author: John I. Purtle, Justice.

text:
    CELOTEX CORPORATION, INC. v. LYNNDALE INTERNATIONAL, INC. et al
    82-83
    640 S.W.2d 792
    Supreme Court of Arkansas
    Opinion delivered October 25, 1982

      Wright, Lindsey ir Jennings and Faegre ir Benson, Minneapolis, Minn., for appellant.

      Harkey, Walmsley, Belew ir Blankenship, by: John M. Belew, for appellees.
   John I. Purtle, Justice.

A jury in the Cleburne Circuit Court returned a verdict against the appellant in the amount of $4,071,770.46. It was stipulated that property damage amounted to $71,770.46. The jury allocated $1,000,000 compensatory damages and $3,000,000 punitive damages. Celotex appealed and argued that the court should have rendered a judgment against the appellees as a matter of law. Appellant settled the judgment for $2,171,770.46 and took a release on behalf of both appellant and appellees. The appeal in this case is from the refusal of the trial court to direct a verdict of liability against the appellees. For reasons which will be stated later we affirm the judgment of the lower court.

The facts reveal that decedent obtained the services of Cloyce Eddings to build a brooder house in 1970 and another one in 1977. In 1979 an addition was made to the newer structure and furnace rooms were added at both brooder houses. Eddings poured a concrete foundation and appellees installed their woodburning furnaces. Eddings came back and built the walls and roofs of the furnace rooms. The appellees’ employees then returned to the site, completed the duct work and set up the woodburning furnaces.

Appellees sold and installed a single wall chimney in each of the furnace rooms. Single wall chimneys were installed contrary to the installation manual produced by the appellees. This type chimney was to be installed only in all metal buildings. The furnace rooms in this instance were constructed of wood and fiber which came within eight inches of the single wall chimney. According to the evidence, it was unacceptable to have combustible materials anywhere near a single walled chimney. At one point, it was noted that one of the chimneys was not properly installed in that it allowed water to leak into the furnace room. The appellees’ representative came to the premises to inspect the leak prior to repair and observed the single wall chimney and the structure which enclosed the furnaces.

The appellant furnished insulation which was installed in the original brooder houses. The Celotex insulation used in the addition built in 1979 was known as TF-600, a polyisocyanurate material. No Celotex product was used in the older structure nor in either of the furnace rooms.

When the furnaces were first operated in December of 1979, a fire broke out in the furnace rooms during the first hours of operation. It was not disputed that the fire started where the single wall chimneys were installed near the combustible material. The decedent was working in the brooder houses on the night of the fire because his baby chickens had arrived the day before and he was apparently on guard to see that the furnaces worked properly throughout the cold night. Two passing motorists observed a fire in the newer chicken house about 6:00 a.m. They went to decedent’s house, which was near the brooder houses, and notified decedent’s wife. The witnesses and decedent’s wife immediately went to the burning chicken house in search of decedent. His unburned body was found in an area near a door of the chicken house some distance from the furnace room. The decedent was pulled from the burning building but never regained consciousness. The autopsy indicated he had died from the inhalation of smoke which contained carbon monixide and hydrogen cyanide. The combustible material in the furnace room produced carbon monoxide and the insulation furnished by Celotex produced hydrogen cyanide when burned.

At the close of the evidence appellant moved for a directed verdict against appellees on the question of liability. The court denied the motion. The jury, by interrogatories, found Celotex 100% at fault for all damages. Appellant then moved for a judgment notwithstanding the verdict. The motion also sought alternate relief in the form of a new trial on the ground that the jury erred in awarding a verdict only against Celotex. On appeal appellant contends that the court erred in refusing to grant appellant’s motion for a directed verdict on its cross-complaint against appellees.

The question presented on appeal is whether the court should have directed a verdict of liability against appellees. This is not the usual argument that there was insufficient evidence to support the verdict but rather that a verdict should have been directed on the matter of liability against the appellees. In the early case of Woodmen of the World v. Brown, 194 Ark. 219, 106 S.W.2d 591 (1937), this court held that the trial court should have directed a verdict in favor of the defendant insurance carrier who was charged with the burden of proof. In that holding this court determined that as a matter of law the facts clearly revealed that the policyholder either fraudulently or negligently deceived appellant. Therefore, the court should have directed a verdict for the defendants. The same type question was presented in Woodmen of the World Life Ins. Society v. Reese, 206 Ark. 530, 176 S.W.2d 708 (1943). In the last-cited case we stated:

A verdict upon an issue of fact should not be directed in favor of the party who has the burden of proof with respect thereto, unless such fact is admitted, or is established by the undisputed testimony of one or more disinterested witnesses and different minds cannot reasonably draw different conclusions from such testimony.

This case was followed in Southern National Ins. Co. v. Pillow, 206 Ark. 769, 177 S.W.2d 763 (1944). A somewhat later case is that of Spink v. Mourton, 235 Ark. 919, 362 S.W.2d 665 (1962). In Spink, the court quoted with approval the previous quotation from Woodmen of the World Life Ins. Society v. Reese. The rule followed in Spink is as follows:

... the motion for judgment n.o.v. was properly denied unless it can be said that the trial court should have directed a verdict in favor of the plaintiffs.

The court in Spink referred to the case of United States Fire Ins. Co. v. Milner Hotels, 253 F.2d 542 (8th Cir. 1958), where it was stated:

Negligence and proximate cause will become transformed from questions of fact into questions of law rather on probative deficiency than on probative abundance. Thus, no matter how strong the evidence of a party, who has the burden of establishing negligence and proximate cause as facts, may comparatively seem to be, he is not entitled to have those facts declared to have reality as a matter of law, unless there is utterly no rational basis in the situation, testimonially, circumstantially or inferentially, for a jury to believe otherwise.

The appellant, by filing the third party complaint, had the burden of proving that the appellees were guilty of negligence which proximately caused the injuries complained of herein. The original plaintiff also had the duty to prove the appellees were negligent in the circumstances of this action. The jury exonerated the appellees in spite of what was obviously an abundance of facts upon which liability could have been levied against them. Therefore, we now consider whether the position of the appellant was so clearly proven that there was no rational basis in the facts shown nor circumstances inferred upon which the jury could have refused to find against the appellees. We do not believe the facts in this case reach the point where there would be absolutely no rational basis upon which the jury could have exonerated the appellees in this action. Inferences could have been drawn by the jury that adequate warning had been given by the appellees. We cannot speculate as to what the j ury considered so long as the verdict comports with the law. We have not been referred to any case, nor have we found one, where the facts are not admitted and no dispute remains, where the proponent of a negligence claim successfully presented evidence to establish liability to the extent required to meet the burden of proof of converting a fact question to one of law.

The case has been compromised and settled, therefore, we do not have before us the matter of separation of the property damage from the personal injury. Also, the settlement of the judgment by the appellant precludes us from attempting to determine which damages may have been caused by the appellant’s negligence. For the foregoing reasons, we affirm the judgment below.

Affirmed.

Hickman, J., not participating.


source: Caselaw Access Project

license: Public Domain

text:
    Lindsey PROCTOR et al v. Dr. Edward P. HAMMONS et al and Lindsey PROCTOR et al v. Dorothy BERNARD et al
    82-228 and 82-229
    640 S.W.2d 800
    Supreme Court of Arkansas
    Opinion delivered October 25, 1982

      Butler, Hicky ir Hicky, by: Phil Hicky, for appellants.

      Sharpe ¿r Morledge, P.A., for appellees.
   John I. Purtle, Justice.

The circuit judge for St. Francis County, who was also serving as chancellor on exchange, issued a writ of mandamus ordering the St. Francis County Election Commission to place a proposed initiated ordinance on the ballot for the election on November 2, 1982. At the same time, in a chancery proceeding, the court denied a petition for injunctive relief against the county clerk concerning matters pertaining to the upcoming general election. The appeal is from both the circuit court order allowing the writ of mandamus and the chancery order finding the petition to be sufficient, legal and constitutional. (The same record serves for both the chancery and circuit courts.) We find that the lower courts acted properly and thus affirm both decisions.

The Board of Governors of Forrest Memorial Hospital, a county owned hospital in St. Francis County, negotiated a lease agreement for the hospital with Baptist Health Care Systems. The lease agreement was presented to the quorum court and received its approval pursuant to Ark. Stat. Ann. § 17-1504 (Repl. 1980). Immediately thereafter a group of local citizens opposed to the lease proceeded to circulate what they called an “Initiative Petition.” The petition was described as “An Ordinance Prohibiting the Lease of Forrest Memorial Hospital.” The county clerk certified the petition to the election commission on September 8, 1982. On September 21, 1982, the appellees filed an action in the circuit court in which they sought a writ of mandamus requiring the proposed initiated petition to be placed on the 1982 General Election ballot. The appellants intervened in the circuit court litigation. On September 21,1982, the appellants filed an action in the St. Francis County Chancery Court seeking to enjoin the county clerk and election commission from certifying the petition for placing the matter on the ballot. The appellees intervened in the chancery court proceeding.

The court, sitting as both circuit and chancery judge, rendered dual decisions on September 27, 1982. As circuit court a Writ of Mandamus was issued to the St. Francis County Election Commission requiring it to place the proposal on the ballot for the upcoming general election. At the same time the chancery court found that the proposed Initiated Petition and Initiated Ordinance were sufficient, legal and not in violation of Arkansas law or the Arkansas Constitution.

We have a two-pronged question to be decided in this matter. Does the proposed ordinance violate Ark. Stat. Ann. § 17-1504 and is it sufficient in detail to meet the criteria required for initiative and referendum petitions? Ark. Stat. Ann. § 17-1504 states in part:

Should the Board of Governors determine that it would be to the best interest of the citizens of the county that this hospital be operated or leased to some individual, firm or corporation, the board may contract or lease the equipment and hospital facilities to such individual, firm or corporation for such period of time and for such consideration and conditions as the board may deem wise; subject, however, to the approval of said contract or lease by the County Judge and the quorum court of the county wherein the hospital is located . . .

