text:
    CALIFORNIA UNION INSURANCE COMPANY v. ARKANSAS LOUISIANA GAS COMPANY
    78-111
    572 S.W. 2d 393
    Opinion delivered October 23, 1978
    (Division I)

      Wright, Lindsey & Jennings, for appellant.

      Stuart W. Hankins, for appellee.
   George Howard, Jr., Justice.

We are to decide whether the trial court was correct in following the substantive law of Arkansas in deciding whether the liability insurance policy issued by appellant provided coverage for an award of punitive damages involving injuries occurring in Oklahoma, and where appellee paid the punitive damages pursuant to an Oklahoma court’s judgment and now seeks restitution from appellant.

THE FACTS

The cardinal facts for a resolution of the issue tendered are:

On July 23, 1975, an action was instituted in the United States District Court for the Western District of Oklahoma, against Arkansas Louisiana Gas Company by certain plaintiffs designated as the “Casto Family” for personal injuries and property damages sustained on June 27, 1975, as a consequence of an explosion of a natural gas transmission line installed by Arkansas Louisiana Gas Company on the Casto farm.

At the time of the explosion, appellee had in force a liability insurance policy issued by United States Fidelity & Guaranty Company insuring appellee against bodily injury and property damage claims made against it as a result of an occurrence or accident arising from the transport, distribution, and sale of natural gas. The limit of liability for bodily injury damages in one occurrence was $250,000.00. However, there was also in force an excess of liability policy issued by the appellant. This coverage indemnified appellee against the same claims covered by the USF&G policy for any damages in excess of $250,000.00, but less than $500,000.00.

The Casto family recovered compensatory damages, and also received punitive damages in the sum of $150,000.00. The recovery far exceeded the limit of liability under the policy issued by USF&G.

Appellant declined to accept responsibility for the $150,-000.00 punitive damage award contending that there was no coverage for punitive damages under the terms of its certificates of excess insurance. Pursuant to an agreement of the parties, appellee paid the punitive damages without waiving any rights to make claim against appellant for the amount paid.

The certificates of excess insurance, issued by appellant, adopted by reference the insuring agreements of the primary policy which provided that appellant was obligated to pay on behalf of appellee all sums which appellee shall become legally obligated to pay as damages because of bodily injury or property damage caused for an occurrence or accident to which the policy applies. The certificate of excess insurance also contains the following stipulation:

“It is agreed that in the event of the failure of the company hereon to pay any amount claimed to be due hereunder, the company hereon, at the request of the Insured, will submit to the jurisdiction of any court of competent jurisdiction within the United States of America and will comply with all requirements necessary to give such Court jurisdiction and all matters arising hereunder shall be determined in accordance with the law and the practice of such Court.”

On January 5, 1977, appellee filed suit in the Pulaski Circuit Court seeking to recover from appellant the $150,-000.00 paid to the Casto family as punitive damages, and the statutory penalty and attorneys fees as provided for under Arkansas law. Appellant filed its answer asserting as a defense to appellee’s complaint essentially that the excess insurance policy did not cover an award for punitive damage; and that it is not liable to appellee for the pre-judgment interest on the punitive damage award in the event appellee has to pay pre-judgment interest.

Appellant and appellee filed simultaneous motions for summary judgment and entered into a stipulation of the facts.

HOLDING OF THE TRIAL COURT

The trial court, in ruling in behalf of appellee and entering a judgment for appellee for $150,000.00, together with interest from April 9, 1976, at the rate of 6% per annum in the amount of $16,047.15, plus $18,000.00 as statutory penalty, plus appellee’s cost expended in the amount of $132.52 and reasonable attorney’s fee in the amount of $10,500.00, together with interest on the $150,000.00 from January 20, 1978, at the rate of 10% per annum, made the following pertinent finding:

“3. The issue of whether an award of punitive damages is within the insurance coverage afforded by the insurance contract within the factual setting as set forth in the Stipulation of Facts is governed by Arkansas law which has been clearly determined on this point in the case of Southern Farm Bureau Casualty Ins. Co. v. Daniel, 246 Ark. 849, 440 S.W. 2d 582 (1959). The Court further finds that its application of Arkansas law on this point would be appropriate even if it were to determine that this case constituted a choice of law situation and it were to apply the Arkansas conflict of laws rules. This is due to the Court’s findings that there is no determinative Oklahoma law on the insurance coverage issue, and no clear indication of how the Oklahoma Courts would rule on such an issue if given the opportunity.”

THE DECISION

After carefully reviewing the record before us, we are persuaded that the trial court was correct in concluding that our case of Southern Farm Bureau Casualty Ins. Co. v. Daniel, 246 Ark. 849, 440 S.W. 2d 582 (1969), is dispositive of the issue involved in this case. It is not necessary, for a resolution of the issue in this case, to deal with the conflict of laws issue sought to be raised and injected in this case by appellant.

In our case of Southern Farm Bureau Casualty Ins. Co. v. Daniel, supra, we made the following observation:

“. . . there can be no recovery for punitive damages unless actual damages are suffered and assessed. Such damages have been defined as damages imposed by way of punishment and as those given or awarded in view of the supposed aggravation of the injury to the feelings of the plaintiff by the wanton or reckless conduct of the defendant, . . . Punitive damages are awarded upon a showing of gross and wanton negligence, . . .
“As we read the policy herein it agrees to pay on behalf of the insurer all sums which the insured shall become LEGALLY OBLIGATED TO PAY AS DAMAGES, because of bodily injuries sustained. . . .
“Neither can we find anything in the state’s public policy that prevents an insurer from indemnifying its insured against punitive damages ...”

As far as we have been able to determine, our rule of law, as set forth in Daniel, supra, may not be contrary to Oklahoma’s posture on the question inasmuch as the Oklahoma Supreme Court has not ruled on the matter. We are not unmindful of the fact that there appears to be some dicta in a case that might indicate the contrary, but the Oklahoma Supreme Court has not been called upon to deal precisely and directly with this question.

Moreover, it is plain from this record that appellant did not raise the issue of the applicability of the Oklahoma law as distinguished from the application of Arkansas law until appellant filed its brief in the trial court in support of its motion for summary judgment. Appellant’s answer to appellee’s complaint makes to reference whatsoever to the application of the Oklahoma law in the resolution of the issue before the trial court.

In addition, not only did the certificate of excess coverage stipulate that the appellee had the choice of submitting the issue to any court of competent jurisdiction within the United States of America; and that appellant would comply with all requirements necessary to give such court jurisdiction, and that all matters shall be determined in accordance with the law and practice of such court, but in addition, stipulated as follows:

“3. ARKLA is engaged in the business of a natural gas utility in Arkansas, Louisiana, Oklahoma, Texas and Kansas, and has several corporate subsidiaries that are engaged in businesses that are related to the natural gas industry. More of the business of ARKLA and its subsidiaries (which were also insured by the policies in question) is transacted in Arkansas than in any of the other states in which it operates.”

Concluding that the trial court committed no reversible error, we affirm the judgment of the Pulaski County Circuit Court.

Affirmed.

We agree.

Harris, C.J., and George Rose Smith and Holt, JJ.

      The United States District Court, Western District of Oklahoma, awarded the Casto family pre-judgment interest at the rate of 6% per annum. However, Arkansas Louisiana Gas Company-appellee, appealed the award of pre-judgment interest to the United States Court of Appeals for the Tenth Circuit, but a decision on that appeal has not yet been rendered. Nevertheless, appellee prayed for a declaratory judgment in its action in the Pulaski County Circuit Court that in the event it is unsuccessful on its appeal, appellant is liable under its excess insurance policy for the award of pre-judgment interest assessed on the punitive damage portions of the federal court judgment; and that appellant is further liable for all cost of that appeal in the federal proceeding.


source: Caselaw Access Project

author: George Rose Smith, Justice. George Howard, Jr., Justice,

license: Public Domain

text:
    Larry HASKINS v. STATE of Arkansas
    CR 78-112
    572 S.W. 2d 411
    Opinion delivered October 30, 1978
    (In Banc)

      Clark, Miller & Switzer, Ltd., for appellant.

      Bill Clinton, Atty. Gen., by: Joyce Williams Warren, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

Under the controlling statute, notice and a hearing are required as conditions to the revocation of a suspended sentence or of probation in a criminal case. Ark. Stat. Ann. § 41-1209 (1) (Repl. 1977). Under subsection (2) of that statute the hearing “shall be conducted . . . within a reasonable period of time, not to exceed 60 days, after the defendant’s arrest. ” The question here is whether the 60-day limitation is jurisdictional, so that it can be raised for the first time in this court. We hold that the limitation is not jurisdictional.

On November 21, 1977, Haskins, upon a plea of guilty to a charge of battery, was given a 3-year suspended sentence. Eight days later he was arrested for various misdemeanors. He was tried in municipal court on December 13, found guilty, and sentenced to fines totaling $110. On December 29 the State filed a petition for revocation of the suspended sentence. The revocation hearing was held on March 13. Although the record is not clear about what part of Haskins’s confinement was due to the municipal court conviction, we will assume that as a result of the petition to revoke the suspension he was confined for more than 60 days before the revocation hearing. In the court below he made no objection to that delay.

The question of jurisdiction of the subject matter is always open. Such jurisdiction cannot be conferred by consent or by waiver. For that reason it may be raised for the first time on appeal. Sugar Grove Sch. Dist. No. 19 v. Booneville Spec. Sch. Dist. No. 65, 208 Ark. 722, 187 S.W. 2d 339 (1945). Those are the principles now relied upon by Haskins.

We think it clear that the 60-day limitation was not intended by the legislature to be jurisdictional. The statute refers to “a reasonable period of time, not to exceed 60 days.” We cannot believe that the lawmakers meant to define a jurisdictional limitation in terms of reasonableness. If, for example, a period of only 30 days is found to be reasonable in a particular case, does that mean that the court absolutely loses jurisdiction at the end of that time? Surely not. In our opinion the 60-day limitation represents the period beyond which the hearing cannot be delayed if the defendant objects.

