text:
    David E. INMON v. SOUTHWEST AUTO SUPPLY, INC.
    CA 79-330
    599 S.W. 2d 420
    Court of Appeals of Arkansas
    Opinion delivered April 30, 1980
    Released for publication May 21, 1980

      Patten, Brown, Leslie & Davidson, by: Charles Darwin Davidson, for appellant.

      Curtis E. Rickard, for appellee.
   Marian F. Penix, Judge.

David Inmon, appellant, invested money in Commercial Truck Refinishing, a partnership. Southwest Auto Supply, Inc. sued Inmon for collection of a debt in the amount of $3,493.69. The Court rendered judgment against Inmon in the amount of $2,-944.16. Inmon appeals.

Doug B. Conners and David Inmon formed a partnership October 15, 1976. Inmon invested $15,000 cash and Conners invested $15,000 worth of property into the partnership. The partnership was terminated on January 28, 1977.

Doug B. Conners had a personal account with appellee Southwest Auto Supply, Inc. He became behind with his personal account. In October, 1976 Conners was told he no longer had credit with appellee Southwest Auto Supply until he settled his past due account. Conners wrote a $3,500 check on the partnership account and told Wayne Morehead, manager of Southwest Auto Supply, to apply the $3,500 to his past due personal account. Conners made charges on the Commercial Truck Refinishing partnership account from October 18, 1976 up to and through January 25, 1977.

I

Inmon alleges error in the trial court’s not allowing the $3,500 check written by Conners on the partnership account to be credited to the Commercial Truck Refinishing account. Inmon further alleges he would actually have a credit of $600.00 with Southwest if the check had been credited to the partnership account rather than to Conners personal back debt.

Inmon alleges Morehead, manager of Southwest, knew there was a new partnership. Also he contends the face of the check shows it was drawn on the Commercial Truck Refinishing account and therefore was notice in and of itself the funds should be credited to the partnership only.

In Batson v. Drummond, 158 Ark. 29, 249 S.W. 547 (1923) the court held where plaintiff and defendant entered into an agreement to operate a hotel, the firm could not be charged with the expense of operation for a time preceding the formation of the partnership.

The case required an accounting between the parties to the partnership. In the case at hand there is a third party — Southwest Auto Supply. We must determine whether Southwest could rely on directions of a partner to applying funds from the partnership to his personal account. If we hold Southwest accountable are we placing an undue burden on a creditor doing business with a partnership?

Ark. Stat. Ann. § 65-109 provides:

(1) Every partner is an agent of the partnership for the purpose of its business, and the act of every partner, including the execution in the partnership name of any instrument, apparently carrying on in the usual way the business of the partnership of which he is a member binds the partnership, unless the partner so acting has in fact no authority to act for the partnership in the particular matter, and the person with whom he is dealing has knowledge of the fact that he has no such authority. (2) An act of a partner which is not apparently for the carrying on of the business of the partnership in the usual way does not bind the partnership unless authorized by the other partner.

Both parties have cited Kellogg-Fontaine Lumber Co. v. Cronic, 219 Ark. 170, 240 S.W. 2d 872 (1951). Southwest Auto cites Kellogg for the proposition the debtor has the right to direct payment to the creditor as the debtor wishes. Inmon cites Kellogg as a situation in which the creditor took payments and applied them against the debtor’s wishes. There was distinct language on the check as to what the debtor wished the money applied to.

In the instant case Conners specifically directed Southwest to make the payment on his personal account. The partnership arrangement made Conners the managing partner. He was the agent of the partnership.

II

Inmon alleges the court erred in allowing Moorehead’s testimony concerning Conners’ directions.

We find the testimony not to be hearsay. Uniform Rules of Evidence 801(d) (2) (iv) provides a statement is not hearsay if:

. . . The statement is offered against a party and is a statement by his agent . . . concerning a matter within the scope of his agency or employment, made during the existence of the relationship . . .

Conners was an agent of the partnership. He made the statement directing the application of the $3,500.00 while the agency existed and it was against the interest of Inmon. The statement was not hearsay.

We hold the court was not in error in rendering a judgment for Southwest Auto Supply, Inc.

Affirmed.


source: Caselaw Access Project

author: Marian F. Penix, Judge. Steele Hays, Judge,

license: Public Domain

text:
    Eva GRUBBS v. Dorothy MATTSON
    CA 79-343
    599 S.W. 2d 148
    Court of Appeals of Arkansas
    Opinion delivered April 30, 1980
    Released for publication May 21, 1980

      Griffin Smith, for appellant.

      Herrod & Cole, by: E. H. Herrod, for appellee.
   Marian F. Penix, Judge.

A lawsuit was brought by Appellant Eva Grubbs to cancel a deed executed by Addie Young (the parties’ mother) to Appellee Dorothy Mattson conveying her home, reserving a life estate. It was alleged the deed was executed as a result of fraud and undue influence by Appellee. Addie Young died September 20, 1977. The Chancellor held the deed valid. Eva Grubbs appeals.

The parties are sisters. Their mother, Addie Young, wrote a will in 1963 which left her propety to the parties equally. In December 1976 Addie Young visited Eva in Texas. Eva and her husband prepared a will which Addie signed December 23, 1976. The will was critical and derogatory towards Dorothy and expressed the intent to “never knowingly and in my right mind sign over, transfer or convey any real property, now or under any circumstances at a later date, to my older daughter Dorothy Young Mattson.” Addie’s daughter Dorothy moved to Arkansas a couple of years before Addie’s death to care for her ailing mother, and did care for her until her death. Addie conveyed her home property by quitclaim deed to Dorothy on February 15, 1977. On September 13, 1977, at the insistence of Appellant Eva, Dorothy signed a paper agreeing to share 50-50 in any property owned by their mother. The Chancellor dismissed the complaint holding the deed to be valid and the September 13, 1977 contract to be invalid.

I

Eva alleges the Chancellor’s order referring to the December 23, 1976 document, admitted to probate, as a “purported will” amounted to a review of probate proceedings which was beyond equity jurisdiction.

The record shows the December 23, 1976 document was admitted to probate by Judge Jernigan. The uncontradicted testimony indicated the sisters shared all the personal property equally as provided in the will. There was no real property to be probated. It had been deeded to Dorothy February 15, 1977.

II

Eva alleges the September 13, 1977 document which Dorothy signed agreeing to share their mother’s estate equally was not the result of fraud.

The record reflects Eva prevailed upon Dorothy to sign the September 13 agreement by convincing Dorothy such action would ease the pressure Eva was under arising from marital problems. Eva convinced Dorothy the agreement would save her marriage, otherwise the death of her mother and a subsequent broken marriage would be more than she could handle. The record further reflects Eva convinced Dorothy the agreement would aid in pacifying Eva’s husband in regard to the financial accounting which he expected from Eva each time she returned from visiting her dying mother.

The Chancellor found Dorothy had relied to her detriment on the statement of her sister regarding her marital situation and was induced to sign the contract because of such statements, therefore the contract was obtained through duress and fraud. We find the so-called contract to be a statement signed only by Dorothy. There was lack of consideration. Consideration is essential to the validity of every contract. Catlin v. Horne, 34 Ark. 169 (1879); Trantham v. Trantham, 221 Ark. 177, 252 S.W. 2d 401 (1952). The agreement cannot be said to be an enforceable contract, and this is not an action for specific performance.

Ill

Eva contends the Chancellor’s conclusion the deed was valid is unsupported by a preponderance of the evidence.

Dorothy testified her mother Addie talked to her about giving up her job and her own residence to come live with her mother and that her mother offered her her home. Dorothy testified she was unwilling to receive the home as long as her mother was alive. Beverly Harp, who notarized the deed, testified Addie was mentally alert. Rita Townsend, deceased’s daughter-in-law, testified Addie had said the home was Dorothy’s at Addie’s death. Several others testified to Addie’s mental state and expressed intention her home should be Dorothy’s.

The issue was whether the deed should be cancelled on the ground it was obtained through fraud or undue influence. There was no testimony Dorothy exercised fraud or undue influence to induce her mother to execute the deed. Eva argues the deed should be cancelled on the basis of the declared intention of her mother in the second will not to convey the real estate to Dorothy. The non-testamentary statements in the will of the deceased regarding reputed actions of Dorothy and future possible actions of the testatrix did not preclude the deceased from later voluntarily executing the deed in question.

The burden is on Eva to show by clear and convincing proof the deed was procured by undue influence, duress, or fraud. From a review of the record we cannot say the Chancellor erred in holding Eva had not met her burden. Gerlach v. Cooper, 217 Ark. 596, 232 S.W. 2d 458 (1950); Sandefer v. Sandefer, 219 Ark. 943, 245 S.W. 2d 568 (1952); Lawson v. Lawson, 226 Ark. 643, 291 S.W. 2d 518 (1956); Davidson v. Bell, 247 Ark. 705, 447 S.W. 2d 338 (1969). We cannot say the Chancellor was in error in refusing to rescind the deed.

Affirmed.

Hays, J., concurs.

Steele Hays, Judge,

concurring. I agree with the result reached in this case for the reason that I can find no acceptable alternative within the frame-work of the law. I am, however, constrained to comment that I believe the decedent was prevailed upon by one daughter to convey to her the only significant asset of the estate, to the exclusion of the other daughter and that it was the abiding wish of the decedent that both of her children should share equally in her modest estate so that her memory not be marred by partiality. It is regrettable that the events themselves occurred and that we are unable to alter them on the basis of the record before us.


author: George Howard, Jr., Judge.

text:
    Charles SHEFFIELD v. Alta Willene STRICKLAND
    CA 79-323
    599 S.W. 2d 422
    Court of Appeals of Arkansas
    Opinion delivered April 30, 1980
    Released for publication May 21, 1980

      Truman H. Smith, for appellant.

      Ronald G. Woodruff and Priscilla Karen Pope, for appellee.
   George Howard, Jr., Judge.

Appellant and appellee were divorced on April 22, 1966, while appellant was a member of the United States Armed Forces and stationed in Texas. Among other things, the divorce judgment awarded custody of the parties’ minor child, Robin, to appellee, and imposed a duty on appellant to pay child support of $55.20 per month.