Clearly the foregoing statute authorizes the action taken by the board of governors and the county judge and quorum court. We now consider whether the statute prevents the people of the county from having an opportunity to express their approval or disapproval of such a measure. This statute does not require that any county hospital be leased or contracted to any individual or firm. The statute is permissive and not mandatory. The lease enacted by the quorum court and signed by the county judge was for all practical purposes the same as any other ordinance. It is not disputed that other ordinances would be subject to initiative or referendum action. If the legislature had required that the board of governors and quorum court dispose of the hospitals by contract or lease, then we would have a different question before us.

Appellants argue that Amendment 7 to the Constitution, providing for Initiative and Referendum, prohibits a refendum by a municipality or county when such initiative or referendum is contrary to the constitution or any general law of the state. We agree with this statement of the law. However, we think neither Amendment 7 nor Ark. Stat. Ann. § 17-4011 (Repl. 1980) prohibits the action taken by the residents of St. Francis County, Arkansas. No provisions of the Constitution nor subsequent legislation prohibit the voters of a county from approving or disapproving the action taken by the board of governors and the quorum court. In the case of Hodges v. Dawdy, 104 Ark. 583, 149 S. W. 656 (1912), we considered a similar question and determined that the ordinance in that particular case was in conflict with the state law and, therefore, should not be submitted to the voters. That is still sound law but the facts in the case before us reveal that the present proposal does not run counter to a general state law or the Constitution.

Timeliness, as set out in Ark. Stat. Ann. § 17-4011, has been argued by the parties. We shall consider this issue since it was addressed in the arguments and will possibly prevent additional litigation. Ark. Stat. Ann. § 17-4011 is part of the enabling legislation enacted by the General Assembly pursuant to Amendment 7 to the Constitution of the State of Arkansas of 1874. The language questioned in is § [12] (11) providing: “ ... no court or judge shall entertain jurisdiction of any action or proceeding questioning the validity of any such ordinance or measure until after it shall have been adopted by the people.” In the present case neither the trial court nor this court has considered the validity of this initiated ordinance. We have determined only the matter of procedure. The substance of the ordinance could be considered in a subsequent action.

Appellants argue that the ballot title is misleading and does not fairly represent the legislation proposed for adoption. The ballot title of the instrument is:

AN ORDINANCE PROHIBITING THE LEASE OF FORREST MEMORIAL HOSPITAL.

This title will appear on the ballot to guide the voter at the time he casts his vote. It seems clear to us that the ordinance actually is one to prevent the lease of the Forrest Memorial Hospital to certain specified persons or corporations as no other lease has been proposed by the quorum court and the board of governors for the hospital. The concluding part of the ordinance, which will not appear on the ballot, reads as follows:

NOW, THEREFORE, BE IT ORDAINED by the citizens of St. Francis County, Arkansas, that the proposed lease herein described shall not be executed and is hereby rejected and refused, and any action contrary hereto is repealed.

The body of the ordinance described the proposal as that being entertained by the Forrest Memorial Hospital Board of Governors and the St. Francis County Quorum Court. Therefore, it is obvious the proposed initiative is speaking only of the ordinance passed wherein the hospital would be leased to persons or firms outside St. Francis County.

The trial court, in the chancery case, found that the proposed petition was sufficient and that it was not unlawful nor did it conflict with existing state law or the Constitution of the State of Arkansas. After having heard the evidence and considering the matter on its merits the court determined that the injunction should not be issued. Although we consider matters de novo, when appealed from chancery courts, we give weight to the findings of the chancellor and do not reverse unless the decision is clearly erroneous. Brown v. Summerlin Associates, Inc., 272 Ark. 298, 614 S.W.2d 227 (1981). We cannot say that the decision in this case was clearly erroneous.

Thus, the decree rendered by the Chancery Court of St. Francis County holding the ordinance to be sufficient is affirmed. We also hold that the circuit court order wherein the Writ of Mandamus was issued to the St. Francis County Election Commission was valid.

Affirmed.


author: Richard B. Adkisson, Chief Justice. Darrell Hickman, Justice, John I. Purtle, Justice,

text:
    J. Bill BECKER et al v. Paul RIVIERE, Sec. of State et al, ARKANSAS CREDIT COUNCIL et al
    82-221
    641 S.W.2d 2
    Supreme Court of Arkansas
    Opinion delivered October 26, 1982

      Jay Thomas Youngdahl and Randall G. Wright of Youngdahl ir Larrison, for appellants.

      Steve Clark, Atty. Gen., by: Frederick K. Campbell, Asst. Atty. Gen., for appellee Paul Riviere, Sec. of State of Arkansas et al.

      Owens, McHaney ir Calhoun, by: James M. McHaney, for appellee/intervenor Arkansas Credit Council et al.
   Richard B. Adkisson, Chief Justice.

Appellants brought an action in the chancery court of Pulaski County to enjoin appellee, Paul Riviere, Secretary of State, from furnishing the State Board and County Boards of Election Commissioners with the “Ballot Title” of proposed Amendment 60. The trial court held that, although not required, the “Ballot Title” was sufficient and refused to grant the injunction. On appeal, we affirm.

Proposed Amendment 60, which deals with interest rates on loans, was promulgated by House Joint Resolution 7 of the 1981 General Assembly. It was proposed pursuant to Art. 19, § 22 of the Arkansas Constitution which provides:

Constitutional amendments. — Either branch of the General Assembly at a regular session thereof may propose amendments to this Constitution, and, if the same be agreed to by a majority of all members elected to each house, such proposed amendments shall be entered on the journals with the yeas and nays, and published in at least one newspaper in each county, where a newspaper is published, for six months immediately preceding the next general election for Senators and Representatives, at which time the same shall be submitted to the electors of the State for approval or rejection; and if a majority of the electors voting at such election adopt such amendments the same shall become a part of this Constitution; but no more than three amendments shall be proposed or submitted at the same time. They shall be so submitted as to enable the electors to vote on each amendment separately.
(Emphasis supplied)

The General Assembly gave proposed Amendment 60 a “Ballot Title,” although Art. 19, § 22 does not require that one be given to an amendment submitted by the General Assembly.

Appellants argue that we should review this “Ballot Title” by the standard we use in reviewing a ballot title of an amendment proposed by the people pursuant to Amendment 7. We disagree. An Amendment 7 standard of review should not be applied to an Art. 19, § 22 “Ballot Title” because there are significant differences between Amendment 7 and Art. 19, § 22.

Amendment 7 does not require publication of the proposed amendment except as may be required by the General Assembly, but it does provide a safeguard by specifically requiring that the proposed amendment have a ballot title. The purpose of such a ballot title is to inform the voter so that he can mark his ballot with a fair understanding of the issues presented. Hoban v. Hall, 229 Ark. 416, 316 S.W.2d 185 (1958). On review of an Amendment 7 ballot title, we look to see if the title is “free from any misleading tendency, whether of amplification, of omission, or of fallacy.” Bradley v. Hall, 220 Ark. 925, 251 S.W.2d 470 (1952).

On the other hand, as pointed out above, Art. 19., § 22 does not specifically require a ballot title. All that is required is that the proposed amendments under Art. 19, § 22 “be so submitted as to enable the electors to vote on each amendment separately.” So, the purpose of the “Ballot Title” under Art. 19, § 22 is not to inform the voter, but merely to distinguish and identify the amendment. Voters can be presumed to be informed as to the contents of the amendment since Art. 19, § 22 specifically requires an extended publication period of six separate monthly insertions in one newspaper in each county prior to the election. See Jones v. McDade, 200 Ala. 230, 75 So. 988 (1917).

When the purpose of a ballot title is to identify, as opposed to inform, the title is sufficient if it distinguishes the proposed amendment from others and is recognizable as referring to the amendment that was previously published in the newspapers. A ballot title which meets this test will be upheld unless it is worded in some way so as to constitute a manifest fraud upon the public.

Here, the actual wording of the “Ballot Title” in question is as follows:

An Amendment to Section 13 of Article XIX of the Constitution of the State of Arkansas to Control Interest Rates and Set the Penalty for Violations Thereof.

It is not suggested that this wording is insufficient to distinguish or identify the amendment.

Affirmed.

George Rose Smith, Hickman, and Purtle, JJ„ dissent.

Darrell Hickman, Justice,

dissenting. The ballot title is, of course, misleading. The irony or indignity, as the case may be, is that no ballot title is required for an amendment to the constitution that is proposed by the General Assembly. Chaney v. Bryant, 259 Ark. 294, 532 S.W.2d 741 (1976).

But the question presented to us is what happens when the General Assembly does attach a ballot title and it is misleading? Is there any remedy to correct such action? Does this court have the authority to act as it would in a case involving other ballot titles? It is my judgment that once the General Assembly elects to attach a ballot title, that title is subject to the same review as any other. We did not hold in the Chaney case that we did not have the authority to intervene in a case involving a defective ballot title. We held that after the people had approved such an amendment, we should be most reluctant to intervene. In Riviere v. Wells, 270 Ark. 206, 604 S.W.2d 560 (1980), we held that we had the authority to rule on the ballot form of the proposed constitution of 1980. There was no constitutional or explicit authority in the legislation creating the constitutional convention that granted us that right or power. We found the authority in years of precedents in which this court has considered ballot titles and elections. We found no violation of the separation of powers doctrine and observed that courts should intervene in matters where a department of government attempts to act ultra vires.

In Riviere v. Wells, supra, the proponents of the proposed constitution, rather than simply placing on the ballot a “for or against” opportunity, as they should have, created a ballot form as follows:

FOR PROPOSED CONSTITUTION OF 1980
FOR RETENTION OF THE CONSTITUTION OF 1874

This rather shoddy deception was found to be misleading and the proposal was declared void.

The deception in the ballot title before us is not of the same magnitude of that we recently found in the ballot title for proposed amendment 63. Dust v. Riviere, 277 Ark. 1,638 S.W.2d 663 (1982). But if we apply the usual legal test for ballot titles to proposed Amendment 60’s ballot title, it still fails. Our general test is that the ballot title must be free from any misleading tendency by amplification, omission, or fallacy, and it must not be “tinged with partisan coloring.” Bradley v. Hall, 220 Ark. 925, 251 S.W.2d 470 (1952). In applying that test we have said:

It is our duty, ... to approve the ballot title only if it represents an impartial summation of the measure and contains enough information to enable the voters to mark their ballots with a fair understanding of the issues presented . . . Hoban v. Hall, 229 Ark. 416, 316 S.W.2d 185 (1958).
The ballot title for proposed Amendment 60 reads:
AN AMENDMENT TO SECTION 13 OF ARTICLE XIX OF THE CONSTITUTION OF THE STATE OF ARKANSAS TO CONTROL INTEREST RATES AND SET THE PENALTY FOR VIOLATIONS THEREOF.