There is a solid practical reason why the permissible period should be flexible, not rigid. Motions for the revocation of a suspension or of probation are often, perhaps nearly always, based upon the asserted commission by the defendant of some other offense. (That is the situation here.) We have pointed out that the American Bar Association’s “Standards Relating to Probation” recommend that a revocation proceeding based solely upon the commission of another crime not be initiated until after the disposition of the other charge. Hawkins v. State, 251 Ark. 955, 475 S.W. 2d 887 (1972). The prosecutor and the defendant himself may prefer that action on the revocation petition, if filed, be deferred until a decision has been reached in the other case. Yet it will frequently be impossible to try that matter within 60 days. Certainly the legislature did not mean that the prosecutor and the defendant are powerless to agree to a deferment beyond 60 days, to the end that the issue underlying the requested revocation not be tried twice. That, however, would unavoidably be the result if the 60-day limitation is held to be jurisdictional, not to be waived even by consent of the parties. In the case at bar Haskins, by his failure to object, has waived his right to insist that, the revocation hearing be held within 60 days.

Affirmed.

Howard, J., dissents.

George Howard, Jr., Justice,

dissenting. I am compelled to dissent from the posture taken by the majority in the resolution of the issue raised in this case.

Ark. Stat. Ann. § 41-1209(2) (Repl. 1977), in material part, provides as follows:

“A suspension or probation shall not be revoked except after a revocation hearing. Such hearing shall be conducted by the court that suspended imposition of sentence on defendant or placed him on probation within a reasonable period of time, not to exceed 60 days, after the defendant’s arrest. ...” (Emphasis added)

The record before us reflects that appellant was convicted of second degree battery on November 21, 1977, and received a suspended sentence of three years. On November 29, 1977, eight days after he received his suspended sentence, appellant was charged with public intoxication, disorderly conduct, assaulting a police officer and resisting arrest. On December 13, 1977, appellant was fined in the Municipal Court of Hot Springs the sum of $10.00 for public intoxication, $50.00 for disorderly conduct, and $50.00 for assaulting a police officer and resisting arrest. No jail sentence was imposed. Appellant was immediately incarcerated in the Garland County jail where he remained until March 13, 1978, the date of the probation revocation hearing.

Appellant’s parole officer filed a violation report on December 19, 1977, and recommended revocation of probation. The State filed a petition to show cause why appellant’s sentence should not be revoked on December 29, 1977. A bench warrant was issued for appellant on December 29, 1977, but was not served on appellant until the 23rd day of February, 1978, and his revocation hearing was scheduled for March 13, 1978. Consequently, appellant spent a total of 90 days in the Garland County jail before he received any type of hearing at all relating to his parole violation.

The majority has stated in its opinion that “although the record is not clear about what part of Haskins’s confinement was due to the Municipal Court conviction, we will assume that as a result of the petition to revoke the suspension, he was confined for more than 60 days before the revocation hearing.” It is plain from this record that there is no other posture that the majority can take in this case other than what it has assumed. Appellant was convicted in the Municipal Court of Hot Springs on the misdemeanor charges and, therefore, it is logical to assume that if he was going to be confined for the nonpayment of his fines, appellant would have been incarcerated in the city jail of Hot Springs rather than the Garland County jail. But for the sake of argument, let us assume that appellant was required to pay off his fine by confinement to the Garland County jail, it is further apparent that due process has not been afforded to appellant. For example, appellant’s fines came to $100.00 plus the cost of court; under Ark. Stat. Ann. § 41-1103(2), appellant would have been entitled to the rate of $10.00 a day for each day spent in jail to be applied to his fines, thus appellant would have had to serve no more than 16 days in lieu of paying his fines. Having been incarcerated on December 13, 1977, he would have been entitled to be released from the Garland County jail on December 29, 1977. Therefore, under the assumption, appellant remained in the Garland County jail 74 days after he had liquidated his fines and court costs by doing time in the county jail. The State has not made an effort to explain why appellant remained in jail 74 days, really, based upon the record 90 days, without affording appellant a hearing as required under law.

The majority seeks to confer a liberal interpretation upon this provision in supporting its conclusion that the 60-day limitation was not intended to be jurisdictional and that it must be considered in terms of “reasonableness.” But it is elementary that criminal statutes must be strictly construed and closely followed; and that nothing can be added or taken away from precise or express language of the act. Holford v. State, 173 Ark. 989; Giles v. State, 190 Ark. 218.

Moreover, the United States Supreme Court has stated that due process requires that a person on parole or probation be given a hearing before his probation or parole is revoked. Such a hearing must be provided within a reasonable time, which the Court stated in Morrissey v. Brewer, 408 U.S. 471 (1972) as follows:

“. . . The revocation hearing must be tendered within a reasonable time after the parolee is taken into custody. A lapse of two months, as respondents suggest occurs in some cases, would not appear to be unreasonable.”

It is apparent that Ark. Stat. Ann. § 41-1209(2) (Repl. 1977) was enacted by the Arkansas General Assembly to conform to the Morrissey standard quoted above.

On September 19, 1977, we decided Walker v. State, 262 Ark. 215, 555 S.W. 2d 228, where it was necessary for the court to deal with Ark. Stat. Ann. § 41-1209 (2). There, the State contended that the 60 day time limit under the statute runs from the date of the arrest of the parolee. This Court in giving sanction to the State’s position stated:

“When we give a rational interpretation to the 60 day limitation, in accordance with the intent and purposes of the statute, we must agree with the State’s interpretation of the statute. . . ”

It is plain and beyond debate that appellant-petitioner was incarcerated in the Garland County Jail on December 13, 1977, and his revocation hearing was not held until March 13, 1978.

Finally, the majority asserts that petitioner’s “. . . failure to object, has waived his right to insist that the revocation hearing be held within 60 days.”

In White v. State, 260 Ark. 361, 538 S.W. 2d 550, we held that an issue that goes to thejurisdiction of the trial court, the issue could be raised at any time even after a guilty plea by certiorari. We further stated that in construing penal provisions, nothing will be taken as intended which is not clearly expressed and all doubts must be resolved in favor of the accused.


author: John A. Fogleman, Justice.

text:
    Rob BRENNEMAN and Thomas KING v. STATE of Arkansas
    CR 78-62
    573 S.W. 2d 47
    Opinion delivered October 30, 1978
    (In Banc)
    [Rehearing denied December 11, 1978.]

      Ike Allen Laws, Jr., P.A., and Jack Holt, Jr., for appellants.

      Bill Clinton, Atty. Gen., by: Joseph H. Purvis, Deputy Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Appellants were found guilty of manufacturing a controlled substance with intent to deliver, in violation of Ark. Stat. Ann. § 82-2617 (a) (1) (ii) (Repl. 1976). The substance was marijuana. It was discovered when two deputies of Sheriff Donald Meeks of Johnson County attempted to serve a citation on one of the appellants. Appellants assert four points for reversal. We find no reversible error.

Appellants’ major contention is that the court erred in refusing to suppress physical evidence seized by officers and introduced into evidence. This was not error. On June 18, 1977, Deputy Sheriff Clarence Pelts and another deputy sheriff named Felkins observed Brenneman and King (strangers to the officers) about a pickup truck stopped at a spring on Highway 103, near Oark. Appellants were loading water in 50 gallon barrels. The officers noted that the vehicle bore an out-of-state license plate. They asked appellants for identification and driver’s licenses. Appellants did not have driver’s licenses in their possession. They told the officers that they lived in a cabin north of Oark that belonged to a lady by the name of Leibling. The officers caused a check to be made on the defendants and ascertained that the truck was not stolen and that appellants were not wanted elsewhere on criminal charges. The investigation revealed that the license plate on the vehicle had not been issued for the vehicle on which the officers had seen it, or to either of the appellants. When they received this information, Pelts issued a citation to Brenneman upon a charge of using a fictitious license plate.

Pelts and Felkins went to the cabin described by appellants. There they saw the vehicle at which they had seen appellants and parked their car in front of it. The cabin itself is about 400 feet off the road and is not visible from the road. It is a one-room building. The officers knocked on the door, but no one answered, so they stepped to the corner of the cabin. Pelts said that, since they had seen the vehicle, they thought that appellants were somewhere around the place and stepped to the corner of the house, just a couple of steps from the door. They then saw a patch of plants which they took to be marijuana, 18 to 20 feet away. It contained between 25 and 50 plants. They then walked through the patch, looked around and saw six other patches. Thereafter they looked through a window in the cabin and saw a marijuana plant in a pot in the back window.

The officers then called the sheriff by radio and he came to the scene and observed what his deputies had discovered. The sheriff then went to Clarksville and obtained a search warrant. Upon his return with the warrant, the officers looked through the window and observed what appeared to be marijuana plants in pots inside the cabin. They entered the house and searched it, where marijuana and other pertinent materials admitted into evidence were found. The next day appellants were arrested while they were in the public road in front of the cabin, some 300 to 400 feet away.

In considering the validity of the warrantless search on appellate review, we apply the same rules as govern us in consideration of trial court rulings on voluntariness of confessions. This means that we make an independent determination based upon the totality of the circumstances, giving considerable weight to the findings of the trial judge in the resolution of evidentiary conflicts and deferring to his superior position to pass upon the credibility of the witnesses, but we set aside the trial judge’s holding only when it is clearly against the preponderance of the evidence. State v. Osborn, 263 Ark. 554, 566 S.W. 2d 139.

Appellants first attack the original encounter between appellants and the officers as an illegal “stop” and assert that the search was the fruit of that poisonous tree. We do not agree. It must be remembered that the officers did not actually stop, much less arrest, either of the appellants. The only testimony at the suppression hearing in this regard was that of Pelts. The fact that the officers, after observing this license, stopped to “check them out” and did so, by asking for driver’s licenses and identification, is not sufficient basis for ascribing to them an ulterior motive for their action. We presume that an officer acted lawfully and properly in the performance of his duty, unless there is evidence to the contrary. Williams v. State, 253 Ark. 973, 490 S.W. 2d 117. A motor vehicle operator is required to display his operator’s license upon demand of a peace officer. Ark. Stat. Ann. § 75-323 (Repl. 1957). A person driving, or in control of, a motor vehicle is required to display the registration certificate for the vehicle upon demand of a police officer. Ark. Stat. Ann. § 75-140 (Supp. 1977). The momentary stopping of a citizen who is the driver of a motor vehicle to determine whether he has a valid operator’s license is lawful, permissible to carry out the statutes regulating the operation of motor vehicles and not a violation of the driver’s constitutional rights. There was no evidence that either Brenneman or King was placed under any kind of restraint whatever, or that they were asked anything except to display driver’s licenses and identification.

