author: Darrell Hickman, Justice.

text:
    Lloyd C. FOSTER v. STATE of Arkansas
    CR 81-115
    631 S.W. 2d 7
    Supreme Court of Arkansas
    Opinion delivered April 5, 1982

      Bill F. Jennings, for appellant.

      Steve Clark, Atty. Gen., by: Arnold M. Jochums, Asst. Atty. Gen., for appellee.
   Darrell Hickman, Justice.

This appeal arises from Lloyd Foster’s convictions of aggravated robbery and first and second degree battery. He was sentenced by a jury to consecutive terms of fifty years, thirty-five years, and twenty years.

The State’s evidence was that on March 2, 1981, Lloyd Foster, Ray Smith and Stanley Young set out from Little Rock to rob a bank in Emerson, Arkansas, in Columbia County, which was Stanley Young’s hometown. Once in Emerson they stopped at Wise’s general merchandise store. Smith and Young went in, looked at gloves and bought cigarettes. The appellant joined them and while there stole a pair of the gloves. The men then drove to the bank. There were too many potential witnesses in the area, so they circled the block several times. By the time they stopped, the bank had closed. Unable to get the doors open, their robbery attempt was thwarted. The men left, bought a six pack of beer and drank it while deciding their next move. One of them suggested robbing Wise’s. They planned that Ray Smith and the appellant would go in while Stanley Young would wait in the car with the motor running.

After arriving at Wise’s, Ray Smith, wearing a ski mask, approached Mrs. Wise outside of the store. He ordered her inside and then struck her on the head with his pistol, knocking her unconscious for a moment. When Mrs. Wise came to she saw that her husband was being robbed by the appellant. Ray Smith then sprayed her face with mace. The appellant struck Mr. Wise in the head, got a small amount of money, and then shot Mr. Wise three times. The men ran outside to the waiting car and fled.

Stanley Young was arrested two days later. He testified for the State at the appellant’s trial.

The appellant raises four issues on appeal. First he argues that the trial court erred in denying his motion for a change of venue. His motion included affidavits by four Columbia County residents who stated that the appellant would be unable to get a fair trial there. The State countered with two affidavits that averred that the appellant could receive a fair trial. The trial court held a venue hearing at which the appellant called eight witnesses who testified that they felt that the citizens of the county would be unable to render an impartial verdict. Three of the witnesses admitted, however, that all or most of the people they talked to about the robbery were from Magnolia. Three witnesses stated that they could not speak for anyone else, that it was merely their own opinion that the defendants would be unable to receive a fair trial in Columbia County. One of the witnesses admitted that he believed that the State would still have to prove its case beyond a reasonable doubt before obtaining a conviction. The State called no witnesses at the hearing.

A movant must demonstrate that there is countywide prejudice against him before his motion for a change of venue will be granted. Cheney v. State, 205 Ark. 1049, 172 S.W. 2d 427 (1943). At the hearing the trial judge made a concerted effort to determine whether the witnesses had personal knowledge of countywide sentiment towards the appellant. From the witnesses’ answers he concluded that the appellant had not met his burden of proving that he was entitled to a change of venue. The denial of a motion for a change of venue is within the discretion of the trial judge and his order is conclusive on appeal in the absence of an abuse of that discretion. DuBois v. State, 258 Ark. 459, 527 S.W. 2d 595 (1975). There was ample testimony by the appellant’s witnesses from which the trial judge could conclude that the witnesses had no personal knowledge of prejudice that existed throughout Columbia County.

In his second point for reversal the appellant argues that there was insufficient evidence that the appellant committed second degree battery on Mrs. Wise and that the charge should not have been submitted to the jury. Mrs. Wise testified that Ray Smith, the appellant’s accomplice, hit her in the head with his pistol. The blow cut her ear, knocked her down, and caused her to lose consciousness. As she came to, Smith sprayed her face with mace.

The applicable statute only requires that a person cause another physical injury by means of a deadly weapon. Ark. Stat. Ann. § 41-1602 (1) (b) (Repl. 1977). Mrs. Wise testified that she suffered physical injury when she was hit with a pistol, which is a deadly weapon. There was no error in submitting that charge to the jury.

Appellant argues in his third point that he was prejudiced when the judge spoke with Stanley Young during a recess in the trial in the presence of the jury. He contends that the judge’s action lent a special credibility to Young’s testimony for the State. The appellant does not provide us with any facts as to the reason for the conversation, what was said, whether it was within the hearing of the jury, the length of the conversation, or who initiated it. Neither does the appellant demonstrate how he was prejudiced. In the absence of any such facts we cannot say the appellant was prejudiced when the court denied his motion for a mistrial after the incident occurred.

In his fourth point for reversal, the appellant argues that first and second degree battery are lesser included offenses of aggravated robbery and, therefore, to convict him of all three violates the constitutional prohibition against double jeopardy. We will not consider the argument as it relates to the second degree battery because he did not raise it to the trial court. Instead, the only objection made was:

The defendant Lloyd Foster moves the Court that the charges of aggravated robbery and the charges of first degree battery with the appendage of the extra penalty for firearms constitute a double jeopardy, and one or the other should not be submitted.

Nor will we consider the argument made on appeal that the extension of appellant’s sentences for first and second degree battery for use of a firearm pursuant to Ark. Stat. Ann. § 41-1004 subjects him to double jeopardy because it was not raised below. Wicks v. State, 270 Ark. 781, 606 S.W. 2d 366 (1980).

Ark. Stat. Ann. § 41-105 (1) (a) and (2) (a) (Repl. 1977), provides:

(1) When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense. He may not, however, be convicted of more than one offense if:
(a) one offense is included in the other, as defined in subsection (2); . . .
(2) ... 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; . . .

At issue is whether first degree battery is established by proof of the same or less than all of the elemens required to prove aggravated robbery. In this case, we must determine whether it is possible to commit aggravated robbery without committing first degree battery. We find that it is possible. One can commit aggravated robbery merely by committing robbery and being armed with a deadly weapon or representing that he is so armed. Ark. Stat. Ann. § 41-2102 (Repl. 1977). To commit first degree battery, however, one must actually inflict serious injury. Ark. Stat. Ann. § 41-1601 (Repl. 1977). Therefore, the appellant’s conviction of both aggravated robbery and first degree battery did not violate the double jeopardy prohibition of Ark. Stat. Ann. § 41-105. See Swaite v. State, 272 Ark. 128, 612 S.W. 2d 307 (1981).

Affirmed.


source: Caselaw Access Project

author: John I. Purtle, Justice.

license: Public Domain

text:
    Richard Daniel McGUIRE, C.L. McGUIRE and Viola McGUIRE v. Sharon Lynn McGUIRE, Rebecca Lynn Mc WILLIAMS and Reba Evett McWILLIAMS
    82-21
    631 S.W. 2d 12
    Supreme Court of Arkansas
    Opinion delivered April 5, 1982

      LeRoy Autrey, of Autrey ir Weisenberger, and Kirk D. Johnson, of Lingo & Johnson, for appellants.

      C. Wayne Dowd, of Dowd, Harrelson ir Moore, for appellees.
   John I. Purtle, Justice.

The Probate Court of Miller County considered an instrument purporting to be the last will and testament of the decedent, Carl Edward McGuire, and a petition to grant letters of administration on the estate. The will had given the testator’s property to his wife with the residual beneficiaries being his stepchildren. A divorce ensued; however, the will was not changed. The court rejected the petition for letters of administration and construed the will as though the widow had predeceased the testator and awarded the bounty to the decedent’s stepchildren in accordance with the terms of the will.

On appeal the appellant argues two points: (1) the court erred by faiing to recognize the intent of the decedent as expressed in his will and in treating the will as though the former wife had predeceased him; and, (2) the court erred in holding that the stepchildren named in the will should take the estate as residuary legatees. We hold that the probate j udge reached the right results in his construction of the will and in the rejection of the petition for appointment of an administrator of the estate.

Carl Edward McGuire executed his last will and testament on January 21, 1975, while he was a resident of Jacksonville, Florida. He and his wife, Sharon Lynn McGuire, were subsequently divorced in Miller County, Arkansas, on January 28, 1980. He died on February 23, 1980. His will was not changed prior to his death.

On March 26,1980, appellant, Richard Daniel McGuire, oldest brother of the decedent, filed a petition in the probate court in which he sought appointment as administrator of the decedent’s estate whom he alleged had died intestate. On April 9, 1980, the former wife filed a petition to probate the will of the decedent.

The pertinent parts of the will were as follows:

SECOND: I give, devise, and bequeath the rest, residue and remainder of my estate of every nature and wherever situated to my wife, SHARON LYNN McGUIRE, or, if she shall not survive me, to my surviving stepchildren in equal shares. If neither my wife nor any stepchild shall survive me, I give, devise, and bequeath the rest, residue, and remainder of my estate of every nature and wherever situated to my brother, RICHARD DANIEL McGUIRE, of Texarkana, Arkansas.
THIRD: At the time of the execution of this will I have two stepchildren, REBECCA LYNN McWILLIAMS and REBA EVETTE McWILLIAMS. If subsequent to the execution of this will there shall be additional children born to me, including additional children born after my death or, if there shall be additional children adopted by me, and if any such children shall survive me, then and in such event such children shall share in the benefits of my estate equally and to the same extent as my stepchildren hereinabove named, and the provisions of this will shall be deemed modified to the extent necessary to effectuate such intention.

The facts were stipulated and the court admitted the will to probate and ruled that the stepchildren should take the estate of the testator as residuary devisees. The court held that the divorce caused the will to be treated as if the wife had predeceased the testator.

Ark. Stat. Ann. § 60-407 (Supp. 1981) reads as follows:

If after making a will the testator is divorced or the marriage of the testator is annulled, all provisions in the will in favor of the testator’s spouse are thereby revoked. With these exceptions, no will or any part thereof shall be revoked by any change in the circumstances, condition or marital status of the testator; subject, however, to the provisions of Section 33 [§ 60-501] of Act 140 of the Acts of 1949.