The proposed amendment itself does four things: (1) It changes the rate of interest allowed which is presently 10%; (2) it raises that limit in the case of consumer loans to 17%; (3) it provides that in commercial loans the limit shall be 5% above the Federal Reserve discount rates; and, (4) it changes in some cases the present penalty for usury. None of these changes is spelled out in the ballot title. In fact, there is no mention at all of “usury,” which is the key word contained in the constitution. In my judgment the word “control” is decidedly deceptive. See Moore v. Hall, 229 Ark. 411, 316 S.W.2d 207 (1958). The proposed amendment controls nothing. The use of that word in its ordinary meaning would be to restrain. It does exactly the opposite — it removes the existing control. So, the ballot title fails the test in several respects. It misleads by omission, it is deceptive, and it is tinged with partisan coloring to make it more attractive to voters. Any misleading characteristics in a ballot title, particularly those involving deception, have been readily rejected. Dust v. Riviere, supra; Bradley v. Hall, supra; Becker v. Riviere, 270 Ark. 219, 604 S.W.2d 555 (1980); Hoban v. Hall, supra; Walton v. McDonald, 192 Ark. 1155, 97 S.W.2d 81 (1936).

While the deception in this case does not amount to fraud, it nonetheless exists — the majority does not deny it is a misleading statement to the voter. Here the deception was unnecessary. While the unvarnished truth in simple ordinary language may risk rejection, it is preferable to reform through deception. With all due respect to the majority I think it is a mistake to set a precedent that will permit the constitution to be changed through deception.

It is not difficult to draft a proper ballot title. But one must have the will to state the facts without deception. Only two years ago we approved a ballot title on the same subject matter. Becker v. Riviere, supra. In Becker the ballot title read:

AN AMENDMENT TO ARTICLE XIX, SECTION 13 OF THE 1874 CONSTITUTION TO PROVIDE THAT THE MAXIMUM RATE OF INTEREST SHALL NOT EXCEED 10 PERCENT EXCEPT BY LAW ENACTED BY TWO-THIRDS VOTE OF THE GENERAL ASSEMBLY; TO MAKE IT A CRIME KNOWINGLY TO CHARGE MORE THAN THE MAXIMUM RATE OF INTEREST AND TO ALLOW PERSONS PAYING MORE THAN THE MAXIMUM TO RECOVER TWICE THE AMOUNT OF INTEREST PAID.

That title contained every essential bit of information without amplification or omission regarding that proposed amendment, and we unhesitatingly approved it as a fair ballot title. Becker v. Riviere, supra.

I would grant the injunction.

George Rose Smith and Purtle, JJ., join in this dissent.

John I. Purtle, Justice,

dissenting. I agree with the dissent filed by Justices George Rose Smith and Hickman. However, I feel some important additional reasons should be expressed. As a general rule, I agree with allowing the people to vote on any proposed changes in our constitution. However, I cannot agree as in this case when the proposal is presented in a manner obviously calculated and designed to mislead the public. If the public wants to raise the interest rate to 100%, they should have the right to knowingly do so (emphasis mine). But to raise the interest rate under the guise of an "Interest Rate Control Amendment” simply is not fair to the public.

In view of the fact that the General Assembly undertook to construct a ballot title it should have been either in a form to identify the proposal or have been framed in terms which would enable the electors to understand its general purpose. This proposed amendment is designed to remove the present 10% interest ceiling and to substitute a maximum of 17% for consumer loans and a floating rate tied to the federal reserve discount rate for other loans. The title mentions neither of these two fundamental and far reaching changes.

The majority opinion apparently determined that the ballot title for proposed Amendment 60 was designed to identify the proposal rather than inform the voters. This opens the door for future proposals to be as deceitful and misleading as desired. It removes all barriers to unfairness and deliberate misrepresentation. The present title is very misleading and deceitful but it is nothing compared with what may be placed on the ballot in future proposals.

Proposed Amendment 60 provides for interest on general loans to be no more than 5% per annum above the federal discount rate. This rate fluctuates many times during the year and sometimes even on a daily basis. The FRDR is determined in Washington, D.C. by the federal reserve board. The rate has ranged from the present rate of 9.5% to a high of 14% within the past several months. Therefore, had Amendment 60 been in effect general loans could have gone to 19%. If the FRDR rises to 20%, the rate of interest on general loans in Arkansas could be 25%. Nowhere does the ballot title give any indication of this tie-in.

This proposed amendment has still another undisclosed facet which is not generally known nor even hinted at in the ballot title. Section 1 (d) (ii) provides in effect that even higher interest rates may be charged if federal law so provides. Therefore, this amendment would allow interest for consumer loans.at 17%, or general loans at 5% above the FRDR, or as otherwise provided by federal law (emphasis mine). The fact that the FRB will be a new government entity or would be subject to no control or checks at all by any of the existing branches of Arkansas government is not disclosed or referred to. See Dust v. Riviere, 277 Ark. 1, 638 S.W.2d 663 (1982) at p. 7. Certainly, no branch of the existing Arkansas government has any control or right of review over the actions of the FRB which will, if Amendment 60 is adopted, establish the FRDR as the controlling factor in Arkansas law on interest rates.

In Becker v. Riviere, 270 Ark. 219, 604 S.W.2d 555 (1980), we approved a ballot title for the same amendment now presented. It would have been a simple matter to copy the same one for the present proposal. The reason this was not done is obvious. The ballot title adopted is far less revealing and much more susceptible to misleading advertisement. The majority holds that this proposal and future proposals are or may be permissible unless the title constitutes a “manifest fraud.” Manifest fraud is not defined in the opinion. Therefore, simple fraud, so long as it is not manifest, appears to be permissible. With this I cannot agree. Before the people are allowed to vote on a proposal the ballot title should be free and clear from partisan coloring and should accurately and fairly set forth the proposition to be voted upon or there should be no title at all except such as is necessary to identify the proposition. The title as presently composed is unabashedly misleading and a great disservice is being done to the people of Arkansas in allowing it to stand in its present form. Therefore, I must respectfully dissent.


author: Darrell Hickman, Justice.

text:
    Robert GOODALL et al v. T. O. ADAMS et al
    82-242
    640 S.W.2d 803
    Supreme Court of Arkansas
    Opinion delivered October 29, 1982
    [Rehearing denied November 15, 1982.]

      Irwin & Kennedy, by: Robert E. Irwin, for appellant.

      Hurst Law Office, by: Larry Honeycutt, for appellee.
   Darrell Hickman, Justice.

The underlying issue in this case is a wet-dry election. But the only issue decided by the trial court and to be decided by us is whether the voting precinct in which that election is proposed is legal.

The Circuit Court of Conway County held the law had been substantially complied with and the precinct was “legal.” We agree.

The controversy involves a liquor store located outside the city limits of Morrilton. It is located in what was originally Welbourne Township, a large township virtually surrounding the City of Morrilton.

In 1975, the Conway County Election Commission divided Welbourne Township into two parts, calling one Welbourne West, the other Welbourne East. This division was made after Amendment 55 to the Arkansas Constitution was adopted to create new districts, equal in population, for the county’s new nine justices of the peace.

On October 29,1975, the Election Commission caused a document entitled “Proposed Justices of the Peace Districts for Conway County” to be filed with the county clerk. It was signed by all three commissioners. It named and defined Welbourne East and West precincts. But no formal document was filed adopting that proposal. Nor were the parties able to find or produce any minutes of the Election Commission that approved the new precincts, although the chairman said the commission kept minutes.

Nonetheless, after 1975 all elections held in Conway County were conducted in Welbourne East and Welbourne West as though the precincts legally existed. Separate precinct “binders” were maintained in each precinct containing only the voter registration information for that respective geographic area. Separate j udges and clerks served in each precinct in every election since 1975. Separate polling places were adopted and maintained, whereas before all of Welbourne Township voted at the courthouse in Morrilton. Separate justices of the peace were elected serving the respective areas; all elected officials, state and local, were voted on separately. (But only one constable is serving the area originally designated as Welbourne Township.)

In December, 1981, a document styled “Proposed Justices of the Peace Districts for Conway County” was filed with the Secretary of State. It was prepared in answer to the 1980 census to insure the justices of the peace districts complied with the principle of “one man-one vote.” It defined more specifically the boundaries of Welbourne East and Welbourne West but did not alter in any way existing boundaries. In fact it did not alter any of the nine districts adopted in 1975. For example, the first document filed in 1975 with the clerk regarding Welbourne West read:

District 2: Welbourne (west of 1970 census line and west city limits of Morrilton) and Ward 2 (bounded by East Street on the east, south to Green Street, west to West Street, north to city limits, east to East Street); 2034 people.
The document filed with the Secretary of State read:
DISTRICT 2: Ward 2 and West Welbourne Township better defined as that portion lying West of the Morrilton City Limits to the Pope County line, North to Gregory Township line, South to the Arkansas River. Highway #95 North of Morrilton is the dividing line of Welbourne East and West Township. (2188 people)

Certain citizens of Welbourne West sought an election on the wet-dry issue and filed with the county clerk a petition signed by more than 15% of the electors of that precinct. It was accepted, approved, and ordered on the ballot for the general election.

The opponents’ only argument is that Welbourne West is not a valid election precinct pursuant to Ark. Stat. Ann. § 3-601 and, therefore, the election cannot be valid — the old Welbourne Township is the only legal precinct.

The relevant portion of the statute reads:

The action of said commissioners in changing the voting place in any precinct, or in altering the boundaries of any precinct, or in establishing any new one, shall be entered in the record to be kept by them, and a copy of said order shall set out intelligently and accurately the boundaries of said precincts as so altered or established, shall be filed with the Clerk of the County Court who shall record the same at full length on the record book on which the minutes of the proceedings of the County Court are recorded.

