to conclude that appellant was unworthy of any consideration for a parole, at the close of the trial, this is no valid basis for concluding that when appellant becomes eligible for parole, she would not be a good social risk or that she could not live in society without violating the law. This is but a simple application of the adage “Once a sinner is not irrefutable evidence that one is a sinner henceforth and forever.”

We are persuaded that appellant has not demonstrated how she has been prejudiced by the action of the trial judge. There is substantial evidence to support appellant’s conviction and, accordingly, we affirm. If this were a jury trial, we would have to view the matter in an entirely different light.

Affirmed.