Between April 22, 1966, and December 6, 1972, appellee received, by way of an allotment, three checks of $55.20 each. Appellee subsequently remarried and her husband advised her of his desire to adopt appellant’s minor child. As a consequence, appellant, on December 6, 1972, executed a written consent to the adoption.

On October 22, 1973, appellee petitioned the Chancery Court of Washington County for leave to register the Texas divorce and child support judgment. On August 27, 1974, appellee filed a petition for judgment against appellant for unpaid child support that had accrued prior to December 6, 1972. This proceeding was stayed pending appellant’s return to the United States from Germany.

On April 12, 1979, the Circuit Court of Washington County entered an order registering the Texas judgment and awarding a judgment against appellant in favor of appellee for $4,195.20 for child support arrearage for the period beginning December 1, 1966, to December 6, 1972.

Appellant argues that the trial court erred by awarding child support arrearage barred by statute of limitations, laches and estoppel.

The difficulty that appellant faces from the very outset in asserting these defenses is the undisputed fact that these defenses were not raised at the trial court level. It is well recognized that an issue not raised at the trial court level may not be raised for the first time on appeal. Gentry v. Little Rock Road Machinery Co., 232 Ark. 580, 339 S.W. 2d 101 (1960). Moreover, appellant simply filed a general denial to appellee’s petition to reduce the back child support payments to judgment. Laches, estoppel and statute of limitations are affirmative defenses, and, accordingly, must be pled affirmatively.

In Gentry v. Little Rock Road Machinery Co., supra, the Arkansas Supreme Court in articulating the necessing of raising affirmative defenses at the trial court level stated:

“. . . This defense was not raised in the appellee’s answer, which consisted only of a general denial. There was thus no occasion for the appellant to offer proof of facts tending to excuse his delay, and it would be manifestly unfair to reject his cause of action upon a ground that was not developed at the trial and appears to be raised for the first time on appeal.”

Finally, appellant claims that appellee admitted, on cross-examination, that he renunciated child support payments and the trial court fell into error in not finding a waiver of child support, or, at the very least, appellant was released from paying further child support; and that his consent to the adoption of his child by appellee’s present husband supplies the necessary consideration for the release.

Appellee testified that she told appellant, when appellant contacted her regarding child support, sometime after the divorce judgment had been rendered, that she did not want any support as ordered by the Texas Court. Further, she conceded that she never made demand for child support until after appellant had signed the consent for the adoption in 1972. However, appellee testified that while she advised her attorney, who contacted and supervised the execution of the consent given by appellant, that she would waive all future child support payments, she denied emphatically that her attorney was authorized to waive any back support payments accumulated prior to December 6, 1972.

The trial court was presented with a fact question as to whether appellee had ágreed to forfeit any child support payments. We are unable to say that the finding of the court is not supported by substantial evidence.

Moreover, we recognized recently that parties may not alter a decree by their unilateral or bilateral acts for this is a prerogative of the court and the court alone. Bethell v. Bethell, 268 Ark. 409, 597 S.W. 2d 576 (1980); Jerry v. Jerry, 235 Ark. 589, 361 S.W. 2d 92 (1962); Thompson v. Thompson, 254 Ark. 881, 496 S.W. 2d 425 (1973). This case does not present circumstances justifying a remittance of the accumulated payments. There is no evidence that the parties had an agreement as the trial court found, calling for the forfeiture of accumulated or future payments, prior to December 6, 1972, that the parties acted upon the agreement, that appellant made certain decisions that he might not have made had it not been for the agreement and appellant would have initiated a court proceeding for relief, but for the agreement to the renunciation of the child support by appellee. See: Bethell v. Bethell, supra; Riegler v. Riegler, 246 Ark. 434, 438 S.W. 2d 468 (1969); Sage v. Sage, 219 Ark. 853, 245 S.W. 2d 398 (1952).

Affirmed.


text:
    Penny OGIER v. Charles L. DANIELS, Director of Labor, State of Arkansas and FIRST NATIONAL BANK
    CA 80-18
    599 S.W. 2d 150
    Court of Appeals of Arkansas
    Opinion delivered April 30, 1980
    Released for publication May 21, 1980

      Appellant, pro se.

      Herrn Northcutt, for appellees.
   George Howard, Jr., Judge.

Claimant quit her job with First National Bank of Camden on June 15, 1979, in order to get married and live with her future husband who resided at Alpena. Claimant was not married, however, until June 30, 1979.

Appellant applied for unemployment benefits when she was unable to find work at Alpena. She commenced her search for employment within a week after her marriage.

The Local Agency denied appellant’s claim for benefits under Ark. Stat. Ann. § 81-1106 (a) holding that she had voluntarily and without good cause connected with her work, left her job. As a consequence, appellant was disqualified until she has had at least thirty (30) days of paid employment subsequent to the filing of her claim for benefits.

Section 81-1106(a) provides:

... an individual shall be disqualified for benefits:
If he voluntarily and without good cause connected with the work, left his last work. Such disqualification shall continue until, subsequent to filing his claim, he has had at least 30 days of paid work.
Provided no claimant shall be disqualified if he has voluntarily left his work to accompany, follow, or join the other spouse in a new place of residence if he has clearly shown upon arrival at the new place of residence an immediate entry into the new labor market and is in all respects available for suitable work.

The Appeals Tribunal in affirming the Local Agency, found that while appellant quit her employment “for very good personal reasons”, she did so without good cause connected with the work. The Board of Review affirmed the Appeals Tribunal.

In Gatz Insurance Agency, Inc., et al v. Chamberlain, 267 Ark. 319, 590 S.W. 2d 283 (1979), the Arkansas Supreme Court in affirming the denial of benefits to a claimant who married three days after she terminated her employment, stated:

Even construing the statute liberally, we cannot agree with the circuit judge’s extension of its language to reach this case. A spouse, by definition, is a married person, a husband or wife. This claimant was not married when she left her job and thus could not have quit to accompany, follow or join ‘the other spouse.’ The statute as written has certainty, which the legislature presumably considered to be desirable; it applies only to married persons. But if the statute is interpreted to apply also to a single person who intends to get married three days later, it might equally well apply to one who intends to get married three weeks or three months later. A rule of liberal construction does not mean that the courts are free to substitute vagueness for precision.

Gatz is dispositive of the issue here.

Affirmed.


author: David Newbern, Judge.

text:
    William DAVIS v. STATE of Arkansas
    CA CR 79-150
    599 S.W. 2d 424
    Court of Appeals of Arkansas
    Opinion delivered April 30, 1980
    Released for publication May 21, 1980

      Charles E. Hanks, Wyman R. Wade, Jr., and Hubert L.

      Burch, by Wyman R. Wade, Jr., for appellant.

      Steve Clark, Atty. Gen., by: Joseph H. Purvis, Dep. Atty. Gen., for appellee.
   David Newbern, Judge.

The main issue in this case is whether the court abused its discretion in refusing to grant a severance to one of two criminal co-defendants where their testimony was mutually antagonistic. A second question is whether the court had a duty to instruct the jury with respect to suspension of sentence. We hold there was neither a duty to sever the defendants nor to instruct on suspension of sentence.

The appellant and his co-defendant, O.D. Smith, were tried together for the offense of theft of property valued in excess of $100. The evidence showed that while the appellant and Smith were out “driving and drinking” they went to the home of Celia Burns and took a number of phonograph records, a radio, a record player and other items. They were later apprehended while still in possession of these items.

1. Severance

Prior to the trial, the defendants moved for separate trials. The motion said only that it was made “for the reason that a severance is deemed necessary and appropriate to achieve a fair determination of the guilt or innocence of the defendants.” A third defendant who had been charged with Davis and Smith was severed, leaving Davis and Smith to be tried together.

Davis then made a separate motion to sever, saying that there was a

“danger that inadmissible statements of the co-defendants, making reference to each other, are likely to be offered in evidence at trial; William Davis will be deprived of his right to cross examine witnesses in violation of the Sixth Amendment to the United States Constitution, possibly the most potentially valuable witness for the defendant.”

A formal renewal of the separate motion was also made before trial saying:

This defendant, William Davis, pleads as an affirmative defense voluntary intoxication under Arkansas Statutes Annotated 41-207, as it ‘negates the existence of a purposeful mental state’, and that defendant Smith claimed he owned the property.

Severance was discussed among counsel and the court at the outset of the trial. The appellant’s counsel made the following statement:

Well, if Your Honor please, we had originally filed a Motion to Sever on March the 7th. Severance was denied and this date was set for trial. In going over this case, however, certain facts have developed and I am more determined that in my opinion it would be impossible for my client, William Davis, to receive a fair trial because it would appear from my investigation that the stories of the two (2) defendants, William Davis and O.D. Smith, joined here for trial, would be inconsistent. I understand I wouldn’t necessarily lose my right of cross examination; however, the effect of the cross examination would be mitigated and possibly thwarted; for one reason that I anticipate, defendant William Davis will ask for the Rule, and if he asks for the Rule, of course, that won’t affect Mr. O.D. Smith, who is a co-defendant. Thus, whichever of these defendants takes the stand first, their story is going to have the effect of ruling out the possibility of cross examination of the other one to some extent. Further, their story, being the first the jurors will hear, would have the effect of—well, an example that we use — “inkspots in the snow” and also would give whichever defendant remaining last possibly the opportunity to modify or change his story to some extent. That might work to the benefit of my client, but it might not. So for those reasons, I believe that Mr. William Davis cannot receive a fair trial in this cause unless severed. On May 25th, I renewed my Motion for Severance, providing the Prosecutor’s office and counsel for Mr. O.D. Smith with a copy of that motion, and again, I renew it this morning. Also, in that motion I have alleged an affirmative defense. I believe that’s all, sir.

In response to this statement and one made by the lawyer for Smith, the prosecutor said:

Your Honor, on behalf of State, we have no cross-implicating statements or any statement of either defendant that we plan to introduce at this time. The only statement that we have any knowledge of is that of defendant Davis to police officers to the effect he didn’t know — didn’t have any knowledge about the transactions in question today. So we have no statements that the State plans to introduce which would be cross implicating or cause any problems, and, of course, their right to cross examination is not denied. They still have full opportunity to cross examine the other defendant unless they refuse to take the stand. Of course, these are filed jointly; the facts are the same; same date. State feels there is no grounds for severance in this matter. If the defendants have conflicting stories as to what happened, I am not aware of them at this time. State doesn’t plan to introduce any statements.
The court ruled:
Gentlemen, if the State does not desire to or intend to introduce any cross-implicating statements made by either of the defendants, I am going to overrule your motions. First, I don’t think that the right of cross examination will be impaired in this matter. Each would have the right to cross examine as they would in a separate trial. Secondly, either defendant or both of them may or may not desire to testify. It’s their prerogative. But should they desire to testify, the fact that their stories may be inconsistent is not, of itself, sufficient to warrant or compel a severance in this matter, and I think in the interest of keeping the docket moving, speeding the matter along, I am going to overrule your motion. Your objections will be noted.