The trial court found substantial compliance with this law, observing that:

All requirements of Ark. Stat. 3-601 have in fact been complied with, except the filing of an appropriate order. Since the precinct has in fact been established, the technicality of filing an order can be performed at any time.

The court observed that all but two of the 28 or 29 precincts in Conway County may suffer from the same defect that exists in this case — the lack of a formal order of approval. Two of the three election commissioners testified and both confirmed they had agreed and approved the change of the precinct. The order would be entered by the commissioners.

In fact, one said the 1981 document was filed with the county clerk with a map, but the records do not reflect it was in fact filed. The chairman said he and the commission, so far as they knew the law, had tried to comply with the law, and stood willing to abide by any court orders.

We find no controlling precedent. In Glover v. Russell, 260 Ark. 609, 542 S.W.2d 751 (1976), we dealt with a precinct imperfectly formed but it was created only for one election and that was the deciding factor.

In Lovewell v. Bowen, 75 Ark. 452, 88 S.W. 570 (1905), we recognized that voters should not be disenfranchised who for years had voted within recognized township lines that were not actually the true lines. See also Christenson v. Felton, 226 Ark. 985, 295 S.W.2d 361 (1956).

The precinct in question has existed in fact through at least three elections. Its boundaries are not questioned by anyone. It has been recognized by the election officials and voters as a valid precinct and the only question of legal insufficiency is the lack of a formal order. As the trial court observed, such an order could be entered at any time. It is a mere technicality. We agree.

Affirmed.


author: George Rose Smith, Justice.

text:
    Joe HARMON v. STATE of Arkansas
    CR 82-7
    641 S.W.2d 21
    Supreme Court of Arkansas
    Opinion delivered November 1, 1982

      Coy J. Rush, Jr. and Herschel W. Cleveland of Hixson, Cleveland & Rush, for appellant.

      Steve Clark, Atty. Gen., by: Matthew Wood Fleming, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

The appellant, Joe Har-

mon, was charged with capital felony murder in that he and two younger men, J. D. Phillips, aged 17, and David Michael Turner, aged 22, kidnapped and shot Ricky Bennett on January 23, 1981. After the jury had been sworn the trial court committed reversible error, albeit reluctantly, by permitting the prosecutor to amend the information to add alternatively that the murder was committed in the course of robbery. The jury found Harmon guilty and condemned him to death. Of the eleven points for reversal we discuss those that may arise at a new trial.

First, the evidence was sufficient to support the jury’s verdict, which did not specify either kidnapping or robbery as the underlying felony. Prior to the murder Joe Harmon and Dorothy Rader had been living together in her home at Boles, in Scott county. She testified that she had been trying to get him to move out. The home was also occupied by Ms. Rader’s children, by the victim, and by one or two other young persons.

On the night in question Harmon, Phillips, and Turner had been out hunting. They returned after midnight. Harmon, who did not like Ricky, scuffled with him and ordered him to pack his belongings and leave. Harmon, Phillips, and Turner set out to drive Ricky to a bus stop, but instead they took him to a lonely place and shot him three times with a rifle. In Harmon’s confession he said he had fired the first shot and each of the younger men then also shot Ricky, who had fallen to the ground.

Harmon made little effort to conceal the crime from Ms. Rader or from her daughter Marie. The next day Harmon was seen burning Ricky’s wallet. A few days later he took Dorothy and Marie with him while he buried the body in a shallow grave in the woods. We find substantial evidence to support a verdict finding that Harmon killed Ricky Bennett in the course either of kidnapping or of robbery. Ark. Stat. Ann. §§ 41-1702 and -2103 (Repl. 1977).

At a suppression hearing a week before the trial the court held that Harmon’s confession was voluntary and that there had been a valid consent to a warrantless search of Ms. Rader’s house, where the officers took possession of the rifle, which belonged to Ms. Rader’s son, and of two rings that had belonged to Ricky. Three of the arguments for reversal arise from the pretrial hearing. With respect to the first argument, we need only say that the trial judge’s finding of voluntariness is not clearly erroneous.

Second, the search. Marie Rader, who was sixteen at the time, testified that she and her mother did not report the crime until a month later, because they were afraid of Harmon. On February 23, however, when Harmon had to go to Pine Bluff on a speeding charge, Marie went to the police and reported the murder. She showed the police the grave and also signed a form consenting to the search of her mother’s house.

It is argued that Marie could not consent to the search of the house. The question, under Criminal Procedure Rule 11.2, is whether she was a person who, by ownership or otherwise, was “apparently entitled to give or withhold consent.” We have said that a person having joint access or control for most purposes may have a sufficient relationship to the premises to give consent. Grant v. State, 267 Ark. 50, 55, 589 S.W.2d 11 (1979). Also, we have upheld a search when it was “not unreasonable” for the officers to believe that the person in question had sufficient control over the premises to give a valid consent to a search without a warrant. Spears v. State, 270 Ark. 331, 605 S.W.2d 9 (1980).

We think the trial judge was warranted in finding that Marie, despite her minority, was apparently entitled to give consent. She testified that she knew about consents to searches, having seen her father execute one. She lived in the home and certainly had the right of access and presumably the right to invite visitors to enter. When she accompanied the officers to the house, she had already reported the crime. Her mother was not at home, only her cousin and one other young person being present. She had described the rifle used in the murder and produced it for the officers, without their searching for it. She also took from her finger one of the two rings that had been taken from Ricky. There is no suggestion that any part of the house was the private quarters of Harmon. We discern no invasion of Harmon’s rights in connection with the search of the house, owned by Dorothy Rader. In fact, the rifle and rings were surrendered without a search.

A third argument is that the suppression hearing should not have been held in the absence of Harmon, who was being examined at the State Hospital with regard to his mental capacity. At the hearing no one mentioned Harmon’s absence until the trial judge brought it up and expressed some concern about it. Even then, Harmon’s attorney made no objection and continued to participate in the hearing. When it ended the judge announced his rulings, but said that he would hold the record open in case the defense wanted to introduce additional evidence. At the trial defense counsel said he had nothing more to offer. It is now argued, however, that the hearing should not have been conducted in Harmon’s absence.

Even though an accused has a right to be present when any substantive step is taken in his case, we have recognized that the right may be waived by him or by his attorney. For instance, an attorney could waive his client’s presence when certain instructions were reread to the jury during their deliberation. Scruggs v. State, 131 Ark. 320, 198 S.W. 694 (1917). Here, however, Harmon’s presence at the suppression hearing was evidently more important than that of the accused in the Scruggs case, because the validity of Harmon’s own confession was being determined. He should have been present; so upon a new trial the suppression hearing must be conducted again if the State intends to introduce the confession and the items taken at the house, unless Harmon waives his entitlement to have the matters heard anew.

An argument is made that the jury did not represent a fair cross section of the county’s population, because no member of the panel expressed such a firm opposition to the death penalty that an excusal became necessary. If by any chance the same thing should happen at a new trial, there would be no error in the absence of a showing of some deliberate exclusion from the panel of persons opposed to the imposition of the death penalty.

We have already mentioned the court’s error in allowing a charge of robbery to be added to the information on the first day of the trial. The prosecutor convinced the trial judge that the amendment was merely for clarity, since capital felony murder had already been charged, with no bill of particulars being requested. The charge, however, was that of murder committed in the course of kidnapping; so the specific charge was in itself a bill of particulars. No excuse was offered for the prosecutor’s six-month delay in seeking the amendment. The nature of the charge was unquestionably changed by adding the offense of robbery. That amendment was not permissible in the absence of any notice to Harmon that he was to be required to defend an essentially different charge of capital murder. Ark. Stat. Ann. § 43-1024 (Repl. 1977). It is hardly even arguable that a person can fairly be sentenced to death upon a charge that was not made until the morning of trial, leaving no possibility for thorough preparation of a defense upon both the facts and the law.

Joe Harmon and Dorothy Rader lived together for perhaps a year before the homicide. During two months of that time they lived at a motel in Texas, where Harmon was able to support Ms. Rader and her children. The couple, however, did not hold themselves out as husband and wife, other than by living together. Upon similar facts we held that under Texas law there was no common law marriage, so that the woman could testify against the man. Renton v. State, 274 Ark. 87, 622 S.W.2d 171 (1981). That case is controlling here upon the same issue.

The court properly refused a proffered instruction submitting voluntary intoxication as an affirmative defense. Such intoxication is no longer a defense except possibly with respect to a crime requiring specific intent. Ark. Stat. Ann. § 41-207; Varnedare v. State, 264 Ark. 596, 573 S.W.2d 57 (1978); AMI Criminal, 4005 (1979). No instruction with respect to that particular possibility was requested. We do not imply that one would have been proper on the proof presented.

Finally, Harmon argues two contentions concerning the State’s proof of a previous conviction for manslaughter, submitted to the jury during the punishment phase of the trial as an aggravating circumstance. It is first insisted that the certificate attesting the conviction was inadmissible, because the certificate was signed by the warden of the Arkansas Department of Correction as purported proof of a conviction in Georgia. The objection is well taken and should have been sustained. Pending a retrial the State will have an opportunity to seek admissible proof.

It is also argued that the statute defining aggravating circumstances limits the use of previous convictions to those of felonies involving the use or threat of violence; so a conviction for manslaughter, which may be committed by reckless conduct, § 41-1504 (1) (c), is inadmissible without proof of details. See Williams v. State, 274 Ark. 9, 621 S.W.2d 686 (1981). The statute, however, also permits the use of convictions for a felony creating a substantial risk of death or serious physical injury to another person. § 41-1305 (3). Manslaughter is undoubtedly such a felony.

Reversed and remanded.


author: Frank Holt, Justice.

text:
    Harold HOBBS v. STATE of Arkansas
    CR 82-48
    641 S.W.2d 9
    Supreme Court of Arkansas
    Opinion delivered November 1, 1982

      Dick Jarboe and John Burris, for appellant.

      Steve Clark, Atty. Gen., by: William C. Mann, III, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

The appellant was charged with capital felony murder. Ark. Stat. Ann. § 41-1501 (Repl. 1977). At his first trial he was convicted and sentenced to death by electrocution. We reversed and remanded. Hobbs v. State, 273 Ark. 125, 617 S.W.2d 347 (1981). On retrial the appellant was convicted and sentenced to life imprisonment without parole. Hence this appeal. We affirm.

