author: John A. Fogleman, Justice.

text:
    Harry M. CHANEY et al v. Kelly BRYANT, Secretary of State

    75-258
    532 S.W. 2d 741
    Opinion delivered February 17, 1976

      McArthur, Loftin & Wilson, for appellants.

      Jim Guy Tucker, Atty. Gen., by: Lonnie A. Powers, Dep. Atty. Gen., for appellee.

      This action was commenced against Kelly Bryant as Secretary of State and a decree rendered in his favor. No one has bothered to move for any substitution of parties. Since the litigation was against the late Mr. Bryant in his official capacity any judgment or decree would be binding on his successors in office.

   John A. Fogleman, Justice.

By an amended complaint, appellants sought to have Amendment 54 to our state constitution, which was proposed by the General Assembly and submitted to the people at the 1974 General Election, declared void on the ground that the ballot title was misleading in that it misrepresented the changes the adoption of this amendment would bring about. Appellee filed a demurrer on the ground that it does not state facts sufficient to constitute a cause of action because no facts were alleged that violated any rights of appellants. This demurrer was sustained and the complaint dismissed. Appellants argue that the court erred in sustaining the demurrer, saying that factual issues are involved. We disagree with this argument.

This amendment was proposed by the General Assembly as a substitute for Art. 19 § 15. According to the allegations of the complaint, the ballot title read as follows:

Proposing an amendment to the Constitution requiring competitive bidding for the purchase of printing, stationery, and supplies.

This was the exact title of Senate Joint Resolution 6 of 1973, by which the amendment was proposed.

Appellants rely on numerous cases involving proposals for acts and constitutional amendments by initiative, in preelection attacks on ballot titles. None of them are applicable. There are two entirely different methods by which constitutional amendments may be proposed, and they are governed by entirely different procedures and requirements. Coulter v. Dodge, 197 Ark. 812, 125 S.W. 2d 115; Berry v. Hall, 232 Ark. 648, 339 S.W. 2d 433. Art. 19, § 22 of the Arkansas Constitution governs those proposed by the General Assembly. Amendment 7 is primarily concerned with initiated proposals, and its provisions do not govern those proposed by the General Assembly, except where the language of that amendment expressly applies. Berry v. Hall, supra. Cf. Brickhouse v. Hill, 167 Ark. 513, 268 S.W. 865. There is no language in Amendment 7 pertaining to ballot titles for legislative proposals of constitutional amendments. Art. 19, § 22 only requires that proposals by the General Assembly be so submitted as to enable the people to vote on each amendment separately.

There is no clearcut statutory requirement of any ballot title for an amendment proposed by the General Assembly. Ark. Stat. Ann. § 2-208 (Repl. 1956) relating to ballot titles applies to initiated proposals only. The Governor, Secretary of State and State Comptroller (now Director of the Department of Finance and Administration) are required to fix and declare a number and popular name by which each proposed amendment shall be designated in all legal notices and publications, proceedings and publicity affecting it. Ark. Stat. Ann. § 2-209, 214 (Repl. 1956). The only mentions of any ballot title in the statutes which could possibly have any bearing on proposals of the General Assembly are the requirements that notices of the proposed measures “contain the number, the popular name, the ballot title and a complete text” and that the Secretary of State furnish the State and County Boards of Election Commissioners a certified copy of “the ballot title and popular name for each proposed measure.” Ark. Stat. Ann. § 2-212, 216 (Repl. 1956). The popular name actually serves the constitutional requirement of submission in a manner enabling the voters to vote on the proposed amendments separately. We have said that it is a device useful to facilitate voter discussion prior to election, but that it need not contain detailed information or include exceptions which might be required of a ballot title. Pafford v. Hall, 217 Ark. 734, 233 S.W. 2d 72. We note that the notice published included the popular name “State Printing Contracts.” The publication otherwise consisted of the designated number and the complete text of the Joint Resolution by which it was proposed.

Legislative proposals are distinguished on the ballot from those initiated in a manner that the voters can differentiate between them. Ark. Stat. Ann. § 2-216. It is notable that the constitution requires that amendments proposed by the General Assembly be published for six months before the election in a newspaper in each county, but only requires one pre-filing publication of an initiated proposal and such other publications as may be required by law. Art. 19, § 22 and Amendment 7. The statutes require publication of initiated proposals, to commence only eight weeks prior to the election. Ark. Stat. Ann. § 2-212. It is also significant, in considering the reasons underlying differential treatment of the two types of proposals, that a legislative proposal must be entered at length in the legislative journals. Art. 19, § 22. McAdams v. Henley, 169 Ark. 97, 273 S.W. 355, 41 ALR 629; Coalter v. Dodge, supra. On the other hand, there is no permanent official record of initiated proposals. Furthermore, we must keep in mind that, when proposing a constitutional amendment, the General Assembly acts in the character and capacity of a constitutional convention and not in the exercise of its ordinary legislative authority. McAdams v. Henley, supra.

The question whether an amendment has been adopted is a judicial one. Rice v. Palmer, 78 Ark. 432, 96 S.W. 396. If constitutional requirements for submission of an amendment proposed by the General Assembly are disregarded or compliance totally omitted, the courts, upon appropriate application, will hold that the amendment was not properly adopted, a favorable vote at a general election notwithstanding. McAdams v. Henley, supra. Still, it is quite generally held that after a proposed constitutional amendment has been ratified by the people, every reasonable presumption, both of law and fact, will be indulged in favor of its validity. Southern Railway Co. v. Fowler, 497 S.W. 2d 891 (Tenn., 1973); Board of Liquidation, etc. v. Whitney-Central Trust & Savings Bank, 168 La. 560, 122 S. 850 (1929); Hammond v. Clark, 136 Ga. 313, 71 S.E. 479 (1911); People v. Sours, 31 Colo. 369, 74 P. 167 (1903); Keenan v. Price, 68 Idaho 423, 195 P. 2d 662 (1948); State v. Cooney, 70 Mont. 355, 225 P. 1007 (1924); Larkin v. Gronna, 69 N.D. 234, 285 N.W. 59 (1939). See McKenzie v. City of DeWitt, 196 Ark. 1115, 121 S.W. 2d 71.

The proposition is well stated in Board of Liquidation, etc. v. Whitney-Central Trust & Savings Bank, supra, viz:

*** In reaching the decision, the court must necessarily have in mind the universal rule that, whenever a constitutional amendment is attacked as not constitutionally adopted, the question presented is, not whether it is possible to condemn, but whether it is possible to uphold; that every reasonable presumption, both of law and fact, is to be indulged in favor of the legality of the amendment, which will not be overthrown, unless illegality appears beyond a reasonable doubt. People v. Sours, 31 Colo. 369, 74 P. 167, 102 Am. St. Rep. 34; People v. Prevost, 55 Colo. 199, 134 P. 129; Martien v. Porter, 68 Mont. 450, 219 P. 817.

To the same effect, Keenan v. Price, supra; State v. Cooney, supra, State v. Alderson, 49 Mont. 387, 142 P. 210 (1914). In some cases, emphasis is given to the inherent political power of the people as the ultimate sovereign to alter or reform their government as they may think proper as expressed in Art. 2, § 2 of our Constitution. See People v. Sours, supra; State v. Cooney, supra.

The view is taken on a legislative proposal that substance is more important than form and the will of the legislature in proposing it and of the people in ratifying it at the proper time and in the proper manner is not to be lightly disregarded, where the manner of compliance (as distinguished from a total disregard or omission) with a procedural constitutional requirement is involved, and the question has not been raised prior to the election. Hammond v. Clark, supra; Constitutional Prohibitory Amendment, 24 Kan. 700 (1889); Keenan v. Price, supra; State v. Alderson, supra. See Brockelhurst v. State, 195 Ark. 67, 111 S.W. 2d 527; Whitaker v. Mitchell, 179 Ark. 993, 18 S.W. 2d 1026; Hogins v. Bullock, 92 Ark. 67, 121 S.W. 1064. A defect in submission which is a mere irregularity is cured by adoption by the people when the amendment has been duly proposed and actually published and submitted to the people without any question having been raised prior to the election. Sylvester v. Tindall, 154 Fla. 663, 18 S. 2d 892 (1944); Keenan v. Price, supra. Cf. Brockelhurst v. State, supra.

Where the vital requirements for a proposed amendment have been met by the vote of legislators and entry of the measure on the legislative journals as required by the Constitution and there has been substantial, though not literal, compliance with procedural requirements for submission, the courts should not invalidate the adoption of the amendment by popular vote. State v. O’Brien, 134 W. Va. 1, 60 S.E. 2d 772 (1948); Keenan v. Price, supra; State v. Alderson, supra. Mr. Justice Brewer (later of the United States Supreme Court) in speaking of a constitutional provision on amendments, similar to our own, said that the two vital elements were the assent of the required majority of the legislature and a majority of the popular vote (which he called the paramount act) and, beyond this, other provisions are machinery and forms. Constitutional Prohibitory Amendment, supra. See also, Keenan v. Price, supra. In that case Justice Brewer and the Kansas court answered in the negative the question whether the secretary of state might, by failure to comply strictly with publication requirements either through ignorance or design, thwart the popular decision. The vast difference between compelling strict observance of rules governing submission of proposed constitutional amendments prior to the election and considering the failure to do so after the people have spoken by their vote was pointed out in Larkin v. Gronna, 69 N.D. 234, 285 N.W. 59 (1939).

These holdings are simply applications of the legal philosophy that the courts have a duty to sustain elections which have resulted in a full and fair expression of the public will. We have heretofore brought this philosophy into play in cases where post-election attacks on election results have been grounded upon procedural irregularities. See Rich v. Walker, 237 Ark. 586, 374 S.W. 2d 476; McKenzie v. City of DeWitt, 196 Ark. 1115, 121 S.W. 2d 71. We have no reservations about applying it here. It would be absurd for the courts to overturn the approval of this amendment by a substantial majority of our voters for the defect alleged, in view of the lack of a specific constitutional or statutory provision requiring or providing specifications for a ballot title for a constitutional amendment proposed by the General Assembly and in view of the publication before submission.

The chance!!^'’ correctly held that, as a matter of law, the complaint failed to state a cause of action, so the judgment is affirmed.

George Rose Smith and Byrd, JJ., concur.

      We are not unaware of the fact that unlike the Kansas court in this case, we have held that failure to enter the proposed amendment upon the legislative journals is fatal. See McAdams v. Henley, supra.