When the state rested at the end of its case in chief, the appellant’s counsel renewed his motion saying, “I will renew my motion for a severance on the grounds that I have discussed before.”

As the defense testimony developed, Davis tried to put the blame for the theft on Smith and to exonerate himself by claiming Smith had told him the owner of the property had written Smith a hot check for “furniture” and he (Davis) thought he was merely helping Smith repossess his property. Smith said he did not even go into the Burns house, but that they went to the house to get whiskey from an old drinking buddy, and before he knew it, Davis was stealing the items. Smith said he only helped put them in the truck because he was afraid they might be seen if they did not leave quickly, and he intended to take the items back later.

The Arkansas Supreme Court has held that the matter of severing the trials of co-defendants lies in the discretion of the trial court, Hallman v. State, 264 Ark. 583, 575 S.W. 2d 688 (1977), and that no error will be found absent an abuse of that discretion. Legg v. State, 262 Ark. 583, 559 S.W. 2d 22 (1979). See also, A. R. Cr. P. 22.3. Although our supreme court has dealt with the severance question on many occasions, we find no case where it has had to face up squarely to a motion for severance based only on “antagonistic defenses” where there are no pre-trial confessions or problems of lack of opportunity of cross examination. We might have had such a case here had the motion clearly stated the problem to the court.

In this case, neither the court nor the prosecutor had any idea what the appellant’s defense or testimony would be. The closest the appellant came to explaining the problem to the court was in his statement that he intended to raise the defense of voluntary intoxication “and Smith claimed he owned the property.” Smith’s lawyer said the co-defendants would tell antagonistic stories, but neither he nor the appellant’s counsel offered further explanation. From these cryptic remarks, the court could not have been expected to understand the problem.

In Derrick v. State, 259 Ark. 316, 532 S.W. 2d 431 (1976), the appellant claimed he had been unable to assert an entrapment defense because the court had refused his severance motion. The supreme court disposed of the argument by saying the appellant had not made it clear that that was the reason for his motion. In Brown v. State, 259 Ark. 464, 534 S.W. 2d 207 (1976), the supreme court said nothing “in the record” indicated the trial judge abused his discretion in refusing to grant the severance motion.

We have no choice but to view the trial court’s action based on the information available to him when he made his decision. While the Derrick and Brown cases are not strong statements of the principle, we find the general rule to be that when moving for a severance the movant bears the burden at least to make clear to the court the nature of the problem he faces if the motion is not granted. People v. Alvarado, 231 C.A. 2d 789, 42 Cal. Rptr. 310 (1965); Jones v. State, 243 Ga. 584, 255 S.E. 2d 702 (1979); State v. Hashimoto, 47 Haw. 185, 389 P. 2d 146 (1963); State v. Progue, 243 La. 337, 144 So. 2d 352 (1962); Anderson v. State, 81 Nev. 477, 406 P. 2d 532 (1965); Lewis v. State, 493 P. 2d 91 (Okla. Cr App. 1971). While these cases vary in stating the lengths to which the moving party must go to place the facts before the judge {e.g., statement by counsel, affidavit, etc.), they do not vary in their requirement that the court have sufficient information to form the basis of the exercise of his discretion. The appellant’s counsel seemed to want the severance, but he wanted even more to hide from the court the fact which, if properly explained, might have entitled the appellant to the severance. The trial judge did not abuse his discretion.

2. Instruction on Suspension of Sentence

The appellant makes the unique argument that if jurors are not told about the phenomenon of the suspended sentence they may “cheat the system” and return verdicts imposing no sentence to imprisonment in cases where they find it unwarranted. The appellant condemns this failure to permit the jurors to recommend suspension as “intellectual dishonesty.” We are at a loss to see how this purported flaw redounds to the disadvantage of the accused.

It is enough to quote the following passage from Gardner v. State, 263 Ark. 739, 569 S.W. 2d 74 (1978):

We have heretofore taken the position that the matter of suspension of sentence is to be determined by the trial court and lies within its discretion and that no statement should be made by the trial court that would lead the jury to think that a suspended sentence would be granted. Andrews v. State, 225 Ark. 353, 282 S.W. 2d 592 [1955]; Tucker v. State, 248 Ark. 979, 455 S.W. 2d 888 [1970]; Clayton v. State, 247 Ark. 643, 447 S.W. 2d 319 [1969]. We have said, however, that it was proper for the trial court to answer proper inquiries by the jury relating to the law governing recommendations of a suspended sentence. Pendleton v. State, 211 Ark. 1054, 204 S.W. 2d 559 [1947].
We have approved proper instructions on the role of the court and jury in matters pertaining to suspension of sentences where requests for information on the subject have been made by the jury. There is no reason why questions as to probation should be treated differently. We do not approve the giving of such instructions in the absence of a request by the jury.

Affirmed.

       Examples of these cases are: Derrick v. State, 259 Ark. 316, 532 S.W. 2d 431 (1976); Brown v. State, 259 Ark. 464, 534 S.W. 2d 207 (1976); Ingrahm v. State, 255 Ark. 6, 498 S.W. 2d 862 (1973); Lewis v. State, 220 Ark. 914, 251 S.W. 2d 490 (1952); and Perkins v. State. 217 Ark. 252, 230 S.W. 1 (1950).


text:
    Aldona M. LEGATE and Don LEGATE v. Clifton PASSMORE and Maurice PASSMORE
    CA 79-326
    599 S.W. 2d 151
    Court of Appeals of Arkansas
    Opinion delivered April 30, 1980
    Released for publication May 21, 1980

      Laser, Sharp, Haley, Young & Huckabay, P.A., for appellants.

      Robert P. Crockett, for appellees.
   David Newbern, Judge.

This case presents the single issue whether a remark made by a judge who tries a case without a jury may be construed as his entire findings of fact and conclusions of law when neither party has asked him to set out separate findings and conclusions. We do not believe such a remark may be so construed, and we. affirm the trial court’s judgment.

A car driven by the appellant Aldona Legate collided with one driven by the appellee Clifton Passmore. Passmore was driving on U.S. Highway 65, and Mrs. Legate was attempting to drive onto and across the highway from a side road. Much evidence was presented with respect to visibility conditions, Passmore’s speed, and whether either had turned headlights on.

After hearing the evidence, the judge found in favor of the appellees on their claim in the amount of $953.78 and against the appellants on their counterclaim. These findings were entered at the conclusion of the trial, and in connection with them the judge said:

I feel like the automobile already upon the highway has the superior right to use the highway, and a vehicle entering upon a stream of traffic may not do so until it’s absolutely clear and certain. And the person entering the highway has the burden of making sure that highway is open and clear and ready for him.

This remark was not intended by the judge, we feel sure, to encompass all his findings and conclusions of law. We do not feel his statement should be held to have been exclusive of other legal conclusions he might have reached in determining his verdict and judgment.

The complaint in this action was filed before the new rules of civil procedure came into effect. The case was tried after they came into effect. However, both Rule 52 and the superseded Ark. Stat. Ann. § 27-1744 (Repl. 1962), permit the court to decide a case without stating separately its findings of fact and conclusions of law. The Rule provides for the separate findings and conclusions “[i]f requested.” The superseded statute was so interpreted, and it was held that if no request were made, the matter was waived. Anderson v. The West Bend Co., 240 Ark. 519, 400 S.W. 2d 495 (1966); Dunaway v. Ragsdale, 177 Ark. 718, 9 S.W. 2d 6 (1928).

The main grievance of the appellants seems to be that the judge did not consider or apply the Comparative Negligence Act, Ark. Stat. Ann. §§ 27-1763 through 27-1765 (Repl. 1979). Had there been a failure to realize the applicability of that Act, the trial judge surely would have corrected the error when it was pointed out to him in the appellants’ motion for new trial.

Affirmed.


author: John A. Fogleman, Chief Justice.

text:
    Jim BARNES, Executor v. Jane Christania SEWELL
    80-37
    598 S.W. 2d 77
    Supreme Court of Arkansas
    Opinion delivered May 5, 1980

      Steel & Clardy, by: Floyd Clardy, for appellant.

      Philip M. Clay, for appellee.
   John A. Fogleman, Chief Justice.

The sole question on this appeal is whether the probate judge erred in holding that a paragraph in the will of Sophina Carter was a specific, rather than a general, bequest. We find that he did not and affirm.

Mrs. Carter left an instrument dated February 7, 1977, as her will. It was offered for probate upon the petition of appellant Jim Barnes, who was named as executor by a codicil executed by Mrs. Carter on March 23, 1977. The third paragraph of the will, the one in question, provided:

“I bequeath all monies I may possess, my checking account monies, savings account monies, Certificates of Deposits, bonds of any nature and other evidence of debt such as promissory notes, to my niece, Christania Sewell”.

Christania Sewell filed a petition for abatement and contribution alleging that the executor had used the terms named in the paragraph in question to pay costs of administration and that he planned to pay all costs of administration, all claims against the estate and all estate taxes from those assets. She alleged that this action was contrary to Ark. Stat. Ann. §§ 62-2903 and 62-2904 (Repl. 1971). She prayed that no other claims or costs of administration be paid, that abatement of the various gifts be “appropriated” in accordance with the above named statutes, that an accounting be rendered to determine what monies were possessed by the decedent in the form of checking account monies, savings account monies, certificates of deposit, bonds of any nature, and other evidence of debt, such as promissory notes, that contribution in accordance with the shares of other beneficiaries be made in accordance with the above named statutes, that any amounts determined to have been wrongfully removed from the gift to the petitioner be returned to her, that she have a lien on the property of other beneficiaries of the will and that she recover her attorney’s fees.

