author: Ronald A. May, Special Justice.

text:
    TXO PRODUCTION CORP. v. FIRST NATIONAL BANK OF RUSSELLVILLE
    85-108
    705 S.W.2d 423
    Supreme Court of Arkansas
    Opinion delivered March 10, 1986

      Hardin, Jesson & Dawson, by: Rex M. Terry, for appellant.

      Gardner, Gardner & Hardin, by: Stephen C. Gardner, for appellee.
   Ronald A. May, Special Justice.

This is a suit by First National Bank of Russellville to recover royalties, penalties and attorney’s fees under an oil and gas lease given to TXO Production Corporation. Shortly after suit was filed, TXO tendered royalties, and this action continued only as one for penalties and attorney’s fees. The Trial Court found for the bank and TXO appealed. The case was transferred to this Court under Rule 29(l)(c) and (n). We are affirming the Trial Court.

The penalties were assessed under Act 269 of 1981 (Ark. Stat. Ann. § 53-525), which reads as follows:

“A. The proceeds derived from the sale of oil or gas production from any oil or gas well shall be paid to persons legally entitled thereto, commencing no later than six (6) months after the date of first sale, and thereafter no later than sixty (60) days after the end of the calendar month within which subsequent production is sold. Such payment is to be made to persons entitled thereto by the first purchasers of such production. Provided, such purchasers may remit to the persons entitled to such proceeds from production semi-annually for the aggregate of six (6) months’ accumulation of monthly proceeds of amounts less than Fifteen Dollars ($15.00). As used in this Act, first purchaser shall mean the first commercial purchaser after completion of the well and shall not include purchasers of oil or gas during initial testing prior to completion. Further provided, that any delay in determining the persons legally entitled to an interest in such proceeds from production caused by unmarketable title to such interest shall not affect payments to persons whose title is marketable. Provided, however, that in those instances where such proceeds cannot be paid because the title thereto is not marketable, the purchasers of such production shall cause all proceeds due such interest to earn interest at the rate of eight percent (8%) per annum, until such time as the title to such interest has been perfected. Marketability of title shall be determined in accordance with the then current legally recognized real property law governing titles to oil and gas interest. The first purchaser shall be exempt from the provisions of this subsection and the owner of the right to drill and to produce under an oil and gas lease or force pooling order shall be substituted for the first purchaser therein where the owner and purchaser have entered into arrangements where the proceeds are paid by the purchaser to the owner who assumes the responsibility of paying the proceeds to persons legally entitled thereto.” [The assessment of the penalty is in a separate subsection.]

The oil and gas lease itself is not in evidence. However it is undisputed that gas production on the well in question started in early 1982. A portion of the gas was sold to Columbia Gas Transmission Service and other portions were sold to Arkansas Louisiana Gas Transmission Corporation. (ARKLA). It is undisputed that TXO assumed the obligation to pay royalties on gas production to the bank.

Arkla began taking deliveries of gas from TXO’s well in May, 1982, although it never formally executed a purchase agreement until fifteen months later in August, 1983. TXO contends, and we accept as true, that such delays are common in the oil and gas industry. Proceeds from the sale of such gas from TXO to Arkla were received by TXO on October 3,1983, and the royalties in question here were paid to the bank on November 10, 1983.

TXO contends that it paid the royalties within the six (6) months contemplated by the statute because the time started to run when TXO received its payment from Arkla. The bank argues that TXO “sold” the gas to Arkla in May, 1982, when it permitted Arkla to first begin taking deliveries of the gas.

The first portion of the statute isn’t very helpful in resolving this question. Did the General Assembly intend that “the date of first sale” meant the date a commercial purchaser executed a purchase agreement (here August, 1983), or took delivery (here May, 1982) or actually paid for the gas (here October, 1983)?

We don’t think the General Assembly intended, in passing this clearly remedial legislation, to put it in the power of a gas producer to circumvent the statute’s impact by the form and timing of his sales agreements with third parties.

Significantly, the last sentence of Ark. Stat. Ann. § 53-525A seems to recognize that situations like this one would occur. That sentence would substitute the gas producer (TXO) for the gas purchaser (Arkla) where the producer had assumed responsibility of paying the proceeds “to persons legally entitled thereto.”

The Trial Court made a finding that a sale occurred in February, 1982. This was the date that Columbia first took delivery of gas under its contract with TXO. Arkla took delivery in May, 1982. In either instance, the payment to the bank came much later than six (6) months after the date of first sale. We are not prepared to say that the date of first sale could be delayed until TXO entered into a formal agreement with Arkla and received payment. Accordingly, the penalty was properly assessed and the case should be affirmed.

Two other points deserve passing mention. TXO contends that the bank never furnished notice that it intended to file suit. There is no such requirement in Act 269 of 1981. TXO contends that the oil and gas lease imposed a duty on the bank to make such a demand. The lease was not in the record, however. We are not prepared to announce that there is a common law obligation to give such notice in the absence of any statutory requirement or agreement between the parties.

The remaining issue involves the award of attorney’s fees. The Trial Court awarded $1,500.00. Evidence was introduced by the bank’s attorneys reflecting forty-two (42) hours of work at $75.00 per hour, the total amounting to $3,150.00. As in many other cases coming before this Court, we defer to the trial judge’s superior position to evaluate the worth of counsel’s services. The bank has requested additional fees for work performed in connection with this appeal, and we grant an additional fee of $1,000.00.

Affirmed.

Purtle, J., not participating.


source: Caselaw Access Project

author: Darrell Hickman, Justice. Jack Holt, Jr., Chief Justice, Steele Hays, Justice,

license: Public Domain

text:
    Danny BRADLEY v. Dale BRUCE, et al.
    85-253
    705 S.W.2d 431
    Supreme Court of Arkansas
    Opinion delivered March 17, 1986
    [Rehearing denied April 28, 1986.]

      Hilburn, Bethune, Calhoon, Forster, Harper & Pruniski, Ltd., by: John F. Forster, Jr., and Dorcy Kyle Corbin, for appellant.

      Jim Hamilton, City Att’y, by: Terry R. Ballard, Asst. City Att’y, for appellee.

      Hankins, Capps, Hicks & Madden, by: Harold W. Madden, for appellees-intervenors, J.V. Williams and Charles “Skipper” Polk.

       Holt, C.J., concurring opinion; Hays, J., dissenting opinion; Purtle, J., not participating.

   Darrell Hickman, Justice.

The issue on appeal concerns the promotion eligibility list for the North Little Rock police. Danny Bradley, a sergeant, made the highest score on the examination for lieutenant. However, he was not listed first because the Civil Service Commission passed a rule that seniority is a factor to be considered in determining eligibility for promotions, causing points for years of service to be added to the test score. Wilson Parker, who had more seniority but made a lesser grade on the test, was listed first and has intervened in this case.

In a declaratory judgment suit, the circuit court held Arkansas law did not prohibit the Civil Service Commission from using seniority as a criterion to determine ranking on eligibility lists. We find Arkansas law is to the contrary, requiring that the person with the highest test score be promoted.

Ark. Stat. Ann. § 19-1603 (Repl. 1980) provides for the Board of Civil Service to prescribe rules and regulations for police and fire departments. That statute states:

These rules shall provide . . .
9th. For promotion based upon open competitive examinations of efficiency, character and conduct, lists shall be created for each rank of service and promotions made therefrom as provided herein.
6th. . . . and for the promotion or advancement of the one standing highest on the eligibility list for that rank of service.

This statute covers two separate subjects relevant here: (1) applicants who are to be hired, and (2) employees who are to be promoted. Undoubtedly, the Commission has been reading the statute using the two separate categories of individuals interchangeably, because the practice has been to forward an eligibility list containing the three persons ranked highest (figuring in seniority) to the department head. That practice is wrong. The statutory language which speaks of certification of the three highest persons, refers to the appointment of applicants, not the promotion of employees. The very next sentence in the statute deals with promotions which we have already quoted. In Orrell v. City of Hot Springs, 265 Ark. 267, 578 S.W.2d 18 (1979), we made the same mistake the Commission did in our reference to Ark. Stat. Ann. §19-1603 (6), by assuming that the three persons ranked highest on the eligibility list were to be used by the department head for promotion purposes.

The statute specifically provides that promotion shall be made on the basis of the examination. There is no provision authorizing any other criterion, including seniority. Any other reading of the law would negate its purpose which is to promote those eligible who score highest on the test.

713 S.W.2d 451

The primary rule of statutory construction is to find the intention of the legislature. Perry County v. House, 196 Ark. 317, 117 S.W.2d 342 (1938). When the language is clear, we follow it. Walker v. Allred, 179 Ark. 1104, 20 S.W.2d 116 (1929). The statutory language is clear that promotions shall be based on the results of the examination and does not provide for seniority as a factor.

The judgment is reversed and the cause remanded for the trial court to enter an appropriate order.

Reversed and remanded.

Purtle, J., not participating.

Rehearing Denied April 28, 1986

Jack Holt, Jr., Chief Justice,

concurring. Although I concur in the denial of appellee’s petition for rehearing, I think one point in the majority opinion warrants mention.

The majority opinion is misleading in that it states Ark. Stat. Ann. § 19-1603 (Repl. 1980), specifically provides that promotion shall be made on the basis of “the examination” and not on any other criterion. In this instance the appellant was given a written examination.

By these findings the court suggests one written examination is given, when in fact, Ark. Stat. Ann. § 19-1603 provides for “promotion based upon open competitive examinations of efficiency, character and conduct.” (emphasis added). Obviously seniority does not fall within these criteria, however, it is equally obvious that this statute does not limit promotion to a written examination as suggested by the majority opinion.

The court is correct in its findings in this instance, that the promotion should be based upon the written examination, since it was the only examination conducted. Nevertheless, the statutory language is equally clear that other types of examinations may be given as long as they fall within statutory criteria. Any request for further clarification as to what types of examinations are authorized should be addressed to the legislature, since the statute is vague in this respect.

Steele Hays, Justice,

dissenting. The petition for rehearing and the comments of Chief Justice Holt demonstrate that we were mistaken in applying a narrow interpretation to Ark. Stat. Ann. § 19-1603 (Repl. 1980). The fact that the Civil Service Act simply refers to “open, competitive examinations”, need not be taken to mean that the qualities being sought, i.e. “efficiency, character and conduct,” can only be measured by an examination. Nothing in the act suggests that the legislature intended that such qualities be discerned entirely by examination and we should not read that questionable premise into the act. The trial court ruled that inasmuch as the Civil Service Act does not specifically prohibit reasonable credits based on seniority, the procedures adopted by the North Little Rock Civil Service Commission were not unlawful. I believe that interpretation was correct and should be adopted on rehearing.


author: Darrell Hickman, Justicé.

text:
    OTIS ELEVATOR COMPANY v. Terry FAULKNER
    85-210
    705 S.W.2d 428
    Supreme Court of Arkansas
    Opinion delivered March 17, 1986
    [Rehearing denied April 21, 1986.]