      In the absence of an allegation to the contrary, it must be presumed that all officers performed their official duties pertaining to the election on the proposed amendment. McKenzie v. City of DeWitt, supra.


source: Caselaw Access Project

author:
John A. Fogleman, Justice.
      John A. Fogleman, Justice.

license: Public Domain

text:
    Francis Edward KLIMAS v. STATE of Arkansas
    CR 75-187
    534 S.W. 2d 202
    Opinion delivered February 17, 1976
    [Supplemental opinion on Rehearing P. 309.]

      Thurman Ragar Jr., for appellant.

      Jim Guy Tucker, Atty. Gen., by: Jackson Jones, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Francis Edward Klimas was found guilty of the burglary of the Dixie Wood Preserving Company’s building near Pine Bluff and of grand larceny of property therein. He asserts three points for reversal. We find error on one point which will require either a reduction of sentence or a reversal. That point has to do with the enhancement of appellant’s sentence under the Habitual Criminal Act [Ark. Stat. Ann. § 43-2328 — 30 (Repl. 1964).] Appellant contends, and we agree, that there was error in the admission of evidence of previous convictions.

After the return of the jury verdict, the state offered evidence of seven felony convictions in the form of certified copies of the records of the Department of Corrections of Missouri State Penitentiary. Admittedly these copies complied with the requirements of Ark. Stat. Ann. § 43-2330. Appellant objected to their introduction, however, because none of them showed that Klimas had the assistance of counsel at the times of his conviction. The state contended then and argues now that when court records are not used to prove a prior conviction, the state is not required to show that the accused had the assistance of counsel when the record offered is silent on the matter. The state has not favored us with any authority so holding, and we do not think that such a bypass of the constitutional principle on which the decision of Burgett v. Texas, 389 U.S. 109, 88 S. Ct. 258, 19 L. Ed. 2d 319 (1967) was based will stand muster. In Burgett, it was held that presuming waiver of the right to counsel from a silent record is impermissible and that the admission into evidence of a prior criminal conviction which is constitutionally infirm under the standards of Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799, 93 ALR 2d 733 (1963) is inherently prejudicial.

We first dealt with Burgett precepts in Wilburn v. State, 253 Ark. 608, 487 S.W. 2d 600, where the Attorney General conceded, and we agreed, that a docket entry of a judgment of conviction which was silent as to the defendant’s representation by counsel and his waiver of the right to assistance of counsel was improperly admitted into evidence. Both appellant and appellee have ignored our treatment of the matter in McConahay v. State, 257 Ark. 328, 516 S.W. 2d 887. The opinion there does not disclose the nature of the documents offered to sustain the habitual criminal charge, but here again the state conceded and we held that the documents were deficient and inadmissible in evidence because they were silent concerning the defendant’s representation by counsel. Nothing whatever was said about the holding being restricted to court records or to indicate that it would not apply to any record offered in evidence to show prior convictions. To clearly illustrate the inappropriateness of the argument advanced by the state, we point out that the United States Supreme Court, in two sequels to Burgett, has applied the Burgett rule to evidence of convictions other than records. In both United States v. Tucker, 404 U.S. 443, 92 S. Ct. 589, 30 L. Ed. 2d 592 (1972) and Loper v. Beto, 405 U.S. 473, 92 S. Ct. 1014, 31 L. Ed. 2d 374 (1972), the court dealt with convictions admitted by a defendant on cross-examination for impeachment purposes.

It seems clear to us that when evidence, in whatever form, of a prior conviction is offered which is silent as to representation of the defendant by counsel or his waiver of the right of assistance of counsel, the state must first lay a foundation for its admission by evidence tending to show that defendant was, in fact, represented by counsel or that he had knowingly and intelligently waived his right to the assistance of counsel.

Appellant also contends that his cross-examination of Arlie Weeks, a professed accomplice, was unduly limited by the circuit judge in that he was not permitted to show that Weeks was motivated to testify by the knowledge that the prosecuting attorney would be consulted before action would be taken upon Weeks’ application for parole. It appears that after Weeks confessed this burglary and grand larceny, his parole on a previous charge was revoked. The state does not actually contend that there was no error in the court’s sustaining an objection to the question whether Weeks was aware that the prosecuting attorney is asked to make a recommendation to the parole board before a convict is paroled. It actually argues that any error in this respect was harmless. There is no doubt that the ruling in this case was erroneous and an abuse of the trial court’s discretion to limit cross-examination on matters of credibility.

An accused should be accorded a wide latitude in cross-examination to impeach the credibility of a witness against him. See, May v. State, 254 Ark. 194, 492 S.W. 2d 888. The latitude of this right of cross-examination is even broader and that of the court’s discretion to limit it is somewhat narrower than in other instances. Alford v. United States, 282 U.S. 687, 51 S. Ct. 218, 75 L. Ed. 624 (1930); State v. Hart, 239 N.C. 709, 80 S.E. 2d 901, 41 ALR 2d 1199 (1954); State v. Williams, 487 P. 2d 100, 6 Or. Ap. 189 (1971) cert. den. 406 U.S. 973 (1972); Mason v. State, 132 Neb. 7, 270 N.W. 661 (1937); State v. Roberson, 215 N.C. 784, 3 S.E. 2d 277 (1939). This is particularly so when the witness is, or may be found to be, an accomplice. Boyd v. State, 215 Ark. 156, 219 S.W. 2d 623; Stone v. State, 162 Ark. 154, 258 S.W. 116. See also, State v. Little, 87 Ariz. 295, 350 P. 2d 756, 86 ALR 2d 1120 (1960); Annot 62 ALR 2d 610 (1958). It is generally permissible for a defendant to show by cross-examination anything bearing on the possible bias of the testimony of a material witness. Bethel v. State, 162 Ark. 76, 257 S.W. 740; Ringer v. State, 74 Ark. 262, 85 S.W. 410; Annot. 62 ALR 2d 611 (1958). This rule applies to testimony given under expectation or hope of immunity or leniency or under the coercive effect of his detention by authorities. Stone v. State, supra; Boyd v. State, supra. See also, Campbell v. State, 169 Ark. 286, 273 S.W. 1035; Alford v. U.S., supra. The test is the expectation of the witness and not the actuality of a promise. State v. Little, supra; Spaeth v. United States, 232 F. 2d 776, 62 ALR 2d 606 (6 Cir., 1956).

The right of a defendant to show the bias of a witness does not lie within the court’s discretion. Wright v. State, 133 Ark. 16, 201 S.W. 1107. Remarks of the court in Spaeth are particularly applicable here. The court there said:

******** In all the circumstances, it would have been proper to permit careful scrutiny of Sanzo’s motive for testifying against Dr. Spaeth. His testimony could well have been guided by his hope of an early parole as a reward for becoming a Government witness against appellant. It is not intended remotely to convey the impression that the United States Attorney might have promised Sanzo a recommendation for parole as a consideration for his testimony. Mere hope upon the part of Sanzo that he would be so rewarded would supply sufficient motive for his testimony against Dr. Spaeth.

Denial of cross-examination to show the possible bias or prejudice of a witness may constitute constitutional error of the first magnitude as violating the Sixth Amendment right of confrontation. Davis v. Alaska, 415 U.S. 308, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974).

Weeks admitted that he knew how the parole system in Arkansas worked, but the court sustained an objection to an inquiry whether appellant was aware that the prosecuting attorney is asked to make a recommendation to the parole board before there is a parole. After objection was made but before it was sustained, the witness answered that he did not. We find no further inquiry along this line, probably because of the unfavoral e answer given by the witness. No effort was made to pursue ine matter in any other fashion. Under these circumstances we agree with the state that the error was harmless.

Appellant also contends that the testimony of Weeks, who would have been an accomplice if his testimony had been believed, was not sufficiently corroborated to sustain the jury verdict. In reviewing the evidence, it must be remembered that the corroborating independent evidence need not be sufficient, in and of itself, to sustain a conviction. It is only necessary that it tend in some degree to connect the accused with the crime. Stout v. State, 249 Ark. 24, 458 S.W. 2d 42. It may be circumstantial, so long as it is substantial. Jones v. State, 254 Ark. 769, 496 S.W. 2d 423. Even though one, or a combination of several circumstances might not be sufficient, all of the circumstances when considered together may constitute a chain constituting substantial evidence tending to connect an accused with the crime charged sufficient to make a question for the jury. King v. State, 254 Ark. 509, 494 S.W. 2d 476. Any substantial evidence, even though slight and not altogether satisfactory and convincing, is sufficient to warrant submitting the question of its sufficiency to the jury. Mankey v. State, 192 Ark. 901, 96 S.W. 2d 463. Possession of recently stolen property is a proper circumstance to consider both on the charge of larceny and that of burglary, even if it be found in an automobile in which the accused is a passenger. Thacker v. State, 253 Ark. 864, 489 S.W. 2d 500; Lee v. State, 200 Ark. 964, 141 S.W. 2d 842. A conviction of two defendants of burglary and grand larceny has been sustained upon evidence that the stolen property was found in a room occupied by the two. Lee v. State, 200 Ark. 1189, 141 S.W. 2d 845.

There was evidence that the Dixie Wood Preserving Company plant had been burglarized. The production manager discovered the burglary and found that a “coke” machine and a Pepsi Cola machine had been broken into and severely damaged. A check made out to Potlatch Corporation, some walkie-talkie radios, “plus coins and stuff” out of the machines were missing. This witness identified radios which had been found in an apartment occupied by Klimas and Weeks as a part of those taken. The witness could not state the amount of money taken from the machines. Weeks testified that the two had burglarized the place and the drink machines and removed the change from them. He said that there was a total of $58 which was divided in half and that Klimas put his part in a glass jar in the apartment shared by him and Klimas.

William E. Moore, a criminal investigator for Jefferson County, went to the apartment where Klimas and Weeks lived and searched it pursuant to consent given by Weeks. He found five walkie-talkie radios and a portable one in a brown paper bag in a closet. He also found two plastic containers with nickels, dimes and quarters in them in two different chests of drawers. Klimas was present when the search was made. He made no objection to the search. One of the plastic containers was found in a chest of drawers, which was identified by Klimas as his chest. Moore said that Klimas identilled the coins as his and said that he was saving them. The closet from which the radios were taken appears to have been used by both Klimas and Weeks. The chests of drawers were located in a room to which both Klimas and Weeks had access. When the search was being conducted in the presence of Klimas, Weeks told the officer that the things in the closet belonged to Klimas. There was no denial by Klimas, who was not then in custody.