This case is strikingly similar to United States v. Turner, 442 F. 2d 1146 (8 Cir., 1971), where a St. Louis police officer, having noticed a car being driven on a highway with the trunk lock punched out, stopped it as a matter of routine check and asked the driver if he had a driver’s license. When he received a negative response, the officer arrested the driver for operating a motor vehicle without a driver’s license. After the arrest, the officer made a check and found that the automobile had been stolen. The contentions made in regard to the legality of the arrest were quite similar to the arguments advanced here. Judge Lay, speaking for the Eighth Circuit Court of Appeals, said:

The police officer clearly had probable cause to arrest the defendant for failure to have a proper driver’s license under Missouri law. It is argued, however, that the officer’s motive in stopping defendant’s car was not to check his driver’s license, but merely to pursue his suspicion of some other crime. Thus, it is contended that the officer wanted to make an unwarranted search for evidence of some unidentified crime. We do not find it unreasonable for an officer to inquire as to a driver’s license under these circumstances. It is conceded under the state law of Missouri that an officer has a right to stop an automobile to make a routine check for an operator’s license. *** Under these circumstances it is difficult to rationalize that this right of preliminary inquiry may be obviated because suspicious circumstances, even though they may be unfounded, might have motivated an officer to investigate. *** [Citations omitted.]

We agree with the Eighth Circuit and have previously followed its reasoning. Thomas v. State, 262 Ark. 83, 553 S.W. 2d 41. See also, Enzor v. State, 262 Ark. 545, 559 S.W. 2d 148; Perez v. State, 260 Ark. 438, 541 S.W. 2d 915.

Appellants also attack the propriety of the action of the officers with regard to the citation. Pelts issued it for Brenneman upon a charge of operating a motor vehicle with a fictitious license, in violation of Ark. Stat. Ann. § 75-225 (Repl. 1957). That section prohibits the operation of a motor vehicle which displays a number belonging to any other vehicle or a fictitious registration number. The citation was not issued until a thorough check had been made. It was issued four days after the first encounter. The officers took it to the place appellants had said they were residing. The officers were warranted in their belief that appellants, or one of them, were about the premises because of the presence of the motor vehicle at which they had previously been seen. It was natural and proper for the officers to take steps to ascertain whether Brenneman was on the premises, but perhaps outside the house, when no one answered a knock on the door. As soon as they rounded the corner of the house, they saw what they believed were marijuana plants in plain view. They had a right and duty to be where they were when they saw this. Subsequent actions were also a natural consequence of the observation they had made and a means of confirming their belief that the plants were marijuana. It was appropriate that they report what they had found to the sheriff, in whose name and stead they were acting, and seek instructions about further action. It is significant on the question of the reasonableness of their action and their good faith that no effort was made to search the dwelling house until a search warrant had been obtained.

A citation such as that involved here is issued in lieu of arrest and the person cited may secure his release only by signing a written promise to appear or by posting a bail bond. Ark. Stat. Ann. § 75-1008 (Supp. 1977). The officers went to the premises primarily to serve a citation, but, potentially, to arrest Brenneman. Thus, there was no more limitation on their actions than there would be if they had been serving a warrant of arrest for the offense charged.

It is legal for an officer to enter on private premises to execute an arrest warrant, if he has reasonable cause to believe that the person named in the warrant can be found there. Wanzer v. State, 202 Md. 601, 97 A. 2d 914 (1953); Palmer v. U.S., 192 A. 2d 801 (D. C. App., 1963); U.S. v. McKinney, 379 F. 2d 259 (6 Cir., 1967); Fisher v. Volz, 496 F. 2d 333 (3 Cir., 1974); Restatement of the Law, Torts (2d Ed.) § 204. He may enter the dwelling occupied by the person to be arrested (sometimes forcibly) for the purpose of executing the warrant. State v. Shue, 16 N.C. App. 696, 193 S.E. 2d 481 (1972); Palmer v. U.S., supra. The United States Circuit Court of Appeals for the Fifth Circuit has spoken clearly on this matter in U.S. v. Cravero, 545 F. 2d 406 (1976), in considering a petition for rehearing. It said:

As early as Agnello v. United States, 269 U.S. 20, 46 S. Ct. 4, 70 L. Ed. 145 (1925), the Supreme Court recognized that an entry to execute an arrest warrant is an exception to the requirement of a search warrant to intrude into a home. See also United States v. Jeffers, 342 U.S. 48, 72 S. Ct. 93, 96 L. Ed. 59 (1957); United States v. Rabinowitz, 339 U.S. 56, 70 S. Ct. 430, 94 L. Ed. 653 (1950). In Ker v. California, the Court quoted with approval Justice Traynor’s opinion in People v. Maddox, 46 Cal. 2d 301, 306, 294 P. 2d 6, cert. denied, 352 U.S. 858, 77 S. Ct. 81, 3 L. Ed. 2d 65 (1956):
“]W]hen an officer has reasonable cause to enter a dwelling to make an arrest and as incident to that arrest is authorized to make a reasonable search, his entry and his search are not unreasonable.”

374 U.S. 23, 83 S. Ct. 1623, 1633, 10 L. Ed. 2d 726 (1963).

Even if we assumed that the citation could be served only in the manner in which civil process might be served, the officers had a right to do as they did in attempting to serve the citation, even though their knock on the door went unanswered. Not only was it logical for them to believe that Brenneman was somewhere about the premises, there was no trespass on their part in going to other parts of the curtilage to endeavor to serve the citation. It is true that they had no right to make a forcible entry of the dwelling house simply for the service of civil process. Obviously the officers were not guilty of a trespass and were doing what was normal and appropriate under the circumstances. There was no evidence that they had expected or hoped to find what they found. If they could enter the premises, there is no sound reason to say they could not look about the premises for Brenneman, particularly since they had good reason to believe he was there.

Appellants complain in their reply brief that appellee did not address the question of the legality of the trespass by the sheriff “onto the defendants’ property in order to obtain information for a search warrant.” This is not particularly surprising for the argument of the point by appellants is not readily apparent. Appellants did, however, without citation of authority or argument of the point, state:

Sheriff Donald Meek did eventually obtain a warrant but only after personally confirming the existence of the contraband through an illegal entry.

As previously mentioned, the deputy sheriffs were acting in the place and stead of the sheriff. Ark. Stat. Ann. § 12-1107 (Supp. 1977). They called the sheriff and requested that he come to the scene. When the sheriff arrived, they showed him what they had observed and he went back to town and obtained a search warrant. We find nothing illegal about the sheriff’s entry on the property under these circumstances.

Appellants place considerable reliance upon State v. Osborn, 263 Ark. 554, 566 S.W. 2d 139. What appellants overlook, however, is that in Osborn we held that the trial court’s finding of fact that the search was unreasonable was not clearly against the preponderance of the evidence; but, if we are to overturn the finding that the search in this case was reasonable, we would have to hold that the finding was clearly against the preponderance of the evidence. In Osborn, we said that the trial judge had the right to, and did, believe from the testimony that the legitimacy of the purpose of the original entry into the dwelling house had not been adequately established. We cannot say that here, unless we take the testimony of the only witness on the subject to have been incredible, in spite of the trial judge’s finding it credible. Furthermore, the major portion of the incriminating evidence in Osborn was not in plain view, as was the case here, and the extended search there was inside a dwelling, while here the objects seen before the search warrant was obtained were visible from the outside of the dwelling. Osborn would probably have had some bearing on this case if the officers here had forcibly entered the dwelling without a search warrant. In this case, calling the sheriff, who went to obtain a search warrant before the dwelling was entered, can be taken to be a good faith attempt to comply with the suggestions made in Osborn and Freeman v. State, 258 Ark. 617, 527 S.W. 2d 909.

There was absolutely no evidence at the suppression hearing that the inquiries made of appellants by the officers or the issuance of the citation or the efforts to serve it were for any improper reason. There is no basis, short of rank speculation, for drawing any inference that the actions taken were a subterfuge to enable the officers to search the premises occupied by appellants.

Appellants also contend that their fundamental constitutional right to effective representation of counsel under the Sixth Amendment to the U.S. Constitution and Art. 2, § 10 of the Arkansas Constitution was denied them by the trial judge’s refusal to allow their attorneys to make an oral argument at the close of the hearing on the motion to suppress the evidence obtained by a search of the premises. Appellants recognize that cases such as Herring v. U.S., 422 U.S. 853, 95 S. Ct. 2550, 45 L. Ed. 2d 593 (1975), do not require that oral argument be permitted at any stage of a trial except, at the conclusion of the evidence, just before the case is submitted for judgment. Nevertheless, appellants argue that, to say the least, the Arkansas constitutional provision and our own case law extend this right to them. We do not agree. The right to be heard by counsel does not mean that an oral argument of counsel must be heard every time (or any time) the trial judge must make a decision as to the admissibility of evidence, even when that decision turns upon a question of fact. Such cases as Dobbins v. Oswalt, 20 Ark. 619, and Reynolds v. State, 220 Ark. 188, 246 S.W. 2d 724, do not support appellants’ position. As we view these cases, they go no further than Herring, in which the United States Supreme Court expressly disavowed any intention to imply the existence of a constitutional right to oral argument at any time other than at the close of the trial. They apply only to the right of argument of counsel by way of final summation, or closing argument. Adams v. State, 176 Ark. 916, 5 S.W. 2d 946, is more nearly in point. There we said that it is not contemplated by Art. 2, § 10, that an accused has any constitutional right to be heard at all times by all counsel he may employ. We now hold that an accused has no constitutional right to have oral argument by counsel at the conclusion of an evidentiary hearing on a motion to suppress evidence. The allowance of oral argument at this stage of the trial is a matter lying within the sound judicial discretion of the trial court. Here, the only witnesses were the two who testified on behalf of the state, Deputy Sheriff Pelts and Sheriff Johnson, who were cross-examined extensively. The trial judge apparently felt that the relative positions of the parties on the question were adequately revealed by the examination of the witnesses. We find no abuse of discretion.