We think the above-quoted statute is controlling in this case. The clear meaning of the words used in the statute is that any bequest to the former spouse is void but the remainder of the will remains in effect. Therefore, the stepchildren were the residuary legatees and the proper parties to receive under the will. It is not necessary for us to try to reach the intent of the testator because the statute solves that problem for us. In view of the obvious effect of the statute we see no reason to embark upon a long discussion in order to decide this case. Therefore, in accordance with Ark. Stat. Ann. § 60-407 the named stepchidren are entitled to receive the property under the terms of the will.

Affirmed.


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

text:
    Frank SMITH v. Bill CAUTHRON, as Sheriff of Sebastian County
    CR 81-124
    631 S.W. 2d 10
    Supreme Court of Arkansas
    Opinion delivered April 5, 1982

      John W. Settle, for appellant.

      Steve Clark, Atty. Gen., by: Matthew Wood Fleming, Asst. Atty. Gen., for appellee.
   John I. Purtle, Justice.

The Sebastian County Circuit Court rejected appellant’s petition for a writ of habeas corpus wherein he sought release from confinement being imposed pursuant to the Governor’s arrest warrant on extradition proceedings. This appeal is based solely upon the grounds that the court erred in failing to grant the writ. We hold the trial court acted properly in denying the petition for a writ of habeas corpus.

On February 18, 1981, the Fort Smith Police Department received a teletyped message from the Newport News, Virginia, Police Department that one Frank Smith was wanted in Virginia on a warrant charging him with embezzlement. They furnished the Fort Smith officers the name, address and telephone number where Frank Smith could be contacted. Two officers proceeded immediately to the address, found the appellant and informed him he was wanted on a warrant in Newport News, Virginia. They placed him under arrest to be held for the Virginia authorities. After arriving back at the station the officers recontacted the Virginia authorities, both by teletype and telephone, and were furnished more details about the warrant. While at the police station, appellant admitted he had been employed by the people who had caused the warrant to be issued but denied that he took any money. An information sheet and arrest report were made out which included the appellant’s date of birth and social security number. It later developed that the date of birth was exactly two years off and the social security number had the two middle numbers different from the information received from Virginia.

The appellant remained in the Sebastian County jail until his petition for habeas corpus was heard on August 27, 1981. In the meantime, on April 8, 1981, the Governor of Arkansas issued his warrant ordering appellant extradited. Appellant is, of course, being held subject to disposition of this case on appeal.

The only issue before the court is whether the Governor’s warrant of arrest was valid. It appears valid on its face as does the requisition from the Governor of Virginia. This case is almost on all fours with the case of Cadle & Pierce v. Cauthron, Sheriff, 266 Ark. 419, 584 S.W. 2d 6 (1979). There we pointed out that the Constitution of the United States, art. 4, § 2, cl. 2, states:

A person charged in any State with Treason, Felony, or other Crime who shall flee from Justice and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime,

We also pointed out in Cadle if Pierce that Arkansas had adopted the Uniform Criminal Extradition Act [Ark. Stat. Ann. §§ 43-3001 — 3030 (Repl. 1977)], which is essentially the same as the provisions of 18 United States Code § 3182 which in turn reflect the same provisions as the federal constitution quoted above.

After the Governor issues his warrant the only matters which can be considered by the court, when extradition is contested, are (1) whether the party detained is the person named in the warrant and, (2) whether he is a fugitive. Glover v. State, 257 Ark. 241, 515 S.W. 2d 641 (1974).

The facts reveal the Virginia authorities contacted the Arkansas authorities and furnished appellant’s name, address and telephone number. The appellant was picked up at this address almost immediately. Later on the same day the Fort Smith police learned the name of the employer from whom the appellant was alleged to have taken funds. Appellant admitted having been employed by that employer in Newport News but denied he took any funds. The minor error in the social security number and the date of birth resulted from information furnished by the appellant after he was taken into custody and informed there was a warrant in Virginia for his arrest. The above unrefuted facts are substantial evidence which could properly be used to determine the appellant was indeed the man named in the Virginia warrant and that he was a fugitive. The requisition from the Governor of Virginia shows facts necessary to return the appellant to the state, thus everything being in proper order the judgment below is affirmed.

Appellant argues that his initial arrest was violative of his constitutional rights, and that subsequent actions culminating in the Governor’s warrant were illegal. Once the Governor’s warrant has issued we cannot review upon appeal anything other than what has previously been set out. Therefore, we do not consider the manner of the initial apprehension and the detention which could have been questioned prior to the issuance of the Governor’s warrant.

Affirmed.

Hickman, J., concurs.

Darrell Hickman, Justice,

concurring. I concur in the decision because the names in this case were identical. That is, Frank Smith conceded that he was the prisoner and that is the name of the person demanded. In such a case a presumption exists that must be rebutted. Lindley v. Crider, 223 Ark. 200, 265 S.W. 2d 498 (1954); In Re: Extradition of D’Amico, 177 F. Supp. 648 (D.C. N.Y. 1959); Fernandez v. Phillips, 268 U.S. 311 (1925).


author: Steele Hays, Justice.

text:
    Mildred M. ALEXANDER v. FIRST NATIONAL BANK OF FORT SMITH
    81-255
    631 S.W. 2d 278
    Supreme Court of Arkansas
    Opinion delivered April 5, 1982
    [Rehearing denied May 10, 1982.]

      Richard D. Hampton, for appellant.

      Rose Law Firm, by: W. Dane Clay, for appellee.
   Steele Hays, Justice.

This is the second appeal from orders of the Crawford Probate Court affecting the estate of J. Fred Alexander, who died in 1956, survived by his widow, Mildred, and two adult children, Caruth and Mary. Fred Alexander left a sizeable estate, subject to the terms of a standard marital deduction will leaving one-half of the estate to Mildred and the balance to her in trust for Caruth and Mary, with the income of the trust belonging to Mildred.

In 1967 Caruth died survived by his widow, Dorothy, the executor of his will, and a minor son, and litigation between Dorothy and Mildred over the handling of the estate began in earnest, culminating in Alexander, Ex’x v. Alexander, Ex’x, 262 Ark. 612, 561 S.W. 2d 59 (1978). There, we upheld the Crawford Probate and Chancery Courts on numerous disputed issues, including an order directing Mildred to account for real and personal property, but excluding income from the trust. The case was remanded for further proceedings and in June 1978 Mildred filed what purported to be a full and final accounting, to which the executor in succession, the First National Bank of Fort Smith, objected. The bank filed its own accounting, and petitioned for distribution of the remaining assets (four farms and cash totalling $77,478.59) 40.8% to Mildred and 59.2% to the trust. Mildred protested, asserting various agreements and transactions among the heirs and alleging in particular a family settlement allowing her to receive all undistributed assets. The trial court found there was no proof of a family settlement and approved the bank’s accounting and proposed distribution. For reversal, Mildred Alexander argues her right to all undistributed assets as fixed by family settlement. Alternatively, she claims the trust has been excessively distributed, the intent of the testator was defeated by the findings of the trial court, the bank’s accounting should not have been adopted, her request for unpaid income should have been allowed, and probate court lacked jurisdiction to determine family settlements. We find the arguments to be without merit.

In support of the family settlement theory, Mildred points generally to the manner family business was conducted after the death of Fred Alexander; she contends the family was close, given to confiding in each other, always handling matters affecting the estate by agreement; that Caruth collected rental payments, made deposits, transferred funds of the estate and advised her in all business and financial matters. She points to a number of beneficial distributions made prematurely to Caruth and Mary and notes that Mary does not dispute the alleged settlement. She also relies on a number of instruments and memoranda of transactions which she insists demonstrate a family settlement.

It cannot be questioned that with Mildred’s approval advances were made to Caruth and Mary they were not otherwise entitled to or that the family handled the estate in many respects with a notable absence of formality, but her claim of family settlement rests largely on her own conclusory assertions and on writings she attributes to Caruth, but to which the trial court plainly gave no credence. We do not find in the record credible proof of an actual agreement of the settlement she claims or even of evidence from which an implied settlement could be reliably inferred sufficient to overturn the trial court. She cites a number of our cases for the principle that family settlements are greatly favored, but the problem here is the trial judge found, in rather emphatic terms, an absence of proof supporting the alleged settlement. He also found her arguments to be similar if not identical to those argued in the earlier case, which were decided adversely to her. Further, the trial court gave scant regard to a number of exhibits consisting of instruments or memoranda relied on by Mildred Alexander, describing such proof as “fabricated, unverified or unsupported documentation.’ ’ It seems clear the overall credibility of her claim before the trial court was tarnished by the introduction of evidence of questionable authenticity. Too, her disobedience to court orders to deliver records and information to the executor in succession seriously impeded the progress of the case and her actions were condemned by the trial court as contumacious and “absolutely lacking in candor and cooperation.” We note a similar comment in the opinion of this court: “There is a total absence of any showing of good faith of Mildred Alexander in the exercise of her discretion in this case.” (Alexander, Ex’x v. Alexander, Ex’x, supra, at p. 630.) Without belaboring the point, we have reviewed the evidence she cites and even if her arguments were not res judicata, we are unable to say findings of the trial court were clearly erroneous. Rule 52, A. R. Civ. P.

Another contention is that even without a family settlement agreement the court erred in holding that the trust had not been excessively distributed. Appellant points primarily to the fact that in 1959 she distributed 300 shares of stock of the Commercial Bank of Alma to Caruth and two farms of comparable value to Mary. Other distributions of cash are cited. Aside from the absence of any authority for this assignment of error, the argument is untenable because the distributions on which appellant relies have already been dealt with and are not now open to review. That can be said with certainty of the bank stock issue (see Alexander, Ex’x v. Alexander, Ex’x, supra, at p. 620) although whether the other items she claims were specifically resolved in the earlier stages of this litigation is not clear. But if not, they could have been and the result is the same — they are now foreclosed. Hastings v. Rose Courts, Inc., 237 Ark. 426, 373 S.W. 2d 583 (1963); Taylor v. Taylor, 153 Ark. 206, 240 SW. 2d 6 (1922); Motors Ins. Corp. v. Coker, 218 Ark. 653, 238 S.W. 2d 491 (1951).