Klimas relies upon Cockrell v. State, 256 Ark. 19, 505 S.W. 2d 204, and Bright v. State, 212 Ark. 852, 208 S.W. 168, as authority demonstrating the insufficiency of the evidence. But both cases may be easily distinguished. In Cockrell, two stolen guns were found in the defendant’s automobile while it was being driven by the accomplice, who lived with the defendant and had free use of his car, especially when the defendant was working at night. There was nothing except the ownership of the car tending to connect the defendant with the larceny of the guns. In Bright, it was not contended that the amount of money found on the defendant was sufficient “to form the basis for an independent presumption of guilt,” of a burglary and larceny in which the evidence indicated that as much as $6,000 had been stolen. With this factor eliminated, the court found no corroboration in the fact that defendant had a bad reputation and had been seen with the accomplices, his half-brothers, an hour or two before the burglary with which he was charged.

This case can also be distinguished from Cook v. State, 75 Ark. 540, 87 S.W. 1176, where we held that testimony that the accused had been seen with a handful of pennies shortly after a chewing gum slot machine had been taken from a burglarized railroad depot was not corroborative of the testimony of an accomplice who said that he and the accused had broken into the place, taken the slot machine, broken it open and divided equally the four pennies they found in it, because there was no other evidence that the machine had any pennies in it. Here, there was testimony that coins were taken from the machines, even though the manager was not able to say how many or how much was taken.

When we view the total circumstances consisting of the finding of some of the property stolen in an apartment shared by the accomplice and the defendant, the uncontroverted statement of the accomplice in the presence of appellant that thte things in the closet where they were found belonged to appellant, the fact that coins were taken from the machines at the burglarized premises, and the fact that a substantial number of coins were found in a chest belonging to appellant in a container identical to that in which similar coins were found in a chest belonging to the accomplice, together with appellant’s admission that the chest was his and his assertion that the coins were also, they are substantial, even though slight, corroboration of the testimony of the accomplice. They were at least sufficient to present a question for the jury as to their sufficiency. The issue of the sufficiency of the corroboration and the requirement that circumstantial evidence be inconsistent with any reasonable conclusion other than the defendant’s guilt were submitted to the jury by instructions to which no objection was made.

Supplemental Opinion On Rehearing Delivered March 15, 1976

Since we find error in the proceedings to determine appellant’s sentence, we must reverse the judgment and remand the case for a new trial, unless the Attorney General, within 17 calendar days, accepts a reduction of appellant’s sentence to three years, the minimum on the charges on which he was tried.

Mr. Justice Byrd would reverse on the court’s sustaining the state’s objection to cross-examination of the accomplice.

John A. Fogleman, Justice.

The state has filed a petition for rehearing, pointing out that, in our disposition of this case, we overlooked the fact that evidence of six prior felony convictions of appellant was introduced in addition to the Missouri convictions for which an adequate foundation was not laid. In view of these unchallenged Arkansas convictions, the minimum sentence on each charge would have been 21 years, making a total minimum of 42 years on the two offenses and not 3 years as we indicated in the original opinion in this case. See Ark. Stat. Ann. §§ 41-1003, 41-3907 (Repl. 1964) and 43-2328 (Supp. 1975). Any possible prejudice to appellant would be removed by reduction of the sentence to 42 years. See Wilburn v. State, 253 Ark. 608, 487 S.W. 2d 600; McConahay v. State, 257 Ark. 328, 516 S.W. 2d 887.

We accordingly revise the disposition indicated in the original opinion wherein the Attorney General was given the option of a new trial or accepting a reduction of the sentence to 3 years. Instead, the case will be remanded for a new trial, unless the Attorney General, within 17 calendar days, accepts a reduction of appellant’s sentence to 42 years.

      The state does not suggest and we do not perceive that it can be said in this case that the error was harmless, although under other circumstances this question might be worthy of consideration.


author: Conley Byrd, Justice.

text:
    David SMITH et al v. Terrence ANDERSON et al
    75-204
    532 S.W. 2d 745
    Opinion delivered February 17, 1976

      Schieffler, Yates & Porter, for appellants.

      Roscoe & Pipes, P.A., for appellees.
   Conley Byrd, Justice.

This is a suit by appellant David Smith, a minor, by his next friend for damages for malicious prosecution. The only issue is whether the trial court acted correctly in directing a verdict for the appellees, Terrence Anderson and West’s-Gibson Products Company of West Helena, Inc.

The record shows that Terrence Anderson was the manager of West’s-Gibson Products Company of West Helena, Inc. and that as a result of information obtained from Jan May, one of the cashiers in the store, Terrence Anderson executed an affidavit for a warrant of arrest for David Smith on charges of forgery and uttering. At a hearing before the Juvenile Court Referee on March 1, 1973, appellant was placed on a one-year probation for obtaining money under false pretenses. On appeal to the County Judge, pursuant to Acts of 1969, No. 404 § 2 appellant was found not guilty of forgery, uttering or obtaining money under false pretenses.

Appellant acknowledges the effect of our cases such as Alexander v. Laman, 225 Ark. 498, 283 S.W, 2d 345 (1955), which hold that a judgment of conviction by a court of competent jurisdiction is conclusive evidence of the existence of probable cause, even though the judgment is later reversed, and to avoid the effect thereof contends that the findings of guilt by the juvenile could not be used against the minor because of Ark. Stat. Ann. § 45-205 (Repl. 1964), which provides:

“A disposition of any child under this act or in any evidence given in such cause, shall not, in any civil, criminal or other causé or proceeding whatever, in any court, be lawful or proper evidence against such child for any purpose whatever, except in subsequent cases against the same child under this act; . . ”

We find no merit to this contention by appellant, it was incumbent upon appellant, as an essential element of his cause of action, to show that the appellees acted without probable cause in having him arrested. In discharging this burden, appellant called the county clerk and introduced the juvenile court records to show the dismissal of the charges placed against him. Having relied upon the records as evidence in his favor, appellant is not in a position to complain that appellees insisted that the whole record be introduced. The general rule is that one who relies upon a part of a judicial record must introduce the whole record, not just the part that is favorable to him. See Strawn v. Norris, 23 Ark. 542 (1861), Arkansas State Highway Comm’n v. Pittman, 251 Ark. 709, 473 S.W. 2d 924 (1971) and 30 Am. Jur. 2d Evidence § 986 (1967).

In Fortin v. Parrish & Reeves, 258 Ark. 277, 524 S. W. 2d 236 (1975), we held that a juvenile court referee was a de facto judge and in so doing stated:

“The principal is that the acts of an officer de facto are binding upon the public as though done by one in office de jure and that this right to the office cannot be questioned except in a direct proceeding to which he is a party, is well settled. ...”

Since the findings by the juvenile court referee furnished conclusive evidence of probable cause on the part of appellees, we need not review the other evidence in the record.

Affirmed.

Harris, C.J., dissents.


text:
    Johnnie L. PIERCE v. Joline PIERCE
    75-261
    532 S.W. 2d 747
    Opinion delivered February 17, 1976

      William E. Johnson and John F. Gibson, for appellant.

      Switzer, Switzer & Draper, for appellee.
   Conley Byrd, Justice.

The issue on this appeal is whether the trial court properly set aside a default divorce decree in favor of the appellant Johnnie L. Pierce.

The record shows that appellant Johnnie L. Pierce and appellee Joline Pierce had been married for a number of years. They had a daughter, age 27, and a son, age 18. Appellant ran an automobile garage at which appellee had worked during some parts of the marriage. On April 6, 1974, appellee, without notice to appellant or any member of her family, left in the company of one Johnny McManus, an employee of appellant, for parts unknown. Appellant, fearing that his wife had been kidnapped, went to the sheriff’s office for assistance. Neither appellant nor his children heard from appellee until approximately Easter. On April 22, 1974, appellant filed suit for divorce and attempted to obtain service upon appellee by warning order pursuant to Ark. Stat. Ann. § 27-354 (Repl. 1962). At that time he truthfully stated in his affidavit for a warning order that he did not know the present address of appellee. On May 16, 1974, having learned for the first time that appellee was in Mahia, Texas, the appellant, his daughter and his son drove to Mahia, Texas, and returned with appellee just two days before the son’s graduation from high school. Appellee lived in the family home until June 8, when she again left to live with Johnny McManus in Mahia, Texas. On July 1, 1974, the attorney ad litem filed his report showing that he had been unable to contact the appellee and that her whereabouts were unknown. On July 2, 1974, appellant took a default divorce decree. The petition of appellee to set aside the decree was filed on October 30, 1974.

At the trial on the petition to vacate, appellee readily admitted that she was still living with Johnny McManus. She also admitted that between the dates of May 16 and June 8, 1974, appellant told her about the divorce but says that he told her he was dropping it. Appellant disputes appellee’s assertion that he told her he was dropping the divorce. His testimony was that she ran off before the divorce became final.

The general purpose of process is stated in 62 Am. Jur. 2d Process § 67 (1972) as follows:

“The object of all process, whether by personal notice or by substitution or publication, is to give the person to be affected by the judgment sought notice thereof and an opportunity to defend. The efficacy of substituted or constructive service of process, when allowable, rests upon the presumption that notice will be given in a manner which is calculated to impart knowledge to the person who is to be notified. Its adequacy, so far as due process of law is concerned, is dependent on whether or not the particular form of service is reasonably calculated to give the defendant actual notice of the proceedings and an opportunity to be heard. In providing frr substituted or constructive service, a statute must incorporate provisions reasonably designed to give the defendant notice of the initiation of litigation against him or a reasonable method of emparting such notice; otherwise it is not consistent with the requirement of due process of law ... .”

Our law on the subject follows the general rule. See Davis v. Schimmel, Trustee, 252 Ark. 1201, 482 S.W. 2d 785 (1972), where we stated:

“Where an action is based on constructive service, no action is commenced or cause pending until the proceedings provided for in the governing statute are complied with and if there is no such compliance, the proceedings are void, and the court has no power to take affirmative action. ...”

In Swartz v. Drinker, 192 Ark. 198, 90 S.W. 2d 483 (1936), we held that there must be a strict compliance with the requirements of our constructive service statutes and if there was not such compliance no action was commenced. In Frank v. Frank, 175 Ark. 285, 298 S.W. 1026 (1927), we pointed out that, until 30 days have expired after the appointment of an attorney ad litem and he has made his report, a court is without jurisdiction to take any affirmative action on constructive service.

Under this record we find the following facts undisputed:

1. Appellant was truthful on April 22, 1974, when he stated in his affidavit for a warning order that appellee was a non-resident whose address was unknown;
2. Before the 30 day period for attorney ad litem report was due appellee again became a resident of the state and lived with appellant for three weeks.
3. After appellee left on June 8, 1974, appellant knew that she was living with Johnny McManus in Mahia, Texas.
4. The report of the attorney ad litem was filed for record on July 1, 1974, certifying that after due diligence to ascertain the whereabouts of appellee it was his “ . . . belief she is a non-resident of the State of Arkansas whose address is unknown.”