      Wright, Lindsey & Jennings, for appellant.

      Gregory W. Harris and Tom Lienhart, for appellee.

       Purtle, J., not participating.

   Darrell Hickman, Justicé.

This is a suit against Otis Elevator Company, which had a service contract on an old freight elevator located at Minnesota Mining and Manufacturing Company in Little Rock. Terry Faulkner, an employee of 3M, claimed he was injured when the elevator suddenly jumped or fell and came to a sudden halt. The elevator was reported to have fallen from the fourth floor to just past the third floor landing. A jury awarded Faulkner $ 191,127. The only issue on appeal is whether there is sufficient evidence of Otis’ negligence which was the proximate cause of the accident. The jury found there was, and we find no legal reason to set aside the verdict.

Faulkner’s damage suit was based on expert testimony, the testimony of a serviceman, and records of repair of the elevator. The expert concluded that the faulty drive sheave, which should have been repaired by Otis, was the cause of the fall, which, in turn, set the safety brakes and suddenly stopped the elevator.

Essentially Otis’ defense was that the accident did not happen as described, and if it did, there was no proof of any negligence by Otis that was a cause of the accident. Otis argued below and on appeal that if the accident was caused by a worn drive sheave, the elevator would rise instead of fall. Otis offered no expert testimony below on this question and asks us to hold that because of logic and the law of physics there is no substantial evidence to support the verdict.

We are not, of course, experts in the laws of physics nor was the jury. Nor are we experts in the mechanics of machinery. We are supposed to be experts in the law, and the law is that on appeal we view the evidence in the light most favorable to the appellees, and if there is any substantial evidence at all to support a jury verdict, it must stand. E. I. DuPont de Nemours and Co. v. Dillaha, 280 Ark. 477, 659 S.W.2d 756 (1983). The weight to be given to the testimony by witnesses is to be determined by the jury, rather than by us. Union Lincoln Mercury, Inc. v. Daniel, 287 Ark. 205, 697 S.W.2d 888 (1985). Bearing these rules in mind, we review the evidence.

No one witnessed the accident. Faulkner testified that he got into the elevator sometime after 11 p.m. on the night of September 17, 1980, on the fourth floor, which is the top floor. He intended to go to the basement to get a shovel. The elevator was the type where the button switches must be pushed constantly to move the elevator. He pushed the button to go down, and the elevator suddenly jumped. Faulkner said he felt like it was going too fast and had the sensation of falling; he threw up his arms and saw sparks fly overhead. Suddenly it stopped. He fell, injuring his coccyx. Over 30 minutes later his supervisor found him. The elevator was stopped just below the third floor landing.

On appeal we have before us the testimony of Faulkner, Faulkner’s expert witness, the records relating to the elevator, the testimony of the 3M employee responsible for maintenance, the servicemen who worked on the elevator before and after the accident, and their supervisor. Certain facts were undisputed. Otis had the service contract on this elevator since early 1976; it provided for a maintenance call every two weeks. Normally Otis made repairs after 3M approved them. The elevator was manufactured by Lee-Hoff and all agreed it was an old one. Service calls and repairs had been frequent, but there was testimony that this was not unusual for an old elevator used in a dusty environment. Four months before the accident, Otis was notified that the elevator had dropped two feet. Otis found no problem. Five days before the accident the elevator was reported to have gone below the bottom landing. A repairman testified that he could not recall whether a problem was found but admitted that such “slippage” could be caused by a worn drive sheave. Critical in the case is that as early as July 9,1979, Otis had recommended the drive sheave, which drives five cables and moves the elevator up and down, be regrooved or replaced; it was badly worn. This same recommendation was made in writing by Otis on July 1, 1980. We cannot say for certain whether this work was done or not. It was Otis’ position at trial that Faulkner did not prove the work had been approved by 3M, a necessary requirement before work was done. However, there was ample circumstantial evidence to prove that 3M routinely approved all of Otis’ recommendations and that the repair had not been made by the time of the accident.

The governor, which controls the safety stops, had to be repaired just before the accident. On September 8, an Otis serviceman, Norman Beckman, removed the governor and 3M replaced the shaft. The next day it was replaced and Beckman said he recalibrated it. The governor is set to trip safeties if the elevator goes too fast. It had to be removed a few days later because Beckman had forgotten to have a hole drilled in the shaft for a grease fitting. Beckman said he did not have to recalibrate the governor when only the shaft was removed and replaced. The “call back and repair” sheet reflected that problems were reported to Otis some 19 times in the year and a half before the accident and 11 times in the eight months after. There were reports of the overload switch tripping, broken buttons, or simply that the elevator would not run. Only about four weeks after the accident, it was reported to Otis that the elevator was running past the floor.

Bob Early, an elevator consultant, was qualified as an expert for Faulkner. No objection was made to his qualification. He said he first worked for Otis in 1947 when he was in college. He and his father later founded an elevator maintenance and repair company. He then began his own elevator consulting firm. He did not view the 3M elevator until 1984. His testimony was based on his examination of the elevator and study of the records maintained on the elevator. It was his opinion that when the accident occurred there was a power surge which caused a jerk. Because the drive sheave was worn, there was no traction with the five cables; inertia caused the car to move down faster and the safeties set causing the sudden stop. He said such surges were not uncommon and when Faulkner saw the sparks overhead, it was the arcing of the motor contacts which caused the surge. Early said the fact that the elevator had slipped before and had gone below the ground floor should have signaled Otis that something was wrong. How fast and how far the car would go would depend on the circumstances, including the car’s load and the counterweight. Early would not concede that logic and physics dictate that if the sheave slipped, the car would go up rather than down.

Otis offered no expert to rebut Early’s testimony but did ask the Otis supervisor his opinion about what would happen under those circumstances. He said it was his experience that the car would go up. There is evidence that the counterweight is heavier than the elevator, but how much heavier we are not told. The attorney for Otis merely asked Early to assume that the counterweight was 40% heavier. It was conceded by Otis’ witness that the slippage of the elevator past the floor could have been caused by a worn, sheave, and that is somewhat inconsistent with the testimony that the elevator would go up instead of down.

In Otis Elevator v. Robinson, 287 F.2d 62 (5th Cir. 1961), a hotel employee was injured when the elevator dropped suddenly from the 14th floor to the 8th floor. He heard a popping noise overhead and had the sensation of excessive speed. Otis had the maintenance contract. The court stated that the jury was entitled to find that the accident happened exactly as the plaintiff said it did. It also noted that it was inconsequential that the plaintiff failed to prove specifically what was wrong with the elevator since he proved that two similar incidents had happened and nothing was found to be wrong. The court said a reasonable man could infer there was a failure to exercise ordinary prudence in making the repair.

In Otis Elevator Co. v. Jackson, 325 F.2d 260 (5th Cir. 1963), an elevator operator was injured when the elevator fell at a rapid rate from the 8th floor to the pit of the shaft. The passengers felt jerking and heard popping overhead. Otis had the maintenance contract. The car had been reported as going to the bottom limit at least twice before. An expert testified that there was a malfunction causing the drive motor to overspeed. Otis’ position was that there was nothing wrong with the elevator either before or after the fall. The court stated that the jury could fairly infer that the elevator was out of order and that the trouble was not detected because of faulty inspection. These cases were based on the legal theory that enough circumstantial evidence of negligence existed to justify a finding of negligence by Otis which caused the accidents.

This case is based on more than circumstantial evidence. We have expert testimony that cannot be entirely discounted. It is not inconceivable that the accident could have happened as Early explained it. If we say it could not, then we would be holding ourselves out as experts in physics and mechanics and substituting our opinion when we have no basis or right to do so. It would be too much to say that Early’s testimony was totally incredible. This is not a case where the evidence is entirely undisputed as it was in Grain Dealers Mut. Ins. Co. v. Porterfield, 287 Ark. 27, 695 S.W.2d 833 (1985). It is enough to say that on appeal there is substantial evidence and that the jury could have reached its verdict other than on pure speculation. Otis could have easily countered such opinion testimony and demonstrated clearly to the jury and to us on appeal, without question, that this accident simply could not have happened as Early said it did. This case was tried to a jury, decided on the basis of the evidence presented, and we cannot say the evidence was not substantial as a matter of law; it was.

Affirmed.

Purtle, J., not participating.


author: Darrell Hickman, Justice. Robert H. Dudley, Justice,

text:
    Dickie COKELEY v. STATE of Arkansas
    CR 85-147
    705 S.W.2d 425
    Supreme Court of Arkansas
    Opinion delivered March 17, 1986
    [Rehearing denied April 21, 1986.]

      James E. Davis, for appellant.

      Steve Clark, Att’y Gen., by: Connie Griffin, Asst. Att’y Gen., for appellee.

       Purtle, J., not participating.

   Darrell Hickman, Justice.

This appeal raises the question of whether it is error to instruct the jury that rape can be committed by engaging in sexual intercourse or deviate sexual activity when only sexual intercourse is charged. We find no error since there is no demonstration of prejudice. There was substantial evidence of both sexual acts in this case.

This issue was first considered in Clayborn v. State, 278 Ark. 533, 647 S.W.2d 433 (1983). There we held that even though the evidence was sufficient to support a finding of guilt, the conviction must be reversed because the defendant was only charged with raping the woman by deviate sexual activity, not by sexual intercourse. The main basis of our decision was that two separate crimes of rape exist: rape by sexual intercourse and rape by deviate sexual activity. We said “. . . two different crimes are involved. . .and the essential elements of the crimes differ.” We were wrong in that regard and overrule Clayborn v. State, supra, as it conflicts with our later decisions and our holding in this case. Ark. Stat. Ann. § 41-1803 (Supp. 1985) provides for just one offense of rape with two different ways of commission. The statute itself sets forth the elements of rape:

(1) A person commits rape if he engages in sexual intercourse or deviate sexual activity with another person:
(a) by forcible compulsion;

The elements of the offense are the sexual act and forcible compulsion. Clayborn interpreted the statute to read that the reference to different kinds of sexual acts created two separate crimes.