The state’s theory of the case was that the appellant went to the office of a business firm in Newport, where he had recently worked, and forced a female bookkeeper to write a check for $500 and one for $1,000, based upon a fictitious time card. He then took her to a remote location where he fatally shot her.

The appellant first contends for reversal that the trial court erred in excusing venireman George Gibson for cause. Gibson repeatedly stated that he would not vote to convict and would not impose the death penalty based on circumstantial evidence. It is apparent that he was confused as to the meaning of the phrase “circumstantial evidence”; but it is clear also that, as the trial court noted, his confusion was such that he would not have made a good juror for anyone. The trial court easily could have determined from Gibson’s statement that he would not listen to the evidence with an open mind and decide in accordance with the court’s instructions, even though, at one point in the long colloquy, he affirmed that he could do so. The qualification of a juror is within the sound judicial discretion of the trial court, who has an opportunity to observe the veniremen that we do not have, and the trial court will not be reversed unless the appellant demonstrates an abuse of discretion. Beed v. State, 271 Ark. 526, 609 S.W.2d 898 (1981); Satterfield v. State, 252 Ark. 747, 483 S.W.2d 171 (1982). We find no abuse of discretion here.

The appellant argues that the trial court erred in failing to excuse for cause venireman Clarence Davis. The appellant excused Davis peremptorily. Although he later exhausted his peremptory challenges, the record does not reflect that any juror was seated, or forced upon him, whom he would have excused if he had been entitled to another peremptory challenge. Consequently, this issue may not be raised on appeal. Hill v. State, 275 Ark. 71, 628 S.W.2d 285 (1982); and Conley v. State, 270 Ark. 886, 607 S.W.2d 328 (1980).

Appellant insists that he was restricted in questioning venireman Bill Morgan concerning his views on the death penalty. However, since the appellant did not receive the death penalty, this issue is mooted. Van Cleave v. State, 268 Ark. 514, 598 S.W.2d 65 (1980). Further, the fact that the appellant here used a peremptory challenge when further examination might have revealed ground for challenge for cause is not a basis for reversal where the record does not show that a juror was forced upon him or seated whom the appellant would have challenged. Hill v. State, supra; and Conley v. State, supra.

The appellant next argues that the trial court erred in allowing the prosecuting attorney to pose hypothetical questions on circumstantial evidence to the prospective jurors, citing Turner v. State, 171 Ark. 1118, 287 S.W. 400 (1926). Turner recites the general rule that hypothetical questions are not permissible where their evident purpose is to commit the jury in advance to a certain decision based on a state of facts expected to be proven at trial. However, there we held a single hypothetical question complained of was proper. There the question was designed to ascertain whether the prospective jurors would convict if the evidence against the defendant came in testimony from a woman of “unsavory reputation.” Here, the questioning was designed to discover prejudice or bias with respect to a certain type of evidence; i.e., circumstantial evidence. We hold that prospective jurors may not be questioned with respect to a hypothetical set of facts expected to be proved at trial and thus commit the jury to a decision in advance, but that they may be questioned, as here, about their mental attitude toward certain types of evidence, such as circumstantial evidence. Cf. Fauna v. State, 265 Ark. 934, 582 S.W.2d 18 (1979); Griffin v. State, 239 Ark. 431, 389 S.W.2d 900 (1965). Here, the appellant does not refer to any specific hypothetical questions based on the facts to be proved at trial.

The appellant asserts that the trial court erred in not declaring a mistrial and quashing the j ury panel when it was called to the court’s attention that, contrary to the court’s instructions, some members of the jury panel had discussed the case among themselves or with other persons while waiting to be examined for jury duty. Therefore, he was denied the right of a fair and impartial trial. It appears that eleven jurors had been selected when this information came to the trial court’s attention. As requested, the trial court called in the remainder of the panel and admonished them again about discussing the case. The twelfth juror was then selected and accepted by the appellant without challenge. During the jury selection numerous jurors were excused because they had formed an opinion as to the appellant’s guilt. However, no juror was seated who did not affirm his or her ability to decide the case in accordance with the evidence. As we said in Kellensworth v. State, 276 Ark. 127, 633 S.W.2d 21 (1982):

. . . The Court holds that there is no requirement that jurors be totally ignorant of the facts involved: ‘It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented at court.’

Here, we certainly cannot say that the court abused his discretion in refusing to declare a mistrial or quash the jury panel.

The appellant urges that the trial court erred in admitting the appellant’s oral statement into evidence. The appellant was advised of his Miranda rights before being questioned by a police officer who was driving a vehicle transferring appellant from the White County to the Jackson County Jail. The uncontradicted testimony of both officers, who were in the vehicle at the time of the appellant’s brief statement, was that he was apprised of his Miranda rights and that his statement was freely and voluntarily given. The appellant stated to them that he understood his rights, answered a few questions and then invoked his right not to answer further questions without consulting an attorney. The questioning then ceased and was not renewed. Based upon our independent review of the evidence, we cannot say that the trial court’s finding that appellant’s statement was freely and voluntarily made is clearly against the preponderance of the evidence. Brown v. State, 276 Ark. 20, 631 S.W.2d 829 (1982).

Appellant asserts that the trial court erred in allowing the introduction of fingerprintevidence without an adequate foundation. Appellant’s fingerprints were found both on a time card in the office where the victim worked and on her automobile. He argues that the state did not exclude the possibility that appellant’s fingerprints could have been placed on these objects at a time other than that of the offense. He relies upon U.S. v. Fossen, 460 F.2d 38 (4th Cir. 1972); U.S. v. Corso, 439 F.2d 956 (4th Cir. 1971); State v. Hayes, 333 So.2d 51 (Fla. App. 1976); State v. Scott, 296 N.C. 519, 251 S.E.2d 414 (1979). However, none of these cases dealt with the admissibility of fingerprint evidence; rather they dealt with the sufficiency of the evidence to sustain a conviction where that was the main evidence against the defendant, and there was no evidence excluding the possibility that the fingerprints were placed on the objects at a time other than that of the crime. See U.S. v. Harris, 530 F.2d 576 (4th Cir. 1976). Further, here there was evidence that a ficitious time card, bearing appellant’s fingerprints, was found in the victim’s office after the victim was forced to write the company checks and then was abducted and slain. The car bearing appellant’s fingerprints on the exterior belonged to the victim, who had driven the car, as was her custom, to her place of employment. The car had been washed a few days preceding the murder. A witness observed it being driven and abandoned by a black man on the day of the murder. Appellant is black. A witness, who was with the appellant when he cashed the checks, identified appellant as the person who endorsed and cashed them. It is uncontradicted that the prints were those of appellant. In the circumstances, the fingerprints were admissible and the weight to be given them was a matter for the jury. United States v. Bonds, 526 F.2d 331 (5th Cir. 1976).

In a subsidiary argument the appellant contends that the officer who lifted the fingerprints and testified at trial was not properly qualified. The officer testified that he lifted fingerprints as a regular part of his duties as a detective and that he had received training in fingerprint lifting. The trial court has wide discretion whether to qualify a witness as an expert, and we will reverse the exercise of that discretion only if it is shown to be manifestly wrong. Robinson v. State, 274 Ark. 312, 624 S.W.2d 312 (1981). Further, Uniform Rules of Evidence, Rule 702, provides that a witness is qualified as an expert “by knowledge, skill, experience, training, or education.” Here, we cannot say that the trial court abused its discretion.

The appellant contends that the trial court erred in refusing to declare a mistrial in connection with the defendant’s Fifth Amendment right against self-incrimination. The alleged error occurred during the direct examination by the prosecution of Deputy Gayle, a police officer present at the time of the statement given by the appellant to another officer while appellant was being transferred from Searcy to Newport. The colloquy was as follows:

Q. Did Mr. Hobbs [appellant] make a voluntary statement to Captain Wilson on that date?
A. Yes, he did.
Q. Do you recall what he told Captain Wilson?
A. He told Captain Wilson that Cub Peel had something to do with the death of Marsha Bonds, and that — Gary asked him about his car. He said his car broke down somewhere around Texarkana. After that, he made the statement about Cub Peel. Then, he said, ‘I don’t want to say anymore, until after I talk to my lawyer.’
Q. Okay.

At this point counsel for appellant moved for a mistrial based upon the witness’ response that appellant wanted a lawyer before saying anything further. The trial court denied the motion for mistrial but instructed the jury to disregard the statement that appellant had wanted to talk with an attorney and to give it no consideration.

The appellant argues that the admonition to the jury was insufficient to cure the prejudice and that such comment by the witness requires a mistrial since it imparts to the jury an impression of guilt. He relies on Baker v. U.S., 357 F.2d 11 (5th Cir. 1966); and United States v. Kroslack, 426 F.2d 1129 (7th Cir. 1970). Both cases held that the Fifth Amendment right against self-incrimination was violated where a witness testified that the accused claimed his right to remain silent until he could speak to an attorney. However, both cases are distinguishable. In Baker, unlike here, the testimony was first developed outside the hearing of the jury, after which it was deliberately presented. In Kroslack, the testimony was elicited twice. The court admonished the jury to disregard it the first time but failed to do so after it was elicited the second time.

In any event, those cases are no longer controlling since the decision of Doyle v. Ohio, 426 U.S. 610 (1976). There the two defendants were arrested for selling marijuana and remained silent after being given their Miranda warnings. Both testified at trial that the undercover agent whose work had led to their arrest had framed them. On cross-examination the prosecutor repeatedly asked why they had not told the frameup story to the arresting officer at the time of the arrest. The Supreme Court did not hold that this line of questioning violated the Fifth Amendment right against self-incrimination, but the Supreme Court did hold that the use for impeachment purposes of an accused’s silence, at the time of arrest and after receiving Miranda warnings, violated the due process clause of the Fourteenth Amendment. The court reasoned:

[Wjhile it is true that the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings. In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial.

Doyle v. Ohio, supra. However, in the concluding paragraph of the Doyle opinion, the court left open the possibility that in some cases testimony that the accused had claimed his right to remain silent would constitute harmless error. Doyle v. Ohio, supra. Therefore, Doyle requires a case-by-case application and allows a finding of harmless error.