Thus, under the foregoing decisions it would appear that, since appellee, to the knowledge of appellant, again became a resident of this State before the expiration of 30 days from the appointment of the attorney ad litem, the April 22nd affidavit for a warning order on the basis that she was a non-resident lost its efficacy for purposes of giving the court jurisdiction of the parties. Accordingly, the court had no jurisdiction of appellee on July 2, 1974, for purposes of rendering a decree of divorce. Without such jurisdiction, the decree was properly vacated without any necessity for showing a meritorious defense.

Affirmed.


author: Frank Holt, Justice.

text:
    Maurice DERRICK v. STATE of Arkansas
    CR 75-144
    532 S.W. 2d 431
    Opinion delivered February 17, 1976

      Erwin L. Davis, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Jack T. Lassiter, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

Appellant was convicted by a jury of possession of a controlled substance, heroin, with intent to deliver. Ark. Stat. Ann. § 82-2617 (Supp. 1975). His punishment was assessed at 30 years in the Arkansas Department of Correction. Appellant first contends for reversal that the trial court erred in overruling his motion for a continuance in order to give him sufficient time for a psychiatric evaluation. We do not agree.

Appellant was charged with the alleged offense on July 11, 1974, and the case was tried on September 27, 1974. It appears from the record that appellant was represented by employed counsel from the date of his arraignment on July 11. On the day before the trial appellant (by counsel) filed his unverified motion for a continuance alleging that on September 16, 1974, he was partially examined at a local Guidance Center for psychological and psychiatric evaluation and, further, that on September 25, or two days preceding the trial, the court had ordered that appellant’s examination be completed the next day at the local center. According to appellant’s unverified motion, the appellant was not transported by the officials to the center resulting in the examination not being completed. The court denied the motion for a continuance on the trial date stating “[I]t’s been three months and he could have had anybody he wanted to. He is not a pauper. He can’t wait until the day before the trial, and then bring up something just for the purpose of continuance. **** I’ve told you that you had from July the 11th to get any psychiatrist you wanted to.” He then observed that the appellant could have availed himself of psychiatric evaluation during the time he was in jail.

Appellant recognizes that the granting of a motion for a continuance is within the sound discretion of the trial court and a refusal to grant a continuance will not be reversed absent a showing of a clear abuse of discretion. Grissom v. State, 254 Ark. 81, 491 S.W. 2d 595 (1973); and Thacker v. State, 253 Ark. 864, 489 S.W. 2d 500 (1973). Ark. Stat. Ann. § 43-1705 (Repl. 1964). In the case at bar the thrust of appellant’s argument is that “[T]he question here is not whether Appellant should have been examined by a psychiatrist — that was decided by the Circuit Judge in the affirmative — but whether a continuance should have been granted so that the Court’s own Order could be carried out.” Whenever a psychiatric examination at public expense is deemed necessary by the appellant or the trial court, the statutory standards are set forth in Ark. Stat. Ann. § 43-1301 (Supp. 1975). It does not appear that insanity was ever made an issue as is required by the statutory standards. Here it is significant that the issue was never presented by a proffer of proof. Neither did the appellant, by affidavit, indicate to the court that he was incompetent on the date of the alleged offense or incompetent to stand trial and, therefore, was entitled to a continuance. Ordinarily a motion for a continuance must be supported by an affidavit. Ark. Stat. Ann. § 43-1706 (Repl. 1964) and Ark. Stat. Ann. § 27-1403 (Repl. 1962). The record does not indicate that the court was ever apprised of the results or findings of the asserted incomplete examination. Certainly, in the circumstances, we cannot say the trial court abused its discretion by refusing a continuance.

Appellant next asserts that the trial court erred in overruling his motion for a mistrial based upon prejudicial newspaper and radio publicity. We have determined this issue adversely to appellant in Freeman, Roland and Boyd v. State, 258 Ark. 496, 527 S.W. 2d 623 (1975). These appellants were tried together with appellant here and all received thirty year sentences. There we affirmed. Appellant contends that the false publicity at the beginning of his trial that he had pleaded guilty and received a thirty year sentence had a prejudicial effect upon the jury. Appellant argues in effect that Freeman is not controlling because the articles were more prejudicial to him than they were to his codefendants. The trial court carefully ascertained from the jurors, as we related in Freeman, that they were unaware of any news articles or comments about the trial. At appellant’s request the court sequestered the jury. The following day, upon resumption of the trial, the court again ascertained from the jurors that they were not exposed to any publicity from any source about the trial. The court then offered appellant’s counsel (and his codefendants’ counsel) the opportunity to question the jurors or present any evidence that the jury might have some knowledge about the asserted prejudicial publicity. The offer was declined. As in Freeman we hold the court properly overruled his motion for a mistrial based upon prejudicial news coverage.

Neither can we agree with appellant’s contention that the trial court erred in admitting into evidence two pistols which were found in the automobile occupied by appellant’s codefendants at the time of the alleged offense. Appellant argues that the weapons were inadmissible as to him because they were irrelevant to the issue as to whether “he possessed Heroin with intent to sell, and could not in any way be said to be part of the res gestae of any offense committed by him.” Again, this same issue was presented in Freeman, by appellant’s three codefendants with whom he stood trial. In Freeman we held these weapons were part of the res gestae and pertinent evidence on the question of intent. There we said that “narcotics transactions are frequently attended by morally offensive circumstances, and immoral participants. The possession of two pistols by the appellants at the time such transaction was allegedly attempted would appear to have some probative force on the question of what business the men were about.” In the case at bar, in linking appellant’s participation with his codefendants, the state adduced evidence that on the day of the alleged offense, the appellant and two of his codefendants drove to Arkansas from an adjoining state in the automobile where the weapons were found. There was evidence that a brown package containing the heroin was taken from that automobile by his codefendants and then given to the appellant who was standing nearby at a motel. Appellant immediately delivered it to an undercover agent there, where appellant was to receive $16,000 as prearranged. We need not detail further evidence since this alone is amply sufficient to demonstrate that appellant was a part of the whole transaction and, therefore, the weapons were relevant to the issue for which he was standing trial.

Appellant next contends that the nonresponsive answer of a prosecuting witness was prejudicial. This witness was asked by appellant’s counsel u[W]as that the first mention of this pound of heroin?” The witness replied “[N]o, sir, when I purchased five (5) ounces of heroin off of him on June 4th he said . ...” In our view this was proper evidence to show appellant’s intent or design since it wás not too remote in time from the alleged offense. Tarkington v. State, 250 Ark. 972, 469 S.W. 2d 93 (1971); Kurck v. State, 242 Ark. 742, 415 S.W. 2d 61 (1967); and Keese and Pilgreen v. State, 223 Ark. 261, 265 S.W. 2d 542 (1954). Further, in the case at bar, at the request of counsel, the court admonished the jury to disregard the answer. Appellant argues that the court, by using the words “any prior purchases” in his admonishment, commented on the evidence. We do not agree. Suffice it to say, however, there is no objection nor motion for a mistrial based upon the cautionary instruction.

Appellant’s last assertion for reversal is that the trial court erred in overruling his motion for a severance. Ark. Stat. Ann. § 43-1802 (Repl. 1964) provides that “when indicted for a felony less than capital, defendants may be tried jointly or separately, in the discretion of the trial court.” On appeal we do not disturb the refusal of a severance by the trial court unless there is an abuse of discretion. Ballew v. State, 246 Ark. 1191, 441 S.W. 2d 453 (1969). Here appellant argues that he could not assert his defense of entrapment. Suffice it to say the motion contained no such allegation. We have already said that the pistols were admissible against appellant as being relevant to the alleged offense. This would be true if he were granted a separate trial. Appellant has not demonstrated an abuse of discretion by the court in denying his motion for a severance.

Affirmed.


author: George Rose Smith, Justice.

text:
    Alice WILLETT v. F. Giles WILLETT
    75-269
    532 S.W. 2d 756
    Opinion delivered February 23, 1976

      Laster & Lane, for appellant.

      William R. Wilson Jr., P.A. for appellee.
   George Rose Smith, Justice.

The only question here is whether a money judgment entered in Illinois is entitled to full faith and credit in Arkansas. We affirm the trial court’s refusal to enforce the Illinois judgment.

In 1961 the appellant obtained a divorce in Illinois, where both parties were living. The decree ordered the appellee to pay child support and certain medical expenses. In 1969, after the appellee had moved to Arkansas, the appellant filed a petition in the Illinois case for judgment against the appellee in the amount of his arrearages. On July 16, 1969, the appellee received by mail, in Arkansas, notice that the appellant’s petition would be heard in Illinois on July 17. Upon the advice of an Arkansas attorney the appellee made no attempt to resist the petition. On July 17 the Illinois court entered judgment against the appellee for $8,760, with interest. In 1972 the appellant brought this action to enforce the Illinois judgment.

The trial court was right in refusing to recognize the judgment. Even though the Illinois court had continuing jurisdiction in the case, the appellee was entitled, as a matter of due process, to reasonable notice of the petition for judgment. Leflar, American Conflicts Law, § 28 (rev. ed., 1968). The one day’s notice that was given cannot be said to be reasonable in the circumstances. Consequently the Illinois judgment is not entitled to full faith and credit. Griffin v. Griffin, 327 U.S. 220 (1946).

Affirmed.


text:
    AERO MAYFLOWER TRANSIT COMPANY v. Jack HOFBERGER
    75-277
    532 S.W. 2d 759
    Opinion delivered February 23, 1976

      Harkness, Friedman & Kusin, for appellant.

      Charles M. Bleil and Atchley, Russell, Waldrop & Hlavinka, for appellee.
   John A. Fogleman, Justice.

Aero Mayflower Transit Company sued Jack Hofberger to recover $1,517.76 for moving household goods from Hillsdale, Michigan to El Dorado, Arkansas. This appeal comes from a judgment in favor of appellee by the circuit judge, trial by jury having been waived. We find no error and affirm.

Hofberger was employed by Permaneer Corporation in Hillsdale. He accepted employment by El Dorado Industries at El Dorado, Arkansas, with the understanding that the new employer would pay all relocation expenses. He obtained an estimate of the cost from the Mayflower Moving Service in Michigan through its agent in Jackson, Michigan. The agent asked Hofberger if it was a company move and Hofberger replied that the charges would be paid by El Dorado Industries, making it clear that under no circumstances would he pay these charges. Thereafter, Hofberger contacted Roberson as agent for appellant in El Dorado to discuss the move. Hofberger testified that he told Roberson that this was a company move, and that Hofberger was not to pay the bill. He said that Roberson agreed and a company authorization was obtained. Roberson admitted that he understood that El Dorado Industries was to pay for the move. He obtained a written acknowledgment that it would pay the charges which was in the form of a “Purchase Order” signed by a vice-president of El Dorado Industries. Hofberger said that if this authorization had not been obtained and if Roberson had not agreed to look to El Dorado Industries, the move would not have been made.