This petition was controverted by the attorney for the estate, who later withdrew, and, as the scrivener of the will, testified as to the intention of the testatrix. After a hearing, the probate judge sustained appellee’s position.

It was stipulated that all the devises and bequests in the will, except for those in the residuary clause and the paragraph in question, were specific gifts. Appellant argues that the bequest here is not a specific legacy under the following definition set out in Holcomb v. Mullin, 167 Ark. 622, 268 S.W. 32, viz:

“A specific legacy or devise is a gift by will of a specific article or part of the testator’s estate, which is identified and distinguished from all other parts of the same kind, and which may be satisfied only by delivery of the particular thing.”

It would be difficult to find a clause more nearly like the one in question here than that held to be a specific legacy in Holcomb. There the clause at issue was:

To my dear Uncle Joe Mullin, who raised and fostered my sister and me, I give, devise and bequeath all the money I may have on deposit in any bank at the time of my death.

It is also difficult to conceive of any language that the testatrix in this case might have used which more clearly indicated her desire to bequeath to her niece, appellee here, all her money including that on deposit in checking accounts and savings accounts, whether payable on demand or after the passage of a specified time, together with all evidences of debt, such as bonds and promissory notes.

This clause is not at all comparable with the clause in question in Goforth v. Goforth, 202 Ark. 1017, 154 S.W. 2d 819, where there was a bequest of ‘‘all of my personal property of whatsoever kind and wheresoever situated, left by me at my death.” In that case, we equated the language of the particular clause with the words “all the rest and residue of my personal property.” We concluded that the/ use of the language “all of my personal property” made the bequest a residuary legacy rather than a specific one. In addition to the definition in Holcomb, we relied upon textbook statements of requirements for a specific legacy, when the language relied upon is in a residuary clause. In the will of Mrs. Carter, there was a residuary clause by which she gave, devised and bequeathed “[a]ll the rest and residue of the estate, whether real, personal or mixed, of every kind and nature whatsoever and wheresoever situated, which I may now own or hereafter acquire,” to her great nieces and nephews. It is quite easy to distinguish the bequest of appellee from the residue in the will before us.

Appellant argues that the bequest in this case fails to qualify as a specific legacy because it mentions no amount and refers to no particular fund. In this respect it is like the bequest in Holcomb, where no amount and no particular bank were mentioned.

Appellant also relies upon the testimony of the scrivener who said:

*** I know what the will means to me, and what I intended to do, and what Mrs. Carter intended to do was to make a general grant of liquid assets and I said, “I bequest all the money I possess”, and then I began to enumerate the types of money. “Checking account, savings account money, and certificates of deposit, and evidence of debt.”

This testimony was proferred but not admitted by the probate judge. It was properly excluded. In Binns v. Vick, 260 Ark. 111, 538 S.W. 2d 283, relied upon by appellant, we held that extrinsic evidence is admissible in determining the testator’s intention to show the meaning of the words the testator used but not to show what the testator meant as distinguished from the words of the will. The attorney in this case was not attempting to testify as to the meaning of the words used by the testatrix. He was attempting to tell the court what the testatrix meant to say as distinguished from the unambiguous words used.

The judgment of the probate court is affirmed.


author: George Rose Smith, Justice. John A. Fogleman, Chief Justice.

text:
    L. B. BRYANT and Mrs. Herbert BRYANT v. Delilah LEMMONS and Benny HERRON
    80-61
    598 S.W. 2d 79
    Supreme Court of Arkansas
    Opinion delivered May 5, 1980

      James 0. Burnett, for appellants

      John M. Bilheimer, for appellees.
   George Rose Smith, Justice.

In 1976 the two appellees filed their petition in the probate court for a determination first, of the heirship of their grandfather, Tom Herron, who died in 1938 allegedly owning 20 acres of land in Lonoke county, and second, of the heirship of their father, Joseph Herron, who died in 1967 allegedly owning the same 20 acres. Ark. Stat. Ann. § 62-2914 (Repl. 1971). The two appellants were joined as respondents on the ground that they claimed some interest in the 20 acres through the estate of Tom Herron’s widow, Mary Ella Herron Ray, who remarried after Tom’s death. The appellants rely in part upon three-year and five-year statutes of limitation as a defense to the action.

The probate judge found that Tom Herron died interstate in about 1938, survived by his widow, Mary Ella Herron (Ray), who died in about 1971, and by one child, Joseph Herron, who died intestate in about 1967. Joseph was survived by eight children, including the two petitioners, and by the descendents of a deceased child. The probate court order determined the two heirships accordingly. The title to the 20 acres is not in issue in this proceeding and, we are told, is being litigated in another suit in the circuit court.

We agree with the probate court’s finding that no statute of limitation bars this action. The appellants argue, first, that th present petition is barred, because the appellees did not question the heirship of Mary Ella Herron Ray (their step-grandmother) until more than three years after the administration of her estate in 1971. Ark. Stat. Ann. § 62-2914 (d). As far as this record shows, however, the appellees are not claiming through Mary Ella and consequently the identity of her heirs is not material to this proceeding.

Second, the appellants argue that the present petition is barred by the five-year statute that applies to actions not otherwise provided for. Ark. Stat. Ann. § 37-213 (Repl. 1962). That statute requires that the action be brought “within five years after the cause of action shall have accrued.”

The question, then, narrows down to this: When did the petitioners’ cause of action accrue? Obviously a cause of action for the determination of heirship does not accrue in a vacuum. The question of heirship becomes important when a person seeks to assert a claim to real or personal property that was owned by the decedent whose heirs are to be ascertained. Ordinarly, when the action for the recovery of the property is brought, the plaintiff simply has the burden of proving his status as an heir as a condition to establishing his right to the property.

There is, however, an alternative statutory procedure for the determination of heirship in the probate court. Ark. Stat. Ann. § 62-2914 (Repl. 1971). That procedure has the advantage of enabling the petitioner to join unknown heirs as defendants, who are served by publication and are required to assert their claims within three years after the entry of the order determining heirship, with a savings clause for persons under disability. That is the procedure which the petitioners are following in the case at bar.

We can see no reason for a requirement that a petition for the determination of heirship be filed within five years or any other specified time after the death of the person whose heirs are to be ascertained. In the present case Tom Herron died in 1938. If his widow, Mary “Ella, was entitled, as a hypothetical example, to possession of the 20 acres as her homestead, Joseph Herron was certainly not required to bring suit within five years to prove that he was the sole heir of his father. Why should he go to that expense when apparently no one was questioning his standing as an heir? If it be assumed that Mary Ella was still in possession of the homestead at Joseph’s death, Joseph’s children certainly had no reason to seek a determination of their own status as his heirs-until that question arose with respect to their right to recover the 20 acres. The question would not actually arise until after the death of Mary Ella, the life tenant. Only then would Joseph’s children have a cause of action for the recovery of the land, with a need to establish the identity of Joseph’s heirs at that time.

Thus the practical solution is for the question of limitations to be governed by the cause of action for the recovery of the property, not by an abstract cause of action for the determination of heirship. That is essentially the position we took in our supplementary opinion on rehearing in McBroom v. Clark, 252 Ark. 372, 380 S.W. 2d 947 (1972), where we held that Gertrude McBroom’s cause of action as an heir was governed by the seven-year statute for the recovery of an interest in land. The point is this: Actions must be brought by the real parties in interest, but the identity of those parties need not be determined until an issue of pecuniary consequence arises.

The appellants also argue that the proof does not show that Joseph Herron was in fact the son of Tom and Patsy Herron. It is enough for us to say the decided preponderance of the evidence support the trial judge’s finding. The testimony of the witness Rhodes is strongly persuasive, and a census return of 1900 puts the matter almost beyond doubt. That return was made by a census taker who had no reason to falsify the facts and was admissible as a public record. Uniform Evidence Rule 803 (8), Ark. Stat. Ann. § 28-1001 (Repl. 1979); Flora v. Anderson, 75 Fed. 217, 231 (C.C. Ohio, 1896); Priddy v. Boice, 201 Mo. 309, 99 S.W. 1055 (1906); Edwards v. Edwards, 239 S.C. 85, 121 S.E. 2d 432 (1961). The testimony of Mrs. Bryant, one of the appellants, even if admissible, does not overcome the contrary proof.

Finally, it is argued that the appellees have not shown that Joseph Herron owned the 20 acres now in question. This argument is without merit, not only because the title is not in issue in this proceeding, but also because the contention is made for the first time in the appellants’ reply brief and therefore cannot be considered. Ryall v. Waterworks Imp. Dist. No. 3, 247 Ark. 739, 447 S.W. 2d 341 (1969).

Affirmed.

Mays, J., not participating.

Fogleman, C.J., concurs.

John A. Fogleman, Chief Justice.

Even though I think that it is deplorable that there seems to be no statute of limitations on a proceeding for determination of heirship under Ark. Stat. Ann. § 62-2914 (Repl. 1971), I must concur in the result reached by the majority, although I am unable to find any logic in its basis upon the erroneous premise that the petitioners’ cause of action for a determination of heirship did not accrue until after the death of the life tenant. If the life tenant were a year old infant who lived for 90 years, then, under the majority’s view, the cause of action would not accrue for eighty-nine years, by which time anyone who knew any pertinent facts would more than likely have died and the memory of those who were living would likely be untrustworthy. A determination of heirship is not for the purpose of recovery of possession of land or property. It is to establish the right to inherit. The very provisions of the statute in question contradict the majority opinion. Section 62-2914 (a) (Repl. 1971) establishes the time when a cause of action accrues. It says:

Whenever a person had died leaving in this state property or an interest therein, a person claiming an interest in such property as heir or distributee or through an heir or distributee, or the personal representative of the decedent may file a petition, jn the Probate Court of proper venue for the adminitration of such decedent’s estate, to determine the heirs and distributees of said decedent and their respective interests in the estate or the property. [Emphasis mine.]