Subsequently, the federal Courts of Appeal, including the circuits that decided the cases relied upon by the appellant, have not hesitated to find that such error is harmless. Even in Kroslack, upon which appellant relies, it was recognized that “the violation of defendant’s constitutional right is of greater significance in view of the thinness of the evidence against him in this record.” Subsequent to Doyle, the Seventh Circuit, which decided Kroslack, has affirmed at least two convictions where testimony indicated that the accused had claimed his right to remain silent or speak to a lawyer because the testimony constituted harmless error in view of the overwhelming evidence. United States v. Muscarella, 585 F.2d 242 (7th Cir. 1978); Jacks v. Duckworth, 651 F.2d 480 (7th Cir. 1981). The Fifth Circuit, which decided the Baker case, relied upon by the appellant, has found testimony to be harmless error in numerous cases where a witness testified the accused claimed his Fifth Amendment right. See United States v. Davis, 546 F.2d 583 (5th Cir. 1977); Chapman v. United States, 547 F.2d 1240 (5th Cir. 1977); United States v. Sklaroff, 552 F.2d 1156 (5th Cir. 1977); Stone v. Estelle, 556 F.2d 1242 (5th Cir. 1977).

Illustrative of the court’s reasoning in those cases is the following quotation from United States v. Davis, supra:

The instant case does not present a prosecutorial focus — by repetitive questioning — on a defendant’s silence, as in Doyle. Nor can we say that the comments, in the context of either the cross-examination of Davis or in the prosecutor’s closing argument, so ‘highlighted’ appellarit’s silence as to constitute prejudicial error ....
When read in the context of the entire cross-examination and closing argument, these remarks were not prejudicial to appellant, considering the overwhelming evidence of his guilt. See, e.g., Harrington v. California, 395 U.S. 250, 89 S. Ct. 1726, 23 L.Ed.2d 284 (1969). Therefore, we hold that the error, if any, was harmless.

See also United States v. Wycoff, 545 F.2d 679 (9th Cir. 1976); and Hayton v. Egeler, 555 F.2d 599 (6th Cir. 1977).

The foundation for the harmless error rule in cases involving federal constitutional rights is Chapman v. California, 386 U.S. 18 (1967). In Chapman it is stated:

We are urged by petitioners to hold that all federal constitutional errors, regardless of the facts and circumstances, must always be deemed harmful. . . . We decline to adopt any such rule. . . . We conclude that there may be some constitutional errors which in the setting of a particular case are so unimportant and insignificant that they may, consistent with the Federal Constitution, be deemed harmless, not requiring the automatic reversal of the conviction.

We conclude that the testimony by Deputy Gayle concerning the appellant’s request to speak to a lawyer before talking further was a violation of the due process clause of the Fourteenth Amendment to the United States Constitution, as in Doyle v. Ohio, supra. However, the error was, in the circumstances of this case, harmless. As in United States v. Davis, supra, here, there was no repetitive questioning to focus on the appellant’s silence, and there was no attempt to “highlight” the silence by argument. Furthermore, the sufficiency of the evidence is not questioned on appeal. Therefore, we do not reverse, considering the overwhelming evidence of guilt, even though the testimony constituted constitutional error.

The appellant’s final point is that the trial court erred in allowing testimony of other crimes and bad acts and in not declaring a mistrial. The state adduced evidence that appellant forced the decedent to write two checks payable to him — one in the amount of $1,000 and the other for $500 — based upon a fictitious time card which was found in her office. A witness testified that he was with the appellant on the day of the crime at the time appellant cashed two checks, one at a liquor store, where he bought whiskey, and the other at a bank. The appellant then paid him $100 to transport him to Little Rock for the purpose of catching a 5:30 p.m. flight to Mexico to buy some marijuana. The court admonished the jury to disregard any reference to the marijuana. He, further, testified that during the day appellant bought the favors of a prostitute and paid $500 for a pound of marijuana. The appellant did not take the flight to Mexico, because he might be found in possession of marijuana. Instead, the witness transported him back to Newport. There, appellant offered the witness $600 to return him to Little Rock. On this second trip this witness and two others, who were passengers, testified that appellant gave the woman passenger $30 to buy a car for him for which he paid $300. One of these witnesses testified that he was offered $30 or $35 to accompany him on the second trip to Little Rock and that he saw appellant with $500 or $600. The murder occurred in the early morning, the first trip to Little Rock in the early afternoon, and the second trip later the same day. These witnesses left appellant in Little Rock where he had purchased the car. This same automobile was found four days later headed west and abandoned near Texarkana, Arkansas. He was arrested in California about a month after the murder. There was also evidence that he had attempted to escape from jail.

Appellant argues that the evidence with reference to the marijuana, the prostitute, buying whiskey, and his attempt to escape from jail had no independent relevancy and, therefore, violated Rule 404 (b), Uniform Rules of Evidence, which precludes evidence of other crimes to prove the character of a person in order to show that he acted in conformity therewith. Appellant overlooks, however, that part of the rule which makes evidence admissible for the purpose of showing a motive, opportunity, intent, preparation, plan or knowledge by the accused. The state is entitled to introduce evidence, as here, showing all the circumstances connected with the crime, even if other criminal offenses are thereby brought to light. Russell and Davis v. State, 262 Ark. 447, 559 S.W.2d 7 (1977). Young v. State, 269 Ark. 12, 598 S.W.2d 74 (1980); Murphy v. State, 255 Ark. 90, 498 S.W.2d 884 (1973). We have held that evidence of an attempted escape from confinement is a relevant circumstance to be considered. Centeno v. State, 260 Ark. 17, 537 S.W.2d 368 (1976).

The appellant, also, argues that the evidence complained of should have been excluded under Rule 403, because its probative value is substantially outweighed by the danger of unfair prejudice. Since the rule states that the evidence “may” be excluded, this is an area in which the trial court has wide discretion. Price v. State, 267 Ark. 1172, 599 S.W.2d 395 (Ark. App. 1980). We find no abuse of discretion here.

Kathy Davis was called as a witness for the state. The appellant objected on the ground that she was the appellant’s wife and could not testify as to confidential communications. The trial court instructed the prosecutor not to ask questions concerning confidential communications. During the course of Davis’ testimony, she testified that she lived with the appellant. The appellant’s counsel objected but did not state the grounds of his objection. On appeal he argues that this was prejudicial because the appellant is black and Davis is white. Since this ground for objection was not presented to the trial court, it cannot be raised on appeal. Rule 103 (a) (1), Uniform Rules of Evidence; Pace v. State, 265 Ark. 712, 580 S.W.2d 689 (1979).

We have examined the record as is required by Arkansas Supreme Court Rule 11 (f), Ark. Stat. Ann. Vol. 3A (Repl. 1979), for other objections decided adversely to appellant and find none that constitute prejudicial error. Since we affirm we do not deem it necessary to discuss the state’s cross-appeal concerning the court’s ruling on evidentiary matters.

Affirmed.

      The prosecutor had previously asked the other officer, Captain Wilson, the same question, and Wilson did not mention that the appellant had invoked his right to remain silent. Neither was there any other reference during the trial to appellant invoking his right to remain silent.


author: Darrell Hickman, Justice. Robert H. Dudley, Justice, Richard B. Adkisson, Chief Justice,

text:
    Lyndale WALKER v. STATE of Arkansas
    CR 82-56
    641 S.W.2d 19
    Supreme Court of Arkansas
    Opinion delivered November 1, 1982

      Duncan M. Culpepper, for appellant.

      Steve Clark, Atty. Gen., by: Matthew Wood Fleming, Asst. Atty. Gen., for appellee.
   Darrell Hickman, Justice.

On June 30, 1980, appellant, Lyndale Walker, pleaded guilty to the offense of arson and was sentenced to five years in prison. On August 31, 1981, he filed a handwritten petition for post-conviction relief pursuant to A.R.Cr.P., Rule 37. He asked for a hearing on his petition and that his sentence be set aside. Two of appellant’s allegations are that he was “in a demented mental capacity” and that his plea of guilty was involuntary. The trial court denied appellant’s petition without a hearing.

Eleven years ago the same appellant used the same phrase, “demented capacity,” and we held this phrase to be sufficient to allege mental incompetency to the extent that he was unable to participate in his defense. Walker v. State, 251 Ark. 182, 471 S.W.2d 536 (1971). The same phrase was also sufficient to state a cause of action for post-conviction relief in Parker v. State, 253 Ark. 8, 484 S.W.2d 91 (1972).

The holding in Walker v. State, supra, has been eroded by the passage of time and other decisions by this court and we have come to routinely deny post-conviction relief which is asked for in allegations that can only be characterized as conclusory. Bosnick v. State, 275 Ark. 52, 627 S.W.2d 23 (1982); Smith v. State, 264 Ark. 329, 571 S.W.2d 591 (1978); Stone v. State, 254 Ark. 566, 494 S.W.2d 715 (1973). We specifically overrule our holdings in Walker v. State, supra and Parker v. State, supra. But the trial court ignored our first decision in Walker v. State, supra, and denied the petition on other grounds. It would be unfair to the petitioner, who used the same words before and was granted post-conviction relief, to deny him outright an opportunity for a hearing. However, he will have to allege grounds now deemed sufficient to justify a post-conviction hearing. Therefore, he will be given an opportunity to file with the trial court, within thirty days, a proper petition for post-conviction relief that complies with our recent decisions.

In regard to pleas of guilty and petitions for post-conviction relief, the trial court’s attention is directed to Byler v. State, 257 Ark. 15, 513 S.W.2d 801 (1974), and Simmons v. State, 265 Ark. 48, 578 S.W.2d 12 (1979).

Reversed and remanded.

Dudley, J., concurs.

Adkisson, C.J., and Hays, J., dissent.

Robert H. Dudley, Justice,

concurring. I concur with the majority in holding that the trial judge was clearly erroneous in denying a hearing on appellant’s petition for post-convicticr relief.

A.R.Cr.P. Rule 37.3 (a) provides:

If the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the trial court shall make written findings to that effect, specifying any parts of the files or records that are relied upon to sustain the court’s findings.

It is only when the record before the trial court shows conclusively that a motion for post-conviction relief is without merit that an evidentiary hearing is not required. Simmons v. State, 265 Ark. 48, 578 S.W.2d 12 (1979). The record in this case does not conclusively show that appellant’s allegations are without merit. Therefore the case must be reversed, and to that extent I concur with the majority.