In spite of the requirement of the Interstate Commerce Commission that the person extended credit be billed within seven days (9 CRF § 1322.1), appellant first billed El Dorado Industries about one month after the move. The bill was not paid. El Dorado Industries encountered financial difficulties and went out of business. Four months later appellant first made demand for payment upon Hofberger who had signed the bill of lading as shipper and acknowledged the receipt of the goods as consignee. In the letter by which demand was made appellant stated that it had not expected to have to turn to appellee for payment, but that he was primarily liable for the charges along with El Dorado Industries. Appellant also stated that knowledge of this obligation would probably come to Hofberger as a complete surprise and apologized, saying it had no other course of action because it was required by the Interstate Commerce Act, Title 49 U.S.C. 323 to enforce the obligation against him.

We do not interpret the applicable federal statutes and decisions of the United States Supreme Court to impose an absolute liability on the consignee in these circumstances, as appellant does, although it appears that some courts have done so in situations of this sort. See, e.g., Aero Mayflower Transit Co. v. Hankey, 140 S. 2d 465 (La. App. 1963); National Van Lines, Inc. v. Herbert, 81 S.D. 633, 148 N.W. 2d 36 (1966). On the other hand, some courts have sustained judgments denying recovery to the carrier where substantial evidence of an express contract or of an estoppel was similar to that before us. Southern Pacific Transportation Co. v. Campbell Soup Co. 455 F. 2d 1219 (8 Cir., 1972); Consolidated Freightways Corp. of Del. v. Admiral Corp., 442 F. 2d 56 (7 Cir., 1971); Tom Hicks Transfer Co. v. Ford, Bacon & Davis Texas Inc., 482 S.W. 2d 364 (Tex. Civ. App. 1972). See also Lyon Van Lines v. Cole, 9 Wash. App. 382, 512 P. 2d 1108 (1973). The rationale of these cases is that the intention of the act was only to prevent rate discrimination and that the holdings of the United States Supreme Court in such cases as Illinois Steel Co. v. B. & O. R. Co., 320 U.S. 508, 513, 64 S. Ct. 322, 88 L. Ed. 259 (1944); Louisville & N. R. Co. v. United States, 267 U.S. 395, 397, 45 S. Ct. 233, 69 L. Ed. 789 (1925); Louisville & N.R. Co. v. Central Iron Co., 265 U.S. 59, 70, 44 S. Ct. 441, 68 L. Ed. 900 (1924); and Pittsburgh, C., C. & St. L. R. Co. v. Fink, 250 U.S. 577, 581, 40 S. Ct. 27, 63 L. Ed. 1151 (1919) prevented such discrimination by holding the consignee liable to pay the full legal charge under uniform shipping rates in the event of an undercharge through either contract or mistake (even where the consignee accepted the shipment with the understanding that the charges were prepaid, and even when the consignee had remitted the amount of the incorrect charges to the shipper) but that the consignee’s liability was not absolute where no undercharge is involved and he had a specific contract that he was not liable or where the carrier’s conduct es-topped it from imposing liability on the consignee. These courts take the view that estoppel cannot operate as a means of avoiding the statutory requirement of equal rates, but that the defense of estoppel has not been eliminated under all circumstances.

There is no suggestion of any undercharge in this case. There was substantial evidence that Hofberger contracted against liability and that there were circumstances estopping appellant from asserting liability against Hofberger, based on the terms on which the shipment was accepted and the belated billing to both the employer and the employee. The circuit court judgment was based upon estoppel and since it had substantial evidentiary support, it is affirmed.

      Contra: See American Red Ball Transit Co. v. McCarthy, 323 A. 2d 897 (N. H. 1974).


text:
    Cecil GATEWOOD v. STATE of Arkansas
    CR 75-184
    532 S.W. 2d 749
    Opinion delivered February 23, 1976

      Harold L. Hall, Public Defender, for appellant.

      Jim Guy Tucker, Atty. Gen., by: B.J. McCoy, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Cecil Gatewood, a white person, and Lucky Time Rucker, a black one, were charged with the robbery of Merle Boyer, proprietor of Boyer’s Antique Shop at 900 South Cedar in Little Rock, and of Venerda Spencer, a customer of that establishment. It was alleged in the information on each charge that a firearm was used and the sentence imposed by the court on trial after waiver of a jury trial was enhanced because of use of a firearm.

The robbery occurred on June 3, 1975. Appellant contends that the evidence was not sufficient to sustain the court’s finding that Gatewood was guilty and that, since the court did not make a specific finding that Gatewood used a firearm and there was no testimony that Gatewood himself either held or used a pistol in connection with the robbery, the portion of the sentence based upon this factor should be eliminated. We find no error and affirm.

A black boy, positively identified by both Boyer and Mrs. Spencer as Rucker, came into the store, pulled out a pistol, demanded Boyer’s money and specifically called for Boyer’s red tackle box under the counter. That box was used for making change and in it Boyer kept checks and currency. He estimated the amount of money at around $50 and the number of checks at 15 or 20 for a total of $350. After Boyer had given Rucker the tackle box, Rucker told Mrs. Spencer he wanted her handbag which was lying on the counter in front of her. When she reached for the purse, Rucker commanded her to stop, reached around her and took the handbag which contained three checkbooks, a billfold, some credit cards, some pens and approximately $10. He then left the store. Boyer immediately called the police.

Boyer estimated the time as around 1:30 p.m. Mrs. Spencer said that it was about 1:15. Mrs. Spencer saw a white boy outside the store during the robbery but not well enough to identify him.

Sgt. Ron Gatewood (no relation) of the Little Rock Police Department commenced his investigation of the crime at 1:20 p.m. He received information as he proceeded west on Maryland Street which caused him, with other officers, to go to a dwelling house at the southwest corner of Maryland and Abigail. When Sgt. Gatewood approached the house, Cecil Gatewood came out, shook hands with the sergeant, identified himself, and when the officer inquired about the whereabouts of the young black man that had been with him a few minutes previously, replied that he had left, walking north on Abigail Street about 20 or 30 minutes earlier. When the sergeant asked, appellant said he did not mind if the officers went in the house and looked around to make sure that the young black man had actually gone. Officer Bullerwell and Sgt. Gatewood entered the living room, and as Bullerwell started to go into the central or back part of the house, appellant moved close to the sergeant and whispered, “He’s in the back of the house with a .38 and he’ll kill us all.” Sgt. Gatewood called Bullerwell back and asked appellant, “Who’s in the back of the house?” and received the reply, “The black dude.” When the sergeant then talked with appellant about the black guy “sticking up the store,” appellant seemed anxious to leave. The officer then told appellant to go out in the front yard and lie down.

Sgt. Gatewood had called for help when he was told that there was an armed man in the house. He left Detective Knestrict with appellant and went with Bullerwell and Detective Baer in a search of the house. Bullerwell found Rucker hiding under a bed in the front bedroom. Rucker declined an invitation to come out, but the officers lifted the bed, got him out from under it and handcuffed him.

Bullerwell advised Rucker of his constitutional rights, by reading from a standard card issued by the Little Rock Police Department. When one of the officers asked where the gun was, Rucker advised that another dude who was hiding in the attic was the one they wanted, that he had the gun and was the one that was going to kill the officers. After the officers found the attic and were unable to get a response to a warning to anyone up there to come out, Officer Bullerwell and Detective Baer entered the attic and found and recovered a .38 caliber Smith and Wesson revolver and, tucked between boards, a purse (later identified by Mrs. Spencer). Detective Baer found Boyer’s'red tackle box, containing $27.87 in change, in a bedroom closet, where, upon inquiry, appellant told him it would be. The officers found no one in the attic and no one other than appellant and Rucker in the house.

Of course, we have viewed the evidence in the light most favorable to the state, as required. In that light it is sufficient. We have held in many cases that possession of recently stolen property without reasonable explanation is sufficient evidence of burglary and of larceny. Williams v. State, 258 Ark. 207, 523 S.W. 2d 377; Kelly v. State, 191 Ark. 674, 87 S.W. 2d 400; Duty v. State, 212 Ark. 890, 208 S.W. 2d 162. We have not had occasion to pass on the question whether that fact in and of itself, is sufficient evidence of robbery. Other jurisdictions hold that it is, even when the possession is joint, unless there is evidence of circumstances casting reasonable doubt upon the permissible inference that it is. State v. Langley, 242 A. 2d 688 (Me., 1968); People v. Curtis, 7 Ill. App. 3d 520, 288 N.E. 2d 35 (1972); People v. Hanson, 97 Ill. App. 2d 338, 240 N.E. 2d 226 (1968); People v. Leving, 371 Ill. 448, 21 N.E. 2d 391 (1939). See also, Chubbs v. State, 204 Ga. 762, 51 S.E. 2d 851. As to the effect of joint possession, cf. Lee v. State, 200 Ark. 964, 141 S.W. 2d 842; Davis v. State, 255 Ark. 405, 500 S.W. 2d 775; Cox v. State, 254 Ark. 1, 491 S.W. 2d 802, cert. den. 414 U.S. 923, 94 S. Ct. 230, 38 L. Ed. 2d 157. It is at least evidence that the possessor was a party to the robbery. Commonwealth v. Wilson, 394 Pa. 588, 148 A. 2d 234 (1959), cert. den. 361 U.S. 844, 80 S. Ct. 97, 4 L. Ed. 2d 82. In any event, when one is shown to be the possessor of recently stolen property, only slight corroborative evidence of other inculpatory circumstances will be sufficient to support a conviction of robbery. People v. Mulqueen, 9 Cal. App. 3d 532, 88 Cal. Rptr. 235 (1970); People v. Blair, 2 Cal. App. 3d 249, 82 Cal. Rptr. 673 (1969).

The finding within a few minutes after the robbery of a substantial part of the stolen property and of a revolver hidden in a house in which only appellant, a white person, and Rucker, a black person, were present, corroborated by testimony that a white person was seen outside the store when the robbery by the black person took place and the conduct and statements of appellant when the police officers came to the house certainly was sufficient substantial evidence that appellant was a participant in the robbery.