In our most recent decision on this statute, we clearly rejected the rationale in Clayborn. In Wood v. State, 287 Ark. 203, 697 S.W.2d 884 (1985), we held there is only one crime of rape under Ark. Stat. Ann. § 41-1803. Wood had been charged with rape by sexual intercourse. At the trial he changed his story by saying he had merely fingered the victim instead of having sexual intercourse with her. The state was allowed to amend the information charging rape either by sexual intercourse or deviate sexual activity. The court instructed the jury that the state had the burden of proving rape by “either sexual intercourse or deviate sexual activity.” We said “[t]he amendment did not change the nature or degree of the crime.” Our holding was contrary to Clayborn v. State, supra.

Several other recent decisions support this reasoning. Before Clayborn, in Browning v. State, 274 Ark. 13, 621 S.W.2d 688 (1981), we permitted the introduction of evidence of deviate sexual activity although the charge was rape by sexual intercourse. We did so for two reasons: a general charge of rape was made under the statute which had not been challenged by a bill of particulars, and the state was entitled to prove the entire criminal episode. In two cases since Clayborn, we unanimously held that there is only one offense of driving while intoxicated with two ways of violating the act, either by operating or controlling a vehicle while intoxicated or operating or controlling a vehicle when blood alcohol content is 0.10% or more. Yacono v. State, 285 Ark. 130, 685 S.W.2d 500 (1985); Wilson v. State, 285 Ark. 257, 685 S.W.2d 811 (1985). In Wilson the defendant was charged under one subsection of the act but convicted under the other subsection. We said:

The appellant next argues that he was charged under subsection (b) of the act but was convicted under subsection (a) of the act, and therefore, his conviction must be reversed. Again, the argument is without merit. The charging instrument, whether a citation or information, is not in the record. The municipal court appeal transcript reflects that appellant was ‘charged with the offense of DWI one.’ Other parts of the record indicate that he was charged with ‘DWI one.’ Such a charge is sufficient even though the evidentiary requirements of the subsections are different. (Italics supplied.)

The case before us presents almost the same question we had in Clayborn. Cokeley was charged with rape by sexual intercourse. The victim testified she was beaten, threatened with a knife, forced to commit oral sex on Cokeley and raped by sexual intercourse. Cokeley’s defense was consent. He did not deny he was with the victim or that sexual acts occurred. He said the victim voluntarily committed oral sex on him. He said he could not get an erection so they did not have sexual intercourse. Cokeley also claimed he was intoxicated. The victim’s testimony was corroborated by passersby who picked her up in the middle of the night when she ran naked from Cokeley’s vehicle. She was immediately taken to a police station, later submitted to a medical examination and subsequently made a statement to the police in which she said she was raped by sexual intercourse and forced to commit oral sex.

The trial court simply instructed the jury according to the statute that a person commits rape if he engages in sexual intercourse or deviate sexual activity with another person by forcible compulsion and defined the two acts. The evidence supports a finding of guilt of rape by either or both means. The issue in this case is not the manner of the rape, but whether rape by forcible compulsion indeed occurred. There is no argument that there is not substantial evidence to support a finding that Cokeley raped the victim either way. Cokeley was convicted of the crime with which he was charged — rape. It was not error to give the instruction.

No bill of particulars was filed in this case. The victim had stated to the police in a written statement, provided to the defense, that both types of sexual misconduct occurred; the prosecuting attorney argued in his opening statement that both sexual intercourse and oral sex occurred. Cokeley cannot claim surprise by the evidence of deviate sexual activity.

We need not speculate on the outcome if a homosexual were charged with the rape by sexual intercourse of a person of the same sex and that defendant timely objected and demonstrated prejudice. The only question before us in this case and those cases cited are whether one crime of rape exists with two means of commission or whether rape is two separate crimes; and whether prejudicial error is demonstrated.

Since there is only one crime of rape with two possible means of commission, Cokeley was not prejudiced by the jury being instructed as to the two sexual acts that could be committed to constitute rape. There was substantial evidence of both acts. We will not reverse a lower court’s decision unless there is prejudicial error. Berna v. State, 282 Ark. 563, 670 S.W.2d 434 (1984). Finding no prejudice, we affirm the conviction.

Purtle, J., not participating.

Dudley and Newbern, JJ., dissent.

Robert H. Dudley, Justice,

dissenting. The majority overrule Clayborn v. State, 278 Ark. 533, 647 S.W.2d 433 (1983), and hold that rape by sexual intercourse and rape by deviate sexual activity are the same crime and involve the same elements of proof. I cannot agree with that rationale.

The crime of rape by deviate sexual activity is a neuter gender crime. Either a male or a female can be the victim or the perpetrator of the crime. It includes homosexual conduct as well as most types of unnatural heterosexual conduct. Ark. Stat. Ann. § 41-1801 (Supp. 1985).

The crime of forcibly engaging in sexual intercourse is a separately defined crime and is limited to the heterosexual act of penetration of a vagina by a penis. Ark. Stat. Ann. § 41-1801(9) (Supp. 1985).

The acts are not of the same general character, and rape by sexual intercourse does not contain all of the elements of rape by deviate sexual activity. Thus, they are two separate crimes. Correspondingly, the charge of rape by sexual intercourse filed in this case did not include the charge of rape by deviate sexual activity. Under the instructions given, the appellant may stand convicted of rape by deviate sexual activity, a charge not made. Conviction upon a charge not made is a sheer denial of due process. Thornhill v. Alabama, 310 U.S. 88, 96 (1939).

Of course, the appellant may well have been found guilty of the crime with which he was charged. However, the conclusion does not follow that the case should be affirmed, for the appellant may just as well have been found guilty of the crime with which he was not charged, and that would constitute the denial of due process. Since it is impossible to determine from the general verdict of guilty the crime for which appellant was convicted, the conviction cannot be upheld. Stromberg v. California, 283 U.S. 359, 368 (1931). An appellate court should not speculate on which charge a defendant was found guilty in order to uphold a conviction.

Newbern, J., joins in this dissent.


author: Robert H. Dudley, Justice.

text:
    Kim SMITH v. FIGURE WORLD PLUS, INC.
    85-291
    705 S.W.2d 432
    Supreme Court of Arkansas
    Opinion delivered March 17, 1986

      The Haskins & Hendricks Law Firm, for appellant.

      House, Wallace, Nelson & Jewell, P.A., by: Paul W. Stanfield, for appellee.
   Robert H. Dudley, Justice.

Appellant, Kim Smith, entered into a written contract with the appellee, Figure World Plus, Inc., by which appellee agreed to make its health club facilities available for one year, and appellant agreed to pay $30.00 initially and $10.00 per month for one year. The contract also provided for a late charge in the amount of $10.00 for each month in which payment was late. The appellant defaulted on nine of the monthly payments. The appellee filed suit for $180.00 representing $90.00 due for the facilities being available and $90.00 for nine late charges. The appellant defended by arguing that the $90.00 in late charges amounted to usurious interest. The trial court granted judgment for $180.00. We affirm.

A late charge which is in the nature of a penalty will not render a transaction usurious. Harris v. Guaranty Financial Corp., 244 Ark. 218, 424 S.W.2d 355 (1968). However, a charge which is labeled a penalty, but which is really a subterfuge for interest, may render a transaction usurious. Redbarn Chemicals, Inc. v. Bradshaw, 254 Ark. 557, 494 S.W.2d 720 (1973). Although we examine each case of this type on all of its own particular facts, two of the principal factors in determining if the charge is truly a penalty are whether the charge is fixed in amount and whether it is assessed as a one-time charge. Bunn v. Weyerhaeuser Co., 268 Ark. 445, 598 S.W.2d 54 (1980). We look to those two factors because they are indicators of whether the charge is designed to induce prompt payment and whether the borrower has it in his power to avoid the charges. Hayes v. First National Bank of Memphis, 256 Ark. 328, 507 S.W.2d 701 (1974).

Here, the charges met the test of a penalty because they were fixed in amount and they were charged only one time. They were not compounded.

Appellant contends that the charges are excessive because they do not bear any relationship to the appellee’s added expenses incurred in attempting to collect the past due installments. The argument is without merit because the appellant offered no proof on the subject and the burden was upon her to show usury. Hayes v. First National Bank of Memphis, supra.

Affirmed.

Purtle, J., not participating.


author: Steele Hays, Justice.

text:
    Betty A. ODELL v. ARKANSAS GENERAL INDUSTRIES CO.
    85-272
    705 S.W.2d 438
    Supreme Court of Arkansas
    Opinion delivered March 17, 1986

      Pickens, McLarty & Watson, by: James A. McLarty, for appellant.

      Friday, Eldredge & Clark, by: Frederick S. Ursery, for appellee.
   Steele Hays, Justice.

Appellant, Betty Odell, filed this action in Jackson County, where she lives, against her former employer, Arkansas General Industries Co., which operates a manufacturing plant in White County.

The complaint states appellant was hired at-will in 1959 and was terminated on March 7, 1984, for failing to arrange for continued absence from work due to an injury, in violation of company policy. It alleges an intentional, wrongful discharge in violation of public policy and the Arkansas Workers’ Compensation Act, resulting in loss of income, mental anguish, physical and mental pain and suffering. The complaint prayed for compensatory and punitive damages.

Citing Arkansas Rules of Civil Procedure Rule 12(b)(3), dealing with improper venue, AGI moved to dismiss the complaint based on its residence in White County. The circuit judge granted the motion and Mrs. Odell has appealed. Our jurisdiction attaches under Rule 29(l)(o).

In Atkins Pickle v. Burrough-Uerling-Brasuell Consulting Engineers, Inc., 275 Ark. 135, 628 S.W.2d 9 (1982), we said:

Ever since the adoption of our Civil Code in 1869 our statutes have defined certain local actions and directed that all other actions be brought in the county of the defendant’s residence. § 27-613. We have said repeatedly that our underlying policy is to fix the venue in the county of the defendant’s residence unless for policy reasons there is a statutory exception.

Appellant claims the exception which permits her to sue in Jackson County is found in § 27-610:

All actions for damages for personal injury or death by wrongful act shall be brought in the county where the accident occurred which caused the injury or death or in the county where the person injured or killed resided at the time of injury, and provided further that in all such actions service of summons may be had upon any party to such action, in addition to other methods now provided by law, by service of summons upon any agent who is a regular employee of such party, and on duty at the time of such service.

