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

text:
    Clark SMITH v. STATE of Arkansas
    CR 78-35
    571 S.W. 2d 591
    Opinion delivered October 9, 1978
    (In Banc)

      Orville Clift, by: Kenneth S. Gould, for appellant.

      Bill Clinton, Atty. Gen., by: Jesse L. Kearney, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

This is a postconviction proceeding under Criminal Procedure Rule 37. On December 27, 1976, the appellant, Clark Smith, pleaded guilty to two charges of burglary and two charges of theft. He was sentenced to ten years’ confinement with three years suspended.

In March, 1977, Smith filed a handwritten petition for Rule 37 relief. After an attorney had been appointed for him three amendments to the petition were filed. A full evidentiary hearing was held on December 22. The court denied the petition, but failed to make written findings of fact and conclusions of law as required by Rule 37.3 (c). This appeal was originally from that denial of relief, but as we shall see, that part of the appeal has been abandoned.

A week after the appeal had been filed in this court, the appellant obtained permission to file in the trial court a fourth amendment to his petition. That amendment was filed after we had reinvested the trial court with jurisdiction for that purpose. This appeal, as it has been developed by counsel, is now only from the trial judge’s denial, without an evidentiary hearing, of the fourth amended petition.

The entire progress of the case is pertinent to a full understanding of the issue presented. After the informations had been filed, Bob Alsobrook was appointed as Smith’s attorney and appeared with him to enter a plea of not guilty. After Phillip Shirron had been appointed in place of Alsobrook, the plea was changed to that of guilty. In accepting the plea of guilty the trial judge wholly failed to ascertain whether it was voluntary, as required by Boykin v. Alabama, 395 U.S. 238 (1969); Byler v. State, 257 Ark. 15, 513 S.W. 2d 801 (1974); and Criminal Procedure Rule 24. We quote the record of the pertinent proceedings when the plea was accepted:

The Court: Mr. Shirron, do you feel like this Defendant is prepared to plead?
Mr. Shirron: Yes, I do, your Honor.
The Court: I feel sure that Mr. Shirron has explained to you all your constitutional rights and the effect of a plea. I ask you, Smith, how do you plead to the charge of burglary and theft, guilty or not guilty?
Defendant: Guilty.
The Court: Does the State have any recommendation it would like to make to the Court?
Mr. Scrimshire: Yes, Sir. The State recommends ten years in the penitentiary with three suspended.
The Court: It will be the judgment of this Court you be sentenced to a term of ten years in the penitentiary, and I will honor the State’s recommendation and agree to suspend three years of that. He is yours, Mr. Sheriff.

Less than three months later Smith, as a prisoner, filed his first petition for postconviction relief. He alleged that his attorney had led him to believe that by pleading guilty he would receive a lesser sentence and that the court failed to tell him that it refused to go along with the original agreement until after he pleaded guilty. Donald M. Spears was then appointed as Smith’s counsel. Spears’s first amendment to the petition alleged that the plea of guilty was induced by the promise by members of the sheriff’s department that Smith would not have to serve his sentence, but would be sent to a rehabilitation center instead. Spears’s second amendment alleged that Alsobrook had been relieved at a critical stage of the proceedings without Smith’s knowledge or consent, denying him his right to effective counsel. Spears’s third amendment alleged that the sheriff’s office had obtained statements from Smith by threat, coercion, and hope of reward, and that the statements should not be admissible against Smith.

At the evidentiary hearing Smith was represented by Spears. Several witnesses were called by the petitioner, including two members of the sheriff’s department. Smith also testified. His testimony was almost entirely to the effect that he signed two confessions because he thought he would be sent to a rehabilitation center. In response to a final leading question he said that he pleaded guilty because he thought he had to in order to go to the rehabilitation center. It may be noted that he did not deny his guilt, that he said nothing about his understanding of a plea bargain or even that there had been such a bargain, and that he did not say that he did not fully understand his rights when he pleaded guilty. After the hearing the court denied the petition, but made no findings of fact or conclusions of law.

Smith filed his own notice of appeal from the order, and a fourth attorney, Orville Clift, was appointed for the appeal. Mr. Clift associated with him a fifth attorney, Kenneth B. Gould, whose signature to pleadings identifies him as an associate professor of law and Director of Clinical Programs at the University of Arkansas law school at Little Rock.

Seven days after the record was filed in this court counsel asked permission to file a fourth amendment to Smith’s petition. Since such an amendment should be filed in the trial court, we reinvested that court with jurisdiction. At that time, of course, we had no knowledge of the prior proceedings.

The amendment pointed out the trial court’s failure, in accepting the plea, to comply with Boykin, Byler, and Rule 24. The pivotal assertion in the amendment is this sentence: “The failure of the court to comply with the constitutionally mandated requirements of a trial judge in accepting pleas of guilty resulted in Petitioner’s plea being an involuntary plea of guilty and abridged Petitioner’s rights under the United States Constitution and under the Rules of Criminal Procedure of the State of Arkansas.” The pleading then went on to say that the failure of counsel to raise this question at the December 22 evidentiary hearing constituted a denial of effective assistance of counsel. When the trial court denied the amended petition, without a hearing, a second notice of appeal was filed, and in due course the case was briefed in this court.

We emphasize at the outset counsel’s failure in their brief in chief to make any argument whatever that the trial court erred either in denying relief after the evidentiary hearing or in failing to make written findings and conclusions. An issue not argued on appeal is waived. Cowger v. Mathis, 255 Ark. 511, 501 S.W. 2d 212 (1973). The court’s failure to make findings is mentioned, merely in passing, in the reply brief, but that comes too late. Ryall v. Waterworks Imp. Dist. No. 3, 247 Ark. 739, 447 S.W. 2d 341 (1969).

There remains only the allegation that we have quoted, which states in effect that the court’s failure to comply with “the constitutionally mandated requirements” in itself results in the plea of guilty being involuntary.

That position cannot be sustained. There is no constitutional requirement that the trial judge make the explanation required by Boykin. See Brady v. United States, 397 U.S. 742 (1970). As the Court of Appeals stated in United States v. Pricepaul, 540 F. 2d 417 (9th Cir. 1976):

Subsequent federal court decisions have made clear, however, that a plea-taking record silent about Boykin rights does not require automatic reversal; the prior conviction may stand if it is proved at a postconviction evidentiary hearing that the plea was voluntary and intelligent.

To the same effect is this statement by the Eighth Circuit Court of Appeals in Todd v. Lockhart, 490 F. 2d 626 (1973):

Since we believe that as a constitutional matter the question is whether the plea was voluntary and intelligent, we agree with a number of other courts which have held that a state may, in a state post-conviction hearing, . . . cure the otherwise defective plea-taking transcript.

(The opinion in Todd does not disclose what allegations in the federal habeas corpus petition led to the granting of a second evidentiary hearing.)

Thus the true substantive question is not whether the trial court complied with Boykin, Byler, and Rule 24, but whether the plea of guilty was in fact intelligently and voluntarily made. At the December 22 hearing the trial court considered that very question upon a petition, with amendments, asserting some five different issues of fact going to the validity of the plea. The court upheld the plea. The correctness of that decision is not questioned.

All we have left is a conclusion of law, that the court’s failure to comply with Rule 24 resulted in the plea’s being involuntary. During recent years we have repeatedly denied postconviction petitions because the allegations were merely conclusory. Stone v. State, 254 Ark. 566, 494 S.W. 2d 715 (1973); Cooper v. State, 249 Ark. 812, 461 S.W. 2d 933 (1971). Such cases are controlling here.

Indeed, this record discloses three separate examples that confirm the necessity for requiring allegations of fact, not conclusions of law. First, attorney Spears alleged several different reasons for postconviction relief, but he did not include the trial judge’s failure to comply with Rule 24. We assume, in the absence of contrary allegations of fact, that he consulted with his client and concluded that no additional grounds for relief could be supported by his client’s testimony under oath. Second, attorneys Clift and Gould elected not to ask that this cause be remanded to the trial court for findings and conclusions or to argue that the trial court’s decision after the evidentiary hearing was wrong. Here we have the record before us and know, without any assumptions, that counsel’s decisions were well taken and do not represent ineffective assistance of counsel on their part. Third, attorneys Clift and Gould chose to plead only a conclusion of law in their final amendment to the petition. Again we may fairly assume that this omission does not constitute ineffective assistance of counsel, because, just as with respect to attorney Spears, we assume that they consulted with their client and concluded that no additional grounds for relief could be supported by their client’s testimony under oath.

It is time for this proceeding to come to an end. Smith has had the assistance of five lawyers, all apparently provided at public expense. He has had a complete opportunity to plead every fact that might be supported by proof, to testify in person, and to call witnesses in his behalf. We can find no reason for ordering still another hearing without the slightest basis for supposing that any new fact not already in the record would be discovered.

Affirmed.

Hickman and Howard, JJ., dissent.

George Howard, Jr., Justice,

dissenting. 1 am compelled to dissent from the holding of the majority in affirming the trial court in denying a hearing on appellant’s fourth amendment to his petition, which was filed pursuant to an order of this Court.

On November 28, 1977, in McGee v. State, 262 Ark. 473, 557 S.W. 2d 885, we said:

“. . . Rule 24.5 (1976), which provides:
The Court shall not accept a plea of guilty or nolo contendere without first determining that the plea is voluntary. The court shall determine whether the tendered plea is the result of a plea agreement. If it is, the court shall require that the agreement be stated.

Clearly, this rule is mandatory.

