text:
    Jerry W. MARTIN and ARKANSAS TRANSPORT COMPANY v. George RIEGER
    86-69
    711 S.W.2d 776
    Supreme Court of Arkansas
    Opinion delivered June 23, 1986
    [Rehearing denied July 21, 1986.]

      Friday, Eldredge & Clark, by: William M. Griffin, III, for appellant.

      Malcolm R. Smith, for appellee.

       Holt, C.J., not participating; Hickman, and Purtle, JJ., would grant.

   Robert H. Dudley, Justice.

Appellee, George Rieger, in his individual capacity and as executor of the estate of Ruth Rieger, brought this car-truck action for wrongful death, mental anguish, loss of consortium, funeral expense, and property damage. The jury returned a verdict of $400,000.00 against the driver of the truck, appellant, Jerry W. Martin, and his employer, appellant, Arkansas Transport Company. The Court of Appeals certified the tort case to this Court. Ark. Sup. Ct. R. 29(1)(o). We affirm if the appellee elects to remit $8,000.00 within seventeen days, otherwise the cause will be remanded for a new trial.

At about 1:15 on the afternoon of July 9, 1984, witness Kathy Barnett stopped her car on Highway 165 about nine miles north of England. Her car was facing in a northerly direction and she was preparing to turn left into her driveway. A truck tractor, without a trailer, driven by appellant Jerry W. Martin and owned by appellant Arkansas Transport Company came up behind witness Barnett. Appellant Martin admitted he was driving the tractor between 55 and 58 miles per hour. He also admitted knowing that a tractor without a trailer is more difficult to stop than one with a trailer because the trailer keeps the back wheels of the tractor from bouncing off the road when the brakes are applied. He saw witness Barnett’s car when he came around a curve but did not apply his brakes until after he had driven an additional 250 feet because he thought she would complete her turn to the left off the highway. When he realized she was not going to complete her turn, he applied the brakes. The rear wheels of his tractor bounced and skidded, and he saw he was going to hit witness Barnett. He decided to turn off the road. He turned left, rather than right, and crossed over the center line. At that moment Ruth Rieger, the decedent, approached from the opposite direction. She saw the tractor coming toward her and applied her brakes. The tractor skidded a total of 345 feet, hit Mrs. Rieger, and killed her.

Appellants argue that the trial court erred when it failed to direct a verdict in their favor because there was no substantial evidence of negligence. The argument is without merit. The standard for the granting of a directed verdict for a defendant has been set out many times. As explained in St. Louis S.W. Ry. Co. v. Farrell, 242 Ark. 757, 416 S.W.2d 334 (1967):

A directed verdict for the defendant is proper only when there is no substantial evidence from which the jurors as reasonable men could possibly find the issues for the plaintiff. In such circumstances the trial judge must give to the plaintiffs evidence its highest probative value, taking into account all reasonable inferences that may sensibly be deduced from it, and may grant the motion only if the evidence viewed in that light would be so insubstantial as to require him to set aside a verdict for the plaintiff should such a verdict be returned by the jury.

Here, there was substantial evidence from which the jury could find that appellant Martin was negligent in driving too fast under the circumstances, or negligent in failing to apply his brakes immediately, or negligent in turning across the center line of the highway.

Appellants next argue that the trial court erred in refusing to direct a verdict on the claim for mental anguish where no more than normal grief was shown by the survivor.

The General Assembly has clearly stated that the public policy of this State is to allow recovery for wrongful death and for the mental anguish of survivors of the deceased. Ark. Stat. Ann. §§ 27-906 to -910 (Repl. 1979). The application of the mental anguish statutes to particular fact situations has given us difficulty through the years simply because mental anguish of all survivors is a natural incident of practically every wrongful death. We have construed the statutes to mean that the proximity of relationship between the deceased and the survivors is the most significant factor in determining whether recovery is allowable. Distant relatives generally have no more than normal grief and will not be allowed to recover without establishing something more.

In St. Louis S.W. Ry. Co. v. Pennington, 261 Ark. 650, 553 S.W.2d 436 (1977), we stressed the relationship between the deceased and the survivors. We listed the following factors for evaluating the relationship:

(1) The duration and intimacy of the relationship and the ties of affection between decedent and survivor.
(2) Frequency of association and communication between an adult decedent and an adult survivor.
(3) The attitude of the decedent toward the survivor, and of the survivor toward the decedent.
(4) The duration and intensity of the sorrow and grief.
(5) Maturity or immaturity of survivor.
(6) The violence and suddenness of the death.
(7) Sleeplessness or troubled sleep over an extended period.
(8) Obvious extreme or unusual nervous reaction to the death.
(9) Crying spells over an extended period of time.
(10) Adverse effect on survivor’s work or school.
(11) Change of personality of the survivor.
(12) Loss of weight by survivor and other physical symptoms.
(13) Age and life expectancy of the decedent.

Here, the survivor and the decedent had been married for forty-four years, were very close, and had strong ties of affection. For years they had worked closely together in their business. The decedent suffered a sudden and violent death. The survivor’s grief was evident. The survivor suffered sleeplessness to the extent that his sleeping pill prescription was refilled 5 or 6 times. The foregoing constitute substantial evidence to support the award. The trial court correctly refused to direct a verdict on the claim for survivor’s mental anguish.

The appellants next contend that the trial court erred in refusing to order a remittitur of damages for mental anguish and loss of consortium.

Our basic law on remittitur is set out in Morrison v. Lowe, 274 Ark. 358, 625 S.W.2d 452 (1981):

Ark. Stat. Ann. § 27-1903 (Repl. 1979) provides that in cases where damages are not susceptible of definite measurement a remittitur shall be ordered only where the judgment is rendered under the influence of passion and prejudice. This statute was not repealed by the Rules of Civil Procedure. See Per Curiam of statutes superseded, Compiler’s Notes to Rule 1, Ark. Stat. Ann. Vol. 3A (Repl. 1979). However, this statute is not the basic authority for the reduction of a jury verdict. Remittitur is within the inherent power of a court. Dorey v. McCoy, 246 Ark. 1244, 442 S.W.2d 202 (1969). Our well established rule is that the jury has much discretion in determining the amount of damages in personal injury cases and we will not disturb a jury’s verdict unless that verdict is shown to have been influenced by prejudice or is so grossly excessive as to shock the conscience of the court. Grandbush v. Grimmett, 227 Ark. 197, 297 S.W.2d 647 (1957).

Here, there is no showing that the verdict was influenced by passion, and the verdict, while high, is not so grossly excessive as to shock our conscience.

The next argument is the one we find most difficult. Before trial the appellants propounded interrogatories to appellee in which they asked the identity and location of all witnesses to the accident. In addition, appellee was asked to supplement the response in the event additional witnesses were discovered. Appellee agreed to do so. After the original interrogatories had been answered, and about 30 days before trial, appellee discovered two additional witnesses. Appellee’s attorney did not disclose the additional witnesses before the trial. Then, at trial, appellee attempted to introduce testimony from those two undisclosed witnesses. Upon objection, the trial court refused to allow the testimony. Appellants argue that the trial court erred in failing to order a new trial because of the failure to disclose.

It is the duty of an attorney to be completely candid with members of the bar and with the court. The knowing concealment of eyewitnesses is unquestionably a violation of that duty. While the members of this Court are in complete agreement that the attorney’s action was wrong, we do not feel that the trial judge abused his discretion in refusing to grant a new trial. After the verdict, the appellants filed a motion for new trial alleging, among other points, that the failure to disclose the witnesses was a ground for a new trial. The appellee responded with an affidavit from the witnesses which clearly shows that the witnesses would have testified in accordance with appellee’s view of the accident. The trial court ruled:

The undisclosed witnesses were withdrawn by the Plaintiff when his attorney was confronted with the interrogatory requesting their disclosure. This could, at times, be grounds for a continuance or a new trial. However, in this case, there is absolutely no showing of prejudice to the Defendant. Therefore, it would be silly to order a new trial when foreknowledge of the witnesses could not change the Defendant’s case, and might even help the Plaintiffs case.

The appellants in their argument on this point have not demonstrated any prejudice, and we cannot find any. Accordingly, we hold that the trial court did not abuse its discretion in refusing to grant a new trial because of the failure to disclose witnesses.

Appellants’ last argument is that the trial court should have directed a verdict on the claim for property damage because appellee did not establish the value of his car immediately before and immediately after the accident. They further argue that the trial court’s failure to do so requires a reversal of the entire case because a general verdict is a complete entity which cannot be disturbed. The appellant is partially correct. The trial court erred in refusing to grant a directed verdict on the issue of property damages since the appellee only proved the value of the car before the accident but failed to prove the value after the damage occurred. See Ark. Stat. Ann. § 75-919.1 (Repl. 1979). Appellants contend this error requires reversal of the entire case because single verdicts may not be divided. Appellants’ argument states the general rule, but there is an exception when the error relates to a separable item of damages. In Swenson v. Hampton, 244 Ark. 104, 424 S.W.2d 165 (1968) we explained:

When the only error relates to a separable item of damages a new trial can sometimes be avoided by the entry of a remittitur. St. Louis, I.M. & S. Ry. v. Bird, 106 Ark. 177, 153 S.W. 104 (1913). Such a remittitur is fixed by the highest estimate of the element of damage affected by the error. Surridge v. Ellis, 117 Ark. 223, 174 S.W. 537 (1915).

Here, the property damage is a separable item of damages. The most the property damage could have amounted to is $8,000.00. If the appellee agrees to remit $8,000.00 within seventeen days, the rest of the judgment will be affirmed. Otherwise, the cause must be remanded for a new trial.