We disagree with that proposition. While we have said the reference in the statute to “where the accident occurred,” does not require a trauma or blow in the literal sense, Coca-Cola Bottling Co. v.Kincannon, 202 Ark. 235, 150 S.W.2d 193 (1941), Shultz v. Young, 205 Ark. 533, 169 S.W.2d 648 (1943), even so, a physical or bodily injury is required in order for § 27-610 to apply. Arkansas Valley Industries, Inc. v. Roberts, 244 Ark. 432, 425 S.W.2d 298 (1968); Robinson v. MoPac Transp. Co., 218 Ark. 390, 236 S.W.2d 575 (1951). Thus, defamation, abuse of process, false imprisonment, malicious prosecution, and the like, though tortious in origin, do not come within § 27-610. B-W Acceptance Corporation v. Colvin, 252 Ark. 306, 478 S.W.2d 755 (1972).

A case in point is Arkansas Valley Industries, Inc. v. Roberts, supra. The plaintiff, Graddy, filed suit in Faulkner County for personal injuries in the nature of “heartache, mental anguish, nervousness, sleeplessness, nightmare and shock.” These conditions were alleged to be the result of the defendant’s abuse of process, malicious prosecution, vexatious litigation and false imprisonment. The plaintiff resided in Faulkner County, though the defendant had no branch office or other place of business there. In granting the defendant’s petition for a writ of prohibition to the Faulkner Circuit Court, we said:

In Monk v. Ehret, 192 Cal. 186, 219 Pac. 452 (1923), there was under consideration a statute similar to ours, and after reviewing the history of the enactment of such statutes, it was concluded that the term “personal injuries” in the statute was limited to corporeal or physical injuries by reason of any violence. That court, in Plum v. Forgay Lumber Co., 118 Cal.App. 76, 4 P.2d 804 (1931), followed the same construction of the term “personal injury” and held that an action for malicious prosecution and false arrest could not be maintained in the county in which the arrest occurred.
Other courts have held to the contrary. See Hatcher v. Southern Ry. Co., 191 Ala. 634, 68 So. 55 (1915).
However, we feel that under Robinson, supra, we are committed to the view expressed by California in Monk v. Ehret, supra, and consequently find that the Faulkner Circuit Court is without venue. Nor can we find anything in the allegation with reference to mental anguish which would change this result, since this was also a factor involved in the Robinson case.

Appellant cites M.B. M. Co. v. Counce, 268 Ark. 265, 596 S.W.2d 68 (1980). There Ms. Counce sued her former employer for wrongful discharge under circumstances intended to cause severe emotional distress. The decision in Counce is of no avail in this case. Venue was not an issue in Counce, and the opinion notes that Ms. Counce regarded her cause of action as sounding in contract, rather than in tort. While appellant Odell has couched her complaint in terms of intentional wrong, and willful and wanton conduct, bare allegations of willful and wanton conduct are not sufficient. Miller v. Ensco, Inc., 286 Ark. 458, 692 S.W.2d 615 (1985). When we look beneath those allegations we think the complaint essentially alleges simply a wrongful discharge. We conclude that venue must be where the defendant resides.

The order is affirmed.

Purtle, J., not participating,


text:
    Jim Duke RODERICK v. STATE of Arkansas
    CR 85-86
    705 S.W.2d 433
    Supreme Court of Arkansas
    Opinion delivered March 17, 1986
    [Rehearing denied April 21, 1986.]

      Brad J. Beavers and W. Frank Morledge, P.A., for appellant.

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

       Purtle, J., not participating.

   Steele Hays, Justice.

On the evening of Friday, August 12, 1983, the nude body of Linda Cruce was found in a rural area of St. Francis County. The sheriff’s office began an investigation, obtaining information that the appellant, Jim Duke Roderick, had been seen with Linda Cruce several times leading up to the discovery of the body.

On Monday evening, August 15, having heard the sheriff wanted to talk to him, Roderick came to the sheriff’s office at about 7:00 o’clock where he was arrested, given the Miranda warnings and placed in a jail cell. Sometime around midnight Roderick sent word that he wanted to talk and he gave a statement which implicated him in the murder. He said when he and Linda left the Razorback on Thursday evening she wanted to go to the Legion Club; when he told her he didn’t have any more money she called him a “no good bum.” He said he struck her with the heel of his hand on her neck and she slumped over. He drove to a secluded spot, removed her clothes and had sex with her. Afterwards he realized she was not breathing, so he left her body nearby and threw her clothes and purse in the river near Big Eddie’s Hill.

Roderick was tried, convicted and sentenced to life without parole, which brings this appeal. He presents a number of points of error, one of which is persuasive and requires reversal. Roderick argues that because there was no probable cause for his arrest his statement should have been suppressed. The argument must be sustained.

Probable cause to arrest without a warrant exists when the facts and circumstances within the officers’ collective knowledge and of which they have reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been committed by the person to be arrested. Coble v. State, 274 Ark. 134, 624 S.W.2d 421 (1981); Brinegar v. United States, 338 U.S. 160 (1949); Carroll v. United States, 267 U.S. 132 (1925). A.R.Cr.P. Rule 4.1. It has been held not to require that degree of proof sufficient to sustain a conviction. McGuire v. State, 265 Ark. 621, 580 S.W.2d 198 (1979). Its determination is based on factual and practical considerations of prudent men rather than of legal technicians. Sanders v. State, 259 Ark. 329, 532 S.W.2d 752 (1976). However, a mere suspicion is not enough. Wong Sun v. United States, 371 U.S. 471 (1963). Even a “strong reason to suspect,” will not suffice. Henry v. United States, 361 U.S. 98 (1959).

With that background, we find probable cause in this case to be plainly lacking. Three officers testified: Sheriff Coolidge Conlee, Chief Deputy Evan Hughes and Deputy Chuck Thomas. Their proof, separately or combined, failed to add up to more than a bare suspicion. The substance of their information was that Roderick, who was having marital problems, was seen on Wednesday and Thursday nights drinking beer with the victim at the Crazy Horse Saloon and at the Razorback Club. There was a report that they were “shacking up.” The two were last seen together leaving the Razorback at about 9:00 or 9:30 on Thursday evening, August 11. On the evening of August 12 the victim’s body was found off Barrow Hill Road near Lake St. Francis.

We think the information of the officers at the time Roderick was arrested fails to rise to the level of probable cause. Given its strongest import, it amounts to little more than that the two were seen together in public, which can hardly translate into probable cause to charge Roderick with murder. The point is best illustrated by the testimony of the officers themselves: Officer Thomas, who was in charge of the investigation, testified candidly that there was nothing in his investigation that led him to believe Roderick had committed the crime at the time of his arrest. Sheriff Conlee’s testimony provides no help, as he said there was nothing to tie Roderick to the crime at the time of his arrest except that he was the last person to be seen with Linda Cruce. Sheriff Conlee’s tacit acknowledgement that probable cause was wanting is found, we believe, in his admission that Roderick was not charged with any crime on Monday evening when he was undeniably arrested, but was charged simply with “suspicion of murder.” The sheriff said he was “only a suspect” until he gave his statement sometime after midnight on August 16. There is, of course, no crime known as “suspicion of murder,” and one who is merely suspected of a crime, while subject to a brief detention (A.R.Cr.P. Rule 3.1), is not subject to arrest. The testimony of Officer Hughes adds nothing not already mentioned.

The state points out that when Roderick came to the Sheriffs office on Monday evening he denied knowing Linda Cruce. But that did not come out until Roderick testified at the trial, and even when that element is added to the remaining proof, it comes up short. Whatever Roderick’s initial statement may have been, it obviously was not regarded by the officers as significant because none of them mentioned it in the suppression hearing. It is their knowledge at the moment of arrest that determines whether probable cause exists. Beck v. Ohio, 379 U.S. 89 (1964). For the reasons stated, we find there was no probable cause to arrest Jim Duke Roderick on Monday evening. “Arrest on mere suspicion collides violently with the basic human rights of liberty.” Henry v. United States, supra, p. 101.

That brings us to the collateral issue — is the statement Roderick gave after midnight tainted by his unlawful arrest? The state has a heavy burden of proof in this case. It must prove that the statement, made while Roderick was in custody, was not only voluntary, Harvey v. State, 272 Ark. 19, 611 S.W.2d 762 (1981), but that there was no causal connection between the statement and the illegal arrest. Brown v. Illinois, 422 U.S. 590 (1975). Dunaway v. New York, 442 U.S. 200 (1979). Those determinations are made upon the totality of the circumstances at the time the statement was given. Fuller v. State, 278 Ark. 450, 646 S.W.2d 700 (1983). On appeal that evidence is reviewed independently of the trial court’s findings as to the issue of voluntariness. Hunes v. State, 274 Ark. 268, 623 S.W.2d 835 (1981).

As to the illegal arrest, it has long been the rule that statements, like objects, are to be excluded as evidence if they are found to be the fruits of an unlawful arrest. Wong Sun v. United States, 371 U.S. 471 (1963). In Brown v. Illinois, supra, the Supreme Court reversed a holding by the Illinois Supreme Court that the giving of the Miranda warnings following an illegal arrest operated as an intervening cause to purge the primary taint of the unlawful arrest. The United States Supreme Court observed:

It is entirely possible . . . that persons arrested illegally frequently may decide to confess, as an act of free will unaffected by the initial illegality. But the Miranda warnings, alone and per se, cannot always make the act sufficiently a product of free will to break, for Fourth Amendment purposes, the causal connection between the illegality and the confession.

Thus, whether the confession or statement is an act of free will must be answered on the facts of each case: “the temporal proximity between the arrest and the confession, the presence of intervening circumstances, and, particularly, the purpose and flagrancy of the official misconduct are all relevant” (Brown v. Illinois, supra, at pp. 603-604).

By that standard we believe this statement should not have been admitted. The clear lack of probable cause, tacitly conceded by the officers, the fact that Roderick was jailed merely on suspicion and told to “think it over,” the lapse of only a few hours between the arrest and the statement, weigh against the premise that the statement was voluntary. Coupled with those elements is the testimony by Roderick he was alternately threatened with being locked up in the hole (where he would “never see daylight again”) and coaxed with assurances of assistance. We need not weigh the pros and cons of that disputed testimony, it is enough to note the state failed to demonstrate that the illegal arrest and the ensuing statement were separate and independent of each other. Thus the state has failed in its burden of proof and, accordingly, the statement should have been suppressed.

The remaining points are rendered moot by this reversal, but those that could arise again will be addressed for purposes of another trial.