Appellant contends the probate court is without jurisdiction to determine whether a family settlement agreement was reached. We disagree. This was not an original action to cancel or enforce an alleged family settlement agreement where chancery jurisdiction might be said to attach. The alleged family settlement agreement was part of a dispute among the heirs over distribution of the estate within the probate proceeding itself, and not independent of it. In fact, the issue was asserted by Mildred Alexander in support of her own accounting and proposed distribution. Clearly, the probate court had jurisdiction to try the issues in this case and its jurisdiction was not lost simply because a family settlement agreement was alleged. Snow & Smith v. Martensen, 255 Ark. 1049, 505 S.W. 2d 20 (1974); Hartman v. Hartman, Admr., 228 Ark. 692, 309 S.W. 2d 737 (1958); Thomas v. Thomas, 150 Ark. 43, 233 S.W. 808 (1921). We note, too, the absence of any objection to probate jurisdiction until the case reached this court on appeal. An objection to jurisdiction made in good faith should have come before the case was tried and decided on its merits. Hobbs, Admr. v. Collins, 234 Ark. 779, 354 S.W. 2d 551 (1962); Park v. McClemens, Excr., 231 Ark. 983, 334 S.W. 2d 709 (1960).

Other arguments have been considered and rejected: appellant claims impounded income should have been released to her, but the withholding of her funds was due to her failure to comply with court orders and we are not willing to say the court was wrong. She also submits the bank’s accounting is improper. We fail to see the merit of the argument; moreover, we are not disposed to strain in behalf of the argument in view of her obdurate refusal to obey orders to surrender records and supply information that would have aided the executor in succession in preparation of an accounting. Without that assistance the bank was left to reconstruct an accounting from tax returns and other data and since she affirmatively impeded its preparation, we find little equity in her argument the accounting is wrong.

The order of the probate court is affirmed.


author: Per Curiam.

text:
    Odis Donell THOMAS v. STATE of Arkansas
    631.S.W. 2d 14
    Supreme Court of Arkansas
    Opinion delivered April 5, 1982

      Robert B. Wellenberger, for appellant.

      Steve Clark, Atty. Gen., by: Alice Ann Burns, Asst. Atty. Gen., for appellee.
   Per Curiam.

Odis Donell Thomas, by his attorney, has filed a motion for rule on the clerk.

The motion admits that the record was not timely filed and that it was no fault of the appellant.

However, the motion does not state good cause for granting the motion as discussed in our per curiam issued February 5, 1979, 265 Ark. 964. If the attorney for Thomas will concede that it was his fault that the record was not filed, or if other good cause is shown, then the motion will be granted. The present motion for rule on the clerk is denied.


author: Richard B. Adkisson, Chief Justice.

text:
    ACLIN FORD COMPANY, INC. d/b/a ACLIN TOYOTA v. FIAT MOTORS OF NORTH AMERICA, INC.
    82-34
    631 S.W. 2d 283
    Supreme Court of Arkansas
    Opinion delivered April 12, 1982

      Rice, Batton & Pierce, P.A., by: Ben E. Rice, 'tor appellant.

      Wright, Lindsey ér Jennings, for appellee.
   Richard B. Adkisson, Chief Justice.

On May 6, 1980, Holcomb, plaintiff, brought suit against Aclin Ford Company, Inc. and Fiat Motors of North America, Inc. for breach of warranty in the purchase of a Fiat automobile.

On August 5, 1980, the case came on for trial. As a matter of trial strategy no cross-claim was filed by Aclin against Fiat. Immediately preceding trial, the trial court dismissed Fiat from the suit because no ground for relief was stated against it in the complaint. Aclin then orally requested permission to file a third party complaint against Fiat, which was denied. The trial resulted in a judgment for Holcomb.

In a motion for a new trial, Aclin again requested that it be allowed to file a third party complaint against Fiat, which was granted. But, at a subsequent hearing, the trial court granted Fiat’s motion to strike this complaint, holding it was not timely filed. On appeal, we affirm.

Rule 14, ARCP, Ark. Stat. Ann., Vol. 3A (Repl. 1979) provides for third party complaints:

(a) When Defendant May Bring in Third Party. At any time after commencement of the action a defending party, as a third party plaintiff, may cause a summons and complaint to be served upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff’s claim against him. The third party plaintiff need not obtain leave to make the service if he files the third party complaint not later than 10 days after he files his answer. Otherwise, he must obtain leave on motion upon notice to all parties to the action. The person served with the summons and the third party complaint, hereinafter called the third-party defendant, shall make his defenses to the third party plaintiff’s claim as provided in Rule 12 and his counterclaims against the third party plaintiff and cross-claims against other third party defendants as provided in Rule 13. The third party defendant may assert against the plaintiff any defenses which the third party plaintiff has to the plaintiff’s claim. The third party defendant may also assert any claim against the plaintiff arising out of the transaction or occurrence that is the subject matter of the plaintiff’s claim against the third party plaintiff. The plaintiff may assert any claim against the third party defendant arising out of the transaction or occurrence that is the subject matter of the plaintiff’s claim against the third party plaintiff and the third party defendant shall thereupon assert his defenses as provided in Rule 12 and his counterclaims and cross-claims as provided in Rule 13. Any party may move to strike the third party claim or for severance or separate trial. A third party defendant may proceed under this rule against any person not a party to the action who is or may be liable to him for all or part of the claim made in the action against the third party defendant.

Generally, the purpose of this rule is to settle all controversies at one time, thereby avoiding a multiplicity of suits. See U.S. v. Yellow Cab Co., 340 U.S. 543 (1951).

Implicit in Rule 14 is the assumption that the third party complaint will be filed before the issues are resolved at trial; otherwise, its provisions allowing the third party defendant to assert defenses against the original plaintiff would have no meaning. Therefore, the trial court was correct in granting Fiat’s motion to strike the third party complaint since it was filed after trial.

Nor can we say that the trial court abused its discretion in refusing to allow Aclin to file a third party complaint against Fiat on August 5, 1980, the day of the trial. If this pleading had been allowed at that time it would have surely caused a delay of the trial.

Aclin argues on appeal that it should now be allowed to assert its claim against Fiat in a separate action. We do not decide this issue since it was not raised in the trial court.

Affirmed.


text:
    Barney Lee DOLES v. STATE of Arkansas
    CR 82-27
    631 S.W. 2d 281
    Supreme Court of Arkansas
    Opinion delivered April 12, 1982

      Jim Bob Steel, for appellant.

      Steve Clark, Atty. Gen., by: Leslie M. Powell, Asst. Atty. Gen., for appellee.
   Richard B. Adkisson, Chief Justice.

After a trial by jury, appellant, Barney Lee Dole, was convicted of the second-degree murder of James Harris and sentenced to 20 years in the Department of Correction. On appeal we reverse, holding that appellant was entitled to a jury instruction on justification (self-defense).

On the evening of the shooting appellant, Lisa Dean, and the victim were drinking together. All three were good friends. Lisa was a hitchhiker appellant had brought to Arkansas after picking her up in Florida. However, at the time of the incident, Lisa was living with the victim in his trailer.

During the course of the evening the victim became belligerent. He began talking about “busting” a whiskey bottle over his friends’ heads. He also suggested that Lisa should take her things and get out of his trailer. Finally, appellant decided to go home; the victim volunteered to take him.

When the three of them reached appellant’s home, appellant asked Lisa if she wanted to spend the night at his house. This apparently angered the victim who began threatening appellant. Appellant then ran into his house to get a gun “to scare him [victim] off.” The victim went to the door and called to appellant who went back to the door without finding the gun.

Meanwhile, appellant’s father, awakened by the loud noise, came to the front porch. The father testified that the victim threatened his son. “He told him that he’d get him before the night was over, said the night wasn’t over. Said he’d put a load of shot or a bullet one right between his eyes.” By this time the victim was inside appellant’s home, and appellant’s father had gotten a gun from a closet. Appellant took the gun from his father and begged the victim to leave. But, the victim kept coming at him; appellant then shot him.

Appellant testified that the victim said he was going to shoot him that night and that he was scared; that he did not intend to shoot him and that he shot him in accident. He stated that he begged the victim to leave; that he did not premeditate or deliberate; and that he just turned around and shot.

Police officers stated that the victim’s body was found lying partially on the porch and partially on the front steps. The medical examiner testified that the victim was extremely drunk when he was killed.

Appellant argues, and we agree, that the trial judge erred in refusing to instruct the jury on a person’s right to use reasonable force to protect himself and on a person’s right to not retreat when in his own home. Justification is not an affirmative defense which must be pled, but becomes a defense when any evidence tending to support its existence is offered to support it. Peals v. State, 266 Ark. 410, 584 S.W. 2d 1 (1979); Thomas v. State, 266 Ark. 162, 583 S.W. 2d 32 (1979).

In this case there was sufficient evidence to support a justification instruction to the jury. Testimony indicated that the victim was in appellant’s home, that the victim threatened to kill appellant, and that appellant was scared of the victim. Appellant also testified that he repeatedly asked the victim to leave him alone but that the victim refused to do so. From this evidence the jury could have found that appellant was justified in using deadly physical force to defend himself in his home.

Appellant also argues that the trial court erred in refusing to admit a statement made by Lisa Dean, who was out of the state at the time of the trial. Lisa’s statement was made to a criminal investigation officer shortly after the crime and contains her version of the occurrences that night. It is not handwritten, but it is signed by Lisa.