Since we find sufficient evidence that appellant was a participant in the crime, we need not treat his argument on the question of enhancement of punishment. We rejected it in Gammell and Spann v. State, 259 Ark. 96, 531 S.W. 2d 474 (1976).

The judgment is affirmed.


text:
    Galen Ray SANDERS v. STATE of Arkansas
    CR 75-197
    532 S.W. 2d 752
    Opinion delivered February 23, 1976

      Don Langston, for appellant.

      Jim Guy Tucker, Atty. Gen., by: James Guy Petty Jr., Dep. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Galen Ray Sanders was found guilty of assault with a deadly weapon after a jury trial on a charge of assault with intent to kill. He moved to quash his arrest and to suppress incriminating statements made by him to the police which he alleged to be the fruit of the arrest. The ground for the motion to quash the arrest was lack of probable cause for his arrest without a warrant. The ground for his motion to suppress his statements to police was basically the illegal arrest. We find that the arresting officers had probable cause and affirm the judgment.

Appellant was charged with having assaulted Ricky Banning, son of William L. Banning. Both were employed by Shipley Baking Company, the son having gone to work after some employees had gone on strike. They left work shortly before 8:30 p.m. The Bannings came out the back door of the bakery and got into the father’s pickup truck on the parking lot at the bakery. The son was shot as they were leaving the parking lot. The father, who was driving, looked through the rear view mirror of his pickup truck, because he had heard a noise which seemed to come from that direction, followed by three similar sounds in rapid succession. He saw three or four people standing around a vehicle which he recognized as one belonging to Sanders. The Bannings proceeded to the police station. Just before the father, who was driving, pulled into the driveway to the police station, they met the Sanders vehicle, a 1971 Chevrolet pickup truck with a white camper shell, which was travelling in the opposite direction at an abnormal speed for the area and came very close to the Bannings. The Bannings could not see who was driving. They proceeded into the station and the father told Detective Hill that his son had been shot, that he had seen the Sanders vehicle at the scene, that he had seen “people” standing around the vehicle, that he had met the Sanders vehicle en route to the police station and that whoever was driving came very close, either trying to get in front of the Banning vehicle or to see into it as it turned into the police station.

The Bannings then went to the hospital. The father returned to the police station after the son had seen a doctor. The son arrived at the police station 15 or 20 minutes later and they signed statements typed by Hill. Sanders was brought into the station while the Bannings were there. Sanders had been ai rested by Detectives Sharp and Hill. As Hill was leaving the police station to go to Sanders’ residence at about 9:40 p.m. he met Sharp. Hill had obtained Sanders’ address from a computer. They proceeded to the trailer park where Sanders lived. After obtaining directions to the address they had, they found the Sanders vehicle about 25 feet from the gate at the entry to Sanders’ house trailer. Hill saw it as soon as they arrived. Hill had questioned employees at the Shipley Baking Company at about 8:45 p.m. and verified the ownership of the truck Banning had described. When the officers knocked on the door, Sanders’ wife answered and called Sanders, who came to the door after a slight delay. Hill asked him to come outside, saying that he and Sharp wanted to talk to him. Although there are some conflicts in the testimony about the exact sequence of events thereafter, Sanders was told that he was under arrest for investigation of assault with intent to kill. He asked the officers if they had a warrant and told them that he was not going with them unless they had a warrant. Sanders’ wife was at the door hysterically hollering that he didn’t have to go if they didn’t have a warrant, and that “the lawyer” had said so. Sanders was told by Hill that no warrant was necessary because they had probable cause for the arrest for a felony, but Sanders kept repeating that he was not going unless they had a warrant and that his attorney had told him that he was not required to do so. Detective Sharp undertook to explain to Sanders that he would be right if a misdemeanor was involved, but that a “felony case” was involved. After Sanders’ continued refusal, the officers subdued him, handcuffed him and took him to the police station.

When they were all in the police automobile after the arrest, Sanders was advised of his constitutional rights by Hill. Some of the incriminating statements which Sanders claims should have been suppressed were spontaneous but one was in response to a question by Hill. Hill stated that when he left the police station, he intended to arrest Sanders, even though an inference could be drawn from Hill’s testimony at the preliminary hearing that he formed that intention after Sanders came out of the trailer. Neither Sanders nor his wife testified at the suppression hearing and the testimony of Sharp and Hill stood uncontradicted.

On appeal, all presumptions are favorable to the trial court’s ruling on the legality of the arrest, and the burden of demonstrating error rests upon appellant. Williams v. State, 258 Ark. 207, 523 S.W. 2d 377. When we indulge these presumptions, we cannot say that the trial judge erred. The police officers had authority to make a warrantless arrest if they had reasonable grounds to believe that Sanders had committed the felony of assault with intent to kill. Williams v. State, supra. When we consider the totality of the circumstances beginning with the sighting of Sanders’ vehicle at the scene of the shooting to its being found at his residence within a reasonably short time span during which it had been “driven at” the Banning vehicle as it started to enter the driveway to the police station, we think there was sufficient evidence to sustain a finding of probable cause for the arrest.

It is to be remembered that probable cause is only a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man to believe that the accused committed a felony, but not tantamount to the quantum of proof required to support a conviction. Graves v. State, 256 Ark. 117, 505 S.W. 2d 748. Johnson v. State, 249 Ark. 208, 458 S.W. 2d 409. The existence of probable cause depends upon the facts and circumstances of which the arresting officer has knowledge at the moment of the arrest. Beck v. Ohio, 379 U.S. 89, 85 S. Ct. 223, 13 L. Ed. 2d 142 (1964).

Determination of probable cause is based upon the factual and practical considerations of everyday life upon which reasonable and prudent men, not legal technicians, act. Draper v. United States, 358 U.S. 307, 79 S. Ct. 329, 3 L. Ed. 2d 327 (1959); Brinegar v. United States, 338 U.S. 160, 69 S. Ct. 1302, 93 L. Ed. 1879 (1949). This practical, nontechnical concept has been said to afford the best compromise that has been found for accommodating competing interests, so that law enforcement will not be unduly hampered and law abiding citizens not left at the mercy of the whim and caprice of a police officer. Beck v. Ohio, supra; Brinegar v. U.S., supra. In making this determination the reviewing court should follow a liberal rather than a strict course. In re Watson’s Petition, 146 Mont. 125, 404 P. 2d 315 (1965).

To have probable cause for an arrest, it is not necessary that the arresting officer have the same type of specific evidence of each element of the offense as would be needed to support a conviction. Adams v. Williams, 407 U.S. 143, 92 S. Ct. 1921, 32 L. Ed. 2d 612 (1972). A probability is not a certainty or a conclusion beyond a reasonable doubt. Lathers v. United States, 396 F. 2d 524 (5 Cir., 1968). The question of probable cause is a pragmatic one to be decided in the light of the circumstances of a particular case, which are reviewed, not as a legal scholar determines the existence of consideration in support of a promise, but as a man of reasonable prudence and caution would determine whether the person arrested has committed a felony. People v. Harper, 365 Mich. 494, 113 N.W. 2d 808 (1962). The answers cannot be found by the application of a mathematical formula. Mattern v. State, 500 P. 2d 228 (Alaska, 1972). See also, 5 Am. Jur. 2d 740, Arrest § 48. Constitutional standards permit common sense, honest judgments by police officers in their probable cause determinations. Lathers v. United States, supra.

In the words of Circuit Judge (now Chief Justice) Burger, speaking for the District of Columbia Circuit Court of Appeals, probable cause for arrest is to be evaluated from the viewpoint of a prudent and cautious police officer at the time of the arrest, not from the remote vantage point of a library. Jackson v. United States, 302 F. 2d 194 (1962), quoted with approval, Feguer v. United States, 302 F. 2d 214 (8th Cir. 1962), cert. den. 371 U.S. 872, 83 S. Ct. 123; Minnesota v. Cox, 294 Minn. 252, 200 N.W. 2d 305 (1972).

When we view the facts in a common sense, pragmatic manner, we find sufficient evidence to support a finding of probable cause for this arrest.

Although appellant’s further argument on.this point is dependent upon the illegality of the arrest, there was sufficient evidence that the incriminating statements were not tainted by the arrest, even if it were illegal. Appellant relies on Brown v. Illinois, 422 U.S. 590, 95 S. Ct. 2254, 45 L. Ed. 2d 416 (1975), wherein it was held that the giving of the warnings prescribed by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966) did not, in and of itself, break the causal chain between an illegal arrest and subsequent inculpatory statements of the person arrested, so that the statements were admissible in evidence. The United States Supreme Court did not hold that the taint of the illegal arrest, followed by the giving of the Miranda warnings, reached any and every such statement made by the arrested person regardless of the circumstances. Rather, that court stated that it is entirely possible that persons arrested illegally frequently may decide to confess as an act of free will unaffected by the initial illegality, that the question of voluntariness must be answered in each case upon the particular facts of the case, applying the standards of Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963). Those standards were quoted, viz:

We need not hold that all evidence is “fruit of the poisonous tree” simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is “whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” Maguire, Evidence of Guilt, 221 (1959).

In Brown there was prolonged custodial interrogation and the record disclosed that the arrest was, in all probability, made for that purpose alone. There could be little doubt that the statements of Brown were the fruit of the poisonous tree and that the taint could hardly have been removed by the Miranda warnings. The situation here is decidedly different. After the arrest Sanders and the two officers got into the police car. Immediately thereafter, and apparently before anything else was said by anyone, Hill advised Sanders of his constitutional rights in detail and Sanders indicated that he understood. They travelled some distance before Sanders said anything. However, before the police station was reached and while Sanders was “laying back on the back seat just nonchalant-like,” he spontaneously remarked, “A person sure can get in a lot of trouble when he’s on strike” or “A man sure can get in a lot of trouble when he’s on strike.” To which Hill responded, “Yes you can, if there’s a gun or shooting involved.” Sanders then said, “I don’t even own a .22.” Although a .22 caliber bullet inflicted the wound suffered by young Banning, no mention had been made by the officers of the type of weapon involved. Subsequently, and apparently after arrival at the police station, Hill asked Sanders what he knew about the shooting and Sanders replied that he had not been involved in any way, but he knew who had done it, but that he had said enough and was not going to say any more until he talked to a lawyer.

Certainly Brown does not require that spontaneous, voluntary statements of this nature be excluded. The really incriminating statements were made after a full explanation of Miranda rights and after Sanders had time for deliberation.The question asked at the police station followed those statements by Sanders, but no further question was asked when he indicated that he would have no more to say until he had consulted a lawyer. His remark substantiates the testimony that he understood his rights. Appellant has failed to demonstrate error in the admission of his statements into evidence on either ground argued by him.