Roderick complains that he was denied the right on voir dire to ask three questions of prospective jurors: 1) the juror’s reaction to claims by the sheriff that there had been no unsolved murders during his tenure as sheriff; 2) the juror’s reaction to the verdict in the trial of John DeLorean, and 3) how the juror might describe the defendant to a spouse or close friend. We do not find the questions so plainly appropriate that we are prepared to say the trial court’s discretion was abused. Sanders v. State, 278 Ark. 420, 646 S.W.2d 14 (1983).

Nor do we think the refusal of the trial court to permit the taking of discovery depositions by the defense was an abuse of discretion. Hoggard v. State, 277 Ark. 117, 640 S.W.2d 102 (1982).

Roderick insists the charge of capital murder should have been reduced to first degree murder because there was no evidence rape occurred while Linda Cruce was alive. We disagree. From the proof as a whole we think the jury could have inferred that the underlying reason for the murder was rape or attempted rape, either of which would support the charge. Ark. Stat. Ann. § 41-1501 (Repl. 1977).

Another argument is the court erred in refusing to instruct the jury on negligent homicide. We note that the trial court did instruct on first degree murder, second degree murder and manslaughter. We think the jury was properly instructed on the proof presented.

We disagree with Roderick that the trial court erred in disallowing the introduction of a portion of the transcript from another trial in Wynne, Arkansas, in which Roderick was a witness. The trial involved criminal charges for the theft of a truck in Memphis which Roderick contends occurred on the night of August 11, 1983, the night Linda Cruce was murdered. Roderick was a witness for the state against the defendants, testifying that together they had stolen the truck. Roderick submits the state relied on Roderick’s credibility in the Wynne trial and he is entitled to show that to the jury in this trial. The trial court rejected the proof on grounds of relevancy, and we are not in a position to dispute that ruling. The proffer does not show that the theft occurred on August 11, or in such a manner as to categorically exclude Roderick from involvement in the homicide of Linda Cruce. The relevance of evidence rests largely on the discretion of the trial court, subject only to limited review. We find no error. Firestone Tire & Rubber Co. v. Little, 276 Ark. 511, 639 S.W.2d 726 (1982).

The other arguments: the denial of a motion for a continuance; an asserted conversation between Officer Hughes and James Taylor, who testified ahead of Hughes, concerning the type of questions asked, in violation of the court’s instructions; and the seating of three jurors over defense objections that they should have been excused for cause, should not arise again and warrant no discussion. We take this opportunity, however, to mention a juror whose brother was a regular deputy sheriff of St. Francis County at the time of this arrest and trial. The defense insists the juror should have been excused for cause. The statutes on implied and actual bias don’t reach this exact situation and while we recognize the difficulty of forging a standing rule to meet marginal problems, we appreciate the defendant’s position that he ought not to have to use a peremptory challenge on a prospective juror whose brother works for the sheriff. When the sheriff is an obvious partisan, as might be expected, and is actively involved in the investigation, arrest and trial, it is difficult to conceive how this juror could be wholly oblivious as to how her vote might impact on her brother’s standing. Without second guessing the trial court on this issue, we think some liberality in applying the statute on implied bias would be in order. That was done in the second trial of Paul Ruiz and Earl Denton, and we affirmed. Ruiz and Denton v. State, 273 Ark. 94, 617 S.W.2d 6 (1981),and see Henslee v. State, 251 Ark. 125, 471 S.W.2d 352 (1971).

The judgment is reversed and the cause remanded to the trial court.

Purtle, J., not participating.


text:
    TRAVELODGE INTERNATIONAL, INC. v. HANDLEMAN NATIONAL BOOK COMPANY
    85-273
    705 S.W.2d 440
    Supreme Court of Arkansas
    Opinion delivered March 17, 1986

      Hoover, Jacobs & Storey, by: Victor A. Fleming and Joyce Bradley, for appellant.

      Davidson, Horne & Hollingsworth, by: Cyril Hollings-worth, for appellee.
   Steele Hays, Justice.

After obtaining a judgment against Imran Bohra and Rebecca Lee Bohra for $ 11,898.34, Travelodge International, Inc., filed allegations and interrogatories on May 17, 1985 and caused a writ of garnishment to be served on Handleman National Book Company, also known as Han-dleman, Inc. Handleman responded on June 5, 1985 by filing a verified “Garnishee Disclosure” stating that Handleman was indebted to Rebecca Lee Bohra in the amount of $77.02. The response was stamped in the clerk’s office with the word “Answer”, but no “filed” stamp was shown on the response and no copy of the response was sent to Travelodge or its attorney.

On June 21, 1985, thinking that no answer had been filed, Travelodge took a default judgment against Handleman for $14,366.96. Some two weeks later Handleman moved to set the judgment aside and Travelodge objected. After a hearing the chancellor sustained the motion and vacated the judgment.

Travelodge argues that several provisions of the Arkansas Rules of Civil Procedure were violated: Rule 5(c), which requires that all papers after the complaint required to be served on a party or his attorney shall be filed with the clerk before service or within a reasonable time thereafter, bearing the date and time of filing; ARCP 10(a), requiring a pleading to contain a caption setting forth the name of the court, the title of the action, the file number and a designation as in ARCP Rule 7(a); and Rule 5(e), requiring that a pleading shall contain a statement that it has been served upon the opposing party or his attorney.

On appeal, we affirm the chancellor. Garnishment is a special statutory procedure. To the extent the garnishment procedures prescribed in Ark. Stat. Ann. §§31-501 through 31-524 (Repl. 1962 and Supp. 1985) differ from those prescribed in the Arkansas Rules of Civil Procedure, the statutes control. ARCP 81(a) provides:

(a) Applicability in General. These rules shall apply to all civil proceedings cognizable in the circuit, chancery, and probate courts of this State except in those instances where a statute which creates a right, remedy or proceeding specifically provides a different procedure in which event the procedure so specified shall apply.

The procedures followed by the defendant-garnishee in this case were consistent with the garnishment statutes, and were thus appropriate.

The authority of a chancellor to set aside a judgment within ninety days after it is entered is found in ARCP 60(b). That rule does apply in garnishment proceedings because, in the terms of ARCP 81 (a), the garnishment statutes do not provide a specific procedure for setting such a judgment aside. Under Rule 60(b), the chancellor had the discretion to set the judgment aside. Burgess v. Burgess, 286 Ark. 497, 696 S.W.2d 312 (1985); Blissard Management & Realty, Inc. v. Kremer, 284 Ark. 136, 680 S.W.2d 694 (1984); Burns v. Madden, 271 Ark. 572, 609 S.W.2d 55 (1980).

Affirmed.

Purtle, J., not participating.


author: David Newbern, Justice.

text:
    Milton LUBIN, M.D. v. CRITTENDEN MEMORIAL HOSPITAL, et al.
    85-274
    705 S.W.2d 872
    Supreme Court of Arkansas
    Opinion delivered March 17, 1986

      N. Alan Lubin, for appellant.

      Spears, Sloan, Johnson & Coleman, and Barrett, Wheatley, Smith & Deacon, for appellees.
   David Newbern, Justice.

The question in this case is whether Ark. Stat. Ann. § 37-222 (Supp. 1985) permits filing a claim in an Arkansas court more than one year after a “nonsuit suffered” in federal court was affirmed, and rehearing denied, by the United States Circuit Court of Appeals but less than one year after certiorari was denied in the case by the U. S. Supreme Court. We hold the action may be maintained and thus we reverse the trial court’s decision that the Arkansas filing came too late.

The appellant, a long-time member of the appellee hospital’s staff, was placed on a one-year probation as a staff member resulting from a hospital decision reached in a disciplinary hearing. In 1981 the appellant filed an action in the U. S. District Court alleging he was injured by the imposition of the probation and was thus entitled to recover for violation of his civil rights pursuant to 42 U.S.C. § 1983 as well as pursuant to various pendant state claims arising under Arkansas law. Finding a lack of state action to support the § 1983 claim, and thus necessary failure of federal jurisdiction of the pendant state claims, the district court dismissed the action. The Eighth U. S. Circuit Court of Appeals affirmed on August 9, 1983, and denied rehearing September 16, 1983. The appellant sought a writ of certiorari from the U. S. Supreme Court, and it was denied February 21, 1984.

The appellant filed his state court action, based on the same claims he pursued in the federal court, on December 19, 1984. The statutes of limitations applicable to the appellant’s claims had not run when he began his federal court actions. By the time the federal proceedings came to an end, however, the statutes of limitations had run, and thus the appellant’s only possible basis for arguing a timely filing in the Crittenden County Circuit court is § 37-222 which provides:

If any action shall be commenced within the time respectively prescribed in this Act, or in Act 511 of 1979 [§§ 34-2801 — 34-2807], or in Act 709 of 1979 [ §§ 34-2613 — 2620], or in any other Act, and the plaintiff therein suffer [suffers] a nonsuit, or after a verdict for him the judgment be arrested, or after judgment for him the same be reversed on appeal or writ of error, such plaintiff may commence a new action within one (1) year after such nonsuit suffered or judgment arrested or reversed. Provided, if after judgment for plaintiff the same be reversed on appeal or writ of error, and said cause is remanded for another trial, the mandate shall be taken out and filed in the court from which the appeal is taken within one (1) year from rendition of the judgment of reversal otherwise, said cause shall be forever barred; and if the cause of such action survive to his heirs or survive to his executors or administrators; they may in like manner commence a new action or take out a mandate within the time allowed such plaintiff.

The appellees argue the case in federal court ended when the court of appeals affirmed the district court, and certainly no later than the denial of rehearing. The appellant contends he still had a chance for federal relief until certiorari was denied, and thus his state court filing was within one year of his having suffered nonsuit in the federal courts.

Our statute and its predecessors have a long history of liberal interpretation. In State Bank v. Magness, 11 Ark. 343 (1850), this court described the purpose of the statute as follows:

The next alleged variance is that the judgment in the replication is described as a judgment of non-suit, whilst that offered in evidence is a judgment of dismissal. This involves a construction of the act under which the plaintiff claims to except his case of the general provisions of the limitation law. The legislature has said that when suit shall be commenced and the plaintiff shall suffer a non-suit he may renew his action within twelve months from the time of such non-suit. Was it the object of the legislature by this act to favor suitors who elected to take a non-suit to the exclusion of suitors, who for other cause should have their suits dismissed from court without having had their rights litigated and who might as well renew their actions as if non-suit had been taken? If so it is difficult to perceive from what motive or consideration. On the other hand it is quite apparent that the intention of the framers of the act was to secure that class of suitors from loss who, from causes incident to the administration of the law, are compelled to abandon their present action, whether by their own act or the act of the court, when either would leave them a cause of action, yet undetermined, by giving them a reasonable time in which to renew such action.