Its admission is urged under Rule 804 (b) (5), Uniform Rules of Evidence, Ark. Stat. Ann. § 28-1001 (Repl. 1977), which allows hearsay evidence if the declarant is unavailable:

(5) Other exceptions. A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (i) the statement is offered as evidence of a material fact; (ii) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (iii) the general purposes of these rules and the interests of justice will best be served by admission of the statements into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance to provide the adverse party with a fair opportunity to prepare to meet it, his intention to offer the statement and the particulars of it, including the name and address of the declarant.

Lisa’s statement is not admissible under this rule for two reasons. First, it does not contain the “equivalent circumstantial guarantees of trustworthiness” as do the other exceptions to the rule against hearsay under Rule 804 (b). Second, appellant has not brought himself under the provisions of this rule because Lisa cannot be considered unavailable. Although the sheriff testified that he had contacted her in Dallas, Texas, and advised her of the trial date, the record does not reflect that Lisa’s attendance was sought under the Uniform Act to Secure the Attendance of Witnesses from Without the State in Criminal Cases, Ark. Stat. Ann. §§ 43-2005 — 2009 (Repl. 1977). The prosecutor listed Lisa as a witness, but apparently neither party attempted to utilize the necessary procedure as set out by this statute to require her attendance at trial. Therefore, she was not “unavailable” as required by Rule 804 (a), and the 804 (b) (5) exception does not apply.

Reversed and remanded.


author: George Rose Smith, Justice. John I. Purtle, Justice,

text:
    John A. ZARDIN v. Martin TERRY
    81-246
    631 S.W. 2d 452
    Supreme Court of Arkansas
    Opinion delivered April 12, 1982

      Gordon L. Cummings, for appellant.

      Robert E. Estes, of Estes, Estes ir Estes, for appellee.
   George Rose Smith, Justice.

This action by Martin Terry for personal injuries and property damage stems from a traffic collision in Fayetteville on April 4,1978. Terry filed this suit on June 5, 1978. Zardin, the defendant, was served with summons on June 15, but he let the case go by default without filing any pleading. When a default judgment was entered in Terry’s favor on October 5, Zardin had become an inmate of the state penitentiary pursuant to a marihuana conviction that was entered 21 days after the traffic collision, but which directed that Zardin not be committed to the penitentiary until September 18, 1978.

After writs of execution and garnishment had been issued some years later, Zardin filed a motion on June 4, 1981, to set aside the default judgment because it was entered while Zardin was in the penitentiary. After a hearing the trial judge held, on proof that Zardin had admitted to a police officer on the morning after the collision that he had run a stop sign and had assumed full responsibility for the accident, that no meritorious defense had been shown and that the judgment should stand.

For reversal Zardin argues that the default judgment was absolutely void, not merely voidable, and therefore his failure to show a meritorious defense is immaterial. Since the judgment was entered before our Rules of Civil Procedure took effect on July 1, 1979, the case is governed by the earlier statutes, but we do not imply that our decision would be different if ARCP 4 (d) (4) and 17 (c) were controlling.

The issue is whether the 1978 judgment against Zardin entered while he was in prison, was void or merely voidable. On this point we might, except for some imprecise language in a 1939 decision, dispose of the present case by citing a precedent so nearly identical to this case as to be indistinguishable. McDonald v. Fort Smith & Western R.R., 105 Ark. 5, 150 S.W. 135 (1912). The only factual difference is that in McDonald the defendant Ella Hare was insane when the j udgment was entered against her without any defense in her behalf; here Zardin was in prison when the judgment was entered against him without any defense being made. But the controlling statute, the Civil Code of 1869, was essentially the same as to both defendants. In successive sections the Civil Code provided in § 74 that service of process upon an insane person should be upon his guardian, his wife, or the keeper of the asylum where he was confined, and in § 75 that service upon a prisoner in the penitentiary should be upon the prisoner, the keeper of the penitentiary, and the prisoner’s wife. Ark. Stat. Ann. §§ 27-337 and -338 (Repl. 1962). In related provisions of the Civil Code it was declared in § 53 that no judgment “can be rendered” against an insane person until after a defense in his behalf, and in § 56 that no j udgment ‘ ‘can be rendered’ ’ against a prisoner in the penitentiary until after a defense in his behalf. §§ 27-830 and 833.

In McDonald judgment was rendered against the insane woman with no defense in her behalf. The court stated the same issue as that now before us: “The question, therefore, to be determined is whether said judgment is void or only voidable.” Our answer was clear-cut:

A judgment, however, which is rendered without the appointment of or defense by a guardian for such insane person is not void. It would be erroneous to render a judgment against an insane person without the appointment of, or a defense made by, his guardian, and a judgment so rendered would be liable to reversal upon appeal or to vacation upon a proper action being instituted to that end. But such judgment would be voidable only. (Italics supplied.)

The out-of-step case, on which Zardin now relies, is Puckett v. Needham, 198 Ark. 123, 127 S.W. 2d 800 (1939). In Puckett the facts, as fully shown in the record on file in our clerk’s office, were that Clark Needham filed a complaint for divorce against his wife Goldina, with whom he had not lived for some years. Goldina owned a house and lot she had received from her mother, but Clark falsely alleged in his complaint for divorce that the property belonged to him. A summons was served on Goldina, then in the county jail. Several persons intervened to assert laborers’ and materialmen’s liens against Goldina’s property, but they obtained no service of process on Goldina. Goldina, like Zardin in the case at bar, made no defense, and a default decree was entered against her after she had been transferred to a federal penitentiary. She, however, promptly filed a motion to set aside both the foreclosure of the liens and the ensuing judicial sale to Puckett. The chancellor set the decree aside during the same term of court, as he then had the discretion to do, and later held a hearing. Goldina proved by undisputed proof that her husband’s allegations of ownership and the intervenors’ assertions of liens were wholly fraudulent. The chancellor sustained her obviously meritorious defense and awarded her the property, which had belonged to her all along. The effect of his decree, as we pointed out, was to leave intact the divorce (which was based upon a valid service of summons) but to set aside the liens (with respect to which Goldina had received no notice).

The chancellor in Puckett treated the original decree only as voidable, not as void, for he set it aside upon a showing of a meritorious defense. But in affirming his action we referred loosely to the decree as void, on the theory that the court had no jurisdiction over a penitentiary prisoner for whom no defense had been made. The decree was in fact void, for want of any service of process to support the new causes of action asserted by the lienors, but we referred to it as void for a completely erroneous reason. The McDonald case, supra, which would have dictated the correct holding — that the decree was merely voidable — was not cited by counsel and of course was not cited in the opinion, nor was any other Arkansas case referred to. Puckett was later followed by Shappy v. Knight, 251 Ark. 943, 475 S.W. 2d 704 (1972), but there the order of adoption was certainly voidable for want of service; so we need not discuss that holding.

In the case at bar Zardin was a free man when he was served with summons and when he permitted the timd to expire for filing his answer to the complaint. Thus the court had jurisdiction both of the subject matter and of the person when it entered its default judgment after Zardin had become a prisoner. That judgment, if not completely valid, was at the very worst merely voidable for the reasons given in the McDonald case. Zardin has failed in his effort to avoid the judgment, for his proof did not establish a meritorious defense. The trial court’s judgment was therefore correct.

Affirmed.

Holt and Purtle, JJ., dissent.

John I. Purtle, Justice,

dissenting. A. R. Civ. P., Rule 17 (c), reads as follows:

No judgment shall be rendered against a prisoner in the penitentiary until after a defense is made for him by his attorney, or, if there is none, by a person appointed by the court to defend for him.

I still believe we should take the rules promulgated by this court and the enactments of our General Assembly to mean exactly what they say so long as there are no ambiguities in the language used therein. A rule or statute could not be more plainly worded than the one set out above. Sometimes it seems to me this court strains at a gnat and swallows a camel. The majority has done both in the present case. In any event, they beat around the bush and come up with the wrong reasoning and results.

Why should we be trying to explain away the rule in our former opinions when they were perfectly clear up until this time? In Puckett v. Needham, 198 Ark. 123, 127 S.W. 2d 800 (1939), we flatly stated:

Under the statutes, the fact of confinement in the penitentiary deprives the court of jurisdiction until answer is filed by the defendant’s attorney, or until the attorney appointed by the court has made proper defense. (Italics mine.)

In Shappy v. Knight, 251 Ark. 943, 475 S.W. 2d 704 (1972), we followed the rule stated in Puckett v. Needham, supra, and which has been incorporated into our code. In Shappy we stated:

We think the wisdom of the legislature in enacting this statute in 1869 is amply demonstrated by the facts in this case. No doubt the legislature was aware that inmates in the penitentiary are so disadvantaged in their liberties and ability to communicate their interest directly to courts that it deemed this statute desirable to prevent misunderstandings, such as this, and to provide for the inmate’s day in court.

The majority simply muddies the waters of the cases and law which have heretofore been clear and unequivocal as to judgments rendered against inmates of the penitentiary. I would affirm the trial court in compliance with the plain language stated in the rule and for reasons of precedent.

Holt, J., joins in this dissent.


author: George Rose Smith, Justice.

text:
    Alan VIRGIN v. STATE of Arkansas
    CR 81-154
    631 S.W. 2d 285
    Supreme Court of Arkansas
    Opinion delivered April 12, 1982

      Jim King, for appellant.

      Steve Clark, Atty. Gen., by: Theodore Holder, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

Some 50 days after having received a 20-year sentence upon a negotiated plea of guilty to charges of aggravated robbery and habitual criminality, the appellant filed a Rule 37 petition for postconviction relief, asserting ineffective assistance of counsel in that his attorney had erroneously advised him that if he were found guilty the jury would have to impose a sentence of either 50 years or life. After an extended hearing the trial court denied the petition. The appeal comes to this court under Rule 29 (1) (e).