Appellants argue that the court erred in allowing the state to introduce the testimony of Officer Pelts that he had found in the house several envelopes, papers, documents and other items, bearing appellants’ names, while searching pursuant to the warrant issued. This evidence sustained the state’s contention that appellants were the actual occupants of this dwelling house. The first argument on this point is that the admission of this testimony violated the best evidence rule stated in Ark. Stat. Ann. § 28-1001, Rule 1002 (Supp. 1977), and that the state did not lay the foundation necessary to bring into play any of the exceptions to the rule enumerated in Rule 1004. It seems clear that at least some of these letters and documents were in the possession of the officers or the prosecuting attorney. This argument might be well taken, except for the fact that this objection was waived by appellants. Sheriff Johnson later gave testimony virtually identical to that of Pelts without any objection having been made. Even though this may have been the strongest evidence on this issue, if it was an issue, there was other evidence indicating that appellants were residing in this house, or cabin. It is notable that the opening statement in appellants’ brief commences with this statement: “Defendants Tom King and Robert Brenneman lived in a small cabin in the rural area of Johnson County, Arkansas, about 4-1/2 miles north of Oark, the cabin being approximately 300 yards from the road in a wooded area.” But we need not speculate as to the reason for failure to object to Johnson’s testimony. Whatever the reason, this failure was a waiver of the objection to the testimony of Pelts. Hyson v. State, 225 Md. 140, 169 A. 2d 449 (1961); Peal v. State, 232 Md. 329, 193 A. 2d 53 (1963); Barber v. State, 191 Md. 555, 62 A. 2d 616 (1948); State v. Godwin, 224 N.C. 846, 32 S.E. 2d 609 (1945); Lewis v. State, 196 Ga. 755, 27 S.E. 2d 659 (1943); East v. State, 420 S.W. 2d 414 (Tex. Cr. App. 1967); Marsh v. State, 120 Ga. App. 46, 169 S.E. 2d 615 (1969); State v. Dettore, 104 R.I. 535, 247 A. 2d 87 (1969); State v. Baber, 297 S.W. 2d 439 (Mo., 1956). This evidence was not hearsay, as appellants now contend. See U.S. v. Hazeltine, 444 F. 2d 1382 (10 Cir., 1971); State v. Porter, 344 So. 2d 1031 (La., 1977).

Appellants also contend that the state failed to comply with its obligations under Criminal Procedure Rule 17.1 (a) (v), and that the testimony of the officers should have been excluded for that reason. This rule requires that the prosecuting attorney disclose to defense counsel, upon timely request, any books, papers, or documents which the prosecuting attorney intends to use in any hearing or at trial or which were obtained from or belong to the defendant, but the exclusion of such evidence is not mandatory. See Rule 19.7 (b). The letters and documents were not introduced into evidence. Any right appellants might have had to have testimony about them excluded was also waived by their failure to make any objection to the testimony of Sheriff Johnson.

Appellants complain that the trial court instructed the jury that possession of marijuana in excess of one ounce might be considered by it, along with all other evidence, in determining whether or not the controlled substance was possessed with intent to deliver. This was a proper instruction. Milburn v. State, 260 Ark. 553, 542 S.W. 2d 490. See also, Rowland v. State, 262 Ark. 783, 561 S.W. 2d 304.

We find no reversible error, so the judgment is affirmed.

Byrd and Hickman, JJ., dissent.

Holt, J., not participating.


author: Conley Byrd, Justice.

text:
    Theodore PARKER v. RAMADA INN and Charles DANIELS, Director, State Department of Labor
    78-119
    572 S.W. 2d 409
    Opinion delivered October 30, 1978
    (Division II)

      Legal Aid Bureau of Central Arkansas, by: Ralph Washington, for appellant.

      Thelma M. Lorenzo, of Employment Security Division, for appellee, Charles Daniels.
   Conley Byrd, Justice.

Appellant Theodore Parker, following his discharge as cook for the Ramada Inn, North Little Rock, applied for unemployment compensation benefits. He candidly admits that he was employed as a cook by the Ramada Inn for the 2:00 p.m. to the 10:30 p.m. shift and that after working seven consecutive days he overslept on the 8th day until 6:30 or 7:00 p.m. He did not contact his employer until the next day when he reported for work at which time he learned that the employer had employed another cook and that the employer considered him discharged. The Employment Security Division denied appellant benefits under Section 5(b)(1) [Ark. Stat. Ann. § 81-1106(b)(1) (Repl. 1976)], which provides:

“For all claims filed on and after July 1, 1973, if so found by the Director an individual shall be disqualified for benefits:
(a) . . .
(b) DISCHARGED FOR MISCONDUCT. (1) If he is discharged from his last work for misconduct in connection with the work ... .”

The denial of benefits to appellant was affirmed by the Appeals Tribunal, the Board of Review and the Circuit Court. For reversal appellant contends that the finding of the Board of Review is not supported by substantial evidence and that the employer defaulted by failing to respond to Employment Security Dvision inquiries and by failing to appear at the Appeals Tribunal hearing. We find no merit to either contention.

With respect to procedure, the Employment Security Act, Ark. Stat. Ann. § 81-1107(d)(4) (Repl. 1976) provides:

“(4) Procedure. The Board of Review, appeal tribunals and special examiners shall not be bound by common law or statutory rules of evidence or by technical rules of procedure, but any hearing or appeal before such tribunals shall be conducted in such manner as to ascertain the substantial rights of the parties. . . .”

Consequently, it áppears that appellant’s counsel in contending that appellant should win by default has failed to read the Employment Security Act in its entirety before proceeding with appellant’s ¡claim.

Likewise thfe Employment Security Act, Ark. Stat. Ann. § 81-1107 (d) (7) (Repl. 1976), provides that the findings of the Board of Review are conclusive on appeal if they are supported by substantial evidence. Consequently, appellant’s contention is actually reduced to a legal argument that a single incident of missing work due to oversleeping is not misconduct within the meaning of the Employment Security Act. A single incident of missing work has ordinarily been considered misconduct within the meaning of Employment Security laws when the failure to report and appear for work involves a disregard of. standards of behavior which the employer has a right to expect. See Watts v. Employment Security Agency, 80 Idaho 529, 335 P. 2d 533 (1959), involving a log scaler and Powell v. Com., Unemployment Comp. Bd., 31 Pa. Comwlth. 512, 377 A. 2d 206 (1977), involving a security guard. Consequently, we cannot say that appellant’s conduct did not, as a matter of law, involve a violation of a standard of behavior that a restaurant operator had a right to expect. As noted in the recent case of Harris v. Daniels, et al, 263 Ark. 897, 567 S.W. 2d 954 (1978), judicial review is limited to a determination as to whether the Board reached a reasonable conclusion based on the evidence before it. To say the least, a question of fact was presented to the Board of Review on which it could have found either way.

Appellant acknowledges that his presence might be vital to the employer’s operations but contends that there is not a scintilla of evidence to support such a finding. We find no merit to this contention. It is common knowledge that a cook is essential to the operation of a restaurant and while the record does not show that appellant was the only cook, the record does show that appellant’s position was important enough to his employer that a replacement was promptly employed.

Affirmed.

We agree: Harris, C.J., and Fogleman and Hickman, JJ.


author: Frank Holt, Justice.

text:
    Mike COURTNEY v. Thomas F. BUTT, Chancellor
    78-76
    572 S.W. 2d 407
    Opinion delivered October 30, 1978
    (In Banc)

      Douglas L. Wilson, Northwest Arkansas Legal Services, for petitioner.

      W. B. Putman, for respondent.

      Alice Daniel and Stephen S. Walters, for amicus curiae, Legal Services Corporation, Washington, D.C.
   Frank Holt, Justice.

Petitioner seeks a writ of mandamus directing the respondent to proceed to a hearing and the determination of his divorce action which is pending in respondent’s court. Petitioner is represented by counsel employed by Northwest Arkansas Legal Services, Inc. (NWALS), which is an Arkansas non-profit corporation, chartered and funded pursuant to a Congressional Act, to provide legal counsel for poor persons. When petitioner appeared with his counsel, respondent questioned counsel about the ability of petitioner to pay or give security for additional court costs which might accrue in the case. Counsel replied that, although he had not discussed costs with petitioner, except the $20 advance filing fee, which had been paid, he assumed that petitioner was prepared to do so. The $20 advance filing fee is required by Ark. Stat. Ann. § 12-1710.2 (Supp. 1977). Respondent asked counsel if he was familiar with the Supreme Court Rule 18 of the Uniform Rules for Circuit and Chancery Courts (Per Curiam Order, 262 Ark. 912 [1977]) and respondent’s local Rule 9 which adopted the language of Rule 18. Rule 18 requires individuals who seek relief pro se or by counsel as an indigent to file a pauper’s oath and supporting affidavit. The NWALS counsel took the position that the local court had no authority or right to inquire into the financial status of a client of that agency when that client was not seeking any specific relief by a waiver of court costs or appointment of counsel. Respondent then found that, in view of the record, he was required to return petitioner’s complaint without action because of his failure to comply with Rule 18 and local Rule 9, stating that “the representation in this case is that of an indigent person who is seeking relief as such.” The court, by written order, found that petitioner is represented by NWALS, an Arkansas nonprofit organization chartered to render civil legal services to indigents; therefore, petitioner is applying for relief as an indigent within the meaning of Supreme Court Rule 18 and local Rule 9, and petitioner has failed to file an affidavit (of indigency) setting forth the financial information as required by these rules. Consequently, petitioner is not entitled to a hearing until such time as a proper affidavit is filed.

“Rule 18 of the Uniform Rules for Circuit and Chancery Courts” states:

Pauper’s Oath and Affidavit in Support — Requirement. It shall be required that all pro se petitions or motions and all petitions or motions filed by counsel seeking relief on behalf of a client who is claiming the status of an indigent, filed in the Circuit Court [Chancery Court] in which the petitioner is claiming relief as an indigent, be accompanied by an assertion of indigency, verified by a supporting affidavit. The affidavit form will be provided by the Circuit Court [Chancery Court] for such purposes. Any petition or motion not in compliance with this rule will be returned to petitioner or counsel for failure to comply.