Affirmed upon agreement of remittitur.


source: Caselaw Access Project

author: Robert H. Dudley, Justice. Steele Hays, Justice,

license: Public Domain

text:
    Walter B. MASON v. STATE of Arkansas
    CR 85-64
    712 S.W.2d 275
    Supreme Court of Arkansas
    Opinion delivered June 23, 1986

      Robert S. Blatt, for appellant.

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

This case requires us to decide whether appellant’s conviction for first degree murder must be reversed because of ineffective assistance of counsel.

On the afternoon of February 7, 1983, appellant shot and severely wounded Thurman Morse. That evening appellant employed Ralph Lowe to represent him. On February 9 appellant was charged by information with battery in the first degree. On February 18 the victim died, and the information was amended to charge appellant with murder in the first degree. In November 1983, appellant was found guilty, and his sentence was fixed at twenty years. Lowe did not timely perfect the appeal. The trial court subsequently relieved Lowe, sent a letter regarding Lowe’s conduct to our Committee on Professional Conduct, and appointed another attorney to represent appellant in his appeal. On March 20, 1985, the Court of Appeals handed down an unpublished opinion affirming the judgment of conviction. Next appellant filed a petition in this Court asking permission to file for post-conviction relief because of ineffective assistance of counsel. We granted permission to file the petition in circuit court for an evidentiary hearing. On June 27, 1985, the trial court held an evidentiary hearing, and on July 29 entered its order denying relief. We reverse and remand for a new trial on the merits.

The analytical approach to be used in determining whether the Sixth Amendment guarantee has been met is set out in Strickland v. Washington, 466 U.S. 668 (1984). There, a convicted defendant claimed that his counsel’s assistance was so defective that it required a reversal of the conviction. The United States Supreme Court held that in order to prevail on such a claim, the defendant was required to show (a) that counsel’s performance was deficient and, (b) that the deficient performance prejudiced the defense to such an extent that it deprived the defendant of a fair trial.

(a) The proper standard for judging attorney performance is that of reasonably effective assistance, considering all the circumstances. When a convicted defendant complains of the ineffectiveness of counsel’s assistance, the defendant must show that counsel’s representation fell below an objective standard of reasonableness. Judicial scrutiny of counsel’s performance must be highly deferential, and a fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. A court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.

(b) With regard to the required showing of prejudice, the proper standard requires the defendant to show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. A court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury.

In his brief appellant argues that his attorney was deficient in sixteen particulars. We agree that counsel’s representation fell below an objective standard of reasonableness in seven of the sixteen areas, but that showing of seven unprofessional errors, standing alone, does not mandate reversal. In addition to a showing of deficient representation, appellant must prove that there is a reasonable probability that the result of the trial would have been different but for counsel’s errors. Four of the errors produced no prejudice. Examples are, even though counsel did not timely file the appeal, there was no prejudice to appellant since a belated appeal was allowed and the Court of Appeals decided the issues on appeal; and, while defense counsel erroneously exercised peremptory challenges before the prosecutor passed upon the jurors, the appellant suffered no prejudice because his peremptory challenges were never exhausted.

However, three of the errors did result in prejudice to the appellant. At the post-conviction hearing, the appellant testified that his attorney did not notify him of the trial date and, as a result, he missed the first day of trial. Counsel testified that he waived the appellant’s presence during the first day’s voir dire as a matter of trial strategy. The trial court found that the attorney’s version was factually correct. Because of the trial judge’s superior position to view the witnesses, we cannot say that finding is clearly erroneous. However, even if the attorney’s version is correct, error and prejudice are present.

We have held that even though an accused has a right to be present when any substantive step is taken, that right may be waived by him or his attorney. However, we have strongly suggested that the accused should be present at all important phases of the trial. Harmon v. State, 277 Ark. 265, 269, 641 S.W.2d 21 (1982). Here, ten jurors were selected during the first day of the trial. It is hard for us to conceive of any valid trial strategy which would call for the absence of a defendant the first day of jury selection, but require his presence during the second day. Certainly, no valid reason is apparent in this case. Counsel’s explanation was that because of potential bias against appellant he felt it would be best to interview prospective jurors the first day in appellant’s absence. No explanation is given for the opposite conclusion the second day.

The appellant testified that he never saw a jury list, and counsel did not testify that he gave appellant a jury list. Thus, appellant was not able to participate in any manner in the selection of jurors taken the first day.

Appellant testified that he lived in the local area and knew some of the jurors, while the attorney was from out of town and did not know any of the jurors. He testified that he was prejudiced by the taking of jurors Betty Brown and Bertha Bearden. He testified that juror Betty Brown had heard various rumors about his case and could have been prejudiced against him and, because he was not present, he could not tell his attorney about her possible prejudice. More importantly, he testified that juror Bertha Bearden had been the victim of a burglary, and in his opinion, was conviction prone. Under the circumstances, he could not communicate this information to counsel before she was selected as a juror. She was ultimately elected foreman of the jury. During voir dire counsel did not ask any questions of the juror about being the victim of a crime. He asked if she was a friend of the Sheriff, and she responded that she knew the Sheriff very well. No questions were asked about other police officers or if she had worked with them on the burglary.

A sample of the voir dire of juror Bearden causes some additional concern about whether counsel correctly understood the presumption of innocence and the burden of proof:

Q. [By Mr. Lowe] Do you feel the simple fact that a person is charged with a crime means where there is smoke there’s fire?
A. You mean, do I think that he is automatically guilty?
Q. Or, that there is something there?
A. Well, I don’t assume that Mr. Mason is guilty of anything until it is proved to me that he’s guilty or innocent.
Q. And, by proof, clear and convincing without any question. Is that correct?

(Emphasis added).

Additional error of counsel which showed a reasonably probable prejudice to the appellant is in the area of trial stipulations. On the first day of the trial, during appellant’s absence, counsel stipulated to the cause of death and to allow the State Crime Laboratory report into evidence.

At the post-conviction hearing appellant testified that he had serious questions about the cause of death, mentioned these questions to counsel, but counsel ignored his inquiries and stipulated to the cause of death in his absence. The death did not occur for eleven days after the shooting and cross-examination of the medical examiner would have determined if there were any intervening events which caused or contributed to the victim’s death. In addition, by stipulating to the laboratory report, counsel lost for appellant the right to cross-examination, which probably would have proved that the shotgun blast fired by appellant did not strike the victim directly, but ricocheted off of an automobile and struck the victim. Such proof would tend to show there was no intent to kill.

Counsel’s examination of witnesses was confusing and ineffectual. While it is difficult to determine the amount of prejudice that resulted, we can say that it so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. We can best illustrate this point by quoting from the cross-examination of the State’s trace metal expert:

CROSS EXAMINATION
BY MR. LOWE:
Q. Mr. Cox, I believe you first — one of the first answers you gave to Mr. Mainard’s question was of the tests that I performed. I believe I caught that there was one that wasn’t requested or something like that. Were all tests that you would normally perform on this — was everything presented to you that you would normally have to perform and do testing on?
A. I’m sorry. I missed your question.
Q. Well, perhaps I missed your answer and that’s probably why I’m confused. Did you have all of the material, I mean, do you have everything in front of you for the microscopes and I think some other machines, which I confess I don’t remember the names, the isotopes, etcetera, did you have everything — was there — was everything furnished to you to run the test? Was there anything else that you could have or should have to run a test to check for gun powder residue or for a victim in a shooting?
A. As far as our laboratory is concerned or as far as the investigating agency?
Q. Either or both. Is there more that could have been done?
A. I’m still — I still don’t understand your question?
Q. Well, perhaps — perhaps I don’t — perhaps I don’t understand your last answer when you’re saying, you know, investigators or medical — uh—is there more that could have been done in any event, regardless of who, how, or what?
A. To determine—
Q. Yes.
A. —if gun powder residue was present on a particular object?
Q. Yes, sir.
A. No, sir. The particular test that we use for gun powder residue is the most modern detection technique used in the nation right now.

We have examined this case with a strong presumption that an attorney’s conduct falls within the wide range of reasonably effective assistance because there are countless ways to provide effective assistance in any given case. As pointed out in Strickland v. Washington, supra, at 689:

Judicial scrutiny of counsel’s performance must be highly differential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. Cf. Engle v. Isaac, 456 U.S. 107, 133-134 (1982). A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.
The availability of intrusive post-trial inquiry into attorney performance or of detailed guidelines for its evaluation would encourage the proliferation of ineffectiveness challenges. Criminal trials resolved unfavorably to the defendant would increasingly come to be followed by a second trial, this one of counsel’s unsuccessful defense. Counsel’s performance and even willingness to serve could be adversely affected. Intensive scrutiny of counsel and rigid requirements for acceptable assistance could dampen the ardor and impair the independence of defense counsel, discourage the acceptance of assigned cases, and undermine the trust between attorney and client.

Even though we have indulged a strong presumption in favor of counsel’s conduct, we have concluded that counsel’s assistance was not effective and the original trial cannot be relied on as having produced a just result. Accordingly, we reverse and remand for a new trial on the merits.

Hickman and Hays, JJ., dissent.

Steele Hays, Justice,

dissenting. I believe this case should be affirmed. The trial judge obviously gave serious attention to these allegations of ineffective assistance. His written findings and conclusions dealt with the issues point by point and carefully noted the evidence pro and con. He explained his reasons for each finding in detail. It was he who presided over the trial and who heard the testimony at the Rule 37 hearing. His ability to judge the proof is unquestionably superior to ours and his findings on these disputed issues are not clearly erroneous. Thomas v. State, 277 Ark. 74, 639 S.W.2d 353 (1982).