Surely the majority does not intend to say that an heir does not have an interest in real estate owned by the decedent before he has the right to possession, but that is the effect of the opinion. The appellees had a right to bring an action to prevent an encroachment on the property or to enjoin the life tenant from committing waste during the life tenancy. Evans v. Pettus, 112 Ark. 572, 166 S.W. 955; Watson v. Wolff-Goldman Realty Co., 95 Ark. 18, 128 S.W. 581, 12 Conn. Cas. 1912A, 540 Ann. Cas. 540. They could have brought an action in inverse condemnation for appropriation of the land, and if they failed to do so, their right of recovery would have been barred after seven years, even though the life tenant was alive during the entire period. Memphis & Little Rock, R.R. Co. v. Organ, 67 Ark. 84, 55 S.W. 952; Bentonville R.R. v. Baker, 45 Ark. 252. They likewise had a right to file a petition for determination of heirship as soon as Joseph Herron died. Obviously, they had a claim to “an interest” in the real estate involved on that day. Of course, the statute of limitations does not begin to run on a possessory action on the day right to possession accures. But that has no bearing on the right to have a determination of heirship in the probate court. As demonstrated in Earp v. Earp, 250 Ark. 107, 464 S.W. 2d 70, appellees could have their rights as heirs established in a possessory action within the seven year statutory period without a probate proceeding to determine heirship. Neither McBroom v. Clark, 252 Ark. 372, 480 S.W. 2d 947, cited in the majority opinion, nor Earp v. Earp, supra, have any other application to this proceeding. Both were suits for partition brought after the death of the life tenant. In the former, the statute of limitations was raised to an alleged determination of heirship, previously made in the probate court. No question was raised as to the statute of limitations on the bringing of an action for determination of heirship. We held that the seven year statute for recovery of an interest in land applied to the action for partition by one who had not been a party to a proceeding for determination of heirship (which does not appear to actually have been the kind of proceeding contemplated by Ark. Stat. Ann. § 62-2914 [Repl. 1971]). In the latter, there was no determination of heirship.

A determination of heirship under Ark. Stat. Ann. § 62-2914 (Repl. 1971) is a special proceeding, not a civil action. In spite of the fact that the Rules of Civil Procedure govern proceedings in the probate courts in all suits or actions of a civil nature,'civil actions are filed in the circuit or chancery court and are instituted by filing a complaint. Rules 1, 2 and 3, Rules of Civil Procedure [Ark. Stat. Ann. Vol. 3A (Repl. 1979)]- The Rules of Civil Procedure did not supersede Ark. Stat. Ann. §§ 27-105, 27-106, or 26-107 (Repl. 1979). Further, in a civil action, the clerk issues a summons. Rule 4, Rules of Civil Procedure, supra. Under Ark. Stat. Ann. § 62-2914, notice is given in an entirely different manner. Even though a determination of heirship may be said to be a proceeding in a court of justice by one party against another for the protection of a private right, it seems to me that it is not an ordinary proceeding as required for a civil action by Ark. Stat. Ann. § 27-106, so it seems to be a special proceeding under Ark. Stat. Ann. § 27-107. See Coleman v. Coleman, 257 Ark. 404, 520 S.W. 2d 239. We have held that the matter of confirming accounts of a guardian or personal representative is not a civil action, but a special proceeding. Nelson v. Cowling, 89 Ark. 334, 116 S.W. 890 (on rehearing). We have held that a proceeding to probate or contest a will is a special proceeding, not a civil action. Coleman v. Coleman, supra. See also, Rockafellow v. Rockafellow, 192 Ark. 563, 93 S.W. 2d 321. We took the position in Nelson that guardianship proceedings are proceedings in rem.

We have also, taken the position that a special proceeding must be conducted according to the particular statute governing it and not under the procedures provided for civil actions. Davis v. Moore, 70 Ark. 240, 67 S.W. 311; Logan v. Russell, 136 Ark. 217, 206 S.W. 131. The procedure for determination of heirship is fairly well outlined in Ark. Stat. Ann. § 62-2914 and in other sections of the probate code, which have been held to apply when there is a conflict between the specific provisions of the probate code and procedures governing in courts of equity which would otherwise apply under Ark. Stat. Ann. § 62-2004 (e) (Repl. 1971). Statutes pertaining to limitations of actions have no application to special proceedings. Nelson v. Cowling, supra Cf. Coleman v. Coleman, supra.

Clearly a determination of heirship is a special proceeding and the general statute of limitations pertaining to all actions, [Ark. Stat. Ann. § 37-213 (Repl. 1962)], does not apply. For this reason, I concur in the result reached by the majority.


author: Frank Holt, Justice.

text:
    Clyde Junior YOUNG v. STATE of Arkansas
    CR 80-47
    598 S.W. 2d 74
    Supreme Court of Arkansas
    Opinion delivered May 5, 1980

      James E. Davis, for appellant.

      Steve Clark, Atty. Gen., by: Catherine Anderson, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

The appellant was convicted of delivery of a controlled substance in violation of Ark. Stat. Ann. § 82-2601, et seq. (Supp. 1979), Act 590 of 1971 as amended, and criminal use of a prohibited weapon in violation of Ark. Stat. Ann. § 41-3104 (Repl. 1979). He received sentences of fifteen and three years respectively, the sentences to run consecutively.

Appellant first asserts for reversal that the trial court erred in admitting “evidence” of other drug sales by permitting an undercover narcotics agent to testify that, at the time he purchased two hits of phencyclidine (PCP) from the appellant, the appellant told him he had already sold thirty hits of PCP that night. He cites Ark. Stat. Ann. § 28-1001, Rule 404 (b) (Repl. 1979), which provides:

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

The appellant argues that the evidence was admitted for the sole purpose of proving that he regularly dealt in drugs, which is contrary to Rule 404 (b). Further, evidence of other drug sales was not necessary to establish his identity, plan or intent inasmuch as the offense charged, delivery of a controlled substance, was established by the agent’s testimony. Neither was the evidence admissible to establish that he “had dealt in drugs before and hence was likely to have done so again,” citing Sweatt v. State, 251 Ark. 650, 473 S.W. 2d 913 (1971) and other cases of a similar import.

“The general rule is that evidence of other crimes by the accused, not charged in the indictment or information and not a part of the same transaction, is not admissible at the trial of the accused.” Moser v. State, 266 Ark. 200, 584 S.W. 2d 15 (1979). However, evidence of other criminal activity is admissible under the res gestae exception to the general rule to establish the facts and circumstances surrounding the alleged commission of the offense. Dail v. State, 255 Ark. 836, 502 S.W. 2d 456 (1973);Russell & Davis v. State, 262 Ark. 447, 559 S.W. 2d 7 (1977); and Carter v. United States, 549 F. 2d 77 (8th Cir. 1977). In Dail we said:

The testimony objected to in the case at bar was not independent testimony of separate crimes committed by the accused, but was testimony of the witness as to what products the accused said he had available, after which the witness elected to purchase the marijuana.

Here the agent testified as to a conversation he had with the appellant at the time of delivery transaction. When he asked appellant about the quality of the PCP, two packets of white powder, the appellant assured him it was “pretty good,” and he had already sold thirty hits that same night. The agent merely testified as to what the appellant told him about his activities that night. Further, following the agent’s testimony, the court admonished the jury that the testimony was admitted for the limited purpose of establishing the “entire transaction of the night in question,” and not for determining the appellant’s guilt or innocence with regard to the offense with which he was being tried. In the circumstances, the court did not err in admitting the questioned testimony.

Also, in the recent case of Price v. State, 267 Ark. 535 597 S.W. 2d 598 (1980), we held that once independent relevancy is established, i.e., the evidence tends to prove some material point rather than the defendant is a criminal, evidence of other criminal activity may be admitted if its probative value outweighs its prejudicial effect. § 28-1001, Rule 403. Further, the trial court is accorded a wide discretion in determining the admissibility of such evidence, and we do not reverse absent an abuse of discretion. There, as here, the appellant denied criminal involvement in the offense charged. We held that evidence of a telephone conversation between the appellant and a police informant during which the appellant made statements which “intimated involvement in the Reno car theft and admitted involvement in other car thefts” was admissible during the trial on a local charge of a car theft. The dates and locations of “other car thefts” were not indicated. Even so, we held that evidence of other criminal activities had independent relevancy, and the potential for prejudice as to other thefts did not outweigh the probative value of the evidence. Here, the other sales of PCP occurred on the very same night. In the circumstances, we cannot say that the court abused its discretion.

The appellant next argues that the court erred in allowing in evidence a sawed-off shotgun and the phencyclidine inasmuch as the authenticity of this evidence was not proven. A narcotics agent testified he purchased two packets containing a white powder from the appellant. He kept them in his possession for four days before sending them by registered mail to the State Crime Laboratories. He identified the envelope proferred by the state as the envelope he had labeled and sent to the Crime Lab. The agent had labeled the envelope with his initials, the case file number, the date, “Arkansas State Police Evidence” and “two small papers, folded several times, containing white powder believed to be PCP.” A chemist from the State Crime Lab identified the envelope proffered by the state and testified that the items had been in his control since their receipt. The shotgun was identified by the narcotics agent as the one he had purchased from the appellant. An agent for the Bureau of Alcohol, Tobacco and Firearms identified the shotgun as the one he had received from the undercover narcotics agent and had stored in his vault until the trial commenced. The purpose of establishing a chain of custody is to prevent the introduction of evidence which is not authentic. Milburn v. State, 260 Ark. 553, 542 S.W. 2d 490 (1976); and Baughman v. State, 265 Ark. 869, 582 S.W. 2d 4 (1979). The chain of custody here clearly established the authenticity of the items.

Appellant next asserts the court erred in refusing to grant a mistrial when the prosecuting attorney, in his closing argument, stated that “I believe my five year old son would know that gun is illegal by looking at it.” In justifying his possession of the sawed-off shotgun, the appellant had testified that he had it as collateral for a loan, and he had returned it to its owner upon repayment of the loan. He denied selling it to the agent. The prosecutor merely stated his personal opinion as to his child’s ability to perceive that the sawed-off shotgun was an illegal weapon. In other words, he was merely deprecating the credibility of appellant’s testimony. Mere expressions of opinion by counsel in their closing arguments are not impermissible as long as they are not so flagrant so as to purposely arouse passion and prejudice. Willis v. State, 220 Ark. 965, 251 S.W. 2d 816 (1952); Stanley v. State, 248 Ark. 787, 454 S.W. 2d 72 (1970); and Perry v. State, 255 Ark. 378, 500 S.W. 2d 387 (1973). Here appellant’s objection was sustained, and the court admonished the jury to disregard remarks by the attorneys unless based upon the evidence. Certainly, we cannot say the court abused its discretion in denying a mistrial.