“. . . Rule 25.3(c) provides that if a plea agreement exists in which the trial court has not concurred, then the court ‘shall advise the defendant in open court at the time the agreement is stated that:
(1) the agreement is not binding on the court;
(ii) if the defendant pleads guilty or nolo contendere the disposition may be different from that contemplated by the agreement.
Without the trial court’s advising the appellant as to these requirements upon his guilty pleas, there is no assurance that his guilty pleas were intelligently and voluntarily made. In these circumstances it might very well be that the accused pleaded guilty to the attempted robbery charge under a misunderstanding of the law and his rights.....”

On May 10, 1976, in Cusick v. State, 259 Ark. 720, 536 S.W. 2d 119, we also made the following observation:

“In Byler, we pointed out that the ‘Standards Relating to Pleas of Guilty’ (1968) promulgated by the American Bar Association cautioned that a court should not accept a plea of guilty without first addressing the defendant personally and, after determining that he understands the nature of the charge, informing him that his plea of guilty or nolo contendere was a waiver of his right to trial by jury and of the maximum possible sentence on the charge. We held in Byler that a simple affirmative answer in open court to inquiries as to whether the defendant understood the elements of the charge and his waiving jury trial by entering a plea of guilty was not sufficient to meet Boykin requirements, at least when no statement or explanation of the minimum or maximum penalty had been made.
“. . . It is true that the certificate of the attorney appointed to represent the defendant contains a statement that appellant understood all of that ‘paper’ and the meaning and effect of his plea of nolo contendere and that defendant had been advised that the information correctly stated the charges and that the judge would find him guilty upon a plea of nolo contendere. The record discloses that the trial judge did state the nature of the charge and ascertained from the defendant that he understood. There is nothing whatever to indicate that appellant knew the range of possible punishment.”

But today, the majority, in the face of the above pronouncements hold:

“There is no constitutional requirement that the trial judge make the explanation required in Boykin.”

In support of this pronouncement, the Court cites United States v. Pricepaul, 540 F. 2d 417 and Todd v. Lockhart, 490 F. 2d 626. However, a careful and open minded reading of these cases readily leads one to the inescapable conclusion that the majority’s position is, indeed, untenable. Moreover, not only is the majority’s posture untenable, but opens the door to uncertainty, on the part of the bar and bench alike throughout the state as to the actual status of the rule of law involving the issues before us. This, indeed, is against the grain of the purpose and scope of the highest tribunal in the State whose prime responsibility is to clarify, make plain and give a degree of permanence or stability to the rule of law. Instability in the law not only culminates in confusion, but creates the likelihood of the deprivation of fundamental and basic rights. In Boykin, supra, the United States Supreme Court stated:

“. . . In Carnley v. Cochran, 369 U.S. 506, 516, we dealt with a problem of waiver of the right to counsel, a Sixth Amendment right. We held: ‘Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver.’
“We think that the same standard must be applied to determining whether a guilty plea is voluntarily made. For, as we have said, a plea of guilty is more than an admission of conduct; it is a conviction. Ignorance, incomprehension, coercion, terror, inducements, subtle or blatant threats might be a perfect cover-up of unconstitutionality. The question of an effective waiver of a federal constitutional right in a proceeding is of course governed by federal standards ....
“Several federal constitutional rights are involved in a waiver that takes place when a plea of guilty is entered in a state criminal trial. First, is the privilege against compulsory self-incrimination guaranteed by the Fifth Amendment and applicable to the States by reason of the Fourteenth. . . . Second, is the right to trial by jury. . . . Third, is the right to confront one’s accusers. . . . We cannot presume a waiver of these three important federal rights from a silent record.
“What is at stake for an accused facing death or imprisonment demands the utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and of its consequence. When the judge discharges that function, he leaves a record adequate for any review that may be later sought . . . and forestalls the spin-off of collateral proceedings that seek to probe murky memories.”

In Pricepaul, supra, relied upon by the majority, the Court stated:

“. . . [W]e hold that when Pricepaul introduced the minute record of his prior California conviction which did not affirmatively disclose the rights protected by Boykin were voluntarily and intelligently waived and no other record was introduced, he made a showing sufficient to require an evidentiary hearing at which the government would have the burden to prove that the plea-taking was in accordance with Boykin.”

In Lockhart, supra, the Court said:

“. . . [W]e hold that once a state prisoner has demonstrated that the plea taking was not conducted in accordance with Boykin, the state may, if it affirmatively proves in a post-conviction hearing that the plea was voluntary and intelligent, obviate the necessity of vacating the plea.”

The record in this case reflects the following testimony offered by appellant during the hearing on appellant’s initial post-conviction petition on December 22, 1977:

“Q. At the time you were placed in custody did anyone read you your rights?
A. No.
Q. How long were you in jail before you signed any statements ?
A. Two weeks.
Q. Who talked to you during that period of time?
A. No one but Deputy Lloyd Smith and the high Sheriff.
Q. What did they say to you?
A. Well, ah Deputy Lloyd Smith mentioned something about the Hot Springs Rehabilitation Center. He said if I made a confession he would give me a recommendation in order to see that I obtained my requirements.”

Even under the majority’s interpretation of Pricepaul, supra, and Lockhart, supra, which I submit is limiting the scope of the rule announced in Boykin, supra, McGee, supra, and Cusick, supra, requires a reversal in this case in view of the fact the State, although having cross examined witnesses called by appellant, did not offer any direct testimony to prove that the plea of appellant’s was in accordance with Boykin and was voluntarily and intelligently made in order to “obviate the necessity of vacating the plea.” United States v.Pricepaul, supra, Todd v. Lockhart, supra.

Finally, the majority makes the following observation in its opinion:

“. . . This appeal, as it has been developed by counsel, is now only from the trial judge’s denial, without an evidentiary hearing, of the fourth amended petition. (Emphasis added)
“The amendment pointed out the trial court’s failure, in accepting the plea; to comply with Boykin, Byler, and Rule 24. The pivotal assertion in the amendment is this sentence: ‘The failure of the court to comply with the constitutionally mandated requirements of a trial judge in accepting pleas of guilty resulted in Petitioner’s plea of being an involuntary plea of guilty and abridged Petitioner’s rights under the United States Constitution and under the Rules of Criminal Procedure of the State of Arkansas. ’ ”

I do not visualize appellant’s fourth amended petition in such a restrictive nature, but on the contrary, it is broader and embraces all of the contentions that were alleged in appellant’s initial petition, his second amendment as well as the third amendment. The heading of appellant’s paragraph number 4 in his fourth amended petition is as follows:

“4. Petitioner’s original motion in this cause should be amended to include the following.”

Following the above quoted heading, appellant specifically discusses Boykin and Rules 24.4, 24.5 and 24.6 of the Arkansas Rules of Criminal Procedure as having been disregarded and contravened by the trial court at the time the plea of the appellant was taken. I submit, therefore, that the posture taken by the majority in this regard embraces all of the ingredients and characteristics of a technicality without any substance or merit.

Moreover, it is well recognized that an amendment to a complaint that does not set forth a new cause of action, but is merely an expansion or amplification of the cause of action already stated, the amendment, as here, relates back and takes effect as of the date of the commencement of the original action. Bain & Company v. Deal, 251 Ark. 905, 475 S.W. 2d 708; Little Rock Traction & Electric Co. v. Miller, 80 Ark. 245, 96 S.W. 993; Western Coal & Mining Co. v. Corkille, 96 Ark. 387, 131 S.W. 963.

The pronouncement in Pruitt v. Hutto, 542 F. 2d 458 (8th Cir. 1976), is appropriate at this point, where the Court stated that a petitioner was not foreclosed from litigating the issue of an unconstitutional in-court identification in a second state post-conviction action, even though the issue was not raised in the initial post-conviction proceeding, where there was no adequate showing that the matter was either finally adjudicated or intelligently waived in the previous proceeding. However, the majority would foreclose appellant from having a hearing on his fourth amended petition under the pretext that the trial court conducted a full evidentiary hearing on December 22, 1977. But it must be remembered that the trial court made no findings of fact and conclusions of law as required by our Criminal Rule 37.3(c), consequently, it cannot be said that the matter was either finally adjudicated or the matter intelligently waived in the previous proceeding.

I would reverse this case because I think appellant’s learned counsel are eminently correct in asserting that the trial court failed to meet its obligations under Arkansas Rule of Criminal Procedure 24.5 which adopts the rule in Boykin, supra.


source: Caselaw Access Project

author: Frank Holt, Justice.

license: Public Domain

text:
    VALLEY METAL WORKS, INC. v. A. O. SMITH-INLAND, INC. and CHEMPRO CORP.
    78-75
    572 S.W. 2d 138
    Opinion delivered October 9, 1978
    (Division I)

      Laser, Sharp, Haley, Young & Huckabay, P.A., by: Peter B. Heister, for appellant.

      Joe D. Bell, of Friday, Eldredge & Clark, and James M. McHaney, of Owens, McHaney & McHaney, for appellees.
   Frank Holt, Justice.

Appellant asserts, as a matter of law, that it is entitled to a mechanic’s and materialman’s lien against the property of appellee Smith. The stipulated facts are that Smith contracted by purchase order with appellee Chempro Corp. for Chempro to design and sell to Smith certain materials for a solvent recovery system to be installed by Smith on the property in which Smith held a leasehold interest. Chempro (a New Jersey Corp.) issued its purchase order to Aircon (an Ohio Corp.) for a carbon adsorbtion unit, a component part of the solvent recovery system. Aircon then issued its purchase order to appellant Valley (an Ohio Corp.) for an adsorber unit which was a component part of the carbon adsorbtion system. Appellant fabricated and assembled the unit for Aircon, shipped it to Smith’s premises in Little Rock with Aircon named as “shipper,” and sent a statement to Aircon for the unit in the amount of $11,114.00. The various components of the solvent recovery system were installed by Smith’s employees or local contractors employed by Smith. Chempro’s agents inspected the work after installation was complete but did not oversee any of the installation itself. All contracts by Smith were with Chempro. Neither Smith nor Chempro had any contractual relationship with or knew of appellant Valley. Chempro paid Aircon in full. Aircon did not pay Valley. Valley filed a “Materialman’s and Laborer’s Lien” against Smith’s leasehold interest.