On appeal petitioner argues that (1) federal law precludes the review required by Rule 18; (2) Rule 18 does not apply to questions of eligibility for counsel that is not appointed; (3) neither this court nor the trial court has the discretion to deny the appearance of petitioner’s counsel, a duly licensed attorney, in petitioner’s behalf; (4) the ruling of the trial court violates petitioner’s rights under the Fourteenth Amendment to the U.S. Constitution; and (5) petitioner’s remedy at law is inadequate. We limit our discussion to the scope of the applicability of Rule 18 to the facts presented here.

Rule 18 requires that assertion of indigency and supporting affidavit be filed in two instances: (1) when a motion or petition is filed pro se, or (2) is filed, by counsel, claiming indigency status. The rule makes no mention of an affidavit of indigency when a litigant, represented by counsel, as here, appears in court and seeks no relief as an indigent. However, respondent argues that the appearance of petitioner, after his qualification for representation as a poor person by NWALS under its financial guidelines, amounts to a declaration of indigency, leaving questions as to his ability to pay additional or accrued costs. The record indicates neither exists here. In fact, the only fee that was required of petitioner, the $20 advance filing fee, was paid by him. In summary he has neither applied for the appointment of counsel, waiver of costs, nor for any relief as an indigent pursuant to Rule 18. Neither is it demonstrated that this divorce action is “unusually lengthy and the filings in regard thereto [are] so voluminous that” the advance filing fee ($20) is “inadequate to cover the schedule of fees set forth. ...” See Ark. Stat. Ann. § 12-1710 et seq. (Supp. 1977).

Obviously, petitioner has met the requirements as a poor person, as prescribed by 42 U.S.C. § 2996, et seq., as amended. The agency NWALS, which represents the petitioner, is funded by the federal government for the purpose of representing individuals whose incomes are below an established poverty level. The Legal Services Corporation Act (42 U.S.C. § 2996, supra) is recognized by the respondent as the controlling law with reference to an individual’s eligibility for legal services provided by that enactment. No question can be raised in a state court as to whether a litigant is eligible for representation by that agency. That agency has the primary jurisdiction, exclusive of the state, as to who is eligible for representation by it. Martens v. Hall, 444 F. Supp. 34 (S.D. Fla. 1977) As indicated here, the petitioner has not claimed the status of an indigent in the chancery court.

Since the petitioner has established a legal right to have his case heard by the trial court, it follows his petition must be granted. Massey v. Enfield, 259 Ark. 85, 531 S.W. 2d 706 (1976).

Petition granted.

Howard, J., not participating.


author: Darrell Hickman, Justice.

text:
    Andrew J. LIMBER, Jr. and Darlene Ann Warburton LIMBER v. STATE of Arkansas
    CR 78-103
    572 S.W. 2d 402
    Opinion delivered October 30, 1978
    (Division II)

      Bill Webster and Frank Lady, for appellants.

      Bill Clinton, Atty. Gen., by: Ray Hartenstein, Asst. Atty. Gen., for appellee.
   Darrell Hickman, Justice.

Andrew J. Limber, Jr. and Darlene Ann Warburton Limber were jointly charged and tried for the second degree murder of Michael Brad Warburton, the nineteen month old male child of Mrs. Limber. An amended information charged each as an accomplice of the other, responsible for the other’s actions whether committed in the presence or absence of the other. Their cases were tried to a Craighead County jury and he was found guilty of second degree murder, and she was found guilty of manslaughter; he was sentenced to twenty years and she was sentenced to five years in the Arkansas Department of Correction. They have both appealed their convictions alleging numerous errors. However, we find no error requiring reversal of their convictions.

The State presented thirteen witnesses in this trial and each defendant took the witness stand. In addition, Limber called one character witness.

Essentially the State’s charge and proof was that the child died as a result of child abuse caused by the two appellants, acting together, or separately, but both responsible for the abuse. The defendants explained that any injuries the minor child suffered were caused by accidents and not as a result of intentional abuse. Certain injuries could not be explained by them.

Limber and Mrs. Limber lived together for a period of seven or eight months before the child died on April 21, 1976. They were not married until after charges were filed in this case. She has one other minor child, Christian, about three years old. During the period of time in question they lived in two places, Paragould and Jonesboro.

Several witnesses testified that prior to Brad’s death they had observed bruises on his face and a bandaged leg. Limber’s sister, Ollie Decker, testified that on several occasions she noticed that Brad was bruised or injured. About two months before his death, he had bruises on his face which covered the side of his face, and he appeared to be in quite a bit of pain. She was told that he had fallen off a tricycle. About six weeks before his death, he was bruised around his waist; she was told by Mrs. Limber that he had fallen off the bed or something. About two or three weeks before his death, he had a bandage from the ankle to above his knee. The old bruises still showed; he appeared to be in pain and didn’t want anyone to touch him.

John Westmoreland, an investigator for the Arkansas State Police, testified that a few hours after Brad’s death he viewed the body in the morgue and there were numerous injuries on the body. He stated there were blue bruises on the face, forehead, side of the neck, arms, legs and hands and what appeared to be cigarette burns on the right side of the forehead and neck. He also stated that there were cuts on the forehead and under the chin; that the end of the penis and the scrotum were blue and bruised; that there was a red, inflamed area encircling the base of the penis. He described the stomach as scratched, swollen and tight like a balloon. Photographs graphically corroborated the testimony of the investigator.

Westmoreland also testified that Mrs. Limber gave several statements during four interviews. Since this was a joint trial, any reference to Limber was stricken from the statement. In the first interview she stated that she had seen another person hit Brad on the mouth causing it to bleed; and, that in her opinion, Christian had been hit too hard on the buttocks. In the second interview, she stated that Brad had been spanked too hard; that the spankings gradually got worse; and that the spankings were done by another person for discipline purposes relative to potty training. She explained that Brad’s penis was cut when he was jerked off of a potty seat. She said that Brad’s hands had been bruised when Christian ran over them with a tricycle, and that he received scratches on the neck, a cut on the head, and a bump on the forehead in a car accident on April 17th. She stated that on April 20th, the day before he died, he fell off a hobby horse and cut his chin, and also fell off the bed. She also observed another person kick him between the rectum and testicles.

She had no explanation for the internal and external stomach injuries, nor for bruises along the spine, on the back of his head and legs. Neither did she explain why she allowed this to go on, nor why she failed to take preventive measures.

Another investigator for the Arkansas State Police, David Davidson, interviewed Limber the day Brad died. He testified that Limber explained that the child had been in five minor accidents and any injuries he suffered were as a result of the accidents. On April 17th, Limber suddenly stopped the car, and Brad fell from the back seat into the floor where an entrenching tool and some pop bottles were laying. A day or two later Brad fell into the floor of a car that Limber’s father was driving when he made a sudden turn. The bruises on the hands were caused when Christian ran over them with his tricycle about a week before the child’s death. On April 20th, Brad cut his chin when he fell off a toy horse; and, he hit the back of his head when he fell off the bed.

Davidson said Limber stated that he didn’t know how Brad’s leg was injured; that Limber offered no explanation for certain injuries on the child’s legs, arms, genital area, and internal organs. Limber did admit that he spanked both children with his hands, and that he spanked Brad about once a week on the buttocks leaving a bruised impression of his four fingers because Brad was wetting the bed every other night. He also admitted that he had a “good temper if someone walked on him”, and that he and Mrs. Limber fussed about the children.

A doctor, who was qualified as an expert witness in the field of forensic pathology, testified that this was a classic case of child abuse. He testified that no part of the body was uninjured, and described “innumerable” injuries in great detail. Bruises over the spine created a “line of damage”, and were especially obvious; these bruises were of varying ages. There was a cut on the chin less than a week old which should have been sutured but wasn’t. There were several abrasions on the face, and the hands were “remarkedly altered by bruises especially over the extensor surfaces” and palms. There were extensive fractures of the ribs on both the right and left sides, which occurred three weeks to 120 days prior to death. Although the doctor could not state positively that the fractures occurred at different times, he said there was evidence to that effect. The injury that fractured the right ribs also caused fibrous scarring of the covering of the liver which adhered to the abdominal wall.

The doctor also described other injuries which he characterized as unusual: a lesion on the neck which had the appearance of a cigarette burn; a constricting lesion around the base of the penis, and cuts and bruises on the head of the penis; and two “very major contusions” on the head which were sustained approximately one to two weeks before death. An autopsy revealed massive hematomas in the scalp; he described these injuries as potentially fatal. (The doctor testified that there were more than twenty head injuries, including these two.)

The doctor stated, however, that the most significant injuries, in addition to the potentially fatal head injuries, were those to the abdomen. He testified that approximately one and one-half to three weeks prior to death the small intestine had been lacerated by a powerful, blunt trauma, and that the force necessary to cause such an injury was comparable to a “blow of a fist or something like that from a powerful adult, or a shoe.” This injury also damaged the left adrenal gland and the pancreas. He further testified that the stomach would begin to swell within a day or two of such an injury, and was associated with severe pain, somewhat like that induced by an untreated gunshot wound. He also noted that this injury and the injury which caused the fractured ribs did not occur at the same time.

The doctor said that although the immediate cause of the child’s death was peritonitis and sepsis caused by a ruptured intestine, it was his diagnosis that all the innumerable injuries were due to numerous and multiple episodes where the child was beaten. In answer to a hypothetical question by the prosecuting attorney, the doctor stated that even if the child were involved in the several accidents described by the defendants, those accidents would not have caused all the injuries.

Evidence was admitted that the other child, Christian, had both arms broken in an incident that occurred in the home on or about the 22nd day of November, 1975. There was a slight conflict in the testimony regarding how this incident or accident occurred. One witness, however, testified that he had been told by Limber that the child had been pulled between the parties, Limber and Mrs. Limber, in an argument about putting the child to bed.

A Service Specialist for Arkansas Social Services testified that as a result of this incident a “protective service case” was opened by Social Services. During her investigation of the incident, both defendants told her that Christian’s arms were broken while Limber was playing with him.