Other expansive interpretations of the statute, not directly relevant here, include: Eades v. Joslin, 219 Ark. 688, 244 S.W.2d 623 (1951); Fox v. Penson, 182 Ark. 936, 34 S.W.2d 459 (1930); Walker v. Peay, 22 Ark. 103 (1860); and State Bank v. Fowler and Pike, 14 Ark. 159 (1853).

In Young v. Garrett, 212 Ark. 693, 208 S.W.2d 189 (1948), the question was whether the nonsuit was suffered when a U. S. court of appeals affirmed and denied rehearing adversely to the plaintiff, and we held that it was. There, however, the plaintiff did not seek a writ of certiorari, but succeeded in getting the circuit court to remand the case to the district court to permit him to amend his pleading. The district court held it lacked the authority to permit amendment, and the circuit court affirmed that holding as well. We said the plaintiff could not bring his action in an Arkansas court because more than a year had elapsed since the first affirmance. We pointed out that everything done in the federal courts after the first affirmance was a nullity and said:

But wording of the Act does not justify belief that it was the legislative purpose to so liberalize this gratuity that irrespective of adverse judicial decisions in a given case that the controversy in that jurisdiction had been terminated, a period of one year would yet remain while courts were reaffirming what had already been explicity held.

That language does not apply here. The claimant before us now has not sought or obtained a redetermination in the U. S. district court or court of appeals other than by orderly procedural steps. We can hardly say his petition to the U. S. Supreme Court was a nullity of the sort we encountered in Young v. Garrett, supra.

A similar situation arose in Wheeler v. Wallingsford, 229 Ark. 576, 317 S.W.2d 153 (1958), where the plaintiff filed a transitory action in Pulaski County but served the defendant in Union County. This court held the service was improper and issued a writ of prohibition to the Pulaski County Circuit Court. Some six months after prohibition was ordered, the plaintiff “took a nonsuit” in his Pulaski County action. He contended that although the statute of limitations had run, he had one year from the time he was granted “nonsuit” to bring his action in accordance with § 37-222. We held the year began to run when the writ of prohibition issued. We said the writ terminated the Pulaski County action “just as effectively as it could be done.” Thus, there was no action remaining in which a nonsuit could legitimately be taken. At that time it was held that an action was not commenced until the complaint was filed and the summons placed in the hands of the proper sheriff. Goodyear Tire & Rubber Co. v. Meyer, 209 Ark. 383, 191 S.W.2d 826 (1945). Cf. Ark. R. Civ. P. 3. Therefore, no action could have been commenced in Pulaski County within the statute of limitations or within the one-year period prescribed in § 37-222. The plaintiffs “nonsuit” was, as the attempted amendment in Youngv. Garrett, supra, a nullity. It was taken in a nonexistent lawsuit.

We are aware of holdings that a U. S. circuit court of appeals affirmance is the final result when there is no right of appeal to the U. S. Supreme Court. See, e.g., Glick v. Ballentine Products, 397 F.2d 590 (8th Cir. 1968). However, if certiorari had been granted by the U. S. Supreme Court in this case, all must concede the federal court action would not have been over. Given the remedial nature of § 37-222 and our liberal previous interpretations of it, we will not require that a litigant who is seeking certiorari from the U. S. Supreme Court file an action in one of our courts while his petition is pending just to preserve his right under § 37-222. The petition for certiorari to the U. S. Supreme Court must be filed within ninety days after entry of judgment or decree. 28 U.S.C. § 2101(c). Therefore, rather than giving a claimant an open-ended method of preserving the one year to which he may be entitled under § 37-222, this decision permits him to take advantage of his ultimate recourse in the federal system before concluding he has indeed “suffered non-suit” and initiating the one-year period within which he must file his claim in an Arkansas court or forever lose the right to have the merits of it adjudicated here.

The trial court’s decision dismissing the appellant’s claim pursuant to Ark. R. Civ. P. 12(b)(6) is reversed, and the case is remanded for further proceedings.

Reversed and remanded.

Purtle, J., not participating.


author: Jack Holt, Jr., Chief Justice.

text:
    Wendell JONES v. STATE of Arkansas
    CR 85-118
    705 S.W.2d 874
    Supreme Court of Arkansas
    Opinion delivered March 24, 1986

      Person & VanWinkle, by: J. Rdndolph Shock, for appellant.

      Steve Clark, Att’y Gen., by: Connie Griffin, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

Appellant filed an Ark. R. Crim. P. Rule 37 motion to vacate his negotiated pleas of guilty to three counts of delivery of a controlled substance, one count of conspiracy to commit theft of property, and one count of driving while intoxicated. In his petition, appellant alleged that his guilty pleas were not knowingly, intelligently or voluntarily entered because he was denied effective assistance of counsel and was coerced by the trial court’s denial of his motion for continuance. In addition, he claims the court erred by not establishing a factual basis for his guilty pleas. The trial court, without a hearing, issued written findings of fact based on the files and record, denying postconviction relief. We find that the trial court’s decision was not clearly against the preponderance of the evidence and affirm. Our jurisdiction is pursuant to Sup. Ct. R. 29(1)(e).

Rule37.3(a) provides that “[i]f the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the trial court shall make written findings to that effect, specifying any parts of the files or records that are relied upon to sustain the court’s findings.”

Appellant contends his guilty plea was not entered intelligently and voluntarily and with the advice of competent counsel. He therefore has the burden of showing that the advice he received from his attorney was not within the range of competence demanded from attorneys in criminal cases. Thomas v. State, 277 Ark. 74, 639 S.W.2d 353 (1982).

In Strickland v. Washington, 466 U.S. 668 (1984), the U.S. Supreme Court adopted a two-part standard for evaluating claims of ineffective assistance of counsel. It provides: (1) “ [w] hen a convicted defendant complains of the ineffectiveness of counsel’s assistance, the defendant must show that the counsel’s representation fell below an objective standard of reasonableness” and (2) “[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” In Hill v. Lockhart, _ U.S _, 106 S. Ct. 366 (1985) the two-part Strickland v. Washington test was made applicable to challenges to guilty pleas based on ineffective assistance of counsel.

In the context of guilty pleas, the Supreme Court stated in Hill:

[I] n order to satisfy the “prejudice” requirement [part two of Strickland], the defendant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.

This court stated in Crockett v. State, 282 Ark. 582, 669 S.W.2d 896 (1984), “A defendant whose conviction is based upon a plea of guilty normally will have difficulty proving any prejudice since his plea rests upon his admission in open court that he did the act with which he is charged.”

The prejudice requirement has not been met in this instance. We do not find it necessary to determine whether there may have been ineffective assistance on the part of counsel because the petitioner’s allegations are insufficient to satisfy the Strickland requirement of “prejudice”. See also, Welch v. State, 283 Ark. 281, 675 S.W.2d 641 (1984), rehearing denied. Likewise, the record and files do not support the proposition that under any circumstance the petitioner would have pled not guilty and insisted on going to trial, nor does petitioner allege any special consideration that might support this conclusion. Because the petitioner fails to allege the kind of “prejudice” necessary to satisfy the second half of the Strickland test, the trial court did not err in declining to hold a hearing on petitioner’s ineffective assistance of counsel claim.

The appellant also claims that his guilty pleas were not voluntarily entered because he was coerced by the trial court’s denial of his motion for continuance. The appellant does not challenge the merits of the denial of his motion for continuance. Rather, he argues it was a coercive factor in his decision to plead guilty. Appellant maintains that, because of the denial, he either had to go to trial with an unprepared attorney or plead guilty.

The denial of a motion for continuance rests in the sound discretion of the trial court and we do not reverse absent an abuse of that discretion. Clark v. State, 260 Ark. 479, 541 S.W.2d 683 (1976). Here the record demonstrates the appellant had eleven months to secure counsel and prepare for trial, and the trial court found that appellant had retained counsel until about a month before the trial date. At that time, appellant notified the court that his attorney was no longer representing him and that he would like time to hire a new attorney. The court contacted appellant to see if he had secured representation and told him that a public defender could be appointed for him. Subsequently a public defender was appointed.

We agree with the trial court that the record illustrates that any delay in obtaining counsel was caused by appellant. This fact, coupled with appellant’s election to plead guilty rather than go to trial, renders this argument meritless.

Appellant’s final contention is that the court erred in its failure to establish a factual basis for his guilty pleas.

Ark. R. Crim. P. Rule 24.6 provides: “The court shall not enter a judgment upon a plea of guilty or nolo contendere without making such inquiry as will establish that there is a factual basis for the plea.” This rule is mandatory. Reed v. State, 276 Ark. 318, 635 S.W.2d 472 (1982); Irons v. State, 267 Ark. 469, 591 S.W.2d 650 (1980).

Appellant signed a written plea statement indicating that he understood the charges against him and the consequences of pleading guilty, that his plea had not been induced by any “promises or threats”, that he realized the trial judge would decide what his sentence would be if he pled guilty, and that he had discussed the plea agreement with his attorney and was satisfied with his attorney’s advice. The last four lines of the plea agreement, just above the petitioner’s signature, read: “I have read everything in this paper including my lawyer’s certificate below. I understand what is being told me, what my rights are, and the questions that have been asked. My answer is ‘yes’ to all questions. I know what I am doing and am voluntarily pleading guilty because I am guilty as charged.”

In reviewing this plea statement with the appellant and, in particular, the sentencing aspects, the following scenario occurred:

THE COURT: Now, is this in accordance with your understanding with Mr. Marquette as to what the State would recommend if you should enter your plea?
MR. JONES: Yes, sir.
THE COURT: Again, that’s the Court would sentence you to ten years and suspend four of that on each of the charges.
Has anyone promised you anything other than a ten year sentence before your suspended, if you should enter your plea?
MR. JONES: No, sir.
THE COURT: Certainly, you are aware of your right to have a trial by a Jury if you should so wish?
MR. JONES: Yes.
THE COURT: Has there been any threats or coercion or force of any kind to induce you to enter your plea before this Court?
MR. JONES: No, sir.
THE COURT: Is there a factual basis for the plea?
MR. JONES: Yes, sir, in each case.
THE COURT: Mr. Marquette, are you satisfied that there is a factual basis?
MR. MARQUETTE: Yes, sir.

Thereafter, the appellant interposed a plea of guilty to each case, by voicing his plea of guilty, the case number, the general nature of the charge in each case, and the date of the charge. After the appellant’s declarations, the court stated the sentence upon each charge and then asked appellant: “Now, is that in accordance with your understanding, Wendell, as to what the sentence the court would impose if you should enter your pleas?” Appellant replied, “Yes, sir.” The court then imposed the judgment and sentence.