Affirmed.


text:
    Homer Roy BEARD v. STATE of Arkansas
    CR 80-49
    598 S.W. 2d 72
    Supreme Court of Arkansas
    Opinion delivered May 5, 1980

      John W. Achor, Public Defender, by: Jeff Rosenzweig, Deputy Public Defender, for appellant.

      Steve Clark, Atty. Gen., by: Catherine Anderson, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

Appellant was convicted of manslaughter in the shooting death of his brother and sentenced to ten years’ imprisonment. He first argues that the trial court erred in admitting appellant’s oral statement into evidence.

The burden, of course, is on the state to demonstrate that an in custodial statement was freely and voluntarily given, and on appeal we make an independent determination of voluntariness based on the totality of circumstances and will not set aside the trial court’s finding of voluntariness unless it is clearly against the preponderance of the evidence, or clearly erroneous. Clark v. State, 264 Ark. 630, 573 S.W. 2d 622 (1978); and Degler v. State, 257 Ark. 388, 517 S.W. 2d 515 (1974). Voluntary oral statements are admissible. See Scott v. State, 249 Ark. 967, 463 S.W. 2d 404 (1971); and Dailey v. State, 250 Ark. 965, 468 S.W. 2d 238 (1971); appellant cites no authority to the contrary.

When the arresting officer arrived at the scene of a family disturbance, the victim was being placed in an ambulance. He questioned the appellant after advising him of his constitutional rights. Appellant told the officer that he had shot his brother because he was “running over him.” Although the appellant had been drinking, he had his senses about him. Appellant admits he was advised of his constitutional rights, there was no intimidation or coercion, and he was not drunk. He only disputes the officer’s testimony as to the cause of the shooting. Appellant maintains the shooting was an accident and that he so advised the officer.

Any conflicts in the testimony were fact issues which were for the trial court to resolve. Bell v. State, 258 Ark. 976, 530 S.W. 2d 662 (1975). Here we cannot say that the trial court’s finding that the oral statement was voluntary is clearly against the preponderance of the evidence. Appellant makes a subordinate or incidental argument that the trial court ruled the “confession” was admissible on the ground that the appellant could take the stand to contradict the statement thereby compelling him to do so. We do not so construe the court’s holding. Further, there was no objection which would constitute a basis for this argument made at the Denno hearing.

Appellant’s next argument is, in essence, that the charge of second degree murder should have been dismissed due to an “unamended defect in the information” inasmuch as the statutory word “knowingly” was omitted from the information. The information charged appellant with the crime of violating Ark. Stat. Ann. § 41-1503, Murder, Second Degree in that he “unlawfully, feloniously, and under circumstances manifesting extreme indifference to the value of human life, did cause the death of David Beard by shooting him with a .12 gauge shotgun.” The wording of the information parallels the wording of Ark. Stat. Ann. § 41-1503 (1) (b) (Repl. 1977) which provides: In addition to naming the appellant, the offense charged, the statute under which the charge was made, the court, and the county where the alleged offense was committed, the information set forth the principal language of the statute and the asserted facts constituting the offense. The information clearly met the required standard. Workman v. State, 267 Ark. 103, 589 S.W. 2d 20 (1979). Ark. Star. Ann. §§ 43-1006, 43-1008 and 43-1022 (Repl. 1977). In Workman, we we held that an information is not defective if it sufficiently apprises the individual of the specific crime with which he is charged to the extent necessary to enable him to prepare his defense. Additionally, here the appellant did not avail himself of his right to seek addditional details by filing a bill of particulars as provided by § 43-1006. Neither did he raise the issue until after the state had rested its case, and further the jury acquitted him of the murder charge by reducing it to a lesser offense.

A person commits murder in the second degree if:
(b) he knowingly causes the death of another person under circumstances manifesting extreme indifference to the value of human life; . . .

Affirmed.


author: John I. Purtle, Justice.

text:
    James M. WILSON et ux v. LESTER HURST NURSERY, INC.
    80-19
    598 S.W. 2d 407
    Supreme Court of Arkansas
    Opinion delivered May 5, 1980
    Rehearing denied June 9, 1980

      Griffin Smith, for appellants.

      Hoover, Jacobs & Storey, for appellee.
   John I. Purtle, Justice.

Appellee, Lester Hurst Nursery, Inc., brought suit in the Pulaski County Chancery Court against appellants, Dr. James W. Wilson and his wife, Barbara J. Wilson, for the sum of $10,581 representing charges for landscape work performed by appellee at their residence in Little Rock, Arkansas. A lien had been filed by appellee; however, the court found it was not timely and dismissed it. The court granted personal judgment against the appellants jointly in the sum sought, plus interest from the date the bill was due until the date of the judgment, and in-interest on the judgment at 10% until paid. The court subsequently reduced the judgment to $10,160.38 and reduced the prejudgment interest to 6%.

On appeal appellants argue (1) the judgment was usurious; (2) it was error to award judgment against Barbara J. Wilson; (3) the amount charged for the labor and materials was unreasonable; and, (4) no prejudgment interest should have been allowed. We disagree with appellants on all four arguments.

The evidence reveals that Dr. Wilson went by Mr. Hurst’s office with a landscape plan for his new home, and they agreed Hurst would do the job. Dr. Wilson testified Hurst told him landscaping would not cost much and the charges would be in line. Hurst denied the cost being discussed. In any event, there was no agreed price for the contract.

On March 17, 1977, after the work was completed, appellee sent appellants a bill in the amount of $10,581. The bill included a statement that all . bills were due on the 10th of the month and that payments past due more than 30 days would be charged interest at the rate of 10% per annum. Upon receipt of the bill, Dr. Wilson stated it was ridiculous and refused to pay it. The appellee attempted to file a lien, but the court found it to be untimely. Suit was filed by appellee for $10,581 plus sales tax, interest, and costs.

During the trial, both sides presented evidence and testimony favorable to their positions. Appellants’ expert witness testified he thought a reasonable charge for the landscaping would have been between $5,000 and $6,000. He based his estimate upon the use of 70 crossties on the job site. He had not inspected the site prior to the work having commenced. Appellee produced an expert who had observed the site before and after the work was completed. He testified the quality of the work was good and the price was reasonable. He estimated 121 crossties were used oin the job. This was the number of crossties appellee claimed to have used on the job.

The trial court rendered judgment against Dr. Wilson and his wife in the amount of $10,741.38 with the prejudgment interest at the rate of 10% and provided the judgment would bear interest at 10% per annum. The judgment further provided if the amount was not satisfied within three days, it would become a lien on the property where the work was performed. The judgment was subsequently amended to the amount of $10,160.38, plus prejudgment interest at 6%, and interest thereafter at 10%.

Appellant correctly states the constitutional limit of 10% per annum interest; and, that if there is no agreement on interest, the rate will be 6% on contracts. The sanctions of Art. 19 § 13 Const, of Ark. apply only to charges in excess of 10% per annum. So far as we are able to determine, we have never before been called upon to declare interest at less than 10% per annum usurious. Appellant correctly cites several cases where we have held contracts to be usurious; however, none of the decisions involved a rate of interest less than 10% per annum.

Appellant cites the case of Lovell v. Marianna Federal Savings & Loan Assoc., 267 Ark. 164, 589 S.W. 2d 577 (1979), as authority for prejudgment interest being 6%. In Lovell we stated:

. . . Therefore, he is entitled to the proceeds of the certificate of deposit together with interest from the date of such loss of use, at the rate of 6% per annum, as required by art. 19 § 13, Const, of Ark., until he receives payment.

Appellant, no doubt, failed to note the change in the opinion which is reflected in the Advance Sheets of December 3, 1979, at page 168. It is obvious this Court recognized the constitutional requirement that contracts draw interest at the rate of 6% per annum in the absence of an agreement for a different rate. The trial court correctly amended the prejudgment interest to 6% rather than 10% considering the facts that the obligation was contractual and there was no agreed rate of interest.

The argument that the judgment should not have included Barbara J. Wilson comes before this Court for the first time on appeal and cannot be considered because it was not raised in the trial court. Ragge v. Bryan, 249 Ark. 164, 458 S.W. 2d 403 (1970).

We have set out the facts relating to the reasonableness of the bill in the factual portion of this opinion. The chancellor found appellants owed a sum which was less than the amount claimed by appellee and somewhat greater than the estimate by appellants’ witness. The appellants’ witness admittedly based his estimate on the use of 70 crossties when, in fact, 121 had been used.

The matter was fairly and fully presented before the trial judge, who was in a better position than we are to evaluate the evidence and the testimony. We cannot say that the decree was clearly erroneous in reaching this result; and, therefore, we must affirm the chancellor’s ruling as to the reasonableness of the charges. Gibson v. Heiman, 261 Ark. 236, 547 S.W. 2d 111 (1977).

Appellant finally urges appellee was not entitled to any interest because it failed to recover the full amount sued for. We believe Lovell, supra, was correct where we stated:

The reason for allowing interest in such cases is to compensate the plaintiff for the loss. The time of the loss is used to determine the value of the property. When there has been a delay in compensating the injured party, he has an additional loss for the period of time for which he has been dprived of use of his property. ### These funds had an exact determinable value, both as to time and amount, when appellant was deprived of the use of them.

In the present case, the court determined the amount due the appellee and the time it was supposed to have been paid. Therefore, it meets the test set out in Lovell, supra. Had appellant so desired, he could have invested the money owed appellee at a rate considerably in excess of 6%; and, had he done so, he would have profited by his failure to pay the obligation.

For the reasons stated above we feel the cross-appeal should be denied.

Affirmed on appeal and cross-appeal.


author: John F. Stroud, Justice. George Rose Smith, John I. Purtue, Justice,

text:
    Doris Marie DAWSON v. PAY LESS SHOES #904 CO., INC.
    80-60
    598 S.W. 2d 83
    Supreme Court of Arkansas
    Opinion delivered May 5, 1980

      Guy Jones, Jr., for appellant.

      Friday, Eldredge & Clark, by: Boyce R. Love, for appellee.
   John F. Stroud, Justice.