The majority opinion has cited the case law on ineffective assistance, which may be summarized by saying that no higher burden exists under the law than setting aside a criminal conviction based on ineffective assistance of counsel, and rightly so. These are serious charges and should not rest on inconsequential grounds. The appellant has compiled a long list of particulars against defense counsel. But the fact is, with one possible exception, the allegations appear more serious on the surface than, on closer inspection, they prove to be. In short, the Rule 37 petition, as well as the proof, produce a great deal of smoke but very little fire. Had it not been for trial counsel’s neglect of his duty to appeal so that the trial court had to remove him and appoint other counsel, I doubt the case would have given us much concern. But what happens after a trial is, after all, irrelevant to the issue of whether effective assistance has been rendered during the trial.

The majority opinion discusses only three of the allegations of ineffective assistance. From a dissenting point of view the others are notable for their lack of substance:

There is the charge that defense counsel was intoxicated and used drugs during the trial. These charges are admittedly groundless and the trial court so found. The sum and substance of the proof was that some of appellant’s family members said they smelled alcohol on counsel’s breath — once during a lunch break and once an hour after the trial had ended. The witnesses acknowledged the absence of any behavior consistent with intoxication and the trial judge commented that he detected nothing of the sort, even in close communication with counsel at bench conferences. The proof wholly failed to support the claim.

Appellant claims counsel advised him to give the police a statement before even talking with him. This charge was denied by the lawyer and the testimony of State Trooper Don Taylor refutes the contention. He said, “Well, I had been called down here to assist in the investigation and when I got to the jail they had — Mr. Mason had been arrested and he had requested an attorney before I interviewed him and sometime later his attorney showed up, and after he talked with his attorney I did take a statement from him in his attorney’s presence.”

Much is made of a particularly minor incident. Shortly after a noon recess counsel asked permission to go to the restroom. The trial judge estimated the interruption at two or three minutes and saw it as entirely insignificant. He was right.

There is the incident of the spectator saying, “No, sir” while a witness was being asked if Thurman Morse, the victim, had ever been in prison. The comment was not factually inaccurate, nor was it contradictory to the response given by the witness. The trial judge immediately instructed the spectators against any recurrence, and that was the end of it. To argue that it was ineffective assistance not to request a mistrial ignores the many times this court has said mistrials are an extreme and drastic remedy, to be granted only when prejudice is so manifest the trial cannot in justice continue. Combs v. State, 270 Ark. 496, 606 S.W.2d 61 (1980). In this instance a motion for mistrial would have been a waste of time and perhaps tactically counterproductive.

One allegation is particularly disturbing — the accusation that defense counsel tried to convey to the jury the impression that appellant, his client, was lying on the witness stand. It is a wholesale distortion of the incident and brings no credit to those who make it. It is one thing to charge counsel with ineptness, but quite another thing to accuse him of a perfidious act toward his own client. While appellant was being cross-examined evidently defense counsel was nodding in agreement, at least the prosecutor perceived it that way and said, “Is your attorney nodding agreement?” The record itself makes it clear that appellant’s response was a denial of the implication that he was being coached, not an assertion that his lawyer was disagreeing with him:

Q. . . .Do. you reasonably — do you believe that the force that you used was tliat which is — was reasonably necessary under the circumstances to preserve your own life and the life of your loved ones?
A. Yes, T most certainly did.
Q. That is your testimony? Is your attorney nodding agreement?
A. No, he is not.
Q. Okay.
MR. LOWE (Defense counsel): Your Honor — well, I’ll withdraw my objection. I’m not testifying here.
MR. SANFORD: Well, you have.
THE COURT: Go ahead.

There is the allegation that counsel did not know the correct standard of proof in criminal cases because on voir dire he asked several jurors if they would require clear and convincing proof of guilt. There is no need to quote excerpts from the record, but nothing suggests counsel did not know the law on this basic point, familiar even to laymen. He may have phrased his question simply to impress on the jury the high standard of proof the state must meet in criminal cases.

There is the charge that counsel met with appellant and defense witnesses for only an hour preparing for trial. This is a frequent complaint in Rule 37 cases because no matter how much time the lawyer spends, the client thinks it was not enough. But the fact is it affords very little likelihood of relief under Rule 37 as there is no way to gauge how much time must be spent on a given case. Here, we need look no further than the finding of the trial court that defense counsel met with appellant and the witnesses in excess of four hours and was adequately prepared.

There is the charge that defense counsel would not call character witnesses for the appellant. The trial court found this decision was not prejudicial and in view of the fact the appellant had a criminal record I cannot say that finding was clearly erroneous.

Appellant claims counsel did not tell him when the trial was to be held. But the proof was undisputed that appellant and defense witnesses gathered with defense counsel at appellant’s home at what they repeatedly referred to as “The night before the trial.” Evidently they were referring to the first day of the trial. Be that as it may, it is improbable the defendant and his witnesses would have gathered at defendant’s home if they were not well aware of the trial and the Rule 37 petition itself alleges that counsel told appellant to come to court after the jury was selected.

There is the point that counsel filed a motion for discovery only the day before trial. But there was proof, to the trial court’s satisfaction, that the prosecutor applied an open file policy to this case which defense counsel took advantage of and that defense counsel had completed discovery when the motion was filed.

There is the charge that counsel was inept because on four occasions he excused prospective jurors by peremptory challenge without waiting to see whether the prospect was acceptable to the state. Again, without some showing that such minor departures had an adverse effect on the outcome, they do not meet the stringent requirements of establishing ineffective assistance. The trial court rejected this point with the comment that it was evident the prospects would not have been challenged by the state.

There is the charge that counsel did not call individuals to testify to previous violent acts by the victim, particularly Elbert Frazier, who testified at the Rule 37 hearing that the victim was known to be belligerent and prone to get in fights. But counsel testified he had never heard the name Elbert Frazier mentioned and Frazier said appellant’s family was not aware of his knowledge because he had never talked to them about it, nor did he know whether appellant’s lawyer was aware he was a potential witness.

Three allegations: (1) That counsel stipulated to the introduction of several items of evidence without appellant’s knowledge or consent, 2) that counsel did not know how to examine the appellant and tried to introduce his statement to the police instead of having appellant testify firsthand about the events, and 3) counsel did not know the state’s purpose in introducing appellant’s statement to the police, proving his ineffectiveness) were summarily rejected by the trial court because there was no proof whatever to sustain them.

The lack of merit of appellant’s allegations is illustrated by the fact the majority opinion ignores all but three: the absence of the defendant at voir dire, the stipulation as to the cause of death and several questions posed on cross-examination of Steve Cox, the state’s trace metal expert.

As to the cross-examination of Cox, the objection seems to be that the questions were poorly phrased. I agree, but I do not agree that ineffective assistance is proved by a few clumsy questions. Of the brief excerpt quoted in the majority opinion, only two of the questions seem particularly awkward. Perhaps counsel should have thought through his questions more fully, but how can it possibly be said that this clearly affected the outcome of the trial? The trial court observed that Cox’s testimony contained nothing beneficial to the state nor harmful to the defense and that should end the matter.

As to the defendant’s absence at voir dire, I am as puzzled as the majority and the trial judge over this unorthodox tactic. But while I have never heard of its use in criminal cases, I cannot say it is so plainly without redemption that it provides, per se, the basis for ineffective assistance. Some lawyers advocate the avoidance of overexposing the client to the jury. They believe the jury becomes weary of looking at the individual on whom all the attention of a trial is centered, that his or her presence in the courtroom should be limited as much as possible. Whether that was the motivation here I don’t know, but defense counsel testified that he discussed this tactic with appellant prior to trial. The trial court concluded there was no prejudice and I believe he was correct. The two women jurors cited by the majority testified they knew neither the defendant nor the victim and would try the issues fairly on the evidence. There is no showing to the contrary. More importantly, this issue concerns strategy and we have said again and again we will not substitute our own notions of strategy for those of the practitioner in Rule 37 cases. Knappenberger v. State, 283 Ark. 210, 672 S.W.2d 54 (1984); Hayes v. State, 280 Ark. 509, 660 S.W.2d 648 (1983). We should adhere to those precedents.

Finally, there is the matter of the stipulation to the cause of death. It is on this issue that I disagree most emphatically with the majority. In the first place there is not a shred of evidence from which to argue that death may have been attributable to some intervening cause. The medical report said simply that the cause of death was homicide, resulting from a .00 buckshot striking the victim in the left eye and entering his brain. Eleven days later he died. Appellant relies entirely on a “rumor” that Thurman Morse was brain-dead and “his family pulled the plug” when he developed pneumonia. But pneumonia frequently accompanies such injuries, and taking the rumor at face value it still does not provide the slightest basis for an inference that death was attributable to anything other than a lethal head wound. It is pure speculation to suppose that by refusing to stipulate counsel could have uncovered evidence pointing to an intervening cause — a lead .00 buckshot in the brain is cause enough, whether death is instantaneous or prolonged. What bothers me most is for this court to hold, based entirely on speculation, that by stipulating to the cause of death defense counsel was guilty of ineffective assistance. The holding is bound to have a chilling effect on the defense bar, as the obvious message is ‘don’t stipulate to the cause of death’ lest ineffective assistance claims may follow. Thus a sensible and favorable option to the defense is lost. Sensible because it saves time and resources, favorable because there are many times, when the cause of death is clear, that it is better for the defense for the jury not to have to hear the specific details of the victim’s death. That there was no doubt about the cause of this victim’s death is attested to by the appellant’s own words. At trial the first question he was asked on cross-examination was:

Q. Birch (appellant), there is no question you killed Thurman Morse by your own act with the use of this 12 gauge shotgun, is there?
A. No, there isn’t.