Inasmuch as the denial upon conflicting testimony does not appear to be erroneous, appellant’s present attorney has understandably abandoned his client’s original ground for relief and now argues only that Virgin’s first lawyer testified at the Rule 37 hearing that he had advised Virgin that the range of punishment was from 10 years to 50 years or life. It is asserted that the advice was wrong in that the minimum was actually 5 years. Even so, in the trial court Virgin did not even hint in his petition or in his testimony that he had been concerned about the minimum sentence. Moreover, in testifying before his former lawyer took the stand, Virgin stated under oath three separate times that his lawyer had advised him that the minimum was 5 years. Thus the present argument for reversal is totally without merit.

Affirmed.


author: Frank Holt, Justice. John I. Purtle, Justice,

text:
    Benjamin C. McMINN et ux v. CITY OF LITTLE ROCK
    82-20
    631 S.W. 2d 288
    Supreme Court of Arkansas
    Opinion delivered April 12, 1982

      Wright, Lindsey ir Jennings, for appellants.

      R. Jack Magruder, III, City Atty., by: Carolyn B. Witherspoon, Asst. City Atty., for appellee.
   Frank Holt, Justice.

Appellants sought rezoning of their property from A single family to D apartment classification. The appellee’s planning staff and Commission recommended denial because it did not represent the best possible principles of land use planning. The City Board of Directors also denied appellant’s application for rezoning. The chancellor affirmed. For reversal the appellants contend that the appellee unreasonably and arbitrarily refused to rezone their property. They argue that the denial is based upon preventing other property in the area from being rezoned; that the city had agreed that the property should be used for apartments and the preponderance of the evidence establishes that the city’s action was unreasonable and arbitrary. We affirm the chancellor.

The property in question is a 5-room, 1-bath residence at 5419 Kavanaugh Boulevard. It is situated on land with a 90' frontage on Kavanaugh and 150' deep. It appears that this house was built about twenty years ago. Appellants purchased the property in December, 1978, and one month later sought rezoning. Since the purchase for $55,000, appellants have spent $5,000 to $20,000 in improvements. Appellants are using the property as a Montessori school or a kindergarten for infants between the ages of one to three. See City of LR v. Infant-Toddler Montessori Sch., 270 Ark. 697, 606 S.W. 2d 743 (1980). Reclassification to D apartment would remove any legal question about operating the school which is the only purpose for which the appellants plan to use the property. They acknowledge there was considerable opposition in the neighborhood to the rezoning. The requested rezoning was the result of a suggestion by the city planning director that the property should be used for a nice condominium development.

Directly north and across the street from appellants’ property is a United States Post Office, zoned E-l. To the west and immediately adjacent to appellants’ property is a two story apartment house, a non-conforming use, with seven or eight apartments. To the south and west is an adjacent duplex. Contiguous to the property on the east is another duplex. Generally speaking, the property north, east and south is predominantly residential. For several blocks to the west is intensive commercial use by various retail businesses. It appears there has been no rezoning in this neighborhood for about twenty years.

Appellants presented as witnesses a local planning consultant and a real estate broker and developer, who had made a study of the area. They considered such factors as the commercial and residential use of the property in proximity to the area, the flow of traffic and the length of the existence of the surrounding neighborhood. They were of the view that the proper use of the property should be E-l quiet business or D apartment zoning, a less intensive use. These uses would be compatible with the neighborhood. These witnesses acknowledged that others could come to a different conclusion or recommendation other than that made by them. The owner of two duplexes in the vicinity did not object to the rezoning and did not feel that the reclassification would adversely affect his property. He would not seek rezoning of his property should appellants’ request be approved.

The appellee’s witnesses were the director of the city’s Planning Commission, two former members of that Commission, and a witness whose formal education and experience was that of an architect and city planner. The director acknowledged that he had told the appellant a condominium development would be a reasonable use; however, it was a question of degree of the use. These witnesses testified that they had made a study of the area and had been familiar with it for many years. Some of the factors they took into consideration were traffic, the commercial and residential usage in the neighborhood, character and type of neighborhood and the feelings of the residents. According to their testimony, a reclassification to D apartment would result in a higher intensity of use. Although it was appellants’ desire to use it only for the school, once it is rezoned to D apartment the potential exists that it could be used, inter alia, for such as a boarding and lodging house, fraternity house, club or facilities of a philanthropic nature and various retail shops which would be incompatible with the long established neighborhood. The high density use for D apartment would constitute a precedent for further rezoning in the Kavanaugh area. Reclassification could cause a major adverse impact on the neighborhood and could permit a three story apartment building, 80' x 100', of ten units with fifteen parking spaces. A compatible use would be a 4-unit apartment building which is a lower density use. The city is very cautious about approving a D apartment classification. In summary, the expert witnesses were of the view that, although a two family duplex or a 4 unit apartment would be compatible with the neighborhood, D apartment would be incompatible since it is a most intense type of development. They characterized the area as being a strong residential one where values are up instead of down and the property is well maintained. The area was described as one of the prime residential neighborhoods in the city which has been established for some 50 years and successfully sustained. Residents in the immediate neighborhood expressed opposition to the rezoning.

We review the chancellor’s finding to determine whether it is clearly against the preponderance of the evidence that the action of the city board was not arbitrary, capricious and unreasonable. In other words, whether there was any reasonable basis for the board’s decision. City of Little Rock v. Breeding, 273 Ark. 437, 619 S.W. 2d 664 (1981); and Lindsey v. City of Fayetteville, 256 Ark. 352, 507 S.W. 2d 101 (1974). We have held that “arbitrary” means decisive but unreasoned action and that “capricious” means not guided by a steady judgment or purpose. City of North Little Rock v. Habrle, 239 Ark. 1007, 395 S.W. 2d 751 (1965); and McMinn Co. v. City of Little Rock, 257 Ark. 442, 516 S.W. 2d 584 (1974). Residential property which adjoins business property is only one factor to be considered; it does not automatically entitle one’s property to rezoning; and the decisions of the city officials in zoning matters are legislative in nature since our state legislature has delegated the power of comprehensive planning in classifying the various areas of the city into proper zones or classifications. City of Little Rock v. Breeding, supra; Ark. Stat. Ann. §§ 19-2804 et seq. and 19-2825 (Repl. 1980). The feelings of the residents in the neighborhood with reference to the approval or disapproval of the request for rezoning is a legitimate factor to be considered. Downs v. City of Little Rock, 240 Ark. 623, 401 S.W. 2d 210 (1966). In Taylor v. City of LR, 266 Ark. 384, 583 S.W. 2d 72 (1979), we quoted with approval:

Obviously from the alignment of the eminent expert witnesses in their opposite views, we are dealing in an area in which honest, dedicated and sincere people differ. The Court does not conclude that either side of this argument can be said to reach their respective conclusions arbitrarily, capriciously or unreasonably, and in such position, and this Court being limited to a determination of this narrow issue, the Court concludes that the Complaint of the Plaintiff must be dismissed without relief.

Here, the witnesses for both sides acknowledged that their opinions were a matter of judgment and that an opposite view could be said to be reasonable. We cannot say the chancellor’s finding that the city Board of Directors did not act arbitrarily, capriciously and unreasonably or without any reasonable basis is clearly against the preponderance of the evidence.

Appellants next assert that the unreasonable limitation placed upon the use of appellants’ property by the city’s refusal to rezone, as requested, deprived them of the use of their property and constitutes a taking for public use without compensation in violation of the Fifth and Fourteenth Amendments to the U.S. Constitution and Art. 2, § 8, Ark. Constitution (1874). We cannot agree. Appellants purchased the property knowing it was zoned A single family. Further, rezoning is not justified by the mere fact the property owner seeking the rezoning would benefit economically if the rezoning was allowed, or that the land would be put to its most remunerative use. City of Little Rock v. Breeding, supra; and Lindsey v. City of Fayetteville, supra. See Wright, Zoning Law in Arkansas: A Comparative Analysis, 3 U.A.L.R. Law Journal, 421 (1980). Appellants have failed to establish an unreasonable limitation has been placed upon their land.

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. In my opinion, this is a very arbitrary, capricious and unreasonable decision rendered by the Board of Directors. I am disappointed that the majority does not recognize that the appellants are quite obviously being given unequal treatment of the law by the city of Little Rock, Arkansas. Originally, the appellants acquired this property which was clasified “A-l” family. The ordinance in effect allowed “A-l” family district and “B residence” district to be used among other things for "public schools, elementary and high, and other educational institutions with curriculum equivalent to a public elementary school or public high school.” It is obvious to me that the Montessori School operated by the appellants at the above property classified as the equivalent to a public elementary school. See City of LR v. Infant-Toddler Montessori Sch., 270 Ark. 697, 606 S.W. 2d 748 (1980). Additionally, the property sits directly across Kavanaugh from the post office and has a garage on the east side and an apartment house behind. The area to the west includes such businesses as the Kroger Grocery Store and other similar businesses. Nevertheless, this court upheld the court below in ruling that this Montessori School was not equivalent to public elementary schools.

When the appellants received notice of rejection of their application to rezone the property, even though several other schools were then and are still presently operating in “A-l” family districts, they applied for classification as “E-1.” This was denied by the Board of Directors. They then filed an application for variance to allow their school to continue, like many others are continuing. The variance was denied.

The staff for the city recognized that this particular property was no longer suitable for single family dwellings. In fact, the staff of the Planning Commission stated: "... Single family dwellings are no longer appropriate with an orientation towards Kavanaugh; particularly one which faces theU.S. Post Office across the street.” This is the arm of the city government that furnishes information to the city directors in order that their decisions might be based upon sound footing.

Appellants’ property is actually an enclave into the surrounding business area. To the immediate west and contiguous to this land is a multi-unit apartment house built on a 50 foot lot; to the south is a duplex which is contiguous to the property in question. Across Kavanaugh Street and directly in front of the subject property is a branch office of the United States Postal Service. On the east side of the property there is a garage and a single family dwelling. This single family dwelling on the northeast corner is the only single family property contiguous to appellants’ property here in question and it is separated by an alley.