This is a civil action seeking compensatory and punitive damages for false arrest, unlawful detention and malicious prosecution. The jury found for the defendant and appellant contends on appeal that the verdict should be reversed due to an erroneous instruction by the court. She contends the instruction amounted to a comment on the weight of the evidence. We find no error in the instruction and, therefore, affirm the jury verdict.

On January 3, 1976, appellant went to appellee’s shoe store in Conway, Arkansas. The clerk accused appellant of placing an unpurchased pair of shoes in her purse, but appellant denied it. The police were summoned and, after their investigation, appellant was arrested and taken to the police station. Appellant posted an appearance bond and apparently the shoplifting charges were dismissed or she was acquitted. Appellant then filed suit against the store for false arrest, unlawful detention and malicious prosecution, alleging less of wages and mental anguish. Appellees claimed all actions of the clerk and store were reasonable under the circumstances, relying on Ark. Stat. Ann. § 41-2251(a) (Repl. 1977), which absolves a merchant, or his employee, from criminal or civil liability for false arrest, false imprisonment or unlawful detention for the reasonable detention of a suspected shoplifter. The case was tried before a jury on August 8, 1979, resulting in a verdict for appellee. Appellant brings this appeal, alleging that a jury instruction requested by appellee, and presented to the jury by the court, was improper in that it commented on the evidence.

The only question to be determined on appeal is whether the challenged jury instruction constituted a comment on the evidence. That instruction, defendant’s requested instruction No. 1, provided as follows:

There was in force in the State of Arkansas and City of Conway at the time of the occurrence a statute which provided:
Shoplifting Presumption. The knowing concealment, upon his person or the person of another, of unpurchased goods or merchandise offered for sale by any store or other business establishment shall give rise to a presumption that the actor took goods with the purpose of depriving the owner, or another person having an interest therein. [Ark. Stat. Ann. § 41-2202(2) (Repl. 1977).]
A person engaging in conduct giving rise to the foregoing presumption may be detained in a reasonable manner and for a reasonable length of time by a peace officer or a merchant or a merchant’s employee in order that recovery of such goods may be effected. Such detention by a peace officer, merchant, or merchant’s employee shall not render such peace officer, merchant or merchant’s employee criminally or civilly liable for false arrest, false imprisonment, or unlawful detention. [Ark. Stat. Ann. § 41-2251(a) (Repl. 1977).]
Therefore, if you find that Doris Dawson concealed unpurchased goods or merchandise upon her person, then the defendant’s employee and the police were entitled to detain her in a reasonable manner for a reasonable length of time, and your verdict should be for the defendant.

Citing the case of Thiel v. Dove, 229 Ark. 601, 317 S.W. 2d 121 (1958), appellant contends that this instruction was improper in that it commented on the evidence. The Constitution of Arkansas, Article 7, § 23, provides that “Judges shall not charge juries with regard to matters of fact, but shall declare the law . . .” In Thiel, a slander action, the court instructed the jury that malice may be inferred from the absence of probable cause. This court did hold the instruction to be an improper comment on the weight of the evidence, because it purported to tell the jury what facts were of sufficient weight to warrant the inference. Such is not the case here where the challenged instruction merely set out the law application to the issue as contained in two statutes. The instruction did not advise the jury that any presumption had been established by the evidence adduced at trial; but to the contrary, advised the jury that if they found the facts to meet the requisites for the statutory presumption, then their verdict should be for appellee.

Appellant also cites AMCI 2203-PR as authority for her contention that the instruction given was erroneous. If this were a criminal trial for shoplifting, the criminal jury instruction would support such contention, but this is a civil suit. The first two paragraphs of the instruction are merely quotes of the two applicable statutes. This court has held many times that an instruction is proper which follows the wording of a statute and which is applicable to the facts in the case. Jones v. City of Forrest City, 239 Ark. 211, 388 S.W. 2d 386 (1965); Gentry v. State, 201 Ark. 729, 147 S.W. 2d 1 (1941). Neither of these statutes has been challenged, so their validity or constitutionality is not in question.

In the present case, due to the statutory presumption created by § 41-2202(2) and quoted in the first paragraph of the instruction, the jury was bound to find for the defendant if they found that the appellant concealed unpurchased goods upon her person. Normally the jury would also be required to find that the detention was reasonable as to manner and length to obtain the immunity of § 41-2251(a) which is quoted in the second paragraph of the instruction. However, we do not know if that issue was conceded at trial as the appellant, who has the burden of proof, did not include the testimony at trial in the transcript or her brief. From the record before us, appellant did not specifically raise at trial the issue that the detention was unreasonable as to manner or length, and we will, therefore, not consider that issue upon appeal.Jones v. Reed, 267 Ark. 237, 590 S.W. 2d 6 (1979);Stroud v. Crow, 209 Ark. 820, 192 S.W. 2d 548 (1946).

We find the challenged instruction was not a comment on the weight of the evidence, and, therefore, affirm the trial court.

George Rose Smith, J., concurs.

Purtle, J., dissents.

George Rose Smith,

concurring. At the trial counsel for the appellant objected to the challenged- instruction solely “as being a comment on the evidence whereby defining and stating a certain set of facts is a presumption to be used by the jury.” That specific objection goes only to the first paragraph of the instruction, which sets out the statutory presumption. There was no objection to the third paragraph, nor does the appellant in her brief argue any defect in the third paragraph. Consequently any possible objection to the third paragraph was waived and is not before us.

John I. Purtue, Justice,

dissenting. I disagree with the majority opinion because I believe the last paragraph of the contested instruction was in error. That portion of the instruction stated:

Therefore, if you find that Doris Dawson concealed unpurchased goods or merchandise upon her person, then the defendant’s employee and the police were entitled to detain her in a reasonable manner for a reasonable length of time, and your verdict should be for the defendant.

I cannot distinguish this instruction from the one given in Thiel v. Dove, 229 Ark. 601, 317 S.W. 2d 121 (1958). In Thiel the erroneous instruction stated:

You are instructed that malice may be inferred from the falsity and absence of probable case or other relevant circumstances, or it may be deduced from the libel or slander itself of which it forms a part.

In Thiel, the Court upheld the argument that the instruction constituted a comment upon the weight of the evidence, and I think the same argument can be applied to the instruction in the present case. The instruction should have included a statement that these findings should be considered along with all other evidence in the case and that such findings standing' alone did not impose a duty upon the jury to find for the defendant.

In effect, the instruction given in the present case told the jury that the defendant’s employee and the police were entitled to detain the appellant for whatever length of time she was detained. It is true the record does not give us the information needed to completely understand all of the facts and whether or not the appellant was detained under circumstances allowed by the shoplifting statute. However, the instruction should have included a statement that this evidence was to be considered along with all the other evidence presented to the jury.

We have held that it was clearly improper for the court to tell the jury that a specific fact in evidence is sufficient to support an inference of guilt, negligence, or the like. Blankenship v. State, 55 Ark. 244, 18 S.W. 54 (1891); Reno & Stark v. State, 241 Ark. 127, 406 S.W. 2d 372 (1966); and Thiel, supra.

In Thiel, supra, we stated the jury determines whether the particular inference should be drawn from all the proof in the case; and, consequently, the court comments on the weight of the evidence when it declares that a certain inference may be drawn from a specific fact. This is exactly the situation we have in the instruction complained of in this case.

The statute from which this action arose was a criminal statute. The instruction recommended in AMCI 2203-PR is as follows:

Evidence that _knowingly concealed on her person unpurchased merchandise offered for sale by _may be considered by you in determining whether she took the merchandise with the purpose of depriving the owner thereof. However, this evidence must be considered along with all the other evidence in the case and does not impose any duty upon you to find that the defendant took the merchandise with the purpose of depriving the owner thereof.

If the criminal statute is to be relied upon in a civil case, certainly the criminal instruction should also be considered. I think it entirely proper, and necessary, that the portion of AMCI 2203-PR stating this evidence should be considered along with all other evidence in the case should have been included in the instruction in this case.

Therefore, I feel the instruction amounted to a comment on the evidence and prevented the jury from considering any other evidence which may have been presented to them.


author: John I. Purtle, Justice. John F. Stroud, Justice,

text:
    Willie B. GILMER v. STATE of Arkansas
    CR 80-19
    602 S.W. 2d 406
    Supreme Court of Arkansas
    Substituted Opinion on Rehearing delivered June 16, 1980

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

      Steve Clark, Atty. Gen., by: Alice Ann Burns, Asst. Atty. Gen.; and Jack W. Dickerson, Asst. Atty. Gen., on rehearing, for appellee.
   John I. Purtle, Justice.

Appellant, Willie B. Gilmer, was charged with interference with a law enforcement officer pursuant to Ark. Stat. Ann. § 41-2804 (Repl. 1977). After a trial by a jury, he was convicted and sentenced to five years imprisonment in the Arkansas Department of Correction. Appellant gave notice of appeal. His attorney filed a no merit brief in accordance with Anders v. California, 386 U.S. 738 (1967), and the appellant filed a pro se brief and a supplemental brief. The state concurred with appellant’s counsel as to the no merit appeal. We reversed and remanded in our order of May 5, 1980.

We have the matter before us this time on a petition for rehearing filed by the state.

The facts, according to appellant, were that he had gotten into trouble with someone and the police were called. Appellant stated he was on his way to turn himself in when Officer Mahone appeared on the scene. At this point the testimony is somewhat disputed; but, taking the view most favorable to the state, we find that appellant pointed his rifle at Mahone and attempted to fire it. The officer stopped and a scuffle occurred between appellant and the officer. As a result of this scuffle, the appellant was charged with interfering with a law enforcement officer in the performance of his duties.

In the opinion of May 5, 1980, we reversed and remanded. In doing so, we relied upon our former cases of Breakfield v. State, 263 Ark. 398, 566 S.W. 2d 729 (1978); and Bocksnick v. State, 268 Ark. 74, 593 S.W. 2d 176 (1980). In the Breakfield case we reversed the conviction of interference with a police officer because the whole affair occurred when the appellant appeared at the jail to inquire about the arrest of his brother. At that time, the officers were not performing any particular duties other than being on duty at the jail. Breakfield made no attempt to prevent them from performing their normal duties at the jail and was arrested only because of the disturbance he created. In Bocksnick the accused threatened to shoot an officer who stopped him for questioning concerning a rifle. The only duty the officer was performing at the time was questioning Bocksnick. Bocksnick threatened the officer and resisted him and two other officers who were called to assist in the apprehension. Thus, it can be seen that in both of the foregoing cases that the person was being arrested for the disturbance or fracas which he himself had caused.