Appellant also contends that the court erred in failing to give his requested instruction defining an accomplice and requiring the testimony of an accomplice to be corroborated. Even if we should find error in this respect, it would be harmless because the jury found Sanders guilty of assault with a deadly weapon, a misdemeanor. Corroboration of the testimony of an accomplice is not required for a misdemeanor conviction. See Ark. Stat. Ann. § 43-2116 (Repl. 1964).

Appellant asserted as a third point for reversal, the denial of his motions for a directed verdict. He concedes that there is no reversible error on this score, unless we sustain one of the points for reversal we have already treated.

The judgment is affirmed.

      For other cases where probable cause for an arrest of an owner, occupant, or possessor of a motor vehicle was largely based upon recognition of the vehicle at the scene of a crime, see People, v. Thomas, 33 Mich. App. 664, 190 N.W. 2d 250 (1971); State v. Morsette, 7 Wash. App. 783, 502 P. 2d 1234 (1972); State v. Brown, 261 Ia. 656, 155 N.W. 2d 416 (1968); People v. Murphy, 28 Mich. App. 150, 184 N.W. 2d 256 (1970); People v. Wilson, 16 A.D. 2d 207, 229 NYS Supp. 2d 685 (1962); State v. Hamilton, 264 N.C. 277, 141 S.E. 2d 506 (1965); cert. den. 384 U.S. 1020, 86 S. Ct. 1936, 16 L. Ed. 2d 1044.


author: Conley Byrd, Justice. John A. Fogleman, Justice.

text:
    Dale SMITH et al v. Peter G. ESTES et al
    75-153
    533 S.W. 2d 190
    Opinion delivered February 23, 1976
    [Rehearing denied March 22, 1976.]

      Croxton, Boyer & Keith, for appellants.

      John Bailey and Estes & Estes, for appellees.
   Conley Byrd, Justice.

The appellants Dale Smith, et al, sought an appeal de novo, pursuant to Ark. Stat. Ann. § 48-311 (Supp. 1975), from the action of the Alcoholic Beverage Control Board permitting appellee By-Pass Beverage Co., an Arkansas corporation, to transfer a liquor permit in the City of Fayetteville from 231 Mill Street to 3118 South School Street. The trial court held that By-Pass Beverage Co. was a necessary party defendant and, since it was not made a party defendant within the 30 day time limit, dismissed the appeal. For reversal appellants contend that the appeal was taken within the 30 day period and that the order of the Alcoholic Beverage Control Board was subject to collateral attack as being null and void.

The record shows that on December 4, 1974, appellants Filed a petition for appeal de novo from the decision of the Alcoholic Beverage Control Board in the trial court. In so far as here pertine : the petition alleged:

“6. That on a date unknown to these Petitioners during the month of July, 1974, the said Peter G. Estes, Sr. acting both individually and as an officer and director of a proposed Arkansas Corporation, By-Pass Beverage Company, made application to the Alcohol Beverage Control Division, Department of Finance and Administration, State of Arkansas, for the transfer of liquor and beer permits issued to Ed Connell for a liquor store at 231 Mill Street, Fayetteville, Arkansas, from the said Ed Connell to the said Peter G. Estes, Sr. and the proposed corporation, namely, By-Pass Beverage Company.
7. That on a date unknown to the Petitioners during the month of September, 1974, the said Ed Connell made application to the said Alcohol Beverage Control Division for a transfer of Liquor Permit No. 502 and Beer Permit No. 2147 from the premises located at 231 Mill Street to the premises located at 3118 South School Street, Fayetteville, Arkansas; and that the said application was made on behalf of himself and the said By-Pass Beverage Company.
8. That on or about October 9, 1974, the said Alcoholic Beverage Control Board authorized the transfer of liquor and beer permits issued to the said Ed Connell for a liquor store at 231 Mill street to the said Peter G. Estes, Sr., and the said permits are now in the name of the said Peter G. Estes, Sr.
9. That the said R. E. Brians, Administrator of the said Alcohol Beverage Control Division, on a date unknown to the Petitioners, denied the application for the transfer of the said liquor and beer permits from the premises at 231 Mill Street to the premises at 3118 South School Street, and the Defendant, Peter G. Estes, Sr., appealed the said Administrator’s decision to the said Alcoholic Beverage Control Board. At a purported hearing on November 20, 1974, the said Alcoholic Beverage Control Board overruled the decision of the Administrator and authorized the transfer of the said liquor and beer permits from the premises at 231 Mill Street to the premises at 3118 South School Street. However, the said liquor and beer permits have not at this time been issued by the said Alcohol Beverage Control Division for the premises located at 3118 South School Street.”

On January 29, 1975, both Peter G. Estes, Sr., and the Board filed motions to dismiss on the basis that By-Pass Beverage Co. was the real party in interest and that appellants had failed to make it a party to the appeal. Attached to the motions was an order of the Board reciting that the ruling was made on November 20, 1974. That order shows that By-Pass Beverage Co. was the applicant for transfer and the real party in interest. Also attached to the motions were certified copies of Liquor Permit No. 502 and Beer Permit No. 2147 issued on October 10, 1974, and October 24, 1974, respectively, showing By-Pass Beverage Co., d/b/a “Ozark Liquors,” as holding the permits to do business at 231 Mill Street, Fayetteville.

On February 6, 1975, appellants filed their first amendment to their petition for appeal making By-Pass Beverage Co. a party defendant. The second amendment to the petition for appeal was filed on February 19, 1975, and for the first time made the following allegation:

“13. Ata purported hearing on November 20, 1974, the said Alcohol Beverage Control Board reversed the decision of the said R. E. Brians, Administrator, and approved the transfer of the location of the aforesaid liquor and beer permits from the premises at 231 Mill Street to the premises at 3118 South School Street; however, the Order authorizing the aforesaid transfer of the aforesaid liquor and beer permits was not signed by the said Kenneth Davis, Chairman of the said Alcohol Beverage Control Board, or made and entered by the said Alcohol Beverage Control Board, until January 28, 1975.”

On February 21, 1975, the trial court dismissed the appeal because By-Pass Beverage Co. was the real party in interest, and the appeal as to it had not been perfected within the 30 days allowed for perfecting such appeals.

To reverse the trial court, appellants rely upon Ark. Stat. Ann. § 48-1314 (Repl. 1964), which provides:

“. . . Within five [5] days after the hearing is concluded the Board shall render its written opinion, decision or order on such appeal. A copy of such opinion, decision or order shall be mailed by the Board by registered mail to the applicant, licensee or protester, and a copy shall be also delivered or mailed by the Board to the Director. Such order and decision shall be final and binding on the Director and the applicant, licensee or protester. Provided, however, that an appeal may be taken from any order suspending or revoking a license as provided for in this Act.”

To avoid the effect of the appellants’ argument, appellees point out that appellants took affirmative action with knowledge of the facts and that under the authorities such action on the part of appellants should be treated as a waiver of the rendition and service of the Board’s order. For this assertion appellees rely upon State ex rel. Grant v. First Judicial District Court, 38 Utah 138, 110 P. 981 (1910). In that case on March 27, 1909, in a trial to a jury, a verdict was returned in favor of Grant. Two days later, Jeppesen, the defendant, filed a written motion to vacate and set aside the judgment. The justice of the peace denied the motion on the same day it was filed. Jeppesen filed an appeal 44 days later. Grant, the plaintiff, moved to dismiss the appeal because it was not filed within the 30 days allowed for taking such appeals. Since it was conceded that no notice of the entry of judgment had been given, the district court denied Grant’s motion to dismiss because of a Utah statute which provided:

“Any person dissatisfied with a judgment rendered in a justice’s court, whether the same was rendered on default or after trial, may appeal therefrom to the district court of the county at any time within thirty days after the rendition of any final judgment. Notice of the entry of the judgment must be given to the losing party by the successful party either personally or by publication, and the time of appeal shall date from the service of said notice.”

On a petition for prohibition, the Utah Supreme Court held that Jeppesen had waived the statutory notice in this language:

“The rule, as declared by the weight of authority, seems to be that, when a statute provides that an appeal may be taken within a specified time after the service of notice of the rendition or the entry of judgment, a party seeking to limit the time of appeal is held to strict compliance with the statute. The party entitled to notice may have actual knowledge that the judgment has been rendered, but this alone is not sufficient to set the statute running. . . .
But these same authorities also hold that the party claiming to be aggrieved by thejudgment may waive the giving of notice and by his own act set the statute running. Where, for example, a party dissatisfied with a judgment files a motion for a stay of execution, or by other direct proceeding attacks the judgment, and invokes the action of the court to relieve him, either wholly or in part, from the effect thereof, he will be deemed to have waived service ol notice.
In 1 Spelling, New Tr. & App. Pr., sec. 363, the author, discussing the question of waiver of notice, says:
‘It may not only be waived, but the party entitled to notice may do that which will estop him from denying that he has not been notified of the decision according to the statutory requirements. But even in that case his act may with propriety be spoken of as waiver. It constitutes a clear case of waiver for the movant to serve and file his notice of intention, or file any paper reciting the filing of findings, without waiting to receive notice of the decision.’’

We, too, conclude that appellants are bound by the recitations in their pleadings. Since they recited the findings of the Board on November 20, 1974, and made specific reference to permits # 502 and # 2147, they had full knowledge that By-Pass Beverage Co. was the real party in interest. Their failure to make By-Pass Beverage Co. a party seems to have occurred upon the theory that since the articles of incorporation for By-Pass Beverage Co. had not been filed in the County, it did not have corporate status. This theory on the part of appellants is completely contrary to the provisions of Ark. Stat. Ann. § 64-117(B) (Repl. 1966) which provides:

B. Upon the filing with the Secretary of State of the original articles of incorporation, corporate existence shall forthwith begin; and neither such corporate existence nor the right to do business as a corporation shall be postponed until a duplicate of such articles is filed with the County Clerk, ...”

Appellants also contend that their motion for summary judgment should have been granted because the order of the Board was null and void under Ark. Stat. Ann. § 48-312 (Repl. 1964), which provides:

“A permit issued to any person, pursuant to this section, for any premises shall not be transferable to any other person or to any other premises or to any other part of the building containing the permitted premises. It shall be available only to the person therein specified, and only for the premises permitted and no other.”

We find no merit to this contention because the statute is a restriction on the permittee and not to any subsequent actions by the Board.

Affirmed.

George Rose Smith and Fogleman, JJ., dissent.

John A. Fogleman, Justice.