Under these circumstances, we find that the trial court substantially complied with Rule 24.6. See Shipman v. State, 261 Ark. 559, 550 S.W.2d 454 (1977).

Although we find the trial court in substantial compliance with Rule 24.6, this court has observed a growing trend among trial judges to make casual and indirect inquiry as to the factual basis for pleas. Inasmuch as Rule 24.5 requires the trial court to address the defendant personally to determine whether or not any force or threats, or any promises apart from the plea agreement were used to induce the plea, the trial court could, and should, comply with Rule 24.6 by continuing a direct inquiry of the defendant as to the factual basis for his plea. This would, for all practical purposes, eliminate problems of compliance with this rule requiring inquiry as to the factual basis for a plea.

Nevertheless, the record conclusively shows that this petitioner is not entitled to a hearing on any issue raised in his motion.

Affirmed.

Purtle, J., not participating.


text:
    Carl WIDMER v. Raymond F. WIDMER, Executor of the Estate of Walter Widmer, Deceased
    85-290
    705 S.W.2d 878
    Supreme Court of Arkansas
    Opinion delivered March 24, 1986
    [Rehearing denied April 28, 1986.]

      Walters Law Firm, P.A., for appellant.

      John T. Tuohey, for appellee.

       Purtle, J., not participating.

   Jack Holt, Jr., Chief Justice.

This appeal involves the right of an attorney who has not paid his Arkansas Supreme Court Bar dues to collect fees for representation which occurred during his delinquent period. Our jurisdiction is pursuant to Sup. Ct. R. 29(1 )(h) since the case concerns regulating the practice of law. We hold that the attorney may not collect his fee.

Raymond Widmer, son of the testator, Walter Widmer, and executor of his estate, employed John Tuohey as attorney for the estate. On April 15, 1985, executor Widmer, appellee, filed a First Accounting and Petition for Other Matters, seeking executor’s and attorney’s fees, and an order approving encumbrance of the real property of the estate to obtain funds to pay these fees and other obligations. Appellant, Carl Widmer, the brother of Raymond Widmer, filed a response, objecting that the accounting was not filed in proper form, claiming misuse of estate funds, and requesting the court to substitute him as executor and to pay minimal attorney’s fees to Tuohey, since he was not a member in good standing of the Arkansas Bar.

A scheduled hearing was held on June 20,1985, attended by Tuohey and appellee Raymond Widmer. Appellant and his counsel, Bill Walters, did not attend, although notice was given.

On August 7, 1985, the probate judge entered an order approving the First Accounting of Executor for a period from September 26, 1983 to February 14, 1985. Fie also awarded certain fees to the executor, together with reimbursement of out-of-pocket expenses and $20,000.00 in attorney’s fees to Tuohey. In addition, the probate judge found there was no basis for removing the appellee as the designated executor. Appellant’s objections to the qualifications and payment of Tuohey were denied inasmuch as Tuohey was a resident of Arkansas and duly licensed in this state until sometime after the commencement of the action, and he was in good standing as of June 3,1985. In so ruling, the court stated it was cognizant of the Supreme Court Clerk’s Certificate stating that Tuohey had not paid his Arkansas Supreme Court Bar dues in 1984 and 1985. However, the probate judge held there was no proof that these dues had not now been paid.

This finding ignores Rule X of Rules of the Court Regulating Professional Conduct of Attorneys which states in part:

ALL LICENSED ATTORNEYS — MEMBERS OF BAR
Every lawyer now licensed to practice and engage in the practice shall be a member of the Bar of this State, subject to these rules or those hereafter made.
SUSPENSION FOR FAILURE TO PAY FEE-NOTICE OF DELINQUENCY. REINSTATEMENT — HOW.
Failure to pay the annual license fee herein provided shall automatically suspend such delinquent lawyer from the practice. Notice of delinquencies shall be given by the Clerk of this Court to the delinquent, and to the Judges of the Circuit and Chancery Courts of the District of the delinquent’s residence, and a list of all delinquents shall be posted in the office of the Clerk of this Court. Where delinquency is for no more than three years reinstatement may be had by the payment of all such delinquent dues, and a penalty of $1.00. (Delinquency in a given year dates from March 2 of that year.) If delinquency is for more than three years application for reinstatement must be made on a form supplied by the Clerk and accompanied by a tender of all unpaid dues and penalty. (Emphasis added)

It is obvious from the record that Tuohey performed certain services for the estate between March 2, 1984 and May 6,1985, while his license was suspended. Suffice to say, an attorney should not, and cannot, be compensated for services performed during the time that his license was in a state of suspension.

In Smith v. Kneisley, 49 P.2d 916 (Wash., 1935) an attorney attempted to recover reasonable attorney’s fees for services rendered while his license was suspended for failure to register and pay his fees. The court in Smith stated:

That is, the statute says that he shall be held to have lost his right to practice law “until such registration shall have been made and the fee paid.”
In Re Ellis, 118 Wash. 484, 203 P. 957, 958, it was said: “The right to practice law is not a right de jure. * * * ‘It is in the nature of a franchise from the state conferred only for merit, and is not a lawful business except for members of the bar who have complied with all the conditions required by statute and the rules of the court.'

Our practice is similar in that the rules of this court state that failure to pay the annual license fee shall automatically suspend the delinquent lawyer from practice. Since Tuohey was in fact suspended from practice for a period in 1984 and 1985, he is not entitled to collect for his services during that time. The validity of the work performed by Tuohey for the estate, however, is not affected by this decision. To hold otherwise, would be to punish the client for the lawyer’s oversight.

Appellee fails in his brief to address the legal questions raised by appellant, but instead argues facts outside of the record, including a cancelled check showing payment of his fees in 1984, and statements that his employer had agreed to pay his fees for 1985. We do not consider matters outside of the record, however, we remind all attorneys that the responsibility for payment of license fees rests solely on the lawyer, and not on employers, friends, or court personnel.

As to the remaining allegations, we agree with the probate judge that the record does not reveal sufficient grounds to support appellant’s argument for removal of appellee as the executor of the Widmer estate. Accordingly, we reverse in part and remand to the probate judge for a determination of an appropriate fee for services rendered by Tuohey while he held a valid license.

Affirmed in part; reversed in part.

Purtle, J., not participating.


author: George Rose Smith, Justice. David Newbern, Justice,

text:
    Johnnie E. NEELEY v. Juanita BARBER, Pope County Circuit Clerk, et al.
    85-191
    706 S.W.2d 358
    Supreme Court of Arkansas
    Opinion delivered March 24, 1986

      Young & Finley, by: James K. Young, for appellant.

      Steve Clark, Att’y Gen., by: Randel K. Miller, Asst. Att’y Gen., for appellee.
   George Rose Smith, Justice.

This is an effort by the appellant Neeley to avoid paying a filing fee for appealing to the circuit court from a misdemeanor conviction in the municipal court. We agree with the circuit judge’s ruling that a fee must be paid.

Neeley was convicted of a misdemeanor by the Pope County municipal court. When he tried to appeal to the circuit court, the circuit clerk demanded a filing fee. Neeley first sought a writ of mandamus to compel the clerk to accept the appeal without a filing fee. When that petition was resisted, Neeley, who does not assert indigency, paid the fee and asked the circuit court for a declaratory judgment sustaining his contention that no filing fee was due. Neeley’s appeal from a declaration that the fee must be paid comes to us under Rule 29(1)(a) and (c).

Neeley first argues that the applicable statute, Act 333 of 1977, does not require the fee. When, however, the statute is read as a whole and in the light of its predecessor, it is almost too clear for argument that the filing fee is required.

Before the 1977 act was passed, the pertinent statute enumerated about 60 different fees to be charged by the circuit clerk, some as small as ten or fifteen cents. See the compiler’s note to Ark. Stat. Ann. § 12-1710 (Repl. 1979). Section 2 of the 1977 act reduced that long list to 14 larger and more generalized fees. § 12-1710.

Section 1 of the 1977 act established a uniform advance fee to be charged by circuit clerks for “initiating a cause of action” in the circuit court, no part of the fee being refundable. §12-1710.2. Section 1 goes on to provide that if “a cause of action” in the circuit court becomes unusually lengthy and the filings become so voluminous that the advance fee proves inadequate, an additional fee may be assessed for each additional filing, in accordance with the new schedule. One of the 14 enumerated fees is “[f]or entering each appeal from inferior court, $15.00.” § 12-1710(h).

Neeley argues that filing an appeal from municipal court is not “initiating a cause of action” in the circuit court, but the statute clearly indicates otherwise. That is, the same section of the statute states that if “a cause of action” becomes so lengthy as to require more fees than are covered by the advance fee, then additional charges may be made. The legislature evidently used “cause of action” to mean a case. Furthermore, one of the specific fees now covered by the advance fee is that for an appeal from an inferior court. Hence the judge was right in holding that the advance fee must be paid in this instance.

Neeley also argues that even if he can be charged with court costs if convicted, the fee should be refunded if he is acquitted. That objection is premature, for Neeley may not in fact be acquitted. It is not our practice to explore academic questions or render advisory opinions.

Neeley’s final argument is that since he is entitled under the Constitution to a jury trial, he cannot be charged a fee for demanding that constitutional protection. The fee is not being imposed because Neeley wants a jury trial. It is simply a filing fee that is collected no matter whether he is tried by a jury or by the judge or even if the prosecution ends without any trial at all. Neeley is admittedly not an indigent and therefore has no claim to an exemption from the payment of filing fees for services rendered by the circuit clerk. His undoubted right to a jury trial is totally irrelevant to his refusal to pay the fee imposed by law for the circuit clerk’s services.

Affirmed.

Purtle, J., not participating.

Newbern, J., dissents.

David Newbern, Justice,

dissenting. Ark. Const, art. 2, § 10 provides, in part: “In all criminal prosecution, the accused shall enjoy the right to a speedy and public trial by impartial jury. . . .” Ark. Stat. Ann. § 22-737 (Repl. 1962) provides flatly that there shall be no jury trials in municipal courts. We can justify not permitting jury trials in municipal courts because the right to a trial by jury may be exercised by a person tried in municipal court by lodging an appeal in the circuit court where the case will be tried de novo, Ark. Stat. Ann. § 44-509 (Rep. 1977), Ark. Stat. Ann. § 22-707 (Repl. 1962), and a jury trial may be had as a matter of right, Johnston v. City of Pine Bluff, 258 Ark. 346, 525 S.W.2d 76 (1975), unless it is waived. See Ark. R. Crim. P. 31.2.