Gilmer is slightly different. According to his own testimony, he had become involved in a fracas with another party and was on his way to turn himself in when he met Officer Mahone. At that time, Mahone was apparently on his way to investigate the other disturbance. That is, the one between appellant and some third party. Under these circumstances, it would appear that appellant was interfering with the officer en route to investigate another incident.

In our prior decisions we have not held that a person might not violate more than one criminal law during the course of one episode. We adhere to that principle in this case. The distinction between resisting arrest as defined in Ark. Stat. Ann. § 41-2803 (Repl. 1977) and interference with a law enforcement officer as defined in Ark. Stat. Ann. § 41-2804 (Repl. 1977) is that resisting the officer occurs when one knowingly resists a person known by him to be a law enforcement officer attempting to effect an arrest. The interference referred to in Ark. Stat. Ann. § 41-2804 (Repl. 1977) is designed to cover the situation where a person is interfering with an officer performing some duty other than arresting the person charged.

A person would be resisting arrest, for example, if he were approached by an officer on normal patrol duty and that person resisted the officer’s attempt to arrest him for violating some law. On the other hand, if the officer was going from one location to another to serve papers, to investigate an independent incident, or to transport a prisoner, he most certainly would be performing a duty; and, one who interfered with this type of action would be guilty of interfering with a law enforcement officer as mentioned in Ark. Stat. Ann. § 41-2804. A person would also be guilty of interfering with a law enforcement officer if he attempted to prevent the officer from arresting a third person.

We think appellant’s situation was, in effect, shortstop-ping Officer Mahone as he proceeded to investigate another incident. This is true even though appellant was a part of the incident which the officer was going to investigate.

Under the facts of this situation, we are able to distinguish it from Breakfield v. State, supra, and Bocksnick v. State, supra. In those cases the officers were concerned only with attempting to arrest the parties involved in the incident. In the present case the officer encountered appellant while he was in the performance of his official duties in going to investigate another incident in which appellant happened to be a participant.

For the reasons stated above, we are granting the petition for rehearing and affirming the original judgment in this case. The attorney’s request to be relieved will be granted.

Affirmed.

George Rose Smith and Stroud, JJ., concur.

John F. Stroud, Justice,

concurring. I concur with the result reached by the majority, but I need not distinguish this case from Breakfield v. State, 263 Ark. 398, 566 S.W. 2d 729 (1978), and State v. Bocksnick, 268 Ark. 74, 593 S.W. 2d 176 (1980) to reach that result. I disagree with both of those decisions because I believe that the same act can constitute resisting arrest and interference with a law enforcement officer. Although the act can only result in a conviction for one of the offenses, there are times, such as in this case, when the resistance involves the use of deadly physical force and the felony charge is the more appropriate charge. The Commentrary to Ark. Stat. Ann. § 41-2804 (Repl. 1977), Interference with a law enforcement officer, also recognizes that the statute can apply to the arrest situation the same as Ark. Stat. Ann. § 41-2803 (Repl. 1977) Resisting Arrest:

Section 41-2804, which is directed at assaults on law enforcement officers, is much broader than § 41-2803. It is not limited to the arrest context but covers all assaults on officers within the scope of their office . . .

An officer is certainly as much “engaged in performing his official duties” when he arrests a subject as when he is serving a civil process. I believe the statute was adopted simultaneously with the resisting arrest statute to provide a greater possible punishment when physical or deadly force is threatened or used against a law enforcement officer performing his duties; and it was adopted, as pointed out in 'the Commentary to the statute, to cover assaults on officers other than just those involved in an arrest. The officers of this State who regularly place their lives on the line need the deterrent afforded by this statute. We should not erode the statute by ignoring the force exerted against the officer and by looking only to what duty the officer was performing. How illogical it is to hold that physical force threatened against an officer serving a civil process can result in a felony conviction, but the same force threatened against an officer making a lawful arrest can only result in a misdemeanor conviction.

George Rose Smith, J., joins in this opinion.


author: PER CURIAM

text:
    Mike FIORANELLI v. STATE of Arkansas
    598 S.W. 2d 72
    Supreme Court of Arkansas
    May 5, 1980
   PER CURIAM

The appellant, Mike Fioranelli, through his attorney, Thomas L. Cashion of Eudora, Arkansas, has filed a motion for a rule on the Clerk.

In the motion, which is sworn to, Cashion admits that the record was not timely lodged because of an oversight on the part of Cashion.

We have found in the past and acknowledge that such an error, admittedly made by an attorney for a criminal defendant, constitutes good cause for a delay for which we will grant a motion for a rule on the Clerk. In a per curiam opinion regarding belated appeals rendered February 5, 1978, we discussed the problem of an untimely tender of a record caused by an attorney representing a criminal defendant. We decided that we have no alternative but to grant a motion for relief in such a case. However, we pointed out that a copy of the opinion would be forwarded to the Committee on Professional Conduct.

We find good cause exists in this case and forward a copy of our opinion to the Committee on Professional Conduct as is our practice.


text:
    Charles Comer BOYETT, Jr., v. Harriett Hoffman BOYETT
    79-329
    598 S.W. 2d 86
    Supreme Court of Arkansas
    Opinion delivered May 12, 1980

      Lightle, Beebe & Raney, by: Mike Beebe, for appellant.

      Stephen Engstrom and Wright, Lindsey & Jennings, for appellee.
   John A. Fogleman, Chief Justice.

Appellant, Charles Comer Boyett, Jr., filed a complaint for divorce on June 6, 1979, and appellee Harriett Hoffman Boyett filed her answer and cross-complaint on June 22,1979- Appellant filed his answer to the cross-complaint on Sept. 17, 1979- On October 2, 1979, appellant filed a motion for declaratory judgment, asking that the chancery court declare that Ark. Stat. Ann. § 34-1214 (Repl. 1962), rather than Act 705 of 1979, controls the disposition and division of property, if a divorce should be granted. After a hearing on the motion was held on November 8, 1979, the chancellor held that Act 705 of 1979, not Ark. Stat. Ann. § 34-1214, was controlling. In the declaratory judgment, the court stated that the judgment was final and appealable. We do not agree with the chancellor in respect to the finality of the judgment and dismiss the appeal.

In Johnson Johnson, 243 Ark. 656, 421 S.W. 2d 605, we stated the requisites of finality essential to appealability of an order or judgment of a trial court. We said:

* * * For a judgment to be final and appealable, it must in form or effect: terminate the action; operate to divest some right so as to put it beyond the power of the court to place the parties in their former condition after the expiration of the term; dismiss the parties from the court; discharge them from the action; or conclude their rights to the matter in controversy.

The declaratory judgment met none of these requirements. In Johnson, we further said:

* * * An appeal will not lie from an interlocutory order relating only to some question of law or matter of practice in the course of the proceeding, leaving something remaining to be done by the court entering the order or by some court having jurisdiction to entertain the same and proceed further therewith.

See also, Allred v. National Old Line Ins. Co., 245 Ark. 893, 435 S.W. 2d 104; H.E. McConnell & Son v. Sadle, 248 Ark. 1182, 455 S.W. 2d 880.

The filing of the motion for a declaratory judgment in the divorce proceeding was nothing more than a request that the trial court make a preliminary declaration of law. The declaratory judgment was nothing more than an interlocutory order.

We are not unaware of the statement in City of Batesville v. Ball, 100 Ark. 496, 140 S.W. 712, Ann. Cas. 1913C 1317, that when an issue of law is passed upon by a court and an order is made which determined the rights of the parties in the action so far as that court is concerned, then such order becomes the final determination of the cause from which an appeal will lie. But this order is not appealable under that rule. The order in this case did not finally determine the rights of the parties. The parties are not divorced, and we do not know that they ever will be. The trial court’s judgment was merely a declaration of law. Such a declaration in a separate and independent action filed under Ark. Stat. Ann. § 34-2501 et seq (Repl. 1962) when a justiciable controversy exists, in anticipation of future litigation, would be proper and the judgment appealable. Andres v. First Arkansas Development Finance Corp., 230 Ark. 594, 324 S.W. 2d 97. But declaratory relief is not proper when the identical questions involved in the declaratory judgment proceeding are already at issue between the parties in a pending action. Mid-State Construction Co. v. Means, 245 Ark. 691, 434 S.W. 2d 292; City of Cabot v. Morgan, 228 Ark. 1084, 312 S.W. 2d 333. Cf. Green Bay Packaging Co., Inc. v. Hoganson & Associates, Inc., 362 F. Supp. 78 (N.D., Ill., 1973). The fact that the request for a declaratory judgment was made by motion in the pending proceeding does not alter the situation. Declaratory judgment procedure is not proper as a means of trying a case, or of various issues involved in it, by piecemeal. Western Contracting Corp. v. National Surety Corp., 163 F.2d 456 (4 Cir. 1947); Yellow Cab Co. v. City of Chicago, 186 F. 2d 946 (7 Cir., 1951); Gamble-Skogmo, Inc. v. McNair Realty Co., 98 F. Supp. 440 (D.C., Mont.), aff'd. and opinion adopted, 193 F. 2d 876 (9 Cir., 1952); W.R. Grimshaw Co. v. Nazareth Literary & Benevolent Institution, 113 F. Supp. 564, (E.D., Ark., 1953). See also, Green Bay Packaging, Inc. v. Hoganson & Associates, Inc., supra.

The declaratory judgment in this case would permit not only piecemeal trial of this action but would also permit piecemeal appeals if we considered it as an appealable order rather than an interlocutory one. Whatever effect the trial court may give the order in further proceedings, it is interlocutory insofar as appealability is concerned. It is true that neither party raised the question of appealability, but this question is raised by the court on its own motion. H.E. McConnell & Son v. Sadie, supra.

We have not overlooked Rule 52 of the Rules of Civil Procedure. Ark. Stat. Ann. Vol. 3A (Repl. 1979). Before a judgment can be final under that rule, it must be final as to one or more of the claims presented in the action. In order for there to be such a judgment, the action of the court must finally determine a claim. A mere declaration of law does not finally determine any claim.

The appeal is dismissed.

Hickman, J., not participating.