The chancellor found there was no privity of contract between Valley and anyone except Aircon and that Valley, Aircon and Chempro were material suppliers and not subcontractors or contractors. Valley contends the chancellor erred inasmuch as it is entitled to its asserted lien as a matter of law. Appellant Valley argues the only issue is whether Valley, which delivered to Smith’s premises an item designed and fabricated specifically for installation there, is entitled to a mechanic’s and materialman’s lien. Valley contends that the provisions of our statute were intended to benefit one such as itself, which, as here, contracts with a subcontractor.

Appellant relies upon Ark. Stat. Ann. § 51-601 (Repl. 1971) asserting that it supplied the materials in issue “by virtue of [a] contract with the ...., subcontractor [Aircon] .... ” and therefore is entitled to a lien within the meaning of that statutory language. Appellant reinforces its argument by citing Ark. Stat. Ann. § 51-625 (Repl. 1975) which appellant says defines and manifests the legislative intent that a “subcontractor” includes “all persons furnishing things or doing work . . . . ”

Appellees cite Sweetser Const. Co. v. Newman Bros., Inc., 236 Ark. 939, 371 S.W. 2d 515 (1963), as being applicable to the case at bar. Appellant responds that Sweetser is not pertinent since it involved a prime contractor’s surety bond and not the mechanic’s lien statute, the relevant statutory provisions of the bond being §§ 51-632 — 635. In other words § 51-601 was not in issue in Sweetser and supplies little in the way of a reliable precedent. We do not agree.

We think the rationale of the case there is applicable to the case at bar. There, as here, the prime contractor contracted with a Fort Smith structural steel company, a materialman, to furnish certain items to be used in a building. Included was an item which was manufactured “by Newman Bros., Inc.” Fort Smith Steel then placed an order for this item with an Oklahoma steel company which in turn ordered the item from Newman Bros., which manufactured and shipped it to the job site. The prime contractor paid Fort Smith Steel for this item and all other items furnished by it. Fort Smith Steel paid the Oklahoma steel company for the specific item. That company did not pay Newman Brothers. There we held that Newman was a remote supplier, had no privity of contract with the prime contractor and was not entitled to recover on the prime contractor’s bond. There we further said:

It is contended by appellee that the Fort Smith Company was a subcontractor. Conceding, without deciding, this to be true, it avails appellee nothing because appellee did not deal with that company but with the Oklahoma Company which has been paid in full.....

The reasoning there stated is applicable here. To hold otherwise, in the circumstances, would extend ad infinitum the vulnerability of a property owner to a lien by anyone who had furnished materials or labor to a subcontractor. We do not construe that as being the legislative intent. Our lien statutes are in derogation of the common law and we construe them strictly since they provide an extraordinary remedy that is not available to every merchant or worker. Christy v. Nabholz Supply Co., 261 Ark. 127, 546 S.W. 2d 425 (1977).

The chancellor was correct in disallowing the asserted lien.

Affirmed.

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


text:
    Shelby Dale RAVELLETTE v. STATE of Arkansas
    CR 78-113
    571 S.W. 2d 433
    Opinion delivered October 9, 1978
    (Division I)

      Winfred A. Trafford, of Holmes, Holmes & Trafford, for appellant.

      Bill Clinton, Atty. Gen., by: Ray E. Hartenstein, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

Appellant and a codefendant were jointly charged with possession of marijuana with intent to deliver. The jury found them guilty and assessed their punishment at three years in the Department of Correction and a $5,000 fine. Upon the jury’s recommendation, the trial judge suspended the sentence of imprisonment. Appellant contends for reversal that the trial court erred in refusing his motion for a directed verdict. We agree.

Appellant and his codefendant jointly occupied a multiroom rent house. The police had had this house under surveillance for approximately an hour when they saw appellant’s codefendant arrive home from work about 6:40 a.m. In a few minutes the appellant left the house in his automobile on his way to his employment. The police followed and stopped him a few blocks away. A search of appellant and his car revealed nothing to link him with the alleged charge. The officers returned with appellant to the house and searched it pursuant to a search warrant issued two days previously. The codefendant was found sitting in the living room smoking a hand-rolled cigarette. Other relevant evidence resulting from the search was the discovery of a quantity of marijuana. Some was found in the dining room and in the living room, which, it appears, were subject to the common use of both occupants. Also some was found in the dining room closet. Some of the marijuana was contained in paper sacks, plastic and Ziploc bags. Marijuana, some packaged in a plastic bag, and other paraphernalia were discovered in the bedroom and closet of appellant’s codefendant. No marijuana or any paraphernalia was found in appellant’s bedroom. However a box of sandwich bags and Ziploc storage bags were found in his bedroom. Appellant denied any complicity or knowledge of the presence of the marijuana. His codefendant explained that a friend of his had left marijuana in the house that night in appellant’s absence. The codefendant admitted that the items found in his bedroom and in the living room were his. He exonerated the appellant of any knowledge of the presence or control of the contraband.

When only circumstantial evidence is presented, as here, there must be some factor in addition to the joint control of the premises to link the accused with the controlled substance. Cary v. State, 259 Ark. 510, 534 S.W. 2d 230 (1976). See also Evans v. United States, 257 F. 2d 121 (C.A. 9 Cal. 1958). In other words it cannot be inferred that one in nonexclusive possession of premises knew of the presence of drugs and had joint control of them unless there were other factors from which the jury can reasonably infer the accused had joint possession and control.

Here the state argues that since marijuana was found in a common dining room and closet and the living room, some packaged in plastic bags, and the finding of a package of Ziploc storage bags and a package of Gladbags in appellant’s room “similar to those in which some of the marijuana was packaged,” were sufficient factors linking him to the possession of marijuana with the intent to sell. However, the evidence is uncontroverted that when appellant was arrested upon leaving the house to go to his place of employment about 7 a.m., nothing was found on or about him that would indicate any use of the contraband. There was no evidence of suspicious behavior, any previous sale of the drug nor any incriminating statement to indicate appellant was a user or had knowledge of its presence.

No one should be deprived of his liberty or property on mere suspicion or conjecture. Where inferences are relied upon, they should point to guilt so clearly that any other, conclusion would be inconsistent. This is so regardless of how suspicious the circumstances are. Considering the state’s evidence most favorable, we hold that the jury’s verdict is based upon speculation and conjecture.

Reversed and dismissed.

We agree: George Rose Smith, Fogleman and Howard, JJ.


author: Darrell Hickman, Justice.

text:
    William M. BARRET et al v. D. B. KUHN et al
    78-61
    572 S.W. 2d 135
    Opinion delivered October 9, 1978
    (Division II)
    [Rehearing denied November 13, 1978.]

      Keith, Clegg & Eckert; and G. William Lavender and Johnny Arnold, for appellants.

      Smith, Stroud, McClerkin, Conway & Dunn, by: Hayes C. McClerkin, for appellees.
   Darrell Hickman, Justice.

The central legal question presented by this appeal from a Miller County Chancery Court decree is: do the owners of non-participating royalty interests, under their deeds, participate in all royalty in certain oil and gas leases or only in the normal one-eighth royalty reserved to the owners of the mineral interests? The chancellor held that their participation was only in a one-eighth royalty and we agree with that decision.

The appellees are the owners of the mineral interests and they filed this lawsuit for a declaratory judgment of the rights of all parties to money to be paid from producing wells on their property.

Some of the appellants are holders of non-participating royalty interests in the oil and gas production; the others are the producers, or holders of the working interest in the oil and gas production.

Perhaps a few definitions would be in order to aid those unfamiliar with the terminology used in oil and gas law.

A “royalty” is the landowner’s share of production, free of expenses of production and normally amounts to a one-eighth of eight-eighths interest. An “overriding royalty” is an interest in oil and gas produced at the surface free of the expense of production and in addition to the usual landowner’s royalty reserved to the lessor in an oil and gas lease. A “nonparticipating royalty” is an expense-free interest in oil and gas, as, if and when produced. The prefix “nonparticipating” indicates the interest does not share in bonus or rental, nor in the right to execute leases, or to explore and develop. The “working interest” is the operating interest under an oil and gas lease. Oil and Gas Terms, Williams and Meyers (4th ed. 1976).

In the 1940’s, before production on these lands, appellees, or their predecessors, signed essentially identical non-participating royalty deeds to some of the appellants. These deeds simply gave, for valuable consideration, a fixed interest in or claim to any money paid from production of oil and gas from the lands. At the time there was no production. It is not disputed that the non-participating claimants had no right to lease the land, and until production was gained, they would have no interest or claim.

In 1975, the appellees negotiated with a man named L. G. Cameron and signed oil and gas leases on the property, granting to Paramount Drilling Company, Inc. and William M. Barret the working interests.

These leases all provided for the appellees to have an overriding royalty if production was obtained. In some instances the overriding royalty amounted to a one-eighth interest and in others a one-sixteenth interest but the documents were all essentially the same. This overriding royalty was to be in addition to the usual one-eighth royalty that was reserved in these leases and which is normally reserved by an owner. There was no mention in the negotiations for the leases, nor in the leases themselves, of the non-participating royalty, holders.

When production was obtained, a division order was prepared setting forth in detail who was to be paid a royalty and in what amount. The division order was the first notice to the parties that the non-participating royalty holders would get or had a claim to the overriding royalty payments to be paid to the appellees. The order was apparently based in part on a Texas decision, Griffith v. Taylor, 156 Tex. 1, 291 S.W. 2d 673 (1956).