Although it is not uncommon to assess the costs of criminal proceedings against one found guilty, and § 44-509 requires it in the case of an appeal from municipal to circuit court, I know of no law requiring a criminal defendant to pay a filing fee other than Ark. Stat. Ann. § 12-1710.2 (Supp. 1985) as interpreted by the majority opinion in this case. In my view, appeal to the circuit court by a criminal defendant seeking a jury trial should not be regarded as “initiation” of an action there, and thus Ark. Stat. Ann. § 12-1710.2 (Supp. 1985) should not apply. The action is initiated in the municipal court by the state. As stated above, our constitution requires the state to give the accused a jury trial. When the accused asserts that right the state can only afford it in circuit court. We should, therefore, regard the circuit court action as if no previous trial had occurred, Johnston v. City of Pine Bluff, supra, and we should not impose a premium on the right to a jury trial.

I would interpret § 12-1710.2 as not requiring a filing fee. If it cannot be so interpreted, I consider it to be an unconstitutional imposition on the right to trial by jury in a criminal prosecution.

Therefore, I respectfully dissent.


author: Darrell Hickman, Justice.

text:
    Randy McGUIRE v. STATE of Arkansas
    CR 85-207
    706 S.W.2d 360
    Supreme Court of Arkansas
    Opinion delivered March 24, 1986
    [Rehearing denied April 28, 1986.]

      John W. Settle, by: J. Fred Hart, Jr., for appellant.

      Steve Clark, Att’y Gen., by: Charles R. Lucas, for appellee.

       Purtle, J., not participating.

   Darrell Hickman, Justice.

The question on appeal is whether it is unconstitutional for the state to use a videotaped deposition of a child who has been raped and play it for the jury rather than call the child as a witness at trial. Our statute permitting such videotaped depositions is constitutional, and the use of the videotaped deposition in this case was proper.

Randy McGuire is the step-father of the victim, an 11 year old girl. While she lived with her mother and McGuire, she was raped. She then moved in with her grandparents. After seeing a film at school on sexual abuse, the child told a classmate about the sexual abuse she had experienced. The classmate told her mother, who called the school’s principal, who in turn called the police. Fran Hall, a police specialist in these matters, interviewed the child. On the basis of that interview, McGuire was arrested, convicted and sentenced to 10 years imprisonment.

Before trial the state filed a motion requesting the use of a videotaped deposition of the child in lieu of her testimony before the jury. In his response, McGuire raised several constitutional issues. At the hearing on the motion, the victim’s grandparents testified that the child is under a psychologist’s care; she is bashful and embarrassed about the incidents; she no longer wants to go anywhere; she is easily upset; and she has changed schools. The grandparents believed it would be best to use the videotaped deposition, because the child would feel ridiculed if she appeared before the jury. The trial judge granted the motion, and the deposition was taken.

Our statute which authorizes the use of videotaped depositions in cases of sexual offenses against children is Ark. Stat. Ann. § 43-2036 (Supp. 1985). It states:

In any prosecution for a sexual offense or criminal attempt to commit a sexual offense against a minor, upon motion of the prosecuting attorney and after notice to the opposing counsel, the court may, for a good cause shown, order the taking of a videotaped deposition of any alleged victim under the age of seventeen (17) years. The videotaped deposition shall be taken before the judge in chambers in the presence of the prosecuting attorney, the defendant and his attorneys. Examination and cross examination of the alleged victim shall proceed at the taking of the videotaped deposition in the same manner permitted at trial under the provisions of the Arkansas Uniform Rules of Evidence. Any videotaped deposition taken under the provisions of this Act [§§ 43-2035 - 43-2037] shall be admissible at trial and received into evidence in lieu of the direct testimony of the victim. However, neither the presentation nor the preparation of such videotaped deposition shall preclude the prosecutor’s calling the minor victim to testify at trial if that is necessary to serve the interests of justice.

The six constitutional arguments raised by McGuire on appeal are without merit for the reasons stated.

1. THE STATUTE VIOLATES SUBSTANTIVE DUE PROCESS BECAUSE THE AGE OF 17 IS ARBITRARY AND THE STATUTE DISCRIMINATES AGAINST DEFENDANTS CHARGED WITH SEXUAL OFFENSES. A statute protects a person’s right to substantive due process if it advances a compelling state interest and it is the least restrictive method available to carry out this interest. Thompson v. Arkansas Social Services, 282 Ark. 369, 669 S.W.2d 878 (1984). The state has an interest in the general welfare of children, and one of its most obvious duties is to protect children from sexual crimes against which children are virtually defenseless. Other states have recognized the harm a child suffers as a victim of sexual abuse and protect the child from further trauma by allowing the child to testify out of court. State v. Vigil, 711 P.2d 28 (N.M. App. 1985); State v. Sheppard, 197 N.J.Super. 411, 484 A.2d 1330 (1984); see also Ordway, Parent-Child Incest: Proof at Trial without Testimony in Court by the Victim, 15 U. of Mich. Journal of Law Reform ! 31 (1981-1982).

The legislature has consistently protected children victimized by sexual offenses. See Ark. Stat. Ann. §§ 41-1803, 1804, 1806-1808, 1810. The challenged statute, Ark. Stat. Ann. § 43-2036 (Supp. 1985), applies to victims of sexual offenses under age 17. The victim in this case, 11 years old, easily fits into the category of a minor who should be protected by law. The appellant has not demonstrated that the age limit is arbitrary in this case.

This statute provides the least restrictive means of carrying out the state’s interest in protecting children who are victims of sexual abuse. The statute protects the children from testifying in court about a personal, traumatic, and often devastating experience. The statute protects the defendant’s basic constitutional rights by requiring, after good cause is shown, that the videotaped deposition be taken before the judge, the prosecuting attorney, the defendant and his attorney, and that examination and cross-examination be permitted in accordance with the Uniform Rules of Evidence.

The statute does not discriminate against defendants charged with sexual offenses; it only applies to sexual offenses against children. The statute affords due process, because it only applies to situations where the state has a compelling interest and uses the least restrictive means of protecting that interest.

2. THE STATUTE DENIED McGUIRE A RIGHT TO A TRIAL BY JURY. McGuire argues that the use of the deposition deprives the jury of the right to judge the victim’s credibility. Although generally it may be the better practice for a witness to testify at trial, in many cases a videotape is the best substitute. King v. Westlake, 264 Ark. 555, 572 S.W.2d 841 (1978). The use of depositions in criminal cases is more carefully scrutinized than in civil cases, but such use is not per se unconstitutional. Videotaped depositions are permissible only when authorized by statute. Russell v. State, 269 Ark. 44, 598 S.W.2d 96 (1980). Ark. Stat. Ann. § 43-2036 authorizes the use of videotaped depositions in cases of sexual offenses against children, undoubtedly in recognition of the further stress testimony at trial might cause the child. In this situation, videotaped testimony is useful and does not deprive the jury of the opportunity of determining the victim’s credibility.

3. THE STATUTE DENIED McGUIRE THE RIGHT TO CONFRONT HIS ACCUSER OR WITNESSES AGAINST HIM. Our statute does not violate the confrontation clause which is generally interpreted as the right to cross-examine a witness. Ohio v. Roberts, 448 U.S. 56 (1980); Douglas v. Alabama, 380 U.S. 415 (1965). Some states have had problems with statutes or situations where the defendant was not present at the deposition for a face-to-face confrontation. Long v. State, 694 S.W.2d 185 (Tex. App. 5 Dist. 1985); Powell v. State, 694 S.W.2d 416 (Tex. App. 5 Dist. 1985); United States v. Benfield, 593 F.2d 815 (8th Cir. 1979). Our statute requires face-to-face confrontation between the victim, the defendant and his attorney at the time the deposition is taken, and provides the opportunity for cross-examination of the victim by the defendant. The trial court followed the requirements exactly. The deposition was taken before the judge in chambers in the presence of the defendant, his attorney and the prosecuting attorney. McGuire had the opportunity to cross-examine the victim at that time.

4. THE STATUTE IS VAGUE BECAUSE A COURT CAN ORDER A VIDEOTAPED DEPOSITION “FOR A GOOD CAUSE SHOWN.” To avoid being vague under due process standards, a statute “must give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden and it must not be so vague and standardless that it leaves judges free to decide, without any legally fixed standards, what is prohibited and what is not on a case by case basis.” Thompson v. Arkansas Social Services, supra; Davis v. Smith, 266 Ark. 112, 583 S.W.2d 37 (1979). This is not a penal but a procedural statute. See Papachristou v. City of Jacksonville, 405 U.S. 156 (1972); State v. Bryant, 219 Ark. 313, 241 S.W.2d 473 (1951). Flexibility and reasonable breadth in a statute are permissible, rather than meticulous specificity or great exactitude, so long as its reach is clearly defined in words of common understanding. Davis v. Smith, supra. The statute provides a reasonable rule of thumb to guide judges in determining whether a videotaped deposition is justified. Many factors can and should be considered in determining what is good cause. The circumstances surrounding the offense, the child’s age, and the potential harm to the child would be a few of these factors.

McGuire contends that the statute is defective because it does not provide criteria for determining the “good cause” required to order a videotaped deposition. The words “good cause” form a common legal phrase, familiar to most people. Similar language has been upheld by other courts. See Walden v. Tulsair Beechcraft, Inc., 96 F.R.D. 34 (1982); Gerson v. Gerson, 148 N.J. Super. 194, 372 A.2d 374 (1977). Since specificity is not an absolute requirement, we find the statute is not unconstitutionally vague.

5. GOOD CAUSE WAS NOT SHOWN SO THE VIDEOTAPED DEPOSITION WAS NOT JUSTIFIED. The evidence substantiated the trial judge’s decision that it was in the best interest of the child to allow the videotaped deposition. The testimony of the grandparents indicated that the child could be seriously harmed if forced to appear before a jury. We cannot say the trial court was clearly wrong in its decision.

6. THE STATUTE VIOLATES McGUIRE’S RIGHT TO COMPEL ATTENDANCE OF WITNESSES. McGuire cites no authority for his argument, but essentially this same argument was made in his second and third points. The witness was present at the trial, but by deposition rather than live testimony. The rights to cross-examination and confrontation were satisfied at the time the deposition was taken.

Other states have generally approved the use of videotaped depositions of young victims of sexual abuse. Those states answered similar constitutional arguments as we have answered them. State v. Sheppard, supra; State v. Vigil, supra.

Affirmed.

Purtle, J., not participating.