Mrs. Limber’s testimony regarding Christian was that she and Limber were sitting on the couch about midnight, and she told him he should take Christian to the bathroom. He went into the bedroom and brought Christian out; she met them, took Christian from Limber and told him that she would do it. Limber took him back and said he would do it. Limber took him to the bathroom and put him back to bed. A short time later, she heard Christian crying and whimpering. She then checked on him and noticed red marks and swelling on his arms. Ice packs were applied to his arms and around 4:00 a.m. she took him to the emergency room.

She said Limber told her that Christian’s arms must have been broken when he pulled him across the bed and picked him up by his arms. In any event, it was not disputed that the child’s arms were, in fact, broken.

Both appellants testified extensively in their defense. Limber explained that Brad had been involved in five minor accidents and any injuries he suffered were a result of these accidents. In one instance the child’s brother, Christian, had run over Brad’s hands; in another instance he had fallen off the bed; in another, he had fallen off a hobby horse; and, on two occasions, he had fallen into the floor of a vehicle which had come to a sudden stop. Limber admitted that he. had whipped the child perhaps at least once a week in an effort to potty train him; that he had disciplined the child with his hand, but never to excess. In general, he denied abusing the child.

On cross examination, he testified that he didn’t “know where these pictures (State’s Exhibits Nos. 1-4) came from, but he (Brad) didn’t look like that” on the day he died. He also stated that on the day before, April 20th, Brad’s stomach was flat and that Brad was acting normal: playing, laughing, smiling and having a good time.

Mrs. Limber denied that she had abused the child but admitted that they had argued about Limber’s disciplining the children and whipping Brad. She also stated that on one occasion, after one of their serious arguments, Andrew said that he wondered how it would be without the children.

Both parties admitted that Limber had beaten Mrs. Limber to the extent that medical attention was required.

Limber argues on appeal that the court was in error in not requiring the State to file a Bill of Particulars and contends that, under Ark. Stat. Ann. § 43-804 and § 43-1006 (Repl. 1977), it is mandatory that a Bill of Particulars be filed upon request by the defendant. We find no merit in this argument. In a hearing before the trial judge, the prosecuting attorney stated that he intended to proceed against both parties on a classic case of child abuse which occurred over a period of time according to statements and other evidence he had in his file. He turned the complete file over to the defense attorneys, which consisted of about ninety pages, and said that was going to be his case. This file included a statement from the pathologist within the autopsy report which indicated that the cause of death was child abuse. The State’s case did not substantially vary from the evidence in the file, which was a part of the record abstracted.

We know of nothing more that the prosecuting attorney really could have done. The parties were charged by the language in the statute, Ark. Stat. Ann. § 41-1503 (Repl. 1977). It may be that the prosecutor could have technically amended the charge to allege that over a period of time they abused the child physically; but we know of no other way it could have been said in such detail that would have provided the defense with as much information as they were given by having a complete discovery.

The purpose of a Bill of Particulars is to acquaint the defense with sufficient information so that a defense can be prepared. Ark. Stat. Ann. § 43-804 (Repl. 1977); Edens v. State, 235 Ark. 996, 363 S.W. 2d 923 (1963). The court has some discretion in the matter. Silas v. State, 232 Ark. 248, 337 S.W. 2d 644 (1960). Even so, the State in effect gave the appellants complete discovery as contemplated by Rules of Crim. Proc., Rules 17.1 and 17.2 (1976). Therefore, we cannot say that the court was in error nor the appellants were in any way prejudiced by the technical failure to file a formal answer to the motion for a Bill of Particulars.

Limber argues that the court should have granted a mistrial when, during cross examination of a state policeman, Mrs. Limber’s attorney asked the question: “Now, Sergeant R. L. Young is the expert, or one of the experts for the State Police and the State of Arkansas for giving polygraph tests, isn’t he?” Both the prosecuting attorney and the attorney for Limber objected to this and an in-chambers hearing followed. The court admonished the jury and the attorneys that nothing more would be said about a polygraph test. Declaring a mistrial is an extreme remedy granted only when the error is so prejudicial that justice cannot be served by a continuation of the trial. It should not be granted when any possible prejudice can be removed by an admonition to the jury. Gammel & Spann v. State, 259 Ark. 96, 531 S.W. 2d 474 (1976). We cannot see in this case where either party was prejudiced by this question and if there was any prejudice, it was certainly removed by an admonition by the court. Johnson v. State, 254 Ark. 293, 493 S.W. 2d 115 (1973).

Limber objects to the admissibility of evidence regarding the injury to young Christian whose arms were broken. Limber argues that such evidence would be in the category of another offense, if any, irrelevant to the charge involving the child, Brad, and therefore inadmissible. Alford v. State, 223 Ark. 330, 266 S.W. 2d 804 (1954). The State contends that such evidence was relevant tending to show knowledge, intent, motive and a habit or practice of child abuse.

According to our Rules of Evidence, we find that the evidence regarding the injury suffered by Christian was relevant. Ark. Stat. Ann. § 28-1001, Rule 404 (b), (Supp. 1977), provides:

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

In the Alford case, cited by the appellant, we excluded evidence of another act, which was used to show the bad character of the accused. However, we reiterated that other acts of misconduct were admissible when used to show “knowledge, intent or design, although they may be crimes.”

We do not feel the trial court was in error in admitting the evidence regarding Christian because it is relevant to whether there existed intent, and the absence of mistake or accident.

Limber also argues that the evidence was insufficient to support the verdict. Although the evidence was circumstantial, it was substantial. On appeal we review the evidence in the light most favorable to the appellee and a conviction will be upheld if the evidence is substantial. Hutcherson v. State, 262 Ark. 535, 558 S.W. 2d 156 (1977).

Mrs. Limber argues on appeal essentially the same points raised by Limber. Since we have addressed those arguments regarding the Bill of Particulars and the admissibility of evidence about Christian, they will not be reiterated.

Mrs. Limber also argues that there was no evidence submitted by the State which connected her to any of the incidents or accidents that could have caused the death of Brad; that the State offered no evidence connecting her with any abuse that could have caused his death. We find no merit to this argument. The evidence, while circumstantial, indicated that she had argued several times with Limber about disciplining the children and whipping them; that Limber had beaten her and required her to seek medical assistance. She testified that she had seen him slap the child in the mouth and spank him with such force as to leave a bruise or red mark on his buttocks. She admitted that she had seen him use his foot on Brad’s buttocks. She stated that she observed several bruises and cut places on Brad and she inquired of Limber about these and he explained them to her. She admitted that they had argued, perhaps twenty-five times, over his disciplining the children. Her complicity, according to the evidence, was more than an innocent bystander.

Both parties admitted that Limber had made a statement to her when they had an argument, in effect threatening her life. Mrs. Limber testified that: “He (Andrew) said the only way I was going to go to New York was in a coffin.” He made this statement after they had argued and she had threatened to go home to her mother’s in New York.

In summary, we find no error requiring reversal and ample evidence to support the jury’s verdict in this case.

Affirmed.

We agree: Harris, C.J., and Fogleman and Byrd, JJ.


author: PER CURIAM George Howard, Jr., Justice,

text:
    Daniel Lon GRAHAM v. STATE of Arkansas
    CR 78-36
    572 S.W. 2d 385
    October 30, 1978

      Harold L. Hall, for petitioner.

      Bill Clinton, Atty. Gen., for respondent.
   PER CURIAM

On April 3, 1978, this court granted Daniel Lon Graham’s petition for a belated appeal from his conviction, in August, 1970, in the Circuit Court of Prairie County upon a charge of kidnapping for ransom, which was alleged to have occurred on December 24, 1969. The petition had been filed on March 28, 1978, by counsel appointed for petitioner by this court on March 20, 1978, to take appropriate steps to seek a belated appeal for Graham. When we granted the belated appeal, it was ordered that the record be prepared and lodged with this court within 90 days. On September 7, 1978, petitioner filed the present petition, praying that this conviction be vacated and that he be discharged from the life sentence then imposed and relieved from trial on the charge on the ground of double jeopardy. The ground for the petition is that the record in this case has not been prepared and lodged in this court, although more than 90 days have elapsed since April 3, 1978.

In response to Graham’s petition, the state alleges that good reason for the delay in preparation of the transcript of the record exists. This response is supported by an affidavit of the Prosecuting Attorney of the Seventeenth Judicial District, of which Prairie County is a part. According to this affidavit, the prosecuting attorney understands that the trial transcript has been lost, or otherwise misplaced, and is unavailable. His investigation reveals that there were between 15 and 25 witnesses who testified in the case, many of whom were from Fayetteville and the general area of Washington County. In his opinion, the reconstruction of a trial transcript would require no less than four weeks of concentrated effort.

Petitioner’s prayer that his conviction be vacated is denied. It is the normal burden of an appellant to take appropriate action to supply a transcript of the proceedings at a trial resulting in the judgment from which he appeals. Nothing in the orders of this court, or of the United States District Court for the Eastern District of Arkansas, has, in any way, relieved Graham of this burden. It is unusually appropriate that this appellant have this burden.

The inaction of Graham has made the meeting of his burden more difficult. Graham wrote the clerk of this court on April 9, 1971, requesting a transcript of his trial. This request did not mention an appeal. The clerk of this court responded to this request, advising Graham that counsel is appointed and transcripts furnished only in connection with appeals. He was specifically advised thus:

If you are requesting an appeal, you should so state, at which time your request for appointment of counsel and transcript will be considered.

It is clear that Graham did nothing to follow up on this request prior to March 30, 1973. Significantly, the action taken then followed his trial and conviction of a crime in which the death penalty was imposed and the reduction of that sentence by this court to life imprisonment on November 20, 1972. See Graham v. State, 253 Ark. 462, 486 S.W. 2d 678. He then sought a writ of mandamus from this court to the Circuit Court of Prairie County to hold a hearing on a petition for postconviction relief. While he asserted numerous grounds for postconviction relief, which he contended were violations of the due process clause of the United States Constitution, it does not appear that denial of the right to appeal was one of them. This petition was denied because it was defective. Graham renewed his efforts for postconviction relief by a letter to the clerk of this court in June of 1974. It appears that this is the first time that he asserted any unconstitutional denial of his right to appeal. He was directed, on June 25, 1974, to address his petition for a belated appeal to the Circuit Court of Prairie County. On September 16, 1974, he filed a petition for writ of mandamus in this court, seeking to require the Circuit Court of Prairie County to act on his petition, which he alleged had been filed in July, 1974. On May 4, 1973, the Circuit Court of Prairie County had denied a petition by Graham for postconviction relief and referred to previous denials of such relief, one of which was by order entered in that court on May 17, 1971. This court denied Graham’s petition for mandamus on December 20, 1974. There was never any appeal taken from any of the orderá of the Circuit Court of Prairie County on Graham’s petitions for postconviction relief.