I would remand the case for a hearing on the petition. However, the majority chooses a different course, one not in conformity with our procedural standards. The majority, after reversing, states, “However, he [appellant] will have to allege grounds now deemed sufficient to justify a post-conviction hearing. Therefore, he will be given an opportunity to file with the trial court, within thirty days, a proper petition for post-conviction relief that complies with our recent decisions.” Thus, the successful appellant has won only a conditional reversal.

This procedural irregularity is caused by the majority retroactively overruling the cases of Walker v. State, 251 Ark. 182, 471 S.W.2d 536 (1971) and Parker v. State, 253 Ark. 8, 484 S.W.2d 91 (1972). Contemporaneously, the majority also have retroactively decided that a cause of action was not stated.

The State did not object to appellant’s petition at any level. The trial court ruled on the merits, finding not that appellant’s allegations were conclusory but that the record conclusively showed he was entitled to no relief on them. We have now reversed on the merits. Thus, the law of the case is that a cause of action was stated and an overruling of our cases should be prospective only. See Rhodes v. State, 276 Ark. 203, 634 S.W.2d 107 (1982). I would reverse and remand in accordance with our procedural standards.

Richard B. Adkisson, Chief Justice,

dissenting. Prior to the date of this opinion the overwhelming majority of our cases have held that conclusory allegations are not sufficient to warrant an evidentiary hearing. Bosnick v. State, 275 Ark. 52, 627 S.W.2d 23 (1982); Smith v. State, 264 Ark. 329, 571 S.W.2d 591 (1978); Stone v. State, 254 Ark. 566, 494 S.W.2d 715 (1973); Cooper v. State, 249 Ark. 812, 461 S.W.2d 933 (1971) . The majority ignores these cases, however, and sends this case back for an evidentiary hearing on the conclusory allegation of demented mental capacity, relying on the long abandoned cases of Parker v. State, 253 Ark. 8, 484 S.W.2d 91 (1972) and Walker v. State, 251 Ark. 182, 471 S.W.2d 536 (1971).

The majority base their holding on being fair to the appellant, who is the same Walker who was the beneficiary of our maverick decision in Walker v. State, supra. It seems to me that the majority should show some concern for the trial judge in this case, who has intelligently discerned the ruling case law from our conflicting decisions. The majority have presented the trial judge with a reversal for faithfully following what the majority admit was the law at the time and will continue to be the law in the future.

This case should be affirmed without prejudice to the appellant’s right to refile a proper petition. This is the procedure followed by this court in dismissing conclusory petitions. See A.R.Cr.P. Rule 37.2 (b), Ark. Stat. Ann., Vol. 4A (Repl. 1977).

I am hereby authorized to state that Hays, J., joins in this dissent.


text:
    Everett L. REDING v. STATE of Arkansas
    CR 82-97
    641 S.W.2d 24
    Supreme Court of Arkansas
    Opinion delivered November 1, 1982

      W. Gary Keenan, for appellant.

      Steve Clark, Atty. Gen., by: Theodore Holder, Asst. Atty. Gen., for appellee.
   Darrell Hickman, Justice.

Everett L. Reding was convicted of delivery of marijuana and sentenced to four years’ imprisonment and a $1,000 fine. Reding’s two arguments on appeal are meritless and the judgment is affirmed.

The first issue was disposed of recently in the case of Merrill v. State, 277 Ark. 146, 640 S.W.2d 787 (1982) where we held Ark. Stat. Ann. § 82-2116 (Supp. 1981) did not repeal Ark. Stat. Ann. § 82-2617 (Supp. 1981).

The second issue is a challenge of the forfeiture of a 1973 Ford Pinto station wagon, which Reding drove to the residence where he sold the marijuana to an undercover agent. In a separate hearing after the trial and conviction, the trial court found the vehicle could be forfeited under Ark. Stat. Ann. § 82-2629 (Supp. 1981). He found by a preponderance of the evidence that the vehicle should be forfeited. Among the evidence was testimony by the undercover agent that the substance he bought was marijuana, that it was transported in the Pinto, and the judgment of Reding’s conviction. At the hearing neither the testimony that the delivered substance was marijuana nor the judgment was objected to as hearsay.

Affirmed.


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

text:
    Dorothy MATTSON v. ST. PAUL TITLE COMPANY OF THE SOUTH
    82-98
    641 S.W.2d 16
    Supreme Court of Arkansas
    Opinion delivered November 1, 1982

      Herrod ir Vess, by: E. H. “Buz” Herrod, for appellant.

      Plegge & Church, by: Beresford L. Church, Jr., for appellee.
   Robert H. Dudley, Justice.

The issue in this case is whether a title insurance company has a contractual duty to defend the insured against a complaint alleging that the insured acquired title by exercising fraud and undue influence. The trial court found no duty to defend. The Court of Appeals certified the case to this Court pursuant to Rule 29 (4) (b). We affirm.

Appellant’s mother, Adeline W. Young, conveyed her home to appellant, Dorothy Mattson, by quitclaim deed on February 15,1977. The deed was filed for record the same day and the next morning appellant purchased title insurance from a predecessor of appellee insurance company. On October 25,1977, after the death of their mother, appellant’s sister filed suit against appellant seeking to cancel the deed, alleging that it was executed as the result of fraud and undue influence exercised by appellant.

Appellee insurance company declined to defend the suit contending that the matter was not covered by the policy. Appellant proceeded in her own defense and was successful in defeating the claim. Grubbs v. Mattson, 268 Ark. 1144, 599 S.W.2d 148 (1980). She brought this action against appellee claiming that refusal by the insurance company to represent her in the lawsuit constituted a breach of appellee insurance company’s obligation under the contract of title insurance to defend against actions alleging defects in her title. The pertinent parts of the policy provide:

(a) The Company, at its own cost and without undue delay, shall provide for the defense of an insured in all litigation consisting of actions or proceedings commenced against such insured ... to the extent that such litigation is founded upon an alleged defect, lien, encumbrance, or other matter insured against by this policy.
The following matters are expressly excluded from the coverage of this policy: . . .
3. Defects, liens, encumbrances, adverse claims, or other matters (a) created, suffered, assumed or agreed to by the insured claimant....

This type of exclusionary provision, commonly found in title insurance policies, has been construed to insulate the insurer from liability where the loss incurred by the insured resulted from the insured’s own intentional, illegal, or inequitable conduct. See e.g., Ginger v. American Title Insurance Co., 29 Mich. App. 279, 185 N.W.2d 54 (1970); Brick Realty Corp. v. Title Guarantee & Trust Co., 161 Misc. 296, 291 N.Y.S. 637 (1936); Rosenblatt v. Louisville Title Co., 218 Ky. 714, 292 S.W. 333 (1927). See Annotation, Title Insurance: Exclusion Of Liability For Defects, Liens, Or Encumbrances Created, Suffered, Assumed, Or Agreed To By The Insured, 87 ALR 3d 515.

Brick Realty Corp v. Title Guarantee & Trust Co., supra, a case factually similar to this one, is the leading case on this subject. There, the Court wrote:

The claim upon which the ... action was founded was of a kind which the defendant at bar was not required by the title policy to defend. This defendant did not insure plaintiff against the consequences of its own acts, was not liable for any loss occasioned thereby, and was not obliged to defend any suit attacking plaintiff’s title, even though entirely unfounded if based on acts claimed to have been committed by plaintiff.

291 N.Y.S. at 638. Likewise, the fraud and undue influence allegedly exercised by appellant in the present case were not covered by the policy.

Our general rule is that the insurer’s duty to defend is determined from the pleadings. Commercial Union Insurance Co. of America v. Henshall, 262 Ark. 117, 553 S.W.2d 274 (1977). But the insurer’s obligation to defend may be broader than its duty to indemnify, because situations can exist where the insurer’s duty to defend cannot be determined solely from the pleadings. Commercial Union Insurance Co. of America v. Henshall, supra, citing Proctor Seed and Feed Co. v. Hartford Insurance Co., 253 Ark. 1105, 491 S.W.2d 62 (1973).

In testing the pleadings to determine if they state a claim within the policy coverage we resolve any doubt in favor of the insured. Under the pleadings in this case there was no possibility that any loss could fall within coverage because the insurer is not required to compensate the insured for a loss which she brought upon herself. Thus there was no duty to defend.

Affirmed.

Purtle, J., dissents.

Hays, J., not participating.

John I. Purtle, Justice,

dissenting. The insuring clause in this policy states that the insurer is to provide a defense to an action against the insured “to the extent that such litigation is founded upon an alleged defect, lien, encumbrance, or other matter insured by this policy.” Obviously, the claim in this case is a defect, lien or encumbrance. I do not find any policy exclusion which excludes a defense for the claim presented in this matter. Obviously, the claim is not well founded because it failed upon trial. Needless to say, the insurance company would not have been responsible for anything other than the defense of the case.

The exclusion was for actions suffered, assumed or agreed to by the insured. Certainly, she did not suffer, assume or agree to a matter which constituted a valid claim against the title. To so construe this exclusion might go so far as to deny coverage for any claim against a title when the person voluntarily accepted a deed to the property. It is my opinion that the exclusions should be for deliberate actions on the part of the insured which amount to a fraud against the title insurance company. The insured in this case was at all times acting in good faith and without deceit or fraud. This should be the standard by which such cases are judged. Therefore, I would reverse.


author: Steele Hays, Justice.

text:
    Frank BROWN, Jr. v. STATE of Arkansas
    CR 82-103
    641 S.W.2d 7
    Supreme Court of Arkansas
    Opinion delivered November 1, 1982

      Anthony W. Bartels, Val P. Price and Jim Burton, for appellant.

      Steve Clark, Atty. Gen., by: William C. Mann, 111, Asst. Atty. Gen., for appellee.
   Steele Hays, Justice.

On September 13, 1981, the appellant killed Robert Tatum by shooting him repeatedly before several eye-witnesses. Appellant went to the police station and confessed. He was tried by a jury on November 17,1981, found guil ty of first degree murder and sentenced to life. He raises four issues on appeal, none of which have merit.