Nor is there any basis for the suggestion the buckshot may have ricocheted off another surface. The occupants of the car with Thurman Morse testified the appellant kicked open the door, drew the shotgun to his shoulder, aimed and fired directly at the car. Photographs of the vehicle corroborate this testimony. They show the blast was direct rather than glancing by reflecting a circular pattern of shot on the side of the car where some eight or nine buckshot pierced the metal door cleanly at ninety degree angles.

When any defense counsel’s performance is examined under a magnifying glass from the advantage of hindsight it is easy to find fault. The representation in this case may not have been notably skillful, but who can say with certainty? The result favors the contrary. Having found the defendant guilty (a predictable outcome given the proof) the jury could have imposed a sentence of not less than ten nor more than forty years. It chose twenty, closer to the minimum than to the maximum. Even if the defense was only marginal, it was still above the level contemplated by Rule 37. Our law inveighs against setting aside a conviction except where the representation falls below any acceptable standard of performance. That was not the case here.

The appellant took the life of another human being on less than mitigating circumstances. He was tried fairly and a jury of his peers exacted twenty years, which doubtless would prove to be considerably less. He was provided an appeal by a court appointed lawyer and he was given a thorough hearing under Rule 37. In none of these proceedings was his position sustained. Now a majority of this court, on questionable grounds, is holding the entire process must be repeated. I respectfully disagree.

Hickman, J., joins in this dissent.


author: Steel Hays, Justice.

text:
    ARKHOLA SAND & GRAVEL COMPANY, A Division of Apac-Arkansas v. Rick HUTCHINSON; Rusty GOODMAN; Martin E. LANCASTER; and Sandra LANCASTER
    86-78
    711 S.W.2d 474
    Supreme Court of Arkansas
    Opinion delivered June 23, 1986

      Daily, West, Core, Coffman & Canfield, for appellant.

      Ball, Mourton & Adams, by: Stephen E. Adams, for appellees.
   Steel Hays, Justice.

Arkhola Sand & Gravel Company filed suit to impress a materialman’s lien upon real property owned by defendants Martin and Sandra Lancaster for building supplies furnished to defendants Rick Hutchinson and Rusty Goodman, who constructed improvements on the Lancasters’ property.

The Lancasters moved to dismiss the suit as to them because the legal description of their property was imprecise. Although Arkhola later amended to provide a sufficient description, that was after the time for perfecting liens under the statute had expired. The complaint was dismissed as to the Lancasters, though not as to Hutchinson and Goodman, and Arkhola has appealed.

The Lancasters have not challenged the appealability of the order of dismissal, but as that is a jurisdictional requirement we raise it ourselves even when the parties do not. Arkansas Savings and Loan Association v. Corning Savings and Loan Association, 252 Ark. 264, 478 S.W.2d 431 (1972), McConnell v. Sadle, 248 Ark. 1182, 455 S.W.2d 880 (1970).

A number of recent cases have pointed out that when multiple claims or multiple parties are involved in a case the trial court may direct the entry of a final judgment as to one or more (but less than all) of the parties or claims only upon an express determination that there is no just reason for delay and upon the express direction for the entry of the judgment. ARCP Rule 54(b). Sherman v. G & H Transportation, Inc., 287 Ark. 25, 695 S.W.2d 832 (1985); 3-W Lumber Co. v. Housing Authority for the City of Batesville, 287 Ark. 70, 696 S.W.2d 725 (1985); Tulio v. Arkansas Blue Cross and Blue Shield, Inc., 283 Ark. 278, 675 S.W.2d 369 (1984); Heffner v. Harrod, 278 Ark. 188, 644 S.W.2d 579 (1983). The reason for the rule was fully explained in those opinions and need not be repeated here.

The requirements of Rule 54(b) were not observed in this case and the order of dismissal as to the Lancasters is not an appealable order. Rule 2, Arkansas Rules of Appellate Procedure.

Accordingly, the appeal is dismissed.


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

text:
    Raymelle GREENING v. Hon. H. Allan DISHONGH, Judge of Little Rock Municipal Court
    86-25
    711 S.W.2d 475
    Supreme Court of Arkansas
    Opinion delivered June 23, 1986

      Howell, Price, Trice, Basham & Hope, P.A., by: Robert J. Price, for appellant.

      Mark A. Stodola, City Att’y, by: Vietra L. Fewell, Asst. City Att’y, for appellee.
   Steele Hays, Justice.

Raymelle Greening, appellant, is charged in the Little Rock Municipal Court with the criminal offenses of failure to produce a driver’s license, disorderly conduct, resisting arrest, and two counts of battery in the third degree. Following the testimony of two officers of the Little Rock Police Department on direct examination, the defense requested their prior written statements pursuant to Ark. Stat. Ann. § 43-2011.3 (Repl. 1977). The state maintained the statements should not be divulged because they were made in connection with investigations of the Internal Affairs Division. The court, after hearing protracted arguments, denied the request for these statements but granted a motion for a recess to allow Ms. Greening to obtain a ruling from the circuit court on a petition for a writ of mandamus. The circuit court held the provisions of § 43-2011.3 were discretionary and that appeal rather than mandamus was the proper remedy. Ms. Greening has appealed the denial of mandamus. We affirm the circuit court.

Appellant’s argument is simply that § 43-2011.3 is mandatory and therefore, mandamus should be granted to direct the municipal judge to order the state to produce the statements. She does not address the propriety of this remedy, only the merits of her claim, contending that if she relies on appeal for recourse she may be convicted.

The state asserts that the initial question on appeal is whether mandamus is the proper remedy. The state is correct and we agree mandamus will not lie in this case.

There is no contention the trial court exceeded its jurisdiction, only that its ruling was erroneous. The writ will not be granted for such an action. Appellant’s argument that appeal is inadequate in a criminal case because she may be convicted does not support the inadequacy of appeal. The remedy is by appeal. If a litigant who is dissatisfied during trial with an evidentiary ruling, however erroneous, could interrupt the trial for an extended period, in this case over a year, while he seeks relief by mandamus, the expeditious handling of cases would clearly become impossible. We said as much in Burney v. Hargraves, 264 Ark. 680, 573 S.W.2d 912 (1978).

If the writ were used to stay the proceeding in the trial court whenever counsel thought a ruling to be erroneous, much of our time would be occupied in the piecemeal settlement of questions that should be presented by appeal, and the trial courts would be unduly hampered in the disposition of their cases.

In State v. Glenn and Hamilton, 267 Ark. 501, 592 S.W.2d 116 (1980), the circuit judge interrupted a bench trial to permit the state to take an interlocutory appeal to. determine whether evidence offered by the state should have been suppressed. We said:

A criminal trial cannot be suspended for weeks or months to allow an appeal from an interlocutory ruling upon the admissibility of evidence.

Appellant has presented no other argument to show the inadequacy of appeal, and presents nothing more than the possibility of error on the part of the trial court for which mandamus will not lie.

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. It seems to me that the majority has confused A.R.Cr.P. Rule 17 with Ark. Stat. Ann. § 43-2011.3, the statute here under consideration. The majority opinion does not recite the pertinent provisions of the statute, which reads as follows:

(b) After a witness called by the state has testified on direct examination, the Court shall, on motion of the defendant, order the state to produce any statement (as hereinafter defined) of the witness in the possession of the state which relates to the subject matter as to which the witness has testified. If the entire contents of any such statement relate to the subject matter of the testimony of the witness, the court shall order it to be delivered directly to the defendant for his examination and use.

The words “the Court shall” seem to be clear and unequivocal. It is not even implied that the Court has any discretion in the matter. There was no argument before the Court that the facts were an exception to the statute or that the statute was not applicable. The issue is squarely whether a trial court “shall” follow the plain wording of the statute.

I have no disagreement with the holding that mandamus cannot be substituted for appeal. Neither can it be used to review findings of fact, correct abuses of discretion, or correct erroneous conclusions of fact. We considered this same statute and facts almost identical to those in the present case in Blakemore v. State, 268 Ark. 145, 594 S.W.2d 231 (1980). There the defendant requested the reports after the officer had testified, which was also done in the present case. The trial court held the request was not timely as the same information was available by discovery pursuant to Criminal Procedure Rule 17.1(b). In reversing the trial court in Blakemore we stated:

It is provided by statute, however, that after a witness called by the State has testified on direct examination, the Court “shall,” on motion of the defendant, order the State to produce any relevant statement of the witness in its possession. Arkansas Stat. Ann. § 43-2011.3(b) (Repl. 1977). Thus the requests for statements were timely.

Also, see Nelson v. State, 262 Ark. 391, 557 S.W.2d 191 (1977), where the identical rule and statute were considered. This court reversed in Nelson for the same reasons stated in Blakemore.

The purpose of mandamus is not to establish a right but to enforce a right already established. Carter v. Marks, 140 Ark. 331, 215 S.W. 732 (1919). This definition remains operative and is still followed by the courts. Wells v. Purcell, 267 Ark. 456, 592 S.W.2d 100 (1979). In reversing a circuit court’s refusal to issue a writ of mandamus directing a city to hold a timely election we held that a public official has no discretion to do away with a right already established. Lewis v. Conlee, 258 Ark. 715, 529 S.W.2d 132 (1975).

What good is a statutory right if it may be ignored by a court. An appeal is time consuming and expensive. To force a person to resort to an appeal on refusal of the trial court to grant a vested statutory right, in most cases, has the effect of denying such (a statutory) right. In my opinion no court has the discretion to deny a statutory right unless it is either waived or is contrary to public policy or the Constitution.