The royalty deeds in question are form instruments, headed in bold type “ROYALTY DEED”, beneath which is the word, “non-participating”. (There was never any serious contention that these “deeds” gave the grantees or lessees a fee interest in the oil, gas and minerals. Similar “deeds” have raised such issues when there were other circumstances involved. Wynn v. Sklar & Phillips Oil Co., 254 Ark. 332, 493 S.W. 2d 439 [1973].)

The granting clause in these royalty deeds reads:

That _ for and in consideration of . . . $_, ... do hereby grant, bargain, sell, and convey unto the said_and unto its successors and assigns forever, subject, however, to all of the terms, conditions and reservations hereinafter mentioned, an undivided one sixty-fourth (1/64) interest in and to all of the oil, gas and other minerals, in, under and upon the following described lands ....

After describing the property, the deeds contained two other relevant clauses; one which we will refer to as the royalty clause and the other the production clause. The royalty clause reads:

PROVIDED, that the grantors herein expressly covenant with the grantee that no oil and gas mining lease shall ever be executed covering the above land, or any part thereof, that shall reserve to the grantors herein, their heirs and assigns, as royalty, less than one-eighth of all of the oil and gas produced and saved from said land — and this covenant shall be deemed a covenant running with the land.
It is the intention of the parties hereto that the grantee herein, its successors or assigns, shall be entitled to receive hereunder one-eighth of all oil and/or gas run to the credit of the royalty interest reserved under and by virtue of any oil and gas mining lease now in force and effect covering said land, and under any oil and gas mining lease hereafter executed covering said land, or any part thereof; ....

What is referred to as the production clause follows the royalty clause and it reads:

. . . and in any event the grantee herein, its successors or assigns, shall be deemed the owner of and shall be entitled to receive one sixty-fourth of all oil and gas produced and saved from said land or any part thereof.

The crux of this case, and perhaps the cause of the litigation, is a part of the royalty clause which reads: “. . . the grantee . . . shall be entitled to receive hereunder one-eighth of all oil and/or gas run to the credit of the royalty interest. . .

If this means that the non-participating interest holder participated in all royalty revenue, then the division order was correct and the chancery judge was wrong. If it means participation in only the usual one-eighth royalty interest, then the chancellor was correct and the appellees do not have to share their overriding royalty with the non-participating royalty owner claimants.

It is our duty to interpret such instruments by trying to make all parts of the instrument harmonize, and stand together, if possible, so as to ascertain the intention of the parties. Wynn v. Sklar & Phillips Oil Co., supra. The granting clause in these deeds says that a one sixty-fourth interest is granted to the oil, gas and minerals produced. This clearly limits the claim of the non-participating holders because if they were to participate in the overriding royalty, they would receive more than a one sixty-fourth interest. Also, this same one sixty-fourth interest is mentioned in the production clause. No doubt it would have been clearer if the parties had said in their instruments that participation would only be in the normal one-eighth royalty, but they did not. However, when examined as a whole, the instrument clearly limits the non-participating interest to one sixty-fourth of the oil, gas and minerals produced. Wynn v. Sklar & Phillips Oil Co., supra. Therefore, we agree with and affirm the chancellor’s decision that the appellees do not have to share their overriding royalty interest with the non-participating royalty holders.

The chancellor entered an alternate decree wherein he decided that if we disagreed with his decision regarding an interpretation of the royalty deeds in question, then he would set aside the deeds because of mutual mistake between the appellees and the holders of the working interest. We find that our decision renders that issue moot.

Affirmed.

We agree.

Harris, C.J., and Fogleman and Byrd, JJ.


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

text:
    Cleveland Odell MAYS v. STATE of Arkansas
    CR 78-84
    571 S.W. 2d 429
    Opinion delivered October 9, 1978
    (In Banc)

      John W. Achor, Public Defender, for appellant.

      Bill Clinton, Atty. Gen., by: Joyce Williams Warren, Asst. Atty. Gen., for appellee.
   Darrell Hickman, Justice.

Cleveland Odell Mays was convicted in the Pulaski County Circuit Court of aggravated robbery and sentenced to twenty years in the Arkansas Department of Correction. On appeal he argues one error: the trial court should have granted a mistrial for improper remarks by the state’s attorney. We agree, and reverse and remand the case.

During closing argument the deputy prosecuting attorney made certain improper remarks. Mays’ attorney moved for a mistrial and it was denied. The remarks and colloquy between the lawyers and the court, which occurred before the jury, are verbatim as follows:

STATE’S ATTORNEY:
. . . What we have got here is a defendant who has gotten on the stand and lied repeatedly to you all, a defendant, I might add, who is an admitted dope pusher, an admitted heroin addict —
DEFENSE ATTORNEY:
(Interposing) Judge, that is not true. I am going to move for a mistrial. There has been no admission by this man here that he was ever a dope pusher. I think it is highly improper and prejudicial.
THE COURT:
Disregard the statement by the prosecutor in regard to the —
STATE’S ATTORNEY:
(Interposing) The jury will remember what he said on the stand.
THE COURT.
— in regard to being a dope pusher and etcetra.
STATE’S ATTORNEY:
He is also an admitted, convicted felon. Not only is he a convicted felon of the witnesses that took the stand but the Stacker woman is a convicted felon. I forgot to ask her mother if she was. I don’t guess she is and I can’t say —
DEFENSE ATTORNEY:
(Interposing) Judge, this is also improper, highly, and I again move for a mistrial.
STATE’S ATTORNEY:
I am just saying her mother is probably not a convicted felon.
DEFENSE ATTORNEY:
Judge, this is improper and I move for a mistrial.
THE COURT:
Mr. Allen, that will be the last of this, now. Disregard that statement by the prosecutor and I don’t want to hear any more of it.
DEFENSE ATTORNEY:
Is my motion denied?
THE COURT:
Motion is denied.

There was not a shred of evidence that Mays was a “dope pusher” and the remark was highly prejudicial. See Moore, et al v. State, 227 Ark. 544, 299 S.W. 2d 838 (1957). The attorney representing the state persisted in his remarks and conduct, hardly giving the court an opportunity to try to correct the error.

We have repeatedly said that a prosecuting attorney acts in a quasi judicial capacity and that it is his duty to use all fair, honorable, reasonable and lawful means to secure a conviction of the guilty in a fair and impartial trial. However, the desire to obtain a conviction is never proper inducement for a prosecutor to include in his closing argument anything except the evidence in the case and legitimately deducible conclusions that may be made from the law applicable to a case. Simmons & Flippo v. State, 233 Ark. 616, 346 S.W. 2d 197 (1961).

We find that the prosecuting attorney’s closing argument was highly improper, prejudicial, and was not cured by any admonition in this case; therefore, we reverse the decision of the trial court and remand the cause for a new trial.

Reversed and remanded.

Fogleman, J., dissents.

John A. Fogleman, Justice,

dissenting. Since I believe that the majority of this court has adopted a de novo approach to review of trial court actions in the case of prosecutorial misconduct, I must dissent from its action in this case. A de novo review of the oral argument is impractical, highly undesirable and a radical departure from well established precedent. Its adoption can only breed trouble for the judicial system as a whole and will result in a series of ad hoc decisions. The judges of this court are in a relatively poor position to evaluate the impact of reckless statements made in the heat of closing arguments, when compared with the superior position of the trial judge who sees' and hears everything done and said in the presence of the jury during the course of the entire trial.

It is also a departure from precedent (to which the majority seems to be somewhat oblivious) to totally disregard the trial court’s broad latitude of discretion in granting or denying a motion for mistrial. Not long ago, this court considered the matter in Holmes v. State, 262 Ark. 683, 561 S.W. 2d 56, and said:

This court has emphasized that the granting or denial of a motion for a mistrial is within the sound discretion of the trial court, and such discretion, when exercised, will not be disturbed on appeal unless it is shown to have been abused. Moreover, as we have also emphasized, declaring a mistrial is an extreme remedy which should be granted only where there has been an error so prejudicial that justice could not be served by a continuation of the trial. See: Gammel & Spann v. State, 259 Ark. 96, 531 S.W. 2d 474 (1976); Hill v. State, 255 Ark. 720, 502 S.W. 2d 649 (1973); Jackson v. State, 245 Ark. 331, 432 S.W. 2d 876 (1968).

In a case involving improper statements of a prosecuting attorney in his opening statement and by a witness for the state during direct examination, the trial court admonished the prosecuting attorney to get to the issue in the case on trial, stating in effect, that what had happened the preceding year was not a matter of concern with the “present facts.” See Wilson & Dancy v. State, 261 Ark. 820, 552 S.W. 2d 223. There, in holding that it was not error to deny a motion for mistrial, we applied the same rule that we have applied in considering oral arguments, i.e., a mistrial should not be granted unless the error is so prejudicial that justice cannot be served by a continuation of the trial. In the same sort of background, we have said that the award of a mistrial is a step so drastic that it is the exception rather than the rule in correcting an error, and to be warranted, it must be apparent that justice cannot be served by a continuation of the trial. Johnson v. State, 254 Ark. 293, 493 S.W. 2d 115.

We have uniformly held that, in cases of denial of a motion for mistrial based upon prosecutorial improprieties, we will not reverse the judgment of the trial court in the absence of an abuse of the wide latitude of discretion vested in the trial judge in acting upon the motion or manifest prejudice to the complaining party. Brown & Bettis v. State, 259 Ark. 464, 534 S.W. 2d 207. The manifest prejudice is that spoken of in such cases as Holmes — an error so prejudicial that justice cannot be served by a continuation of the trial. See Hill v. State, 255 Ark. 720, 502 S.W. 2d 649. We have always recognized and given regard to the trial judge’s considerable degree of discretion in controlling and supervising arguments of attorneys at jury trials. See, e.g., McGill v. State, 253 Ark. 1045, 490 S.W. 2d 449; Stanley v. State, 248 Ark. 787, 454 S.W. 2d 72; Parrott v. State, 246 Ark. 672, 439 S.W. 2d 924; Hicks v. State, 193 Ark. 46, 97 S.W. 2d 900.