The staff recommended to the Board of Directors that this property is no longer suitable as single family dwelling property. The appellants have first requested to be allowed to operate their school in the area which, in my opinion, was already authorized, but their request was denied. They then petitioned to rezone the property to a quiet business type property. They were refused. They made application for a waiver, and it was refused. Finally, in desperation they brought this second suit in order to try to get the property classified in a manner which would make it productive to them. They did not even seek to have it classified into the classification which most of the property along Kavanaugh has been assigned.

Every time the appellants appear before a commission, board or court they are told they should try some other classification. When such classification is sought, it is denied. Appellants’ property is almost completely surrounded by property which is classified other than “A-l” residential. It is clear enough to me that the appellants in this case have not been given equal protection of the law as guaranteed by the state and federal constitutions. Therefore, I would reverse the case and send it back with directions to reclassify it.


text:
    Mike McGEE v. Nellie L. WILSON et al
    82-22
    631 S.W. 2d 292
    Supreme Court of Arkansas
    Opinion delivered April 12, 1982

      Curtis E. Rickard and Joe Hardin, for appellant.

      Hobbs, Longinotti & Bosson, for appellees.
   John I. Purtle, Justice.

The Garland County Circuit Court refused to set aside a default judgment granted against Mike McGee, the appellant herein. The appellant had contended unavoidable casualty and excusable neglect in an attempt to set aside the default judgment.

On appeal he contends that the trial court erred in refusing to set aside the default judgment and that the court erred in awarding treble damages in this particular case. We disagree with both arguments and affirm the action taken by the trial court.

The facts reveal that Charles McGee contracted with Georgia Pacific to harvest certain tracts of timber land. The contract in this particular case was subcontracted to his son, Mike McGee. Mike McGee and his crew were harvesting the timber when they crossed over onto the property of the appellees and cut a considerable amount of timber. It is not clear from the record whether McGee hauled any of the timber to Georgia Pacific or whether it was left in the woods and carried away by woodcutters. In any event, Mike McGee ceased cutting on appellees’ land as soon as he was informed he had crossed onto appellees’ land.

On September 30, 1980, the appellees filed a complaint against Charles McGee, Mike McGee and Georgia Pacific Corporation alleging willful trespass upon appellees’ land and seeking treble damages pursuant to Ark. Stat. Ann. § 50-105 (Repl. 1971). Georgia Pacific filed a timely answer and subsequently filed a motion for a summary judgment which was granted by the court. Mike McGee received process of service on October 4, 1980, at the same time the deputy sheriff left the summons for Charles McGee with Mike McGee. Charles McGee lived in a different county. Neither Charles McGee nor Mike McGee answered the complaint of summons. On December 1,1980, the trial court rendered a default judgment against Charles and Mike McGee. On June 9, 1981, appellees’ attorney notified Charles McGee and Mike McGee that a hearing would be held in Garland County on July 6, 1981, to determine the amount of damages to be recovered by the appellees. Neither defendant appeared for the hearing and testimony was presented to the effect that the value of the timber cut was between $4,000 and $6,000. The testimony also indicated that other timber was damaged and the soil was compacted.

On August 17, 1981, Charles McGee and Mike McGee filed motions to set aside the default judgments rendered against them. They alleged unavoidable casualty and excusable neglect. The hearing was held on this motion, and the court upon learning that Charles McGee was not properly served vacated the default judgment against Charles McGee. Mike McGee’s defense was that both he and his father had insurance to cover them against liability, and Charles McGee told Mike McGee he would turn the matter over to his insurance company for a defense. Subsequently Charles McGee’s company declined to provide a defense because the complaint alleged willful and wanton action on the part of the policyholder. The court found against Mike McGee on his motion to vacate the default judgment and this appeal follows. The judgment against Charles McGee was vacated for lack of proper service.

The complaint alleged willful and wanton conduct on the part of Mike McGee in trespassing upon appellees’ land. Fifty-seven days after service of summons the court entered default against Mike McGee. The appellees waited approximately six months after entering the default judgment before arranging a hearing on damages. Appellant was notified by letter 30 days prior to the hearing on the amount of damages to be awarded. He did not attend the hearing and did not contest the allegations of the complaint until he filed his motion to set aside the judgment. ARCP Rule 60 (c) sets out the grounds for setting aside a j udgment after 90 days. It states as follows:

The court in which a judgment has been rendered or order made shall have the power, after the expiration of ninety (90) days after the filing of said judgment with the clerk of the court, to vacate or modify such judgment or order:
(7) For unavoidable casualty or misfortune preventing the party from appearing or defending.

There simply is nothing to show that there was unavoidable casualty or anything which prevented the appellant from appearing or defending in this action. The most that can be said is that he had a misunderstanding about being defended by an insurance company.

The evidence presented at the trial was that the timber damaged ranged in value between $4,000 and $6,000 and that there was additional damage to other timber and the land. Certainly, the amount of $16,000 awarded in this case is less than three times the highest estimate of the damages presented to the court. Under these circumstances we are unable to say the court abused its discretion.

Affirmed.


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

text:
    Thomas Wayne WILKINS v. Dorothy M. FORD
    81-256
    631 S.W. 2d 298
    Supreme Court of Arkansas
    Opinion delivered April 12, 1982

      Gordon L. Humphrey, of Boeckmann & Humphrey, by: E. Alvin Schay, for appellant.

      Steve Inboden, of Webb & Inboden, for appellee.
   Robert H. Dudley, Justice.

Dorothy Ford filed a bastardy action naming appellant Thomas Wilkins as the putative father. On November 21, 1980, the county court filed its finding of paternity and order of support. Appellant Wilkins did not perfect his appeal within the prescribed 30-day period. After the term lapsed appellant filed a written motion asking permission of the county court to file a belated appeal to circuit court. The appointed referee did not grant the motion, but on February 5, 1981, on the oral motion of appellant, the referee vacated the finding of paternity and order of support and then, on February 26, 1981, filed an order which was practically identical to the original order. In the brief before us appellant admits the purpose of the latter action was to allow a belated appeal. The circuit court dismissed the appeal and we affirm.

The appellant received notice of the suit, appeared, defended and lost. The time for appeal has passed and appellant now seeks to directly attack the judgment of paternity. This type of attack is not allowed unless a petitioner pleads and proves grounds, otherwise judgments would never be final. Appellant has neither pleaded nor proved a ground to vacate the judgment and he has neither pleaded nor made a prima facie showing of a valid defense.

The parties have filed briefs with extensive arguments on whether a county court may, on oral motion, vacate a judgment after the term has lapsed or more than 90 days after filing of the order. We do not reach that issue because the appellant was not entitled to have the judgment vacated without pleading a ground and asserting and making a prima facie showing of a valid defense. In his brief appellant refers to the ground of unavoidable casualty but that ground for vacating a judgment is "For unavoidable casualty or misfortune preventing the party from appearing or defending.” ARCP Rule 60 (c) (7). The appellant appeared, defended and lost. He does not come within this ground.

In addition to a valid ground to vacate a judgment the moving party must prove a prima facie showing of a valid defense. In Burnett v. Burnett, 254 Ark. 507, 494 S.W. 2d 482 (1973), we stated:

. . . Our Ark. Stat. Ann. § 29-509 (1962 Repl.) [substantially the same as Rule 60 (d), ARCP] provides that a judgment shall not be vacated “until it is adjudged that there is a valid defense to the action...” The word “valid” as used in the statute means “meritorious”. Berringerv. Stevens, 145 Ark. 293, 225 SW. 14 (1920). In Nichols v. Arkansas Trust Co., 207 Ark. 174, 179 S.W. 2d 857 (1944) we said:
In a long line of cases beginning with State v. Hill, 50 Ark. 458, 8 S.W. 401, and extending to O’Neal v. Goodrich Rubber Co., 204 Ark. 371, 162 S.W. 2d 52, and Davis v. Bank of Atkins, 205 Ark. 144, 167 S.W. 2d 876, this statute has been construed as imposing the requirement that a prima facie showing of a valid defense be made before the judgment will be vacated, although it is shown that it was rendéred without notice.
Later holdings of the same import are Haville v. Pearrow, 233 Ark. 586, 346 S.W. 2d 204(1961), and Agee v. Wildman, 240 Ark. 111, 398 S.W. 2d 542 (1966).

Appellant contends that Ark. Stat. Ann. § 34-706.1 (Supp. 1981) modifies the procedure in bastardy actions and the court can modify any order at any time. It provides:

Modificiadon of judgment. — County courts may at. any time, enlarge, diminish or vacate any order or judgment awarding an allowance for child support in bastardy cases.

The statute was enacted in response to our ruling in Carter v. Clausen, 263 Ark. 344, 565 S.W. 2d 17 (1978), which held that county courts had no authority to adjust the amount of support. The statute authorizes modifications from time to time in the continuing order of support but it does not authorize a modification of a finding of paternity. Appellant also contends that the last sentence of Ark. Stat. Ann. § 34-706 (Supp. 1981) authorizes a vacation at any time. That statute refers to a vacation of an order of commitment for failure to pay support.

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. Ark. Stat. Ann. § S4-706.I (Supp. 1981) reads as follows:

County courts may at any time, enlarge, diminish or vacate any order or judgment awarding allowance for child support in bastardy cases.

On November 18, 1980, the county court of Poinsett County entered an order in a bastardy action declaring the appellant to be the natural father of the bastard child and further ordered the appellant to pay the sum of $50 per week for support of the child until a certain age. However, on February 5, 1981, the county court vacated its order of November 18, 1980.

The action of the court to vacate its prior order was clearly within the terms of the above-stated statute. I am not willing to state that the General Assembly did not have the right to enact a law allowing the county court to do exactly what it did in this case. In my opinion, it is not the place of this court to tell the legislature which laws to enact.