I would issue a writ of mandamus.


author: Steele Hays, Justice.

text:
    Larry STOKES and Sylvia STOKES v. Shelton ROBERTS and Rita ROBERTS
    85-295
    711 S.W.2d 757
    Supreme Court of Arkansas
    Opinion delivered June 23, 1986

      Compton, Prewett, Thomas & Hickey, P.A., by: Floyd M. Thomas, Jr., for appellants.

      Wynne, Wynne & Wynne, by: Robin F. Wynne, for appellees.
   Steele Hays, Justice.

Larry and Sylvia Stokes, appellants, entered into an agreement to sell their western store to Shelton and Rita Roberts, appellees, for $45,000. The price covered the inventory, fixtures and equipment, and a registered quarter horse, worth about $2,000. The transaction was closed on June 14,1982, with one contract for the sale of the store for $26,500 and three bills of sale: 1) $ 15,000 for fixtures and equipment; 2) $ 11,500 for the inventory; and 3) $18,500 for the horse. These allocations were made simply to accommodate the buyers and had no correlation to actual values.

The Robertses took possession of the store but repudiated the contract a few days later, stopping payment on their checks given in payment of the purchase price. The Stokeses sued for breach of contract and after a bench trial were awarded $5,628 in damages — the difference between the value of the inventory and fixtures, $39,371, and the contract price of $45,000. The two points for reversal are without merit.

The Stokeses first contend interest they incurred on a loan should have been awarded as incidental damages resulting from the breach. They had been operating the store for several years when Mr. Roberts met Mr. Stokes in April 1982. They discussed the possibility of Roberts buying the store and the sale was consummated in June, 1982. When the Stokeses received payment of the $45,000, they deposited the proceeds in their account and paid off some outstanding debts. These debts included a balance of $31,000 on an existing mortgage on their home. The Stokeses assert the mortgage was to obtain funds to finance their business operations. When payment was stopped on the checks, the Stokeses had to borrow to cover the checks they had written and they again mortgaged their home to secure the debt. They submit this second loan was needed to operate their business. It is unclear whether the claim rests on the first or second loan, but in either case, it is without merit.

Appellants rely on recent cases holding that interest is recoverable on loans incurred by one party to perform a contract breached by the opposing party. In those cases interest was awarded from the time of the loan until the judgment was satisfied. This type of “incidental damages” is defined under UCC 2-710:

2-710. Seller’s Incidental Damages.
Incidental damages to an aggrieved seller include any commercially reasonable charges, expenses or commissions incurred in stopping delivery, in the transportation, care and custody of goods after the buyer’s breach, in connection with return or resale of the goods or otherwise resulting from the breach.

This recent innovation in the application of 2-710 is finding acceptance. See, Bulk Oil v. Sun Oil, 697 F.2d 481 (2nd Cir. 1983); Gray v. West, 608 S.W.2d 771 (Tex. 1980); Atlas Concrete Pipe v. Au, 467 F. Supp. 830 (1979); Intermeat v. American Poultry, 575 F.2d 1017 (2nd Cir. 1978).

Bulk Oil v. Sun Oil, supra and Gray v. West, supra, present typical situations when this principle is applied. In both cases the plaintiffs, as sellers, borrowed money to purchase the subject matter of a contract, which the opposing party later breached. When the breach occurred the sellers were left with a debt they would not otherwise have owed but for the contract-interest had to be paid on the loan until cover was effected. In Gray, the court found the actual interest, expenses on the money borrowed by the seller to finance the subject matter of the contract, incurred as a result of a buyer’s breach, were incidental damages under 2-710. Similarly, in Bulk Oil v. Sun Oil, the seller had borrowed $4,000,000 to finance a sale of oil to the buyer, who then defaulted, and the court held interest payments on the loan to be incidental to the breach.

We disagree that those cases govern this situation. The interest expense incurred in those cases was a result of performance made in reliance on the contracts. See, generally, Farnsworth, Contracts (1982) § 12.1, 12.8. It is the relationship between expenditure and the performance of the contract that provides a basis for holding that interest in those cases was incidental to the breach. See Ernst Steel Corp. v. Horn Construction Div., 104 App. Div. 55, 481 N.Y.S.2d 833 (1984).

Here, no expenditure was made by the Stokeses in reliance on the contract. Neither the earlier.nor the more recent loan was made in such reliance. At the time of the original loan, the Stokeses did not even know the Robertses. There is no contention that the original loan to finance the store had any relationship to the contract, much less that they relied on it.

As to the second loan, the Stokeses chose to pay off the note on their home with the proceeds of the contract. When the Robertses reneged, they had to acquire another loan to operate their business. While the Stokeses characterize this loan as distinct from the first, it is, in effect, simply a renewal of the previous debt, which had no real relationship to the contract.

The second loan was necessary, not to cover expenses incurred by performance in reliance on the contract, but because of the Stokeses’ decision to use the sale proceeds to pay off a preexisting debt. Had they used the proceeds on some unrelated venture and because of the breach had to cover the expense with a loan, it is clear that such an expense would not be recoverable. The debt was only coincidentally incurred to finance the business, a debt incurred at an earlier time with no relationship to the contract. In the cases cited, except for the performance in reliance on the contract, no loan would have been necessary. Atlas, supra. Had the Stokes never entered into this contract, they would be obligated on a loan nonetheless. In reality, the Stokeses are disappointed in their expectation of the use of the proceeds to pay off a pre-existing debt. However, the law does not go that far in fulfilling the expectation interest of a party. See generally, Farnsworth § 12.1, 12.8; Restatement of Contracts 2d (1981) § 344, 351.

The Stokeses’ second point concerns the construction the trial court gave to the contracts for the sale of the store for $26,500 and the sale of the horse for $18,500. Appellants argued to the trial court that the instruments should be read separately — the contract for the store for $26,000 would hold no loss, as its value was $39,471 and the contract for the horse at $18,500 would be a loss of $ 16,500, as the horse was valued at $2,000. The trial court, however, construed the contracts together to find the true intention of the parties and found the sale of the horse was not a separate transaction but part of the sale of the business for $45,000. The Stokeses argued on appeal that the contracts are clear and unambiguous and should be read separately as written.

The argument ignores other rules of construction. When two instruments are executed contemporaneously, by the same parties in the course of the same transaction, they should be considered as one contract for purposes of interpretation, in the absence of a contrary intention. Henslee v. Boyd, 235 Ark. 369, 360 S.W.2d 505 (1962); Gowen v. Sullins, 212 Ark. 824, 208 S.W.2d 450 (1948); Rawleigh v. Wilkes, 197 Ark. 6, 121 S.W.2d 886 (1938); Belding v. Vaughan, 108 Ark. 69, 157 S.W. 400 (1913). To arrive at the intention of the parties to a contract, courts may acquaint themselves with the persons and circumstances and place themselves in the same situation as the parties who made the contract. Schnitt v. McKellar, 244 Ark. 377, 427 S.W.2d 202 (1968). We may also consider the construction the parties themselves place on the contract. Hastings Industrial Co. v. Copeland, 114 Ark. 415, 169 S.W. 1185 (1914).

Appellants concede there is no serious claim the parties intended the instruments to be taken literally, but argue the trial court should have construed the contracts separately nonetheless because of the lack of ambiguity. Admittedly their aim was to get $45,000 for the inventory, which they valued at $39,000. The transaction was partitioned at the request of Mr. Roberts and Mr. Stokes testified that he did not care how it was done as long as he got $45,000. Stokes testified the horse and the inventory were a “couple deal” and he would have sold the store for $45,000 without the horse and he would not have sold the store alone for $26,500 without the arrangement for the horse. It is clear the contracts were intended as one and neither party would have agreed to one without the other. See Dynamics Corp. of America v. International Harvester Co., 429 F. Supp. 341 (S.D.N.Y.1977). See also Belding, supra; Hastings Industrial, supra.

Affirmed.


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

text:
    David SULLIVAN v. STATE of Arkansas
    CR 86-3
    711 S.W.2d 469
    Supreme Court of Arkansas
    Opinion delivered June 23, 1986
    [Rehearing denied July 21, 1986.]

      Chandler & Thomason, by: J. G. Molleston, for appellant.

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

       Holt, C.J., not participating.

   David Newbern, Justice.

The appellant was convicted of raping his thirteen-year-old stepdaughter. He was sentenced as an habitual criminal to sixty years imprisonment. He raises these points: (1) the court abused its discretion in refusing his application to subpoena out of state witnesses; (2) evidence of past sexual contacts between the appellant and the victim should have been excluded; (3) the court should have instructed on carnal abuse in the first degree as a lesser included offense; and (4) the evidence was insufficient. We find no merit in any of these arguments, and thus we affirm.

The appellant’s stepdaughter came to live with him in Missouri when she was eleven pursuant to an agreement between him and her mother. Her mother lived in Minnesota. The victim described the appellant as her stepfather. They moved from Missouri to a rent house at Emerson, Arkansas, where they lived with two other children and three other adult family members.

The victim testified that her stepfather began touching her in the “wrong places” when she was eleven and that the appellant began engaging in sexual intercourse with her when she was twelve. The record shows she was pregnant at thirteen, and apparently this brought her to the attention of Columbia County authorities. She testified she had had visits with social workers in Missouri and in Arkansas, and with a doctor, but that she had not told on the appellant because she feared him and did not want him to get into trouble.