It is quite clear that difficulties in now obtaining a transcript of the proceedings in Graham’s trial in the Circuit Court of Prairie County are as much attributable to Graham as to anyone else. He was clearly advised more than seven years ago that, if he intended to appeal his conviction in Prairie County, this court would consider his request for a transcript and for appointment of counsel. He did not at that time state that he desired to appeal and his belated and desultory attempts thereafter have certainly contributed to his present difficulties. It is unreasonable to expect that stenographic notes or recordings be preserved for such a long time, when a court reporter has no notice that a transcript may be required.

This court has granted Graham a very belated appeal and has appointed competent counsel for its prosecution. If no stenographic record was made, then Ark. Stat. Ann. § 27-2127.11 (Repl. 1962) governs. It reads:

Appeals when no stenographic report was made. — In the event no stenographic report of the evidence or proceedings at a hearing or trial was made, the appellant may prepare a statement of the evidence or proceedings from the best available means, including his recollection, for use instead of a stenographic transcript. This statement shall be served on the appellee who may serve objections or propose amendments thereto within 10 days after service upon him. Thereupon the statement, with the objections or proposed amendments, shall be submitted to the trial court for settlement and approval and as settled and approved shall be included by the clerk of the court in the record on appeal.

This statute clearly places the burden of obtaining or reconstructing a record on the appellant. If this statute is inapplicable, there are other avenues for the reconstruction of the record in this case, based to a considerable extent on Ark. Stat. Ann. §§ 27-1750, -1751 (Repl. 1962). The present statutes have not eliminated the bystander’s bill of exceptions as a means of presenting petitioner’s contentions to this court on appeal. See Tarkington v. State, 250 Ark. 972, 469 S.W. 2d 93; Pearson v. State, 119 Ark. 152, 178 S.W. 914; Bowen v. State, 205 Ark. 380, 168 S.W. 2d 836; Sneed v. State, 159 Ark. 65, 255 S.W. 895; Vaughan v. State, 57 Ark. 1, 20 S.W. 588. The matter of reconstruction of the record in this matter cannot be conducted in this court. Appropriate action in this matter should be taken by petitioner in the trial court.

Howard, J., dissents.

George Howard, Jr., Justice,

dissenting. I am compelled to dissent in the action taken by the majority on the petitioner’s motion to vacate his conviction and discharge him from the Department of Correction. While I do not agree that his conviction should be vacated, at this time, I do not see any merit or objectivity in the approach taken by the majority in this matter. Consequently, I set out the following in support of my views:

On December 14, 1977, an order was entered by the United States District Court, Eastern District of Arkansas, providing, in relevant part, as follows:

“It is therefore Ordered that the final decision in this case be, and it is hereby, held in abeyance for 120 days from the date of this Memorandum and Order is entered. It is further Ordered that if, during this time, the Arkansas Supreme Court grants the petitioner leave to perfect a direct appeal and provide him with the assistance of counsel, then, in said event, the petitioner’s writ of habeas corpus shall be denied. If the Arkansas Supreme Court fails to grant petitioner such leave and assistance within said period, a writ of habeas corpus discharging the petitioner from the aforementioned state court conviction shall issue.”

On April 3, 1978, this Court entered the following order, with copies to the trial court, the petitioner, petitioner’s attorney, the Prosecuting Attorney, the Circuit Clerk and the Attorney General:

“Motion to file belated appeal is granted; it is ordered that record be prepared and lodged with this court within 90 days from this date. ” (Emphasis added)

On September 7, 1978, petitioner filed his motion to vacate his conviction and for discharge from the Arkansas Department of Correction before this Court, alleging, among other things, the following:

“That more than ninety days have passed since the order of this Court on April 3, 1978, and the record has not been prepared and lodged in this Court thereby denying Petitioner due process under the Constitutions of the United States and the State of Arkansas.”

On September 15, 1978, the State filed its response resisting petitioner’s request for a vacation of his conviction and discharge and asserted the following:

“That, there exists good reason for the delay in preparing and lodging with this Court the record from the cause below as set out in the attached affidavit.”

To the State’s response in support of its alleged justification for the delay in affording a record for petitioner’s belated appeal, the State attached an affidavit of the Prosecuting Attorney of the Seventeenth Judicial District providing, in relevant part, as follows:

“Concerning the trial transcript in the above-styled cause, it is my understanding that said transcript has been lost or otherwise misplaced and is unavailable. My investigation reveals there were between fifteen and twenty-five witnesses who testified in this case. Many of these witnesses were from Fayetteville and the Washington County area of the State of Arkansas. It is also my understanding that some of these witnesses have moved out of the state of Arkansas. To the best of my knowledge there is no list of the witnesses with their addresses available at this time.
“In order to furnish the Court with a trial transcript it will be necessary for one person to interview a sufficient number of persons to ascertain the names and addresses of the persons who testified at the trial. It would then be necessary for the investigator to go to each of these witnesses and take a transcribed statement of their testimony given at the trial. It is further my opinion that if one person were granted the funds and equipment and time necessary to perform this task that it would probably take no less than four (4) weeks to reconstruct a trial transcript.”

Today, approximately 28Ó days since the entry of the order of the United States District Court for the Eastern District of Arkansas, the majority, in its Per Curiam opinion, states the following, in relevant part:

“Petitioner’s prayer that his conviction be vacated is denied. It is the normal burden of an appellant to take appropriate action to supply a transcript of the proceedings at a trial resulting in the judgment from which he appeals. Nothing in the orders of this court, or of the United States District Court for the Eastern District of Arkansas, has, in any way, relieved Graham of this burden. It is unusually appropriate that this appellant have this burden.
“The inaction of Graham has made the meeting of this burden more difficult. . . .
“It is quite clear that difficulties in now obtaining a transcript of the proceedings in Graham’s trial in the Circuit Court of Prairie County are as much attributable to Graham as to anyone else. . . .
“This court has granted Graham a very belated appeal and has appointed competent counsel for its prosecution. If no stenographic record was made, then Ark. Stat. Ann. § 27-2127.11 (Repl. 1962) governs. . . . This statute clearly places the burden of obtaining or reconstructing a record on the appellant. If this statute is inapplicable, there are other avenues for the reconstruction of the record in this case, ...” (Emphasis supplied)

I interpret this Court’s order of April 3, 1978, specifying that “. . . it is ordered that the record be prepared and lodged with this Court within 90 days from this date.” as not having been directed to petitioner, who is incarcerated in the state penitentiary, but to the State of Arkansas, as it should be under the existing circumstances. Indeed, the posture that I take is not untenable for the Prosecuting Attorney of the Seventeenth Judicial District likewise so interpreted the Court’s order. The Prosecuting Attorney’s efforts to locate the transcript, as evidenced by his affidavit, and the enumeration of the problems by the Prosecuting Attorney, to be encountered in attempting to reconstruct a record is further supportive of this view.

While the majority reminds the petitioner that the Court granted him “a very belated appeal” and has appointed competent counsel for its prosecution which, I am sure, the petitioner is appreciative and may very well regard this act as a noble gesture on the part of the Court to afford due process and equal protection to petitioner, which each citizen is entitled to irrespective of his social status, it must be recognized, however, that without a transcript or record of the proceedings resulting in petitioner’s conviction, the victory realized by petitioner in acquiring “a very belated appeal” may not only be an empty one, but a victory that is completely void of substance or any tangible benefits.

I believe the time has now arrived where no further delay should be tolerated. It must be remembered that we have an issue before us which is basic and central to the concept of due process of law. I would, therefore, give the State a reasonable length of time to make an effort to reconstruct a record, a period not exceeding 90 days, and upon the State’s failure to comply, enter an order vacating the conviction of the petitioner and discharging him.

Inasmuch as it is apparent that this Court’s order of April 3, 1978, placed the responsibility on the State to obtain a record, to shift the burden and responsibility, at this late date, to the petitioner, as has been indicated, would further compound now what has the appearance of the denial of due process in the matter involving petitioner’s right to an appeal.

      Counsel to represent petitioner in this matter was appointed by this Court on March 20, 1978. Appointed counsel filed a petition in behalf of Mr. Graham for a belated appeal on March 28, 1978.

      Petitioner’s trial was held August 19, 1970.


text:
    Peter Bryan SBABO and Lawrence S. COCKEREL v. STATE of Arkansas
    CR 78-96
    572 S.W. 2d 585
    Opinion delivered November 6, 1978
    (Division II)

      affirmed as to Sbabo, reversed as to Cockerel.

      John W. Achor, Public Defender, and Henry N. Means, III, for appellants.

      Bill Clinton, Atty. Gen., by: Joyce Williams Warren, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Peter Bryan Sbabo and Lawrence S. Cockerel appeal separately from the judgment in their joint trial, sentencing each of them to a term of four years upon a jury verdict on a charge of battery in the first degree. Both argue that an incriminating statement by Sbabo should have been excluded from evidence as involuntary, and that the trial court erred in refusing to give jury instructions on the lesser included offenses of battery in the second degree and battery in the third degree. Cockerel also contends that the trial judge improperly commented on the evidence. We find no merit in Sbabo’s contentions and affirm thejudgment against him. We find merit in Cockerel’s contention that the evidence justified the giving of his requested instruction on battery in the second degree and reverse the judgment against him.

The evidence reveals a bizarre, purposeless shooting of Patrick Pinson, who was wounded by a bullet from a .22 caliber rifle while he was playing golf alone on the fairway at Western Hills Country Club. Sbabo and Cockerel were later arrested. Sbabo gave a statement to Detectives Keel and Reed of the Little Rock Police Department, after Sbabo’s arrest by Keel on the day of the shooting.