We have said that a wide range of discretion is allowed circuit judges in dealing with arguments of counsel, “since the presiding judge can best determine the effect of unwarranted arguments at the time the argument is made.” Blanton v. State, 249 Ark. 181, 458 S.W. 2d 373. We have recognized the trial judge’s superior opportunity of knowing the context in which a statement in closing argument is made, the occasion for its having been made, and whether the jury may have been misled, as a deterrent to our finding a manifest abuse of discretion. Peters v. State, 248 Ark. 134, 450 S.W. 2d 276.

In Williams v. State, 259 Ark. 667, 535 S.W. 2d 842, we held that the trial judge had abused his discretion by overruling an objection made to the prosecuting attorney’s misstatements and his assertions not supported by evidence and argument of matters outside the record. We addressed ourselves to appropriate action to be taken in such cases, saying:

When objection is made, the presiding judge should appropriately reprimand counsel and instruct the jury not to consider the statement, and in short, do everything possible to see that the verdict of the jury is neither produced nor influenced by such argument. Walker v. State, [138 Ark. 517, 212 S.W. 319]. The failure to sustain a proper objection to argument of matters not disclosed by the record is serious error,.because it gives the appearance that the improper argument has not only the sanction but the endorsement of the court. Miller v. State, 120 Ark. 492, 179 S.W. 1001; Hays v. State, 169 Ark. 1173, 278 S.W. 15; Elder v. State, 69 Ark. 648, 65 S.W. 938. It has even been said that the overruling of a proper objection to a statement amounting to a declaration of law is tantamount to the giving of an instruction to that effect. Autrey v. State, 155 Ark. 546, 244 S.W. 711. It is true that the trial judge has a wide latitude of discretion in the control of arguments to the jury, but it is not unlimited. Holcomb v. State, 203 Ark. 640, 158 S.W. 2d 471; Todd v. State, 202 Ark. 287, 150 S.W. 2d 46. It has been said that this court will always reverse where counsel goes beyond the record to state facts that are prejudicial to the opposite party unless the trial court has by its ruling removed the prejudice. Adams v. State, 176 Ark. 916, 5 S.W. 2d 946. ***

Cases in which we have found no abuse of discretion in denial of a motion for mistrial on account of statements in a closing argument, where an admonition to disregard the testimony has been given include: McGill v. State, supra; Johnson v. State, supra; Hicks v. State, 193 Ark. 46, 97 S.W. 2d 900.

AMI, Civil, 101 was given to the jury here. We have heretofore been strongly influenced by this fact in determining whether the trial court has abused its discretion in matters pertaining to closing arguments. See Johnson v. State, supra. We have also accorded considerable weight to the fact that the trial judge reprimanded counsel and admonished the jury to disregard the prosecutor’s statement, and where this has been done, we have found no basis for a mistrial. See Moore v. State; 251 Ark. 436, 472 S.W. 2d 940.

Appellant classifies the court’s admonition in this case as a mild one. It seems to me to be every bit as strong as those made in other cases where we have held an admonition sufficient. Telling the jury to disregard a statement is about as strong an admonition as could be given, particularly when AMI, Civil, 101 is given. But if it was not strong enough, appellant was not prevented from seeking a stronger one, and when he asked for no further admonition, he was in no position to complain about its degree. Johnson v. State, supra. Furthermore, we have held that a rebuke of the offending attorney in the presence of the jury, for improper statements in oral argument together with a statement that the matters to which he referred in oral argument had been excluded from the jury’s consideration, is tantamount to admonishing the jury not to consider the statements. Ragsdale v. State, 132 Ark. 210, 200 S.W. 802. (The prosecution was for carnal abuse of a female under the age of 16. The statements referred to the defendant’s abuse of his wife.) In Sims v. State, 194 Ark. 702, 109 S.W. 2d 668, we held that the trial judge’s direction to the prosecuting attorney to confine his argument to the evidence only as given by the witnesses was sufficient to remove any prejudice to the defendant which might have resulted from remarks which well could have been prejudicial and which were not supported by the record.

In Hines v. State, 140 Ark. 13, 215 S.W. 735, the prosecuting attorney, in closing argument, twice referred to the fact that the defendant’s attorney had successfully objected to certain testimony as an attempt to conceal facts from the jury, contrary to the attorney’s remark in his opening statement that the defendant had nothing to cover up or conceal from the jury. The trial judge overruled an objection to the first statement, but when an objection was made to the second statement, he told the prosecuting attorney that his argument was wrong, the jury would not consider it, and that he had better not follow it any futher. In holding that the court did not err in not granting a new trial on this ground, we said that the court’s action removed any prejudice that might have resulted from the remarks.

I have found no precedent for the court’s action in this case, and I dare say the majority has found none. In saying this, I am fully aware of the citation of Simmons & Flippo v. State, 233 Ark. 616, 346 S.W. 2d 197, in the majority opinion. This case does not even approach the situation there. In that case, where the defendants were charged with rape, the prosecuting attorney, without any basis whatever, stated that the defendant Flippo had previously raped another girl (not the prosecutrix). The defendant had actually denied on cross-examination that he had done so. There was no other testimony in this regard. The trial court overruled the defendant’s objections and his only admonition to the jury was:

The jury heard the evidence, if the Prosecuting Attorney misquoted it then they are the judges of it.

Obviously, there was manifest prejudice there and the trial judge actually did nothing to remove it.

I am baffled by the majority’s citation of Moore v. State, 227 Ark. 544, 299 S.W. 2d 838. That case has no bearing whatever on closing arguments or mistrials. Moore v. State, 251 Ark. 436, 472 S.W. 2d 940, is directly in point and following it, as we did in Guffey & Black v. State, 253 Ark. 720, 488 S.W. 2d 28, would require an affirmance. In Guffey, the prosecuting attorney referred to the defendants as “these two thugs” in his closing argument. We held that a mistrial was not warranted in view of the fact that the trial judge had given an instruction incorporating AMI, Civil, 101, and when objection was made, admonished the prosecuting attorney (less strongly than the reprimand here). The trial judge here did more. He told the jury specifically to disregard the argument. The judge (or any trial judge for that matter) was warranted in thinking that he was acting properly under the precepts of this case. What else are trial judges to use as guidelines? They have a right to expect some degree of consistency in the review of the exercise of their very broad discretion. They cannot find guidance by attempting to predict the visceral reaction of a majority of the sitting judges in any particular case.

If precedent has any place in our system of criminal justice, this judgment should be affirmed.


author: George Howard, Jr., Justice. John A. Fogleman, Justice,

text:
    THE NATIONAL INVESTORS LIFE INSURANCE COMPANY v. Flora Mae TUDOR
    78-52
    571 S.W. 2d 585
    Opinion delivered October 9, 1978
    (In Banc)
    [Rehearing denied November 6, 1978.]

      Davidson, Plastiras, Horne, Hollingsworth & Arnold, P.A., by: Allan W. Horne, for appellant.

      Travis Mathis, for appellee.
   George Howard, Jr., Justice.

We are to determine whether the verdict of the trial court, sitting without a jury, finding that appellant waived the requirement of reinstatement of a life insurance policy, after the policy had lapsed, resulting in a judgment in behalf of the appellee-beneficiary in the sum of $30,000.00, including 12% penalty and interest, and reasonable attorney’s fee in the amount of $3,000.00, is supported by substantial evidence.

A verdict supported by substantial evidence dictates an affirmance on appeal while, on the other hand, a reversal is required where the evidence falls short of substantiality.

THE FACTS

On December 14, 1970, appellant issued a reducing term life insurance policy, number 25699, to the late Keith Tudor, husband of appellee-beneficiary, with a face amount of $50,000.00. A monthly premium, in the amount of $78.00, was required on the 14th day of each month under a preauthorized check plan, hereinafter referred to as P.A.C. draft.

A premium became due on March 14, 1975, and pursuant to the P.A.C. draft plan, a check was submitted to the insured’s bank for payment, but the check was returned twice because of insufficient funds. On April 4, 1975, appellant mailed the following communication to the insured, stating in relevant part:

“Dear Mr. Tudor:
We have just received word that our check for the March 14, 1975 premium was not honored by your bank.
We know how easily these things can happen so rather than having us resubmit your check to the bank, will you please send another check or money order for $78.00 for premiums due?
We know you don’t want to lose the valuable coverage your National Investors policy provides, so it is to your advantage to send your payment today. This will assure the continuing security you get with National Investors and preserving this security is what we are all about.” (Emphasis added)

On May 7, 1975, Mrs. Tudor called Lynwood Richards at the office of Southern Standard Publishing Company and requested him to send a check to appellant in the sum of $234.00, representing premiums for three months. On the same date, Lynwood Richards prepared a company check on Elk Horne Bank & Trust Company, Arkadelphia, Arkansas, dated May 7, 1975, and made payable to appellant in the amount of $234.00. Mr. Richards signed the check and placed the following words in the left hand corner: “March, April and May payments”, but did not submit a policy number or designate the name of the insured. The check was a regular Southern Standard Publishing Company check containing the following address: 510-512 Main Street, Arkadelphia, Arkansas 71923. This check was received by appellant’s premium accounting department on May 8, 1975.