The victim was asked to recall the 24th of March and if that was the last time she had intercourse with the appellant. She said it was a Saturday or a Sunday, she could not remember which. She said the appellant came into the bathroom where she was naked, except for a towel wrapped around her, preparing to take a bath. She said the appellant shoved her to the floor, took down his pants and underwear, and placed his penis in her vagina.

1. Witness Subpoenas

The appellant’s counsel petitioned the court for subpoenas to obtain the presence of the three adults who had been living with the appellant and the victim. The appellant’s counsel filed with the petition his affidavit stating that the witnesses were at a certain address in Hannibal, Missouri, some 600 miles away, and that they had been in the house where the rape was alleged to have occurred at the time it was alleged to have occurred. The state did not dispute these facts, but argued the appellant had not demonstrated the witnesses had material testimony to offer.

In argument on the motion it became clear that counsel for the appellant had not spoken with the three witnesses as to whom the subpoenas were sought. The court offered to give the appellant a continuance so he could complete his investigation. The appellant’s counsel apparently was unable to speak to the witnesses, as nothing further appears on the record. The court ultimately denied the motion.

The appellant had no absolute right to the subpoenas or to have the witnesses appear at government expense. Whether to honor such a request is within the discretion of the trial court. Perry v. State, 277 Ark. 357, 642 S.W.2d 865 (1982); Wright v. State, 267 Ark. 264, 590 S.W.2d 15 (1979); Mackey v. State, 279 Ark. 307, 651 S.W.2d 82 (1983). Given counsel’s inability to produce any evidence as to what these witnesses might or might not be able to say, we find no abuse of discretion.

2. Past Sexual Conduct

By a motion in limine, the appellant sought to prevent any testimony as to sexual contact between his stepdaughter and himself other than the offense charged. The motion was denied. The victim testified as to her prior sexual relationship with the appellant. She said he had hit her in connection with prior sexual episodes and she testified that he “hits pretty hard.”

In Price v. State, 267 Ark. 1172, 599 S.W.2d 394 (Ark. App. 1980), our court of appeals analyzed Uniform Rule of Evidence 404(b) which provides:

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

The court said:

In our view, the rule should be interpreted to exclude evidence of other offenses when its only purpose is to show the accused’s character or some general propensity he might have to commit the particular sort of crime in question. It should not be interpreted to exclude evidence of other offenses when that evidence is probative of the accused’s participation in the particular crime charged. If it is probative of his participation the only remaining question should be whether it is so prejudicial that it should be excluded because the prejudice brought about by exposition of other offenses is not sufficiently balanced by the probative value of the evidence on the facts sought to be proved. See, Rule 403. [267 Ark. at 1176, 599 S.W.2d at 396.]

We affirmed the court of appeals decision in Price v. State, 268 Ark. 535, 597 S.W.2d 598 (1980). We said:

Although petitioner contends that Rule 404(b) prohibits the introduction of testimony of other criminal activity, the rule clearly permits such evidence if it has relevancy independent of mere showing that the defendant is a bad character. In other words: ‘If other conduct on the part of the accused is independently relevant to the main issue — relevant in the sense of tending to prove some material point rather than merely to prove that the defendant is a criminal — then evidence of that conduct may be admissible, with a proper cautionary instruction by the court. (Citation omitted.)’ [268 Ark. at 538, 597 S.W.2d at 599.]

We most recently dealt with the question in Johnson v. State, 288 Ark. 101, 702 S.W.2d 2 (1986), where we again held that evidence of prior incestuous acts with the same person was admissible.

We interpret Rule 404(b) as meaning that if the evidence of prior bad acts is relevant to show the offense of which the appellant was accused occurred, and is thus not being introduced to show only bad character, we will not exclude it. While we may not be able to tie the evidence specifically to proof of “motive, opportunity, intent, preparation, plan, knowledge, identity or absense of mistake or accident,” if it has an independent relevancy we will regard it as being, in the words of the rule, “such as” one of those permissible objects of proof.

In this case the evidence that this forcible sexual intrusion by the appellant had been going on for some time was probative of both the victim’s fear of the appellant and the fact that a rape could have occurred in the bathroom of a house which might have been full of people, after the accused merely shoved the victim to the floor.

The trial court properly admonished the jury that the evidence was not being introduced to show the appellant’s bad character or that he may have been acting in conformity with that bad character. We find no error.

3. Lesser Included Offense

The appellant proffered an instruction on carnal abuse in the first degree as a lesser offense included in rape. The court declined to give the instruction.

The rape allegedly ocpurred March 24, 1985. Prior to March 7,1985, Ark. Stat. Ann. §41-1803 (Repl. 1977) provided:

Rape. — (1) A person commits rape if he engages in sexual intercourse or deviate sexual activity with another person:
(a) ----
(b) ----
(c) who is less than eleven years old.

On March 7,1985, Act 281 of 1985, codified as Ark. Stat. Ann. § 41-1803 (Supp. 1985), became effective. The comparable section defined rape as follows:

(1) Rape. A person commits rape if he engages in sexual intercourse or deviate sexual activity with another person:
(a) ----
(b) ----
(c) who is less than fourteen years of age. It is an affirmative defense to prosecution under this Section that the actor was not more than two years older than the victim.

This is the offense with which the appellant was charged.

The statute defining carnal abuse in the first degree, Ark. Stat. Ann. § 41-1804(1) (Repl. 1977), was not amended in 1985. It provides:

A person commits carnal abuse in the first degree if being eighteen years old or older, he engages in sexual intercourse or deviate sexual activity with another person not his spouse who is less than fourteen years old.

One definition of rape and the definition of carnal abuse in the first degree have thus become identical except that carnal abuse in the first degree requires proof that the accused be at least eighteen years old. Thus it is clear that carnal abuse in the first degree may not be regarded as a lesser included offense to rape as defined by § 41-1803(l)(c).

In Gaskin v. State, 244 Ark. 541, 426 S.W.2d 407 (1968), we held that to constitute an included offense, all the elements of the lesser offense must be contained in the greater offense which contains certain elements not in the lesser offense. Carnal abuse now contains an element not included in rape, i.e., that the accused be over eighteen. A seventeen-year-old who engages in intercourse with a thirteen-year-old could be convicted of rape [and not have the benefit of the affirmative defense provided in § 41-1803(l)(c)] but could not be convicted of carnal abuse in the first degree. Rape is a class Y felony. § 41-1803(2). Carnal abuse in the first degree is a class B felony. § 41-1804(2) (Supp. 1985). The sentencing range for class B is less punitive than for class Y. See Ark. Stat. Ann. § 41-901 (l)(a) and (c) (Supp. 1985).

We need go no further into the anomaly the new legislation has produced with respect to these offenses. It is enough to say there was no error resulting from refusing in this case to instruct on carnal abuse in the first degree because it is not a lesser included offense in the rape with which the appellant was charged.

4. Sufficiency of the Evidence

The appellant’s main contention in this point for reversal is that the state presented no clear evidence that the offense occurred on March 24, 1985. As noted above, the statute pursuant to which the appellant was charged went into effect March 7, 1985.

The victim testified that she and the appellant and the others moved to Arkansas in March, 1985, that the appellant engaged in intercourse with her three or four times after the move, and that they had been in Arkansas two or three weeks when the police came out to their house. When he began to inquire at trial during the victim’s testimony about the rape charged, the prosecutor asked and she answered as follows:

Q: I call your attention to around the 24th of March, around in that area, which was the last — was this the last time it happened? Do you remember the last time that he engaged in intercourse with you?
A: It was around Saturday or Sunday one, I can’t remember.
Q: Tell the jury if you will very loudly . . . very clearly, what happened on that day.

The victim then recited the details of her final sexual encounter with the appellant.

We must view the evidence most favorably to the appellee. Thompson v. State, 284 Ark. 403, 682 S.W.2d 742 (1985); McCree v. State, 266 Ark. 465, 585 S.W.2d 938 (1979). While it is true that the victim did not give a clear reference to a date after March 7,1985, we hold her testimony was sufficient to show the rape occurred on or about March 24,1985, as charged, and in any event was sufficient to sustain the conclusion the rape occurred after March 7, 1985.

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. Anomaly or not, carnal abuse in the first degree is established by proof of the same or less than all the elements required to establish the commission of rape as defined in Ark. Stat. Ann. § 41-1803 (l)(c) (Supp. 1985). In order to provide a quick comparison the statutes involved are set out below.

Ark. Stat. Ann. § 41-105 (Repl. 1977):

(2) A defendant may be convicted of one offense included in another offense with which he is charged. An offense is so included if:
(a) it is established by proof of the same or less than all the elements required to establish the commission of the offense charged; ....

Ark. Stat. Ann. § 41-1803 (Supp. 1985):

(1) Rape. A person commits rape if he engages in sexual intercourse or deviate sexual activity with another person:
(c) who is less than fourteen years of age. It is an affirmative defense to prosecution under this Section that the actor was not more than two years older than the victim.

Ark. Stat. Ann. § 41-1804 (Repl. 1977):

A person commits carnal abuse in the first degree if being eighteen years old or older, he engages in sexual intercourse or deviate sexual activity with another person not his spouse who is less than fourteen years old.

It can be clearly seen from the above statutes that carnal abuse in the first degree and rape as charged herein may be committed upon the exact same facts. The evidence clearly shows the appellant to be over the age of 18 and the victim to be under the age of 14. Since the facts of this case clearly establish either and/or both offenses, the appellant was entitled to have the jury instructed on both. We have many times held that an offense is included in another if it is established by proof of the same or less than all the elements required to establish the commission of the other offense. Akins v. State, 278 Ark. 180, 644 S.W.2d 273 (1983); Rowe v. State, 275 Ark. 37, 627 S.W.2d 16 (1982); Swaite v. State, 272 Ark. 128, 612 S.W.2d 307 (1981).