The majority seem to mistakenly rely upon our Rules of Civil Procedure. I see no need to discuss the Rules or the terms of court because they simply do not apply to county courts. The first statement of the Rules of Civil Procedure states that they are applicable only to circuit, chancery and probate courts. See ARCP Rule 1.

If the General Assembly enacted § 34-706.1 for the purpose of avoiding our holding in Carter v. Clausen, 263 Ark. 344, 565 S.W. 2d 17 (1978), they did an excellent job. Carter held the county court had no power to modify a bastardy order. Now the same courts have the express authority to vacate or modify orders in any manner without limitation as to time. Therefore, until the General Assembly enacts another law or we adopt a rule change, the county court has the unqualified power to modify or vacate its own decrees.

Relying upon the plain and simple language used in the statute, I would reverse this case.


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

text:
    Kevin Andre ROBINSON v. STATE of Arkansas
    CR 81-106
    631 S.W. 2d 294
    Supreme Court of Arkansas
    Opinion delivered April 12, 1982

      William, R. Simpson, Jr., Public Defender, and James Phillips and Kelly Carithers, Deputy Public Defenders, by: Deb.orah R. Sailings, Deputy Public Defender, for appellant.

      Steve Clark, Atty. Gen., by: Matthew Wood Fleming, Asst. Atty. Gen., for appellee.
   Robert H. Dudley, Justice.

Appellant Kevin Andre Robinson was convicted and sentenced to consecutive terms of fifty years for rape and twenty years for attempted rape. He argues that his due process rights were violated by the in-court identification which he claims was tainted by unnecessarily suggestive pretrial procedures. The evidence established that five young girls were walking to Oakhurst School in Little Rock on December 5, 1980, when the appellant approached them and asked if they would go into the woods and help him put some puppies in a bag. The three older girls declined and walked on. Appellant approached the other two girls and told them he would pay them five dollars for their help. They agreed to help and walked into the woods, where appellant grabbed them and raped one and attempted to rape the other. The crime was reported and an investigation ensued. A photographic spread was made up consisting of six photographs and it was shown to the two victims and to the other three girls. The appellant was identified as the rapist. A physical lineup was then conducted which included appellant and five other men. Again, appellant was identified as the rapist. Contending that the identification was inherently unreliable, the appellant filed a motion to suppress any in-court identification of him which the trial court denied. We affirm.

Specifically the appellant contends that the lineup identification was suspect because he was the only person included in both the photo spread and the lineup, because he had on the same shirt in both and because he appeared to be several inches taller than the other men in the lineup. Appellant cites a United States Supreme Court opinion where a lineup resulted in a violation of the petitioner’s constitutional rights and argues that decision should control here. Foster v. California, 394 U.S. 440 (1969). But in Foster there were only three men included in the lineup and the accused was six feet tall while the other two men were only five and one-half feet tall. Also, a jacket similar to the one described by the victim was worn by the accused and the victim could not positively identify the robber. The victim asked to speak with the accused and after a confrontation he was still not certain as to whether the petitioner was the robber. One week later another lineup was conducted and the accused was the only person who had appeared in the first lineup. The victim finally identified the accused and the court noted that:

The suggestive elements in this identification procedure made it all but inevitable that the victim would identify petitioner whether or not he was in fact “the man.” This procedure so undermined the reliability of the eyewitness identification as to violate due process.

In Fountain v. State, 273 Ark. 457, 620 S.W. 2d 936 (1981), we announced the factors used to determine the reliability of an identification. They are (1) the opportunity of the witness to view the criminal at the time of the crime (2) the witness’ degree of attention (3) the accuracy of the witness’ prior description of the criminal (4) the level of certainty demonstrated by the witness at the confrontation and (5) the length of time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself. Here all the witnesses had ample opportunity to view the appellant and they were with him for an extended period. Their degree of attention was such that they gave similar descriptions. These descriptions were used to conduct the lineups from which appellant was identified. At the trial the witnesses were definite in their in-court identification. The appellant was identified at all three stages in the proceedings — at the photographic lineup six days after the crime, at the lineup eleven days later and at the trial approximately six and one-half months later. The procedure used and the resulting identification were reliable under the factors enumerated.

All of the witnesses were certain in their in-court identification of appellant. In Fountain v. State, supra, we stated, “When a photographic identification is followed by an eyewitness identification at trial, the conviction will be set aside only if the photographic show-up was so suggestive as to create a substantial possibility of irreparable misidentification.” The identification in this case was based upon the observation by the witnesses and was not induced by investigation procedures.

The appellant also made a motion for a mistrial when the prosecutor commented on the reliability of the photographic lineup during his closing argument. In appellant’s closing argument it was noted that there was no “neutral representative” in the room where each witness observed the physical lineup, therefore there was no way of knowing if the witnesses were coerced. The prosecutor responded in his closing argument that a neutral authority, the trial judge, had reviewed the procedure in a pretrial hearing and found that the procedure was not defective. The trial court admonished the jury but refused to grant a mistrial and we affirm. It is permissible to comment upon matters which were discussed or invited by the appellant’s preceding closing argument. Ruiz and Van Denton v. State, 265 Ark. 875, 582 S.W. 2d 915 (1979). A mistrial is a drastic remedy and will not be resorted to unless the prejudice is so great that it cannot be removed by an admonition to the jury. Cobb v. State, 265 Ark. 527, 579 S.W. 2d 612 (1979). Here the trial judge admonished the jury to disregard the comment. Since a mistrial is within the sound discretion of the trial judge and the decision will not be reversed unless there is a clear showing of abuse, we cannot say that the trial judge abused his discretion. Cary v. State, 259 Ark. 510, 534 S.W. 2d 230 (1976).

Charges against the appellant had been filed in two other incidences of similar rapes but in a pretrial hearing the trial court ruled that no mention of those other rapes could be made. On cross-examination, a police officer was asked by appellant’s attorney if he told the appellant why he was being asked to go to the police station. The officer answered “yes” and was then asked what he told appellant. He answered that he told him, “I was investigating a series of rapes.” Appellant’s motion for a mistrial was denied on the basis that counsel’s question elicited the response. The trial judge was correct in his ruling. In Stovall v. State, 233 Ark. 597, 346 S.W. 2d 212 (1961), we said that when the appellant injects the matter into the case by questions on cross-examination, he cannot complain of what develops. Since appellant asked the specific question, the officer could truthfully answer it. The granting of a threshold motion to prevent certain testimony does not require a witness to conceal the truth in order to respond to a question by the moving party.

Affirmed.

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

Richard B. Adkisson, Chief Justice,

dissenting. The majority have incorrectly held that, during closing argument, the defense invited certain comments by the prosecuting attorney. Not only were the prosecutor’s comments uninvited but were so damaging that their prejudicial effect was not removed by the admonition of the trial judge.

During closing argument the appellant’s attorney made an argument to the jury concerning the lineup conducted by the police:

But Kevin [appellant] had signed a waiver saying that he didn’t want to be represented by counsel. So, even though there has been, as Mr. Adams said, no hint that there was some sort of collusion or some sort of directing of their attention towards someone, we don’t know. I mean, there is no neutral representative in that dark room, to stand there as an impartial witness and say, ‘That didn’t happen.’ All we have is a police officer who said, ‘No, I didn’t try to guide which way they were supposed to look or which person they were supposed to look at.’ And I’m not accusing a police officer of lying. All I’m saying is that we don’t have a neutral representative to know.

By using this statement as having “opened the door,” the prosecuting attorney argued to the jury:

The defendant sought to say that there had been no neutral authority who has reviewed the actions of the police department, reviewed the line-ups, but there has been. And that’s the authority of the Judge. Ladies and gentlemen, if there had been something wrong — if there had been a defect in the photo show-ups or the line-ups, they wouldn’t be here before you. We had a pre-trial hearing on that. They’re here before you because the Judge found no defects.

It is conceivable that a prosecutor, during the urgency of the trial, could confuse the defense attorney’s statement that there was not a neutral person present at the lineup with the trial judge’s neutrality in later finding that the identification óf the defendant by the witnesses was reliable. However, it is inconceivable that this court could be confused by this language and hold that the defense comment invited the prosecutor’s remarks. As the record clearly reflects, the defense counsel’s statement in no way referred to the pretrial determination by the trial judge.

Appellant promptly objected to the prosecutor’s argument and asked for a mistrial, which was denied. The trial judge then attempted to glaze over the error by an unsatisfactory admonition to the jury:

The Court will indicate to the jury that you are to consider only the evidence and the facts that have been elicited here today. Whatever happened before, that did not come up in this trial before you through the live witnesses or through the opening remarks of the attorneys, is not to be considered. I ask you to disregard any statements or comments about anything that happened outside of this courtroom today, that did not come in through live testimony or stipulations.

This admonition by the trial court, unquestionably, did not remove the effect of the prosecutor’s very damaging and prejudicial remarks. Actually, it is difficult to imagine what the trial court could have said to cure this error. The prosecutor’s statement to the jury was intentional and couched in clear and unmistakable language.

The trial judge must determine as a matter of law whether there are constitutional infirmities rendering identification evidence inadmissible. If admissible, reliability of identification is an issue of fact to be decided by the jury. See Synoground v. State, 260 Ark. 756, 543 S.W. 2d 935 (1976). Here, the defendant was entitled to have the issue of the reliability of the identification determined by the jury, unbiased and unaffected by the opinion of the trial judge. See Sharpy. State, 51 Ark. 147, 10 S.W. 228 (1888). A mistrial should have been declared. I would reverse and remand for a new trial.

I am hereby authorized to state that Purtle and Hays, JJ., join in this dissent.


text:
    Bynum GENT v. James Eugene GOIN and Dorothy Jean ENEGREN, Executors of the Estate of Edith Gertrude Goin GENT, Deceased
    82-23
    631 S.W. 2d 303
    Supreme Court of Arkansas
    Opinion delivered April 12, 1982

      Homer E. McEwen, Jr., for appellant.