On May 15, 1975, appellee received the following communication from appellant dated May 13, 1975:

“Dear Mr. Tudor:
Your policy lapsed because the monthly premium due 3-14-75 was not received.
I am concerned about this since termination of your policy will result in a loss to you, both financially and from a protection standpoint.
You can never replace this policy at the same low premium rate since premiums for life insurance are based on age at time of issue. This loss may be avoided if you apply for reinstatement.
We will consider restoring the full benefits of your policy if you will complete, sign and return the enclosed Application with your check for $234.00.
You may be able to change your method of premium payments or make a change in your policy to suit your present needs. Please contact me if you would like to discuss these changes.”

On May 19, 1975, appellee called Mrs. Glenda Nash, representative in the Policy Owner’s Service Department, who had written the letters of April 4, 1975, and May 13, 1975, and advised Mrs. Nash that she was somewhat surprised to receive the letter of May 13, 1975, inasmuch as premiums for three months had been mailed to appellant’s office on May 7, 1975. However, Mrs. Nash was unaware of the $234.00 check sent by Mr. Richards and advised Mrs. Tudor that she would look into the matter and get back in touch with her.

On May 27, 1975, the insured, Keith Tudor, died. The next communication received by appellee from appellant was a letter dated May 30, 1975, containing a refund check in the sum of $234.00, as follows:

“Dear Mr. Tudor:
Your policy lapsed on 3-14-75 because the bank draft was returned by your bank unpaid.
On May 13, 1975, I wrote you advising you that your policy had lapsed and we would need a completed reinstatement form completed and signed by you and returned to us with your check or money order for $234.00 before we could consider restoring the full benefits of your policy.
We received your check for $234.00. However, since we have not received the completed reinstatement application I am therefore returning your $234.00 to you.
Sincerely,
Mrs. Glenda Nash
Service Consultant”
HOLDING OF THE TRIAL COURT
The trial court rendered the following decision:
“[T]he Court is impressed with the fact that the policy by its face has lapsed as of March 14th of 1975 and that the notice thereof of April the 4th, 1975 was properly and in due time given. I’m likewise impressed that if the same current, proper handling had been made of the check of May the 7th, we would probably not have been here today.
“So, I’m finding that the actions waived the reinstatement provisions, and the policy was in force and effect on the date of the death of Keith Tudor. I believe this was the 27th?
“Based on such finding, it would go without saying that there would be the twelve per cent penalty and reasonable attorney’s fees. Reasonable attorney’s fees will be found by the Court to be $3,000.00.”

THE DECISION

The central and controlling facts in this case are not in dispute, but only the interpretation of these facts generates the sharp differences of opinion between the parties.

Appellant emphasizes that the insurance policy extending the coverage on the late Mr. Keith Tudor provides, in relevant part, as follows:

“. . . Only the President, a Vice President or the Secretary is authorized to change, modify or waive any of the provisions of the policy, and then only in writing. ”

Further, the appellant points out that the policy provides:

“REINSTATEMENT — If this policy lapses because of non-payment of premium, it may be reinstated at any time within 5 years after default in premium payment upon presentation of evidence of insurability satisfactory to the Company, and payment of all past due premiums with interest on such premiums from their respective due dates at the rate of 5% a year, compounded annually.”

Thus, appellant argues, the record is void of any evidence that the above policy provisions have been complied with, and, more particularly, there is no evidence the president, a vice president or the secretary authorized any change or waived the reinstatement provisions and, as such, appellee has failed to establish a waiver of the reinstatement provisions. Accordingly, appellant contends, the trial court committed reversible error.

Appellant’s argument is neither persuasive nor compelling for it is well settled that the agents or representatives of the life department, as here, of an insurance underwriter can waive a forfeiture of a life insurance policy, although the policy provides that only the president, a vice president or secretary has power to modify or to waive provisions in a policy. Home Life & Accident Co. v. Scheuer, 162 Ark. 600, 258 S.W. 648 (1924).

Moreover, in Millers Mutual Fire Insurance Company of Texas v. Russell, 246 Ark. 1295, 433 S.W. 2d 536 (1969), which involves a fire insurance policy, we stated a provision in an insurance policy which is essentially for the benefit of the insurer can be waived only by the insurer through the conduct of its agent acting within the real or apparent scope of his authority.

We now turn to the evidence in the record before us to determine if there is substantial evidence to support the trial court’s finding that the reinstatement requirements, under the policy, were waived by appellant through the conduct of its representatives.

First, it is well established that forfeitures are not favored and that courts are prompt to seize on circumstances which indicate a waiver on the part of an insurer or which will raise estoppel against it. Union Life Insurance Company v. Pearl Brewer, 228 Ark. 600, 309 S.W. 2d 740 (1958).

The evidence reflects that a P.A.C. draft was submitted to the insured’s bank for the premium due March 14, 1975, which was returned for insufficient funds. On April 4, 1975, Mrs. Nash, Service Consultant for appellant, advised the insured “to send anothér check or money order” for the premium due. Pursuant to this request, a company check for $234.00, representing premiums for three months, was mailed by an employee of the insured on May 7, 1975. This check was received on May 8, 1975, in appellant’s office. Plowever, five days after this item had been received, appellant, for the first time, indicated an intention of forfeiting the policy in its letter of May 13, 1975, which was prepared 29 days after the 31 day grace period had expired, namely, April 14, 1975, and 22 days prior to a purported refund made by appellant and just three days after the insured’s death.

However, appellant contends that the delay, in advising the insured of the forfeiture and the necessity for an application of reinstatement, was due to appellant’s inability to determine for whom the payment was intended and in ascertaining the policy number. This contention is not impressive in light of appellant’s testimony about the sophisticated computer service readily available and which can report, in a matter of minutes, the status of a policy and even reveal whether the company has coverage for the person whose name appears, as here, on an item received. Furthermore, inasmuch as appellant’s representatives did not see fit to place Mr. Richards’ name in the computer, upon receipt of the check, to determine whether appellant had coverage on Mr. Richards, which was ultimately done days later, appellant could have easily learned the identity of the insured on the very day that the check was received by simply calling Lynwood Richards, whose name and address were contained on the check which, incidentally, was done some seven days after the check was received.

Further, it is clear from the evidence that appellant negotiated the $234.00 check and received the cash funds and retained these funds until three days after the insured’s death. However, appellant seeks to justify the retention of these funds by asserting that these funds were placed in the “transit” or “suspense” file and were not placed with the company’s general funds. The problem we have with this assertion is that no notice was given to appellee that the premium was being held in the transit or suspense file. Indeed, appellee had every reason to believe and assume that appellant had accepted these funds in payment of premiums due. It must be remembered that on May 19, 1975, the appellee called appellant’s office and talked with Mrs. Nash and advised Mrs. Nash that premiums for three months had been mailed to the appellant’s office on May 7, 1975, and Mrs. Nash stated that she was not aware of this fact and further stated “I guess your policy has lapsed.” Mrs. Nash then told appellee that she would look into the matter and get back in touch with appellee. Moreover, appellee testified, and Mrs. Nash admitted, that she advised Mrs. Nash that the in-' sured was in the hospital and the nature of his illness was unknown.

After a careful consideration of the whole record, we are persuaded that there is substantial evidence to support the holding of the trial court. Furthermore, it must be remembered that it was the responsibility of the trial judge, sitting without a jury, to weigh the evidence, determine the credibility of witnesses and reconcile real or apparent conflicts in the evidence.

Affirmed.

George Rose Smith and Fogleman, JJ., dissent.

John A. Fogleman, Justice,

dissenting. For over 30 years this court has accepted and applied a definition of waiver adopted in Sirmon v. Roberts, 209 Ark. 586, 191 S.W. 2d 824. We said:

*** A definition of “waiver” found in the Corpus Juris citation [67 C.J. 291] is “ * * * the voluntary abandonment or surrender, by a capable person, of a right known by him to exist, with the intent that such right shall be surrendered and such person forever deprived of its benefits; or such conduct as warrants an inference of the relinquishment of such right, or the intentional doing of an act inconsistent with claiming it. Thus, ‘wavier’ occurs where one in possession of a right, whether conferred by law or contract, with full knowledge of the material facts, does or forbears to do something, the doing of which or the failure or forbearance to do which is inconsistent with the right or his intention to rely upon it.”

See Keith v. City of Cave Springs, 233 Ark. 363, 344 S.W. 2d 591; Rush v. Smith, 239 Ark. 874, 394 S.W. 2d 613; Franklin and Reid v. State, 251 Ark. 223, 471 S.W. 2d 760; Ray Dodge, Inc. v. Moore, 251 Ark. 1036, 479 S.W. 2d 518; Griffith Lumber Co. v. Connor, 255 Ark. 623, 502 S.W. 2d 500.

There is nothing in this definition or in our cases that requires the use of a different definition when an insurance company is alleged to have waived a right. The trial court and the majority have somewhere found evidence of a volun tary abandonment or surrender of a right known by the company to exist, with the intent that such right be surrendered and that it be forever deprived of its benefits. There certainly is no evidence of an express waiver. So, if there is a waiver, it must be implied. But there must be evidence of such conduct as warrants an inference of the relinquishment of such right, or the intentional doing of an act inconsistent with claiming it. Under the definition we use, before there can be waiver, the party charged must have full knowledge of the material facts.

We pointed out in Sirmon that conduct relied upon to establish waiver must be carefully inspected and all evidence bearing upon the subject impartially scrutinized. See also, Ray Dodge, Inc. v. Moore, supra. Where is the evidence of conduct that warrants an inference that the insurance company voluntarily abandoned or surrendered its right? Or that it acted with full knowledge of the material facts? Even a microscopic examination of the abstract of the record and of the majority opinion does not reveal it. Nothing is shown except a state of confusion for which the company was in no way responsible, and to which its employees reacted in a normal, human manner, which, through the lenses of hindsight, does not seem perfect to the majority. Imperfection is typical of all human actions when viewed in retrospect. To say that the company’s employees could have looked in another direction for a clue to the mysterious payment instead of going in the direction they did is certainly not substantial support for finding a voluntary and intentional abandonment or surrender of á right, or an intentional doing of an act inconsistent with the right, or that the employees had full knowledge of the material facts. The employees of the insurance company had nothing whatever to do with the creation of the mystery with which they were confronted or the confusion with which they were confounded.