I would reverse and remand because the court refused to give the instruction on carnal abuse in the first degree.


author:
Jack Holt, Jr., Chief Justice.
      David Newbern, Justice,

text:
    Johnny GORMAN et ux v. Russell RATLIFF
    85-322
    712 S.W.2d 888
    Supreme Court of Arkansas
    Opinion delivered June 30, 1986

      James B. DePriest, Central Arkansas Legal Services, for appellants.

      Bridges, Young, Matthews, Holmes & Drake, by: Michael J. Dennis, for appellee.
   Jack Holt, Jr., Chief Justice.

This landlord/tenant case requires interpretation of the Forcible Entry and Detainer statutes, Ark. Stat. Ann. §§ 34-1501 — 34-1512 (Supp. 1985). Because we are being asked to interpret an act of the General Assembly, our jurisdiction is pursuant to Sup. Ct. R. 29(1 )(c).

The appellants, Johnny and Mary Gorman, were tenants of the appellee, Russell Ratliff. The appellants admit that they became delinquent in their rent payments and that the appellee asked them to vacate the premises. Before they did so, Ratliff entered the rental house while the appellants were not at home and removed all of their personal property. Ratliff then stored the property, which included a refrigerator, stove, beds, childrens’ toys, a bassinet, personal papers, and other items. The appellants filed suit against Ratliff claiming his actions constitute a wrongful and constructive eviction, and a wrongful conversion of property.

Ratliff filed an answer and counterclaim in which he claimed that appellants had violated the terms of the lease agreement between the parties. Ratliff relied on provisions in the lease permitting him upon nonpayment of rent to enter the property and store all personal property left at the leased premises. The lease also provided that if the charges are still unpaid after 30 days, the stored property can be sold to satisfy the rent arrearage.

In an amended complaint, appellants alleged that Ratliffs actions constitute a forcible entry and detainer. To the extent that appellee’s actions were in accordance with the terms of the lease, appellants claim the lease is illegal, unconscionable and against public policy.

The parties stipulated that the lease was entered into on November 30, 1984, that Ratliff and not appellants has had possession of the premises since April 23, 1985, and that Ratliff has had possession of appellants’ personal property since then, and that no judicial order has been entered granting possession of the personal property to Ratliff.

The trial court ruled, after a preliminary hearing on appellants’ motion for relief pendente lite that, pursuant to the lease contract, Ratliff had a right to peaceable repossession of the premises and a lien on the personal property found therein. After a trial, the court denied appellants’ claim and awarded Ratliff $528 on his counterclaim, that amount representing unpaid rent and moving, storing, and cleaning expenses. The court further found that the lease conforms to all applicable Arkansas law. We disagree and reverse the trial court’s order.

The lease provided in pertinent part:

10. Any violation of any provision of this lease by any of the lessees, or any person on the premises with the lessee’s consent, or any failure to pay rent upon the date due, shall result, at the option of the lessor, in the immediate termination of this lease without notice of any kind, and lessor may thereupon enter said premises and take and retain possession thereof and exclude lessees therefrom.
12. If lessees leave said premises unoccupied at any time while rent is due and unpaid, lessor may, if desired, take immediate possession thereof and exclude lessee therefrom, removing and storing at the expense of said lessees all property from contained therein.
14. The lessor shall have the lien granted by law all baggage and other property of lessees for their rent, accomodation and services, and the lessees hereby grant to lessor a lien upon all personal property brought into said premises, regardless of any provisions of law or whether or not the apartment is furnished, and lessor may enforce said lien as provided by law or by entering said premises and either taking possession thereof and the belongings contained therein for safekeeping, or by removing said property therefrom and storing the same at the expense of the lessees. Said lien may be enforced whenever rent is due and unpaid and regardless of whether or not a three (3) day notice to pay rent or quit shall have been served, and enforcement of the lien shall not operate to waive any other rights of the lessor in unlawful detainer or otherwise. If rent is still due and unpaid thirty (30) days after the enforcement of said lien, then the lessor may sell any or all personal property taken possession of as herein provided, and may apply any monies received against the unpaid rent, ....

In Act 615 of 1981 the legislature revised the statutes describing the cause of action for forcible entry and detainer and unlawful detainer and prescribing the procedure for carrying out the rights and remedies of the affected parties. The legislature did so because it found the former statutes were in need of clarification and revision and it was in the best interest of the people that “an additional procedure be specifically prescribed for the enforcement of the rights of parties. . .” Ark. Stat. Ann. § 34-1501 (Supp. 1985). That additional procedure afforded persons affected by the legislation an opportunity to be heard on legitimate objections to writs of possession, Id. At the outset, therefore, the legislature evinced a desire to extend additional protection to parties in possession of property before that property could be taken from them, as well as to provide for procedures to expedite the removal of parties who are unlawfully in possession of property.

Section 34-1503 defines those acts that will constitute a forcible entry and detainer as follows:

If any person shall enter into or upon any lands, tenements or other possessions and detain or hold the same without right or claim to title, or who shall enter by breaking open the doors and windows or other parts of the house, whether any person be in or not, or by threatening to kill, maim or beat the party in possession or by such words and acts as have a natural tendency to excite fear or apprehension of danger or by putting out of doors or by carrying away the goods of the party in possession, or by entering peaceably and then turning out by force or frightening by threats or other circumstances of terror the party to yield possession, in such cases every person so offending shall be deemed guilty of a forcible entry and detainer within the meaning of this Act.

Included in this list is the action taken by the landlord in this case: “carrying away the goods of the party in possession”. Appellee asks us to read this statute as prohibiting only people “without right or claim to title” from carrying away the goods of the party in possession. We do not find his position persuasive however. In this statute, the legislature has embodied guidelines of prohibited conduct, any one of which constitutes a forcible entry and detainer within the meaning of the Act, thus giving protection to appellants.

In addition to delineating prohibited conduct, the legislature provided a remedy for landlords with holdover tenants and others guilty of forcible entry and detainer and unlawful detainer. Once a party is unlawfully in possession of property, the person with a cause of action under this Act may file a complaint and an affidavit in circuit court and the complaint will then be served on the defendant with a notice of intention to issue a writ of possession. § 34-1507. If the defendant does not respond within five days the writ of possession is issued. If the party responds and objects, a hearing will be held. At the hearing, if the court decides the plaintiff is likely to succeed and the plaintiff provides adequate security, the court then orders the clerk to issue the writ. Id. For the defendant to retain possession of the property, he must provide adequate security. Id.

Although a landlord’s use of self-help to evict a holdover tenant is not specifically addressed by the act, § 34-1502 does provide:

No person shall enter into or upon any lands, tenements, other possessions, and detain or hold the same, but where an entry is given by law, and then only in a peaceable manner.

No entry by a landlord onto property occupied by another is given by Act 615, except by first resorting to legal process. Accordingly, self-help action is prohibited.

This finding is in keeping with the long standing policy behind the forcible entry and detainer statutes, which were first enacted to prevent landlords from retaking their land by force. Vinson v. Flynn, 64 Ark. 453 (1897). The statutes were designed to restore possession to the tenant until the right to possession could be adjudicated and to compel people “to the more pacific course of suits in court, where the weak and strong stand upon equal terms.” Id., quoting Littell v. Grady, 38 Ark. 584; see also 35 Am Jur 2d Forcible Entry & Detainer § 5 p. 894 (1967). This concept has evolved until now the modern doctrine requires a landlord, otherwise entitled to possession, upon the refusal of the tenant to surrender the leased premises, to “resort to the remedy given by law to secure it”. 50 Am Jr 2d Landlord & Tenant § 1220 p. 104 (1970); Annotation, 6 A.L.R.3d 177 § 5 (1966).

Other courts addressing this same question have held that, although the real owner of the property may be ultimately entitled to possession of the property, the entry and detainer action is designed to compel the party out of actual possession to respect the present possession of the other party and resort to legal channels to obtain possession. See e.g., Floro v. Parker, 205 So.2d 363 (Fla. 1968); Jordan v. Talbot, 55 Cal. 2d 597, 12 Cal. Rptr. 488, 361 P.2d 20 (1961); Bass v. Boetel & Co., 191 Neb. 733, 217 N.W.2d 804 (1974); and Edwards v. C.N. Investment Co., 27 Ohio Misc. 57, 272 N.E.2d 652 (1971).

The Arkansas Legislature through Act 615 has expressed its intention to prohibit landlords from entering premises without statutory authority. Recognizing that landlords, too, have rights with respect to their property, and the problems they face, particularly with holdover tenants, the legislature in the same Act establishes procedures to enable them to expeditiously evict tenants.

Although the terms of the lease agreement clearly permitted Ratliff’s actions, the appellants did not waive their rights under the forcible entry and detainer statutes by executing the lease agreement. Section 34-1503 prohibits several kinds of conduct and the appellee is asking us to find that the tenant waived one of them. The provisions of § 34-1503 cannot be isolated so as to permit waiver of a portion of the statute. Nor can the entire statute be waived, since to do so would conceivably permit a person to threaten “to kill, maim or beat the party in possession,” actions which are absolutely prohibited.

For these reasons those provisions of the lease authorizing the landlord’s self-help remedy are invalid and the trial court’s granting of relief to appellee is reversed.

Appellants include a prayer for actual and punitive damages in this appeal. Section 34-1509 provides that, if the judgment is for the tenant, the court should give judgment for costs and “any damages that may be assessed in favor of the defendant.” The only evidence of damages which can be found in the record is the appellants’ claim that the property taken from them was worth $1,000. Much of that property has now been returned pursuant to appellants’ claim of exemption. There was no evidence presented as to punitive damages.