      Gary E. Johnson, for appellees.
   Steele Hays, Justice.

Appellant, Bynum Gent, seeks to establish a curtesy interest in the estate of Mrs. Edith Gertrude Goin, whom he married on September 13, 1978. They lived together until her death on March 5, 1981. Her will, dated some four months before her marriage to Gent, left the entire estate to two children by previous marriage.

On March 20, 1981, Gent filed an election to take against the will pursuant to Ark. Stat. Ann. § 60-501 (Repl. 1971), which gave surviving husbands a curtesy interest in the estate of a deceased wife, provided she died either intestate or her will pre-dated the marriage. The executors denied the election on the strength of Stokes Ex’r v. Stokes, 271 Ark. 300, 613 S.W. 2d 372, decided February 23, 1981. In Stokes, § 60-501 and several other of our statutes were declared unconstitutional, their gender-based classifications being held violative of the equal protection clause of the Fourteenth Amendment, the constitutionality of all gender-based laws having first been called into question by Orr v. Orr, 440 U.S. 268 (1979).

The void necessarily created by our decision in Stokes was promptly filled by the adoption of Act 714 of the 1981 Acts of Arkansas, effective March 25, 1981, which cured the constitutional infirmity of our statutes by substituting a neutral-based treatment in place of the gender-based treatment.

Soon after the adoption of Act 714, Bynum Gent filed a substituted election and it, too, was denied. Gent has appealed the probate judge’s refusal to apply Act 714 retroactively. We agree with the trial court.

The essential issue of this appeal has been presented some four times since Stokes v. Stokes was decided, all with the same result. Act 714 creates substantive rights, not merely procedural, and is not subject to a retroactive application. Hall v. Hall, Ex’r, 274 Ark. 266, 623 S.W. 2d 833 (1981); Huffman v. Dawkins & Holbrooks, 273 Ark. 520, 622 S.W. 2d 159 (1981); Bennett v. Bennett, 275 Ark. 262, 628 S.W. 2d 565 (1982); Thomas v. Gertsch, 275 Ark. 398, 630 S.W. 2d 43 (1982).

Affirmed.


text:
    Sam HARSHAW v. STATE of Arkansas
    CR 81-116
    631 S.W. 2d 300
    Supreme Court of Arkansas
    Opinion delivered April 12, 1982

      R. Wayne Lee, for appellant.

      Steve Clark, Atty. Gen., by: Alice Ann Burns, Asst. Atty. Gen., for appellee.
   Steele Hays, Justice.

On August 9, 1980, Tammy Sherman was robbed as she was leaving Hudson’s Fish Market where she worked. Moments later she was shot twice as she attempted to go back inside the market. Appellant, Sam Harshaw, was tried and convicted of aggravated robbery and first degree battery for his participation in the crime, receiving concurrent sentences of fifty and twenty years. Appellant alleges three errors by the trial court. We disagree with the arguments and affirm the judgment.

First, appellant contends the court erred in denying his motion for a directed verdict on the aggravated robbery charge, claiming there was no evidence linking him with the robbery. The State’s evidence showed Tammy Sherman got off work at 9 p.m. When she reached her car, Ronnie Dokes and two other men approached her and demanded her money. At gun point Dokes took her purse and a sack of bread and the three men left. Tammy Sherman walked a few steps toward the market to report the robbery when she saw Sam Harshaw, whom she knew, crouched behind another vehicle. He stood up, told her he had a gun and to “get back.” Ms. Sherman ignored Harshaw’s warning telling her he would have to shoot her. As she turned to walk on, Harshaw shot her first in the hand and then in the back, inflicting a permanent paralysis from the waist down.

The evidence of Harshaw’s identification is positive and unequivocal. Mr. Bert Mitchell testified that a few minutes before the robbery he saw Harshaw and three other men standing near the door of the market. Mitchell knew Harshaw and spoke to him as he passed.

The State’s evidence linking Harshaw to the aggravated robbery is entirely circumstantial, but that does not preclude a finding he was involved in the robbery. Harshaw was placed at the scene immediately before and after the robbery. His conduct is unexplainable except in connection with the robbery. The only plausible inference is that Harshaw was hiding a few feet away during the robbery and when he was recognized by the victim he shot her to give his companions and himself time to get away from the scene. In Darville v. State, 271 Ark. 580, 609 S.W. 2d 50 (1980), we said:

We have often stated the rules in regard to circumstantial evidence that where circumstantial evidence alone is relied upon, it must exclude every other reasonable hypothesis but the guilt of the accused. Hurst v. State, 251 Ark. 40, 470 S.W. 2d 815 (1971); Ayers v. State, 247 Ark. 174, 444 S.W. 2d 695 (1969). The question whether circumstantial evidence excludes every other reasonable hypothesis other than the guilt of the accused is usually one for the jury. Abbott v. State, 256 Ark. 558, 508 S.W. 2d 733 (1974); Smith v. State, 264 Ark. 874, 575 S.W. 2d 677 (1979). The jury is permitted to draw any reasonable inference from circumstantial evidence to the same extent it can from direct evidence. It is only when circumstantial evidence leaves the jury solely to speculation and conjecture that it is insufficient as a matter of law and the test is whether there was substantial evidence to support the verdict when viewing the evidence in the light most favorable to the state. Upton v. State, 257 Ark. 424, 516 S.W. 2d 904 (1974); and Abbott v. State, supra. (At 581.)

In Upton v. State, 257 Ark. 424, 516 S.W. 2d 904 (1974), we said:

When circumstantial evidence rises above suspicion and is properly connected, and when, viewing that evidence in the light most favorable to the state, the jury is not left to speculation and conjecture alone in arriving at its conclusions, it is basically a question for the jury to determine whether the evidence excludes every other reasonable hypothesis. Ledford v. State, 234 Ark. 226, 351 S.W. 2d 425; O'Neal v. State, 179 Ark. 1153, 15 S.W. 2d 976; Caradine v. State, 189 Ark. 771, 75 S.W. 2d 671. See also Walker v. State, 174 Ark. 1180, 298 S.W. 20; 30 Am. Jur. 2d 295, Evidence § 1125. It is only every other reasonable hypothesis, not every hypothesis, that must be excluded by the evidence. Bartlett v. State, 140 Ark. 553, 216 S.W. 33; Bost v. State, 140 Ark. 254, 215 S.W. 615. See also, Walker v. State, supra. The jury certainly should test the reasonableness of any other hypothesis. (At 433.)

The pertinent sections of the Criminal Code on this issue state:

41-2102. Aggravated robbery. — (1) A person commits aggravated robbery if he commits robbery as defined in section 2103 [§ 41-2103] and he:
(a) is armed with a deadly weapon, or represents by word or conduct that he is so armed; or
(b) inflicts or attempts to inflict death or serious physical injury upon another person.
41-2103. Robbery. — (1) A person commits robbery if with the purpose of committing a theft or resisting apprehension immediately thereafter, he employs or threatens to immediately employ physical force upon another.

Under the due process clause of the Fourteenth Amendment, the State must, of course, prove each element of a crime beyond a reasonable doubt. In Re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); Harkness v. State, 267 Ark. 274, 590 S.W. 2d 277 (1979); Peals v. State, 266 Ark. 410, 584 S.W. 2d 1 (1979). However, an element may be inferred by circumstantial evidence where there is no other reasonable explanation for the accused’s conduct.

No explanation was offered for the shooting of Ms. Sherman and no other reasonable hypothesis exists except that it was connected to the robbery. Harshaw’s defense was based on a denial he was present at the robbery or at the shooting. Where common sense will allow no other reasonable conclusion to be drawn from the evidence but that the accused was involved in the robbery the denial of a motion for a directed verdict cannot be regarded as error.

Second, Mr. Harshaw argues the trial court erred in allowing the State to call Dr. Stephenson Flannagin to testify as to Mrs. Sherman’s injuries. Harshaw offered to stipulate as to the injuries Ms. Sherman sustained. He contends the doctor’s testimony was cumulative evidence and the only purpose for introducing it was to inflame the jury. However, the record does not reveal any objection to Dr. Flannigan’s testimony based on prejudice or its inflammatory nature. (Tr. 125.) Harshaw cites the case of Lee v. State, 266 Ark. 870, 587 S.W. 2d 78 (Ark. App. 1979), to support this contention, but there are differences. In Lee, the appellant was charged with three counts of manslaughter stemming from an auto accident. Dr. Jorge Johnson was allowed to testify in detail about the victim’s unsuccessful, agonizing four-day struggle to survive though Lee had conceded the cause of death. Dr. Flannigan’s testimony, unlike Dr. Johnson’s, was only a brief and general description of Ms. Sherman’s injuries and the permanent effect of her paralysis. His testimony was relevant to show an element of the aggravated robbery — the infliction or intent to inflict death or serious injury to another. Ark. Stat. Ann. § 41-2102. Whether the probative value of relevant evidence is outweighed by any prejudice it may produce is for the trial court to determine. Rule 403, Arkansas Uniform Rules of Evidence.

Finally, Harshaw contends the trial court erred in admitting testimony of acts committed by Dokes and the other two. For the reasons already stated, we conclude there was evidence linking Harshaw to the robbery and, therefore, that testimony is relevant to Harshaw. Generally, all evidence that is relevant is admissible. Arkansas Uniform Rules of Evidence 401, 402; Ark. Stat. Ann. § 28-1001 (Repl. 1978). The evidence was also admissible because it established a link in the entire criminal transaction of the offense charged. In Russell and Davis v. State, 262 Ark. 447, 559 S.W. 2d 7 (1977), we stated:

. . . when acts are intermingled and contemporaneous with one another, evidence of any or all of them is admissible to show the circumstances surrounding the whole criminal episode. (At 452.)

The judgment on the sentences is affirmed.