I cannot subscribe to the majority opinion in this case because I do not think it treats the question at issue. The question, as I see it, does not turn upon the time when appellants received notice of the order of the Alcoholic Beverage Control Board. The real issue is whether the time for giving notice of appeal runs from the date the board announced its order or from the time the written order was filed.

As I understand the record, appellants filed their appeal from action taken by the board on December 4, 1974. They did not make By-Pass Beverage Company a party. The written order of the board was not made until January 28, 1975. On January 29, motion to dismiss the appeal for failure to make By-Pass Beverage Company a party was filed. On February 6, 1975, appellants amended their petition filed December 4, 1974, to make this company a party to the appeal. There was a second amendment filed February 19, 1975. The motions to dismiss were renewed. The circuit court treated the matter thus:

On January 29, 1975, Separate Motions to dismiss were filed by Peter G. Estes and the members of the Board to which were attached November 20, 1974, Order of the Board and copies of existing Permit No. 697 and No. 2965 showing permittee to be “By-Pass Beverage Co., Manager Agent: Peter G. Estes, Sr., 231 Mill Street, dated October 10, 1974, and October 24, 1974, respectively.”
The motions of defendants contended that the real party involved By-Pass Beverage Co., a corporation, was not named or served by Petitioners and that Peter G. Estes, Sr. was served by an individual improperly and that the time for appeal of 30 days from November 20, 1974, Order had expired on December 20, 1974.
On February 6, 1975, Petitioners filed 1st Amendment to Petition to include “By-Pass Beverage Co., a corporation” as a defendant with Peter G. Estes, Sr.
‡ ‡ $
By-Pass Beverage Co., a corporation, was a necessary party to any appeal from the November 20, 1974, order and failure to name an indispensable party as defendant within 30 days makes the attempted appeal void and allows the November 20, 1974, order to become effective as of December 20, 1974, the expiration of 30 days.
The Motions for Summary Judgment filed February 19, 1975, by Petitioners is denied for failure to properly perfect an appeal within 30 days of and from November 20, 1974.

Later, on motion to vacate the order dismissing the appeal, the circuit court, in effect, confirmed its previous action, emphasizing the notice factor. I maintain that notice prior to the making of the written order is insignificant.

It does not appear to me that either Ark. Stat. Ann. § 48-1314 or § 48-1316 (Repl. 1964) governs an appeal by protesters. The action of the board seems to me to be equivalent to the granting of a license. The statute (§ 48-1316) only fixes the time for appeal by a licensee. It provides:

Within thirty (30) days after the mailing of the order of the Board, the licensee, if dissatisfied with the decision of the Board, may appeal to the Circuit Court of Pulaski County. The appeal shall be taken by the filing with the Clerk of the Circuit Court a transcript of the proceedings before the Board. The Circuit Court shall hear no new evidence on this appeal and shall render its judgment only on errors of law. An appeal from the judgment of the Circuit Court may be taken to the Supreme Court of Arkansas. [Acts 1951, No. 159, § 17, p. 331.]

If the time for appeal by a protestant is fixed by this section, then it is by analogy, i.e., that a protester should have the same time for appeal as the licensee. But this section does not permit evidence outside the record before the board to be introduced on appeal.

Appellant, however, relies upon the Arkansas Administrative Procedure Act, Ark. Stat. Ann. § 5-701 et seq (Supp. 1975). The Alcoholic Beverage Control Board is governed by that act. The act requires that proceedings for review be by petition in the circuit court. It must be filed “within 30 days after service upon petitioner of the agency’s final decision.” Ark. Stat. Ann. § 5-713 (Supp. 1975). This section permits testimony in the circuit court where, as here, irregularities in procedure not reflected in the record before the board are alleged.

It seems to me that every step taken by appellants was in conformity with § 5-713 and not in conformity with § 48-1316. It is crystal clear, however, that the 30 days allowed for appeal under § 48-1316 does not being to run until the mailing of the order of the board and under § 5-713 until the service upon the petitioner of the agency’s final decision.

Even the Utah decision relied upon by the majority does not apply here. No appeal was taken as to By-Pass Beverage Company by the filing of the original petition. In the Utah case the only party involved in the case was the party moving to dismiss. Even if it did apply, it is not in harmony with our own decisions.

Be that as it may, I think the amendment to the petition making By-Pass Beverage Company a party to the appeal was timely, because it was well within 30 days of the time that the order was signed, regardless of when or whether it was served.

Under our former statute allowing six months from the rendition (rather than entry) of a decree for appeal, we held that the time for appeal was not set in motion when the trial court made and submitted to counsel findings, concluding with this statement: “A decree in accordance with these findings will be signed by the Court when prepared and presented.” Obviously, all parties had notice of these findings and their effect. But we held that the time for appeal did not start running until two weeks later when the decree was signed. Bolls v. Craig, 220 Ark. 880, 251 S.W. 2d 482. When the same statute was applicable, we held that the time for appeal did not commence to run until a sufficient written memorandum showing final disposition of the case had been made, even though the court’s finding had been clearly made. Poe v. Walker, 183 Ark. 659, 37 S.W. 2d 866. The same principle was applied to a statute with a 30-day limitation. Donley v. State, 226 Ark. 49, 287 S.W. 2d 886.

After the present statute governing appeals to this court was passed, the approach taken was not materially changed. The only real change was statutory, i.e., the time for giving notice was set at 30 days and the time began to run, not from the rendition of the judgment, but from its entry. Cranna v. Long, 225 Ark. 153, 279 S.W. 2d 828. We held that this did not mean that a notice of appeal filed before entry of the judgment was void, but said that we did not mean to shorten the time within which a notice of appeal could be filed after the entry of the judgment. Wilhelm v. McLaughlin, 228 Ark. 582, 309 S.W. 2d 203.

In Wilhelm we quoted with approval from Hays v. Dennis, 11 Wash. 360, 36 P. 658. The quotation included this language:

*** The statutes governing appeals should be liberally construed, to the end that parties may have a review by this court of the rulings of the superior courts when they so desire. ***

We have also held that in no event will a litigant’s time for filing notice of appeal to this court be less than 30 days after the entry of the judgment, Zunamon v. Stevenson, 247 Ark. 248, 445 S.W. 2d 102.

As I see it, a waiver, if there was one as to Estes, would not be a waiver as to By-Pass Beverage Company. An appeal as to Estes would not bar a subsequent timely appeal as to By-Pass Beverage Company. If we follow the rule of the majority opinion on appeals to this court we would have an intolerable situation. For example:

A judgment is rendered which is favorable to A and B. C, the losing party, files a notice of appeal insofar as the judgment in favor of A is concerned, without waiting for entry of the judgment. Although fully aware of the findings and judgment in favor of B, C does not file notice of appeal as to B until sometime more than 30 days after his first notice of appeal, but does file it within 30 days after the judgment is entered. We should have to hold that the appeal as to B was not timely. C, having full knowledge of the court’s findings and conclusions when he filed the first notice, had waived the entry of the judgment so his notice as to B was not timely, and timely notice being jurisdictional, the appeal as to B would have to be dismissed. We shouldn’t.

This 30-day limitation is a short one. We should view it liberally in favor of the right of review. We recognized in Wilhelm that a party might have valid reasons for taking the precaütion of acting before the time limitation began to run. We should be extremely reluctant to hold that by doing so, he waived any rights, or lost any that he would otherwise have.

I am authorized to state that Mr. Justice George Rose Smith joins in this opinion.


text:
    Mark H. WILSON et al v. Sharon Lynn White DECLERK
    75-274
    533 S.W. 2d 196
    Opinion delivered February 23, 1976

      Rose, Nash, Williamson, Carroll, Clay & Giroir, for appellants.

      Homer Tanner, for appellee.
   Conley Byrd, Justice.

Appellee Sharon Lynn White DeClerk brought this action against appellants, Mark H. Wilson et al, who were the brother, mother, and two sisters of decedent Joan Irene Wordehoff, to enforce a contract between Joan Irene Wordehoff and her husband to make reciprocal wills. From a decree declaring that Joan Irene Wordehoff was bound to perform the obligations of her agreement with her deceased husband, appellants appeal making the contentions hereinafter discussed.

The record shows that Raymond B. Wordehoff and his wife, Joan Irene Wordehoff, visited the law office ofj. Harrod Berry on October 3, 1968. There they expressed an agreement to execute reciprocal wills. They returned on the next day and executed both wills with J. Harrod Berry and his wife signing as witnesses. The husband’s will provided:

“Item 6. My wife and I have agreed to execute identical wills and this will is in accordance with said agreement, and we have agreed that reasonable advance notice will be given the other before making any substantial change in the will.”

The wife’s will provided:

“Item 6. My husband and I have agreed to execute identical wills and this will is in accordance with said agreement, and we have agreed that reasonable advance notice will be given the other before making any substantial change in the will.”

Raymond B. Wordehoff died on February 7, 1973, and his wife, Joan Irene Wordehoff, caused his will to be probated. Subsequently, an order of the probate court was entered in the Estate of Raymond B. Wordehoff dismissing the probate of the will because there was “no real property subject to the probate of this Estate and the petitioner has personally assumed all obligations of the decedent, and that the petitioner and the decedent were married more than three years and the decedent has no children.” Joan Irene Wordehoff died January 16, 1975, as the result of a fire that destroyed her home.

We find no merit in appellants’ contention that the contract to make the will has not been proven by evidence which is clear, cogent and convincing. The testimony by J. Harrod Berry, based upon both his recollection and the notes he made at the time, that the parties executed the wills in his office is rather conclusive as to the execution of the wills and the parties intentions at the time. Furthermore, the language in item #6 of each will leaves no doubt that the parties had an agreement at the time. Under that language the wife, after the death of the husband, could not renege on the agreement because of the impossibility of giving reasonable advance notice to her deceased husband.

Neither do we find any merit in the contention that the contract was unenforceable under the statute of frauds. Since the agreement to make reciprocal wills was embodied in both wills and each party executed his or her will in writing, the defense under the statute of frauds is not available.

Appellants also contend that Joan Irene Wordehoff died intestate and that her estate should pass according to statute. Whether Mrs. Wordehoff died intestate is a matter that must be decided by the probate court in a proper proceeding, but, of course, the statute on descent and distribution will not take priority over the contractual agreement.

The parties hereto have suggested on appeal that the personal representative of the estate of Mrs. Wordehoff should have been made a party to this proceeding. However, the failure to raise the issue in the trial court amounts to a waiver of the necessity of making the personal representative a party. See Vaughan v. Screeton, 181 Ark. 511, 27 S.W. 2d 789 (1930). This, of course, will not prevent the declaratory judgment from being binding on the heirs and distributees that are parties.

Affirmed.