Accordingly, we remand this matter to the trial court to determine what, if any, damages have been suffered by appellants.

Reversed and remanded.

Hickman and Newbern, JJ., concur.

David Newbern, Justice,

concurring. The result reached by the majority is correct. However, I believe the majority opinion does not correctly address the central issue in the case. That issue is whether a lessee, by a provision in a lease contract, may confer upon the lessor the “right” to enter which, according to Ark. Stat. Ann. § 34-1503 (Supp. 1985), exempts the landlord from liability for forcible entry.

The majority opinion adequately describes the policies behind the forcible entry and unlawful detainer statutes. However, in applying those policies to invalidating the provisions of the lease which are contrary to them the only discussion is about whether one part of the statute may be “waived” and not the others. If that were the issue, I believe a strong argument could be made that, by contract, the parties might create a landlord’s “right” to enter but might not be able to create a right to commit the criminal acts stated disjunctively in § 34-1503.

We should say simply that the General Assembly has stated a strong public policy against forcible entry by a landlord, and a contract by which the parties seek to avoid that policy is invalid. In Ladd v. Ladd, 265 Ark. 725, 580 S.W.2d 696 (1979) we held an agreement invalid for violation of public policy. See also Hultsman v. Carroll, 177 Ark. 432, 6 S.W.2d 551 (1928); Swann v. Swann, 21 F. 299 (E.D. Ark. 1884); Woodson v. Kilcrease, 7 Ark. App. 252, 648 S.W.2d 72 (1983). The Arkansas General Assembly has made our public policy clear in the area of landlord-tenant relations. We need not go beyond that policy to find the contract invalid and unenforceable.

Hickman, J., joins.


author: Jack Holt, Jr., Chief Justice.

text:
    Maria H. WILES v. John H. WILES
    86-75
    711 S.W.2d 789
    Supreme Court of Arkansas
    Opinion delivered June 30, 1986

      Redden & Hirby, by: Michael Redden, for appellant.

      Baim, Gunti, Mouser, Bryant & DeSimone, by: Judith A. DeSimone, for appellee.
   Jack Holt, Jr., Chief Justice.

The sole issue to be decided in this appeal is whether to apply our decisions in Day v. Day, 281 Ark. 261, 663 S.W.2d 719 (1984) and Young v. Young, 288 Ark. 33, 701 S.W.2d 369 (1986) retroactively to a divorce decree which became final prior to the decisions in those two cases. Our jurisdiction is pursuant to Sup. Ct. R. 29(1 )(c) to interpret Act 705 of 1979.

The parties, John and Maria Wiles, divorced on November 16, 1982, after approximately 20 years of marriage. Mr. Wiles was in the military during the marriage. The decree provided:

[T]he Court hereby specifically authorizes the Defendant to have all of the benefits for herself and her children under the new Former Spouses Protection Act of the United States Congress except that she is not entitled to any portion of any provision regarding present, past or future retirement benefits of the Plaintiff.

Arkansas law at the time provided that military retirement pensions were not “marital property” under Ark. Stat. Ann. § 34-1214 (Repl. 1962). Paulsen v. Paulsen, 269 Ark. 523, 601 S.W.2d 873 (1980). Mrs. Wiles did not appeal from the decree.

On January 30, 1984, this court handed down Day v. Day, supra, in which we held that an employer-sponsored retirement plan was marital property subject to allocation. In so holding, we stated:

After the adoption of Act 705 of 1979 we failed to give full effect to the new law and instead adhered to the position we had taken under a quite different statute. In Paulsen v. Paulsen, 269 Ark. 523, 601 S.W.2d 873 (1980), we decided that a military pension, currently being paid but not transferable, was not marital property. . . .
We now realize that we have inadvertently failed to recognize the new concept of “marital property,” created by Act 705 of 1979, as amended. That statute defines marital property as all property acquired by either spouse subsequent to the marriage, with exceptions not important here. Section 34-1214 (Supp. 1983). That law directs that all marital property be distributed equally unless the court finds that division inequitable.

In Young v. Young, supra, we held that military retirement benefits also constitute marital property and that our prior holding in Paulsen was effectively overruled by Day and its progeny.

On September 9, 1982, the Uniformed Services Former Spouses’ Protection Act, 10 USCA § 1408, was enacted into law and became effective February 1,1983. The Act permitted states, whose laws so provide, to divide military retired pay as marital property. See Durham v. Durham, 289 Ark. 3, 708 S.W.2d 618 (1986).

On April 30, 1985, the appellant, Mrs. Wiles, filed a complaint in chancery court seeking modification of the divorce decree. The portion of that complaint at issue here asked the chancery court to apply the Day decision retroactively and allow her a portion of Mr. Wiles’ military retirement pension. The chancellor determined that Day should not be applied retroactively and dismissed that portion of the complaint. In so holding, the chancellor acknowledged that if Mr. and Mrs. Wiles had been divorced at any time following Day, Mrs. Wiles would have been entitled to make a claim for a portion of the pension. In refusing to allow her to do so now, the chancellor noted that the prior rule of law was relied upon when the decree was entered and that probably hundreds of divorces were granted between the dates of the passage of the Uniformed Services Former Spouses’ Protection Act and the Day decision, and a retroactive application may very well burden the administration of justice.

We find the principle of reliance to be persuasive and affirm the chancellor’s holding on that basis.

Although we have long held that a decision of this court, when overruled, stands as though it had never been, Taliaferro v. Barnett, 47 Ark. 359 (1886), we have also acknowledged the need, when overruling prior case law, to recognize the validity of actions taken in faith upon old decisions while stating the rules to be followed in the future. See Crisco v. Murdock Acceptance Corp., 222 Ark. 127, 258 S.W.2d 551 (1953). This court has also observed that no matter how a new rule of law is applied, the benefit of the new decision is denied to some injured persons when there is any change in the law. Parish v. Pitts, 244 Ark. 1239, 429 S.W.2d 45 (1968).

Here, our previous holdings, even though ultimately determined to be erroneous, were justifiably relied upon by the parties and by the trial court when the original decree was entered. Since that time, the parties have restructured their lives, no doubt based in part on the terms of the decree. For this court to reopen the proceedings and cause a new division of property to be made, nearly four years later, would work a great hardship on the parties and would defeat the purposes underlying the doctrine of res judicata. See Annotation, 10 ALR 3d 1371,1403 § 8 [d] (1966).

Accordingly, the chancellor’s decree is affirmed.


author: George Rose Smith, Justice.

text:
    Decima ZINI et al. v. Freddie PERCIFUL, Administrator, et al.
    86-76
    711 S.W.2d 477
    Supreme Court of Arkansas
    Opinion delivered June 30, 1986

      Green Law Offices, by: Anthony J. Sherman, for appellants.

      Wallace & Hammer, by: James B. Wallace, for appellees.
   George Rose Smith, Justice.

Angelo Zini died in October, 1983. By petition an attempt was made to probate any one of three separate writings as Mr. Zini’s will. The validity of all the proffered instruments was challenged. The court appointed a master to take testimony. This appeal is from a judgment adopting the master’s finding that none of the three writings was a valid will. One was found to be largely typewritten but not witnessed. The other two, though handwritten, were found to contain numerous strike-throughs, to be almost illegible, to fail to reflect an intent to make a will, and to lack the necessary words of dispositive character.

The appellants, beneficiaries of the purported will that was dated May 17, 1978, argue that because there is a strong presumption against intestacy, the trial court should have found the language of the instrument sufficient to constitute a valid holographic will. Two phrases, apparently quoted from the writing in question, are relied on to support the argument.

It is impossible for us to consider the appellants’ contentions, because counsel have not provided us either with an exact quotation of the instrument in question or with an abstract of it. We have no idea how it reads. We are referred by the appellants to Exhibit 2 in the transcript, but for a hundred years we have pointed out, repeatedly, that there being only one transcript it is impractical for all members of the court to examine it, and we will not do so. An early case, among scores of such cases, is Shorter University v. Franklin, 75 Ark. 571, 88 S.W. 974. There we noted, in 1905, that the rule (now Rule 9) had been promulgated twenty years earlier.

In a reply brief counsel for the appellants put forth this explanation for the omission in their original brief:

Appellants were unable to abstract the decedent’s wills in words. Rule 9(d) provides that when a map, or other similar exhibit can not be abstracted in words, appellant shall reproduce such exhibit and attach it to the copies of the abstract. Appellants attempted to file their brief attaching a copy of the subject wills to their brief, but the Supreme Court Clerk refused to accept it because of the proposed exhibit. Since this Court reviews this appeal de novo, appellants referred to the records so the Court could see the subject wills. Appellants submit that they have complied with Rule 9 of the Rules of the Supreme Court and that this case should not be summarily affirmed because of any deficiency.

The explanation misconceives the purpose of Rule 9, for in effect counsel are insisting that all seven judges examine the transcript. The wills were all written instruments and could have been abstracted in words, which is probably why the clerk rejected the proffered brief. Better still, the wills could have been copied verbatim in the abstract of the record, that being almost invariably the preferred practice when a will, deed, contract, or other writing is to be interpreted. If counsel wanted the members of the court to see the wills in their original form, the wills should have been included in the abstract and also attached to the brief in the form of photocopies. Finally, even though we review probate court appeals de novo, the review is upon the record as abstracted, not upon the original record. Smock v. Corpier, 226 Ark. 701, 292 S.W.2d 260 (1956).

Affirmed.