Even-handed justice calls for a reversal of the judgment in this case.

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

      An official of appellant testified that pre-authorized checks are checks that the policyholder has authorized the company to draw against the policyholder’s bank account. As premiums become due, the checks are “generated by our computer and are deposited” on the date that the premium becomes due.

      The late Keith Tudor was the owner of the Southern Publishing Company of Arkadelphia, as well as the editor of the Southern Standard, a local newspaper, but because of illness, the business had been placed in the hands of an employee, Lynwood Richards. As a consequence, Mr. Richards would receive the mail at the business location and deliver the mail to the home of Mr. Tudor. However, the letter of April 4, 1975, from appellant was not received by the insured until May 7, 1975.

      Mrs. Becky Robinson, an employee in the premium accounting department, testified that because of the company’s name on the check, she assumed that the payment was for either a group, pension or mortgage policy, but after checking with these departments, she discovered there was no group, pension or mortgage policy under the name of Southern Standard Publishing Company. Five days later, May 13, 1975, the check was sent to Central Records Department for a policy number on Lynwood Richards, because he had signed the check, but it was discovered that there was no policy number under this name. Two days later, May 15, 1975, Mrs. Robinson called Southern Standard Publishing Company, after getting the telephone number from information, and Lynwood Richards gave her the insured’s name and the following policy number: “18791” — this was a prior policy issued to the late Keith Tudor, but was no longer in existence because it lapsed prior to or during the year 1970. However, Lynwood Richards testified that he was certain that he gave Mrs. Robinson the following policy number: 25699.
      With this information in hand, the S234.00 check was immediately deposited. But the following day, May 16, 1975, appellant’s computer rejected the item indicating that the policy had been canceled. Central Records Department was requested to search for other policy numbers in the name of Keith Tudor and it was discovered that there was a policy numbered 25699. Appellant’s computer indicated that this policy had lapsed, effective March 14, 1975. The matter was then referred to appellant’s Policy Owner Service Department, according to Mrs. Becky Robinson, “for instructions for refund or reinstatement or whatever.”

      Appellee testified that Mrs. Nash had advised her, during the telephone conversation, that the policy had lapsed and consequently, the insured would have to execute an application for reinstatement. But appellee further testified that Mrs. Nash, upon being advised of the $234.00 check replied: “I guess your policy has lapsed.” and that Mrs. Nash stated that she would look into the matter and that was the “way it was left.”

      During the appellee-beneficiary’s telephone conversation with Mrs. Nash on May 19, 1975, appellee advised Mrs. Nash that the late Keith Tudor was hospitalized, but she did not know the nature of the problem and that a series of tests were being conducted in order to determine the nature of his illness.


author: George Rose Smith, Justice.

text:
    Willie Earl CAMPBELL v. STATE of Arkansas
    CR 78-106
    571 S.W. 2d 597
    Opinion delivered October 16, 1978
    (In Banc)

      Don Langston and John W. Settle, for appellant.

      Bill Clinton, Atty. Gen., by: Jesse L. Kearney, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

As a result of having shot Tommy Thacker four times the appellant was convicted of first-degree battery and sentenced to 20 years’ confinement. As a result of having shot James Lyons one time the appellant was convicted at the same trial of second-degree battery and sentenced to 3 years’ confinement. At the defendant’s request the trial court gave him credit for 372 days of jail time, even though, as the court pointed out, approximately a year of that time was spent in custody pursuant to a misdemeanor conviction in municipal court for a separate offense. The principal argument for reversal is that the appellant was denied his constitutional and statutory right to a speedy trial.

The applicable Rule provides that an accused in custody shall be brought to trial before the end of the second full term of court, but not to exceed nine months. Rule 28.1, Rules of Criminal Procedure (1976). There shall be excluded from the computation any period of delay resulting from a continuance granted at the request of the defendant or his counsel. Rule 28.3 (c). The key question is whether a continuance was granted at the request of Campbell or his counsel.

In the Fort Smith District of Sebastian County the terms of court begin on the first Monday in February, June, and October. Ark. Stat. Ann. § 22-310 (Supp. 1977). Campbell was arrested and incarcerated on January 18, 1977, during the October 1976 term. He was charged by information on February 17, during the February 1978 term. The public defender was appointed as his counsel, and the case was set to be tried on May 23.

On May 17 the public defender notified the court that Campbell did not desire his services. The public defender requested a hearing, which was held on May 23, the day set for trial. In response to the court’s inquiry why Campbell did not want the public defender to represent him, Campbell replied: “Because if I’m going to get railroaded, I may as well get railroaded on my own account.” No other explanation appears in the record.

In response to further questions by the court Campbell said he believed that his grandmother in Pine Bluff or his relatives in Kansas City might be able to help him get an attorney. He had written several letters to his grandmother, but had not yet written to the other relatives. The transcript of the hearing concludes as follows:

The Court: Well, we will give you ten days to get an attorney, Mr. Campbell.
Mr. Campbell: Yes, sir.
The Court: If you don’t have one by that time you will just have to take an appointed attorney.
The Public Defender: He stated he would rather represent himself, Your Honor. Now, I don’t know whether he wants to hold to that or not. If he doesn’t have one, you might want to inquire further about it.
The Court: You have the right to represent yourself if you want to.
Mr. Campbell: (Nods head in affirmative.)
The Court: Is that what you want to do if you are not able to hire one yourself?
Mr. Campbell: Yes, sir. That is correct.
The Court: Within ten days, then, if you don’t have an attorney, you may represent yourself. Thank you. You may have a seat.

In July the prosecuting attorney wrote the judge that he had met with Campbell at the judge’s request, that Campbell still did not want the public defender to represent him, and that Campbell had warned “that he might blow up in the courtroom, particularly if he is representing himself and may do physical harm to either you or myself.”

In December the case was set for trial on January 24. At a pretrial hearing on January 18 Campbell again refused the public defender’s services. He had not obtained an attorney. He was again told that he could represent himself and that the public defender would be available at the trial as his ad-visor (which is what happened). Campbell named seven witnesses that he wanted, and they were subpoenaed. The trial was held on January 24, as scheduled. At the trial Campbell, with the help of the public defender, called three witnesses in his defense and elected not to testify himself.

It must be remembered that the State offered Campbell a speedy trial on May 23. We find that the case was continued at his request. On that date he rejected the public defender’s services without stating any real reason. He indicated that he hoped to obtain an attorney with the assistance of his relatives. He acquiesced in the court’s decision to give him ten days in which to employ an attorney. He was not ready for trial, in that he had not requested that his witnesses be subpoenaed. If he had been forced into a trial on that date, he could fairly have complained that he had not been afforded an opportunity to obtain counsel of his own choice. In the circumstances the continuance was granted at his request. Certainly it was not granted at the State’s request.

Inasmuch as the case was tried on January 24, during the October 1977 term, it was held within the statutory time allowed after the continuance in May. There is no basis for a finding that there was any violation of Campbell’s constitutional right to a speedy trial. He was given full credit for his jail time, even though it was not attributable primarily to his arrest upon these charges, and there is no other indication that the delay was prejudicial.

It is also argued that Campbell’s cross-examination of a prosecuting witness, Tommy Thacker, was unduly restricted by the court. Thacker had admitted on direct examination that he had been convicted of a felony, had served part of his sentence, and had been out on parole for two years. On cross-examination the court sustained the State’s objection, on the ground of irrelevancy, to Campbell’s question: “What was the actual date and time that you received, or were sent to the penitentiary?” The point is actually somewhat trivial, but we think the court was right in sustaining the objection. A witness’s credibility may be impeached by proof of a crime (1) of specified gravity, if the court finds that its probative value outweighs its prejudicial effect to the witness, or (2) involving dishonesty or false statement. Uniform Rules of Evidence, Rule 609 (a), Ark. Stat. Ann. § 28-1001 (Supp. 1977). Even if we assume that the crime of robbery, for which the witness had been convicted, comes within the Uniform Rule, it is the fact of conviction that impairs the witness’s credibility, not the date of the sentence or its length. We certainly cannot say that there was a prejudicial abuse of the trial court’s discretion in its refusal to allow Campbell to bring out those inconsequential details.

Affirmed.

Howard, J., not participating.


author: George Rose Smith, Justice,

text:
    David AKINS and Betty AKINS v. STATE of Arkansas
    CR 78-114
    572 S.W. 2d 140
    Opinion delivered October 16, 1978
    (Division I)

      Sam Hugh Park, for appellants.

      Bill Clinton, Atty. Gen., by: Jesse L. Kearney, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice,

In this prosecution for possession of marihuana with intent to deliver, the State was allowed to introduce evidence obtained pursuant to a search warrant. The officer’s affidavit for the search warrant contained only this statement about the reliability of his informant: “An informant proved reliable in the past to affiant told affiant that he had personally viewed the Marijuana upon the property above described.”

The statement is fatally defective. Our controlling Rule, which is based upon many decisions, provides: “If an affidavit or testimony is based in whole or in part on hearsay, the affiant or witness shall set forth particular facts bearing on the informant’s reliability ...” Rules of Criminal Procedure, Rule 13.1 (b) (1976). The affiant must state more than a mere conclusion and disclose enough information to show that the informant is worthy of belief. Rowland v. State, 262 Ark. 783, 561 S.W. 2d 304 (1978). Here the affiant in substance said: “I know my informant is reliable, because he has been reliable in the past.” That statement is a mere conclusion, providing the magistrate with no facts bearing upon the reliability of the unnamed informant. Thus the magistrate was at best depending upon the reliability of the affiant, not upon that of the informant. Where hearsay is an essential basis for the magistrate’s conclusion, that short cut is not permissible.