Appellant first argues that the trial court erred in denying his request for a hearing on a motion to suppress his confession. The trial was set for November 17, 1981 and the motion was made on November 13, 1981. The filing of motions to suppress evidence is controlled by A.R.Cr.P. 16.2. This rule, as amended by our Per Curiam opinion, 273 Ark. 550, 616 S.W.2d 493 (1981) makes it clear that confessions are included under this rule. It also provides, as it did before the amendment, that the motion to suppress be made “not later than ten (10) days before the date set for the trial of the case, except that the court for good cause shown may entertain a motion to suppress at a later time.” In this case the defense attorney had been appointed for several weeks and offered no explanation for the delay. We stated in Speed v. City of Jonesboro, 267 Ark. 1087, 594 S.W.2d 44 (1980) “. . . Rule 16.2 is clear and unequivocal in its requirement that motions to exclude evidence must be made ten days prior to trial, in absence of good cause.” And in Parham v. State, 262 Ark. 241, 555 S.W.2d 943 (1977) where the motion was not filed until a day or two before the trial and no good cause was shown, we held that the motion was correctly denied.

In the appellant’s second point he argues that the trial court erred in overruling his objection to the use of his confession, given, he claims, while he was intoxicated. He argues that both the waiver and the confession were involuntary. For each question we use the same standard for review to determine voluntariness. The matters are considered independently and considering the totality of the circumstances we will not reverse the trial court unless the ruling was clearly erroneous. See Dillard v. State, 275 Ark. 320, 629 S.W.2d 291 (1982).

In addition, the state bears the burden of proving by a preponderance of the evidence that the confession was voluntary, and any conflict in the testimony is for the trial court to resolve. See Harvey v. State, 272 Ark. 19, 611 S.W.2d 762 (1981).

In this case, the appellant got to the police station by himself, and understood the officers’ directions to lie on the floor and to take the gun out of his hand. The officer who obtained the waiver and questioned appellant testified that the appellant understood the waiver, did not appear intoxicated, had control of his faculties, and spoke without slurring his speech. Another officer who witnessed the waiver corroborated this testimony. The officer who questioned appellant did not give him a breathalyzer test because he did not appear drunk. He also testified that during the thirteen years in his capacity as a police officer, he had observed many intoxicated individuals and the appellant did not demonstrate any of the characteristics normally associated with a person under the influence of alcohol. The appellant testified that he did not remember signing any waiver or being interrogated, and argues that all of his friends testified he was drunk. On reviewing the abstracted testimony of the defense witnesses, it appears there was agreement that appellant had been drinking that day but there is conflict and inconclusiveness as to how much and to what extent it had affected his behavior.

In Harvey, supra, the appellant had argued that he had been drinking heavily the night before and was still drunk while in custody. He said he did not remember having his rights read to him at any time. This conflicted with the testimony of the officers who had questioned him and had seen him earlier in the day. One officer had smelled alcohol on his breath but testified he was not drunk. Other than the appellant’s testimony there was no evidence that he was intoxicated. We did not find the ruling in that case erroneous. In Jackson v. State, 273 Ark. 107, 617 S.W.2d 13 (1981) in a similar situation to Harvey, the appellant and another witness testified that appellant was under the influence of drugs, which was in conflict with the testimony of the officers who had questioned him. We found no error after reviewing the “totality of the circumstances in light of the superior position of the trial court to judge the credibility of the witnesses,” Jackson at 110. Following the standards for review that we have stated and applied in prior cases, we do not find error in the trial court’s decision in this case.

The appellant next argues that the trial court erred by giving incorrect instructions to the jury on the defense of voluntary intoxication. As there was no objection to the instruction appellant is raising this for the first time on appeal, and as we have stated many times, we will not consider any error for review unless it has been raised before the trial court by a timely and proper objection. There are exceptions to the rule, but this case does not come within them. See Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980).

For his last point appellant argues that the trial court erred in sustaining an objection to defense testimony concerning appellant’s work habits. A fellow employee was called to testify to appellant’s general work record. After describing his general character and abilities as an employee she was asked how many absences he had during the past year and she replied, “one absence.” An objection by the state was sustained. “The trial court has the discretion to determine the relevancy of evidence and its admissibility. This court will not overturn that discretion absent a clear abuse of discretion thereof.” Brewer v. State, 271 Ark. 254, 608 S.W.2d 363 (1980). We cannot say that there was a clear abuse of discretion in sustaining the objection that the appellant’s general work record was not relevant to the case, nor could we say that in any event, the appellant was prejudiced by the objection. The testimony was not excluded, nor was the jury admonished to disregard it. Also, the appellant made no proffer of additional testimony that may have resulted in prejudice to him because of its exclusion. Failure to make such a proffer precludes review on appeal. Duncan v. State, 263 Ark. 242, 565 S.W.2d 1 (1978).

The judgment is affirmed.


text:
    FIRST NATIONAL MORTGAGE COMPANY v. ARKMO LUMBER & SUPPLY COMPANY
    82-132
    641 S.W.2d 31
    Supreme Court of Arkansas
    Opinion delivered November 8, 1982

      Charles Darwin Davidson, for appellant.

      Homer Tanner, for appellee.
   George Rose Smith, Justice.

When the appellee Arkmo filed this suit in 1980 to foreclose its second mortgage upon land in Pulaski county, the appellant First National filed a cross-complaint to foreclose its construction-money first mortgage upon the same land. The mortgagors, apparently insolvent, let both claims go by default. Arkmo pleaded in response to the cross-complaint that First National’s mortgage was void for usury. This appeal is from a decree sustaining that plea.

For reversal First National contends: First, Arkmo lacks standing to challenge the first mortgage for usury; second, Arkmo’s plea of usury should have been disregarded as a mere conclusion of law; and third, the first mortgage was not usurious. We hold that the chancellor’s decision was correct.

First, the matter of Arkmo’s standing. Ever since 1887 our statute has provided that any creditor having a lien upon property may attack the validity of a rival lien arising from a usurious contract. Ark. Stat. Ann. §§ 68-609 and -610 (Repl. 1979). In Hiner v. Whitlow, 66 Ark. 121, 49 S.W. 353, 74 Am. St. Rep. 74 (1899), we construed the statute so narrowly that it was practically of no effect, but we overruled the Hiner case in Bailey v. Commerce Union Bank, 223 Ark. 686, 269 S.W.2d 314 (1954). We adhere to our holding in Bailey, despite the suggestion made there on rehearing that the ruling was dictum.

Second, Arkmo’s conclusory plea of usury. Arkmo’s plea was in fact a conclusion, asserting merely that First National’s note and indebtedness were void for usury. In a 1975 case we denied an application for a writ of prohibition on the ground that usury is an affirmative defense which the trial court may in its discretion reject without a hearing when no facts are pleaded to support the assertion of usury. Girley v. Wood, 258 Ark. 408, 525 S.W.2d 454 (1975). We indicated, however, that a conclusory plea would be good if the note is usurious on its face.

That case is not controlling here, especially in view of the Rules of Civil Procedure that became effective in 1979. In the case at bar the conclusory plea was filed in August, 1981. First National went to trial six months later, in February, without having moved for a more definite statement, as it was entitled to do under Rule 12 (e). At the trial counsel for Arkmo, without objection, adduced facts supporting its plea of usury by cross-examining First National’s principal witness, Dennis Mills. There was no claim of surprise. At the conclusion of the trial counsel for both sides argued the question of usury and submitted written briefs within a week. The trial judge, in deciding the case, specifically held that First National had sufficient notice of the allegation of usury. Thus under Civil Procedure Rule 15 the trial court properly treated the pleadings as having been amended to conform to the proof.

Third, the question of usury. First National’s promissory note, dated November 8, 1977, ostensibly obligated the makers to pay $38,800 on or before November 8, 1978, with interest from date until maturity at 8.75% per annum and thereafter until paid at 10% per annum. The note recited that it was secured by a construction-loan mortgage and contained this typed insertion in the printed form: “The signers hereby agree to pay 1% commitment fee.” The accompanying mortgage recited that the loan would be used solely for the construction of improvements on the mortgaged land and that construction would be optional with the mortgagors. Thus the transaction was a typical construction loan, which is one to finance a building project until its completion and the issuance of the long-term mortgage. Webster’s Third New International Dictionary (1961).

Here Arkmo’s argument that the note was usurious on its face was accepted by the chancellor. We have held that a commitment fee, assessed by the lender for its readiness to have the total amount of a construction loan available when needed, is in fact part of the lender’s cost of doing business and must be treated as interest if charged to the borrower. Ark. Sav. & Loan Assn. v. Mack Trucks of Ark., 263 Ark. 264, 566 S.W.2d 128 (1978). Under the language of First National’s note, the 1% commitment fee could have been charged to the borrowers at the outset, as was done in the case cited. In that event the inclusion of the commitment fee in the principal amount of the note would have resulted in an excessive interest charge after maturity. Hence the exaction of the commitment fee made the note usurious.

There is an alternative basis demonstrating the correctness of the chancellor’s decision. The witness Mills testified that during the original one-year term of the note First National made four disbursements as construction progressed. We list those four advances, with the interest accrued at 8.75% from the date of each advance until the one-year maturity of the note on November 8, 1978:

Amounts Advanced Interest at 8.75%
Nov. 8, 1977: $ 5,352 ■ $ 468.30
Dec. 28, 1977: 6,288 474.83
Feb. 22, 1978: 15,520 963.61
Apr. 26, 1978: 4,000 188.04
Total interest accrued first year 2,094.78
Plus 1% commitment fee 388.00
Total chargeable to borrowers 2,482.78

The maximum legal interest, at 10% per annum, upon the four advances from their dates until maturity would be only $2,394.03. Hence the addition of the 1% commitment fee, deductible at the outset, resulted in an excessive interest charge of $88.75 during the first year. First National did not actually charge the commitment fee, perhaps because such a fee was disapproved in Mack Trucks a few months after the date of the construction loan now in question. The option to make the charge lay with the lender, however, not with the borrowers. A lender cannot purge a loan of usury by dropping the excess charge when suit is filed. Bunn v. Weyerhaeuser Company, 268 Ark. 445, 598 S.W.2d 54 (1980). The chancellor’s decision was right.

Affirmed.