Sbabo relies almost entirely upon his contention that, when all the surrounding circumstances are considered, he was justified in feeling that he had been promised leniency in return for telling everything that had happened. There is no evidence, except that of Sbabo as later set out, that would even tend to show that his statement was involuntary. In considering this question in this case, we must determine whether the trial judge’s finding was clearly against the preponderance of the evidence. See Degler v. State, 257 Ark. 388, 517 S.W. 2d 515.

Sbabo was 15 years of age. His mother was not present when the statement was given. He was advised of his rights and signed a statement waiving his rights to counsel and to remain silent. He said that he made the incriminating statement because the officers told him that he would be charged in juvenile court if he agreed to tell them everything that happened. He said that this statement was made by the officer questioning him, but he could not be sure which one it was. When confronted by the two officers, he said that he believed it was “the little one.” He then said that he was not sure which one had made the statement, but he believed that it was the one who arrested him, and indicated Keel. Sbabo’s mother said that, after the statement was made, “the tall one” (she had been told this one was Reed) told her that Sbabo would be charged as a juvenile, unless the man died, in which case, he would be charged with murder.

Keel testified that he had told Sbabo that he was charged with first degree battery and wrote, at the bottom of the form on which Sbabo waived his rights, the statement, “If the man dies, I understand that I will be charged with murder.” Keel said that Sbabo signed his name “behind” that statement. Both officers flatly denied that either had told Sbabo that he would see that Sbabo was charged in juvenile court if he made a statement. It was admitted by both that Keel told Sbabo that he would be charged in juvenile court because of his age, but neither could remember whether this happened before or after the statement was made. The officers testified that Reed recorded Sbabo’s statement as Sbabo related it to him.

Keel testified he placed charges against Sbabo in juvenile court. He said that it was normal procedure to take “15-year-olds” to the juvenile hall, and for the prosecuting attorney to decide whether they should be charged on the criminal docket. Keel did not explain this procedure while advising Sbabo of his rights.

In this case, the critical question is so dependent upon a determination of the relative credibility of witnesses that we must defer to the superior position of the trial judge. Whitmore v. State, 263 Ark. 419, 565 S.W. 2d 133. We cannot say that the court’s finding was clearly against the preponderance of the evidence. We certainly cannot say that the statement was involuntary because the officers did not, in addition to advising Sbabo that any statement could be used against him in court, say specifically that it could be used in a prosecution for a felony that carried a sentence of from three to twenty years.

The trial court refused to give any instructions on the two lesser offenses because it felt that the evidence did not justify these instructions. We readily agree as to the offense of battery in the third degree, a Class A misdemeanor. The only portions of the statute which are in any way pertinent are Ark. Stat. Ann. § 41-1603 (a), (b) and (c) (Repl. 1977). This crime, as defined by those subsections of the statute, is committed only if the victim suffers physical injury, as distinguished from serious physical injury, which is essential to battery in the first degree or battery in the second degree. Physical injury that creates a substantial risk of death is serious physical injury. Ark. Stat. Ann. § 41-115 (19) (Repl. 1977). The victim testified that, when he was struck, he slumped and heard some air escape. He said that he stopped the bleeding and walked as far as he could before he got dizzy and fell. He stated that he was taken to Baptist Medical Center, where he was placed in the intensive care unit. He remained in the hospital for one week. He said that one of his lungs had collapsed as a result of the gunshot wound. This evidence clearly indicated a substantial risk of death.

Although we think the evidence as to Sbabo did not justify the giving of the instruction as to battery in the second degree, as defined by Ark. Stat. Ann. § 41-1602 (Repl. 1977), we think that it should have been given as to Cockerel. Since the physical injury was serious, this statute would have been applicable in this case only if the injury was caused as a result of the accused’s purpose to cause serious physical injury to another person, or if it was caused recklessly. According to Sbabo’s statement, on the night before the shooting Cockerel had said that he would shoot a man the next day, and on the following morning Sbabo got his .22 rifle at Cockerel’s request, and went with Cockerel to the woods near the back side of the golf course, where Cockerel loaded the rifle and shot a man playing golf about. 50 yards away, after which both ran, with Sbabo picking up his rifle and hiding it in some bushes when he reached home.

There was no evidence to justify a finding that Sbabo acted with the purpose of causing physical injury (as distinguished from serious physical injury) to another person or that he acted in any manner except deliberately. His own statement would prevent such a finding. In addition, Dennis Flowers testified that he was with appellants just prior to the shooting and that Cockerel asked Sbabo to go get the rifle and that Sbabo. did. Flowers said that as soon as Sbabo returned with the weapon, the appellants went into the woods and that he heard a gunshot about twenty minutes later, after which he saw a bunch of people standing around a golfer and saw Bryan (Sbabo) and Larry (Cockerel) running. it must be noted that no instruction on battery in the second degree or battery in the third degree was requested on behalf of Sbabo. The fact that the trial judge had refused them as to Cockerel would not necessarily mean that he would have refused both as to Sbabo.

The court was not required to give an instruction with respect to an included offense unless there was a rational basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense. Ark. Stat. Ann. § 41-105 (3). See also, Caton & Headley v. State, 252 Ark. 420, 479 S.W. 2d 537. As we have indicated, there was no basis for giving this instruction as to Sbabo. On the other hand, Sbabo’s statement cannot be considered as to Cockerel. When the statement was read during the trial, Cockerel was referred to as “another person” and his name was not used. Without this statement, a different situation is presented. Flowers testified that Bryan and Larry went into the woods after Bryan returned with the .22 rifle. No one testified that Cockerel had possession of the rifle when Pinson was wounded, or after the shooting. Flowers had heard Larry say, on the preceding day, that he was not fool enough to shoot a golfer.

Cockerel’s statement to the officers was not as self-incriminating as that of Sbabo. Cockerel said that his companion had brought a .22 rifle before the two had gone into the woods together. According to Cockerel’s statement, after the companion had loaded the rifle, he handed it to Cockerel, and Cockerel fired one shot and handed it back to the companion, who fired it, and a man then yelled and fell down; then, he fled on his motorcycle.

Cockerel requested instructions on battery in the second degree and battery in the third degree. The instruction on battery in the second degree should have been given. The jury might have found, under the evidence, that the state had not shown beyond a reasonable doubt that Cockerel had either caused serious physical injury, with the purpose of doing so, or caused an injury, acting with the purpose of seriously and permanently disfiguring another or of destroying, amputating, or permanently disabling a member or organ of another person’s body, or that his conduct manifested extreme indifference to the value of human life. Still, it could rationally find that Cockerel recklessly caused serious physical injury to Pinson by use of the weapon. As the word is used in § 41-1602 (d), it has the meaning set out in § 41-203 (3) (Repl. 1977), viz:

(3) “Recklessly.” A person acts recklessly with respect to attendant circumstances or a result of his conduct when he consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of a nature and degree that disregard thereof constitutes a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation.

We do not agree that the trial court commented on the evidence in stating, during the trial, that Sbabo’s objections to the introduction of his statement were renewed and that a hearing had already been held on it in chambers.

The judgment against Sbabo is affirmed, but that against Cockerel is reversed.

We agree.

George Rose Smith, Byrd and Hickman, JJ.


text:
    KATTERJOHN CONCRETE PRODUCTS, INC. et al v. Truman L. COFFMAN et al
    78-125
    573 S.W. 2d 306
    Opinion delivered November 6, 1978
    (Division I)
    [Rehearing denied December 18, 1978.]

      W. P. Hamilton, Beresford L. Church, Jr., Boyce E. Hawk, Paul Stanfield, and Robert M. Gannaway, for appellants.

      Owens, McHaney & McHaney, by: John C. Calhoun, Jr., for appellees.
   Frank Holt, Justice.

The appellants brought actions to foreclose materialmen’s liens and appellee Worthen sought to foreclose its mortgage liens. The actions were consolidated for trial. The issue is the priority of liens. The chancellor held that the mortgage liens were prior to the materialmen’s liens. The facts are stipulated. Appellee Coffman and his wife executed a note and mortgage on a lot to appellee Worthen Bank. The mortgage was filed for record. However, it was approximately two weeks later before Coffman acquired title from the owner of the property by warranty deed which was duly recorded. During this two weeks, appellant International Paper Company made delivery of materials to the lot site. The same sequence of events occurred during a period of approximately one month with reference to another lot. During this interval, between the giving of a mortgage and deed, appellant Katterjohn Concrete Products, Inc., made delivery of materials to that lot site. The chancellor found the sequence as to both lots to be (a) mortgage recorded, (b) construction commenced, and (d) deed recorded; Coffman, the mortgagor, had no title at the time he gave the mortgage lien; the liens of the materialmen attached after the recordation of the mortgage and before the acquisition of title by Coffman. The chancellor then held that by applying the doctrine of “After Acquired Title,” Ark. Stat. Ann. § 50-404 (Repl. 1971), Coffman’s subsequently acquired titles related back to the time of the recordation of his mortgages and thus rendered them superior to the intervening liens of appellants. Appellants contend that the court erred in applying the doctrine of “After Acquired Title” to validate the mortgage. It is argued that there is no relation back. Appellants insist that the lien of Worthen’s mortgage attached to the property when it was already burdened by their liens which existed at the time Coffman acquired title. In other words, the mortgage liens attached only when Coffman acquired title which was after the time that appellants’ materialmen’s liens had attached to the properties.

We rest our decision on the basis that neither Coffman nor Worthen was the owner of these lots when the transactions with appellants occurred. It is clear that a materialman’s lien against property cannot exist unless the lien claimants had a valid contract with the property owner or his agent. Hawkins v. Faubel, 182 Ark. 304, 31 S.W. 2d 401 (1930); Sebastian Bldg. & Loan Assn. v. Minten, 181 Ark. 700, 27 S.W. 2d 1011 (1930). Here there is no evidence to meet this requirement. It does not appear that either appellee Coffman or appellee Worthen (which furnished construction money) had any title or interest in the properties at the time appellants’ liens allegedly attached to the property.

Affirmed.

We agree: Harris, C.J., and George Rose Smith and Howard, JJ.