The court correctly instructed the jury that the quantity of marihuana possessed was evidence to be considered along with all the other facts and circumstances in the cases in determining the intent with which the marihuana was possessed. Ark. Stat. Ann. § 41-110 (5) (b) and Commentary (Repl. 1977).

Reversed and remanded.

We agree.

Fogleman, Holt, and Howard, JJ.


author: Conley Byrd, Justice.

text:
    Burkett M. SIMS v. FIRST NATIONAL BANK OF HOT SPRINGS, Administrator; John B. SIMS, Sr. et al
    78-74
    571 S.W. 2d 600
    Opinion delivered October 16, 1978
    (Division II)

      Charles J. Lincoln, II and Charles R. Nestrud, of House, Holmes & Jewell, for appellant.

      Charles G. Vaccaro, for appellees.
   Conley Byrd, Justice.

The trial court found that John B. Sims was the natural child and heir at law of Claire Moore Sims, deceased, and was entitled to a one-fifth interest in the estate of Claire Moore Sims. Appellant Burkett M. Sims appeals raising the following issues:

“I. The trial court erred in admitting into evidence a certified copy of a birth certificate from the State of Texas.
II. The trial court erred in granting the appellee a new trial.
III. The evidence was insufficient to support the verdict.”

The record shows that following the death of Claire Moore Sims, John B. Sims and Claire Lee Sims petitioned the court to be appointed personal representatives. In this petition John B. Sims was listed as one of the heirs at law of Claire Moore Sims, deceased. After John B. Sims submitted two fraudulent wills for probate, Mary A. Perceful, one of the heirs at law, contested the fact that John B. Sims was an heir at law. John B. Sims subsequently admitted that the two wills were fraudulent. When the Court appointed the First National Bank of Hot Springs as administrator in succession, the bank petitioned the court for a determination of heirship. John B. Sims represented himself at the first hearing. Following the first hearing the trial court ruled that he was not an heir. John B. Sims then employed a lawyer to represent him and made a thorough search of the record of births for the State of Texas for the year of 1932. Based upon information acquired by the lawyer together with the birth certificate showing that on January 7, 1932, a John Burkett, Jr. was born to a Clara Browning who was born at Hot Springs, Arkansas and a John Burkett, Sr. who was born in Tennessee, the trial court, within the 90 days permitted by Ark. Stat. Ann. § 22-406.4 (Supp. 1977), set aside its first order and again set the matter down for the hearing of additional evidence.

The testimony shows that at one time the decedent was married to a D. O. Sims who was an official of the First National Bank of Hot Springs. To that marriage were born Mary A. Percefull, Burkett M. Sims, Louane Currie and Claire Lee Sims. That marriage ended in divorce in 1930. All witnesses agree that John B. Sims was approximately two years of age when he came to Hot Springs to live with Claire Moore Sims. All of the witnesses agree that Claire Moore Sims by prearrangement met someone on the highway outside of Hot Springs and that John B. Sims was handed through the car window to Claire Moore Sims and that she thereafter raised John B. Sims as one of her own children. Claire Moore Sims referred to John B. Sims as “John Bentley” and he did not take the name Sims until he started to parochial school. Most of the witnesses remembered that the Bentley’s were tenants of Claire Moore Sims following the 1930 divorce and that they moved away by 1932. It is also undisputed that a sixteen year old boy by the name of Joseph A. Seyl came to live with Claire Moore Sims following the 1930 divorce and that he continued to live in the house with Claire Moore Sims and her children for a number of years.

John B. Sims claimed that he was the illegitimate child of Claire Moore Sims and Joseph A. Seyl.

Floye E. Bledsoe testified that she knew Claire Moore Sims, her sister Sybil, and their mother Mrs. Moore, who were customers at the beauty shop where she worked. She knew that Claire Moore Sims was pregnant and that she went away for awhile. When Claire Moore Sims returned, she told Mrs. Bledsoe that she had a boy and that she named him “Johnnie.”

Sybil Moore Flippen, the sister of Claire Moore Sims, deceased, stated that after the divorce Claire Moore Sims became pregnant and that she left Hot Springs at the age of 34 to have the child. Claire Moore Sims told Mrs. Flippen that she named the child, a boy, after their cousin Captain John Burkett who was killed during World War I. When Claire Moore Sims left Hot Springs to have the child, John A. Seyl left town with her. Claire Moore Sims told the witness that John A. Seyl was the father of her child. When the child was about two years of age, Claire Moore Sims obtained possession of him and he has gone under the name John B. Sims. Mrs. Flippen also testified that her mother’s maiden name was Burkett and that the Burketts originated from Tennessee.

Following the second hearing the trial court wrote the following letter opinion:

“Gentlemen:
The Court has considered all the evidence presented at the hearing on July 20, 1977, and has reconsidered the evidence presented at the previous hearings on determination of heirship and makes the following findings:
1. John B. Sims forged a purported holographic will of Claire Moore Sims and caused this Will to be presented for probate in 1974.
2. The Court is convinced from the testimony of Linton Godown, an Examiner of Questioned Documents, that the signature of Claire Moore Sims on the affidavit for the delayed birth certificate for John B. Sims was forged.
3. The information on the delayed birth certificate is admittedly false.
4. There are discrepancies between the testimony of John B. Sims on July 20 and his testimony at previous hearings particularly concerning the death bed scene with Claire Moore Sims.
5. Burkett Sims, Louane Currie, Claire Lee Sims all testified that John B. Sims was not a son of Claire Moore Sims, although this testimony may be discounted because they are interested parties.
6. Contrary to the above finding we have the letter of Burkett M. Sims addressed to Mr. Lewis on July 30, 1973, referring to the appointment of his brother John Sims, as administrator and bearing a notation “copies sent to all five of us.” Enclosed with this letter was a letter apparently addressed to “All Five of Us” stating “to eliminate any doubt of this I have informed M. C. Lewis that I alone speak for myself as only one of five independent and equal heirs.” This letter further refers to a long conference with Mary Adele Percefull concerning the future management of the property and a possibly family corporation which concluded with Mrs. Percefull saying she wanted nothing to do with the property and she wanted to turn her share over to her niece. From the tone of this letter it was apparent that Mrs. Percefull did not at that time raise any doubt as to John B. Sims being an equal heir.
7. There is also Burkett Sims’ letter of September 12, 1973, acknowledging receipt of a copy of Mrs. Percefull’s letter challenging John B. Sims’ position in the estate and stating “this attitude surprises me. I want nothing to do with it. This matter is between Many Adele and John and I want to be left out of this controversy. I am surprised Mary Adele did not know about John’s position in Hot Springs.” And again Burkett’s letter of October 11, 1973, addressed to Mary Adele Percefull stating “Have you written M. C. retracting your statements about John yet? The sooner the better, you know.”
8. In addition there are numerous items introduced into evidence evidencing the affection of the family members for John Sims and referring to him as “brother.”
9. In addition to the documentary evidence there is the deposition of Sybil Triffit Flippen, sole surviving sister of Claire Moore Sims, and the supplementary affidavit introduced into evidence on July 20. The deposition and affidavit are explicit that John B. Sims is in fact an illegitimate child of Claire Moore Sims. There is no conceivable reason why Mrs. Flippen would testify in this fashion if her statements were not true. The Court is of the opinion that in making the original decision in this matter unsufficient weight was given to Mrs. Flippen’s deposition.
10. The Texas birth certificate of John Burkett, Jr. is interesting and raises some perhaps justifiable speculation but is not controlling.
11. Under all the circumstances and considering all the evidence, despite the inconsistencies, equivocations, and falsities set out in findings 1 through 4 above, the Court is of the opinion that John B. Sims is in fact a natural child and heir at law of Claire Moore Sims and that he is entitled to an undivided one-fifth interest in the estate of Claire Moore Sims.
This letter shall become a part of the record in the case. Don Schnipper is requested to prepare an order in accordance with the terms of this letter.”

POINT I. We can find no merit to appellant’s contention that the birth certificate is not relevant. On the contrary, the witnesses thought that when Claire Moore Sims left Hot Springs she might have gone to San Antonio, Texas. Added to this is the information that John B. Sims was named after Captain John Burkett from Tennessee who was killed during World War I. Consequently, we cannot say that the birth certificate was not relevant to the issue before the court. The least effect the birth certificate had was to render the testimony of Sybil Moore Flippen more probable within the meaning of the definition of relevancy, Ark. Stat. Ann. § 28-1001, Rule 401.

POINT II. There is no merit to appellant’s contention that the trial court erred in setting aside the first order entered on October 1, 1976. Henry v. Powell, Mayor, 262 Ark. 763, 561 S.W. 2d 296 (1978). We pointed out in the Henry case that Ark. Stat. Ann. § 22-406.4 (Supp. 1977), gave the trial courts for 90 days the same authority that was recognized at common law to set aside orders during the same term of court for purposes of correcting the court’s own errors.

POINT III. Neither can we agree with appellant that the evidence is insufficient to support the trial court’s findings. Even if all other testimony be excluded, still the testimony of the deceased’s only surviving sister would almost compel the conclusion reached by the trial court. Nobody disputed her evidence that Claire Moore Sims became pregnant and left Hot Springs with Joseph A. Seyl although some of the parties should have been in a position to know about any extended absences.

Affirmed.

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


text:
    Wayne Terrell LEE v. STATE of Arkansas
    CR 78-109
    571 S.W. 2d 603
    Opinion delivered October 16, 1978
    (Division I)

      William C. McArthur, for appellant.

      Bill Clinton, Atty. Gen., by: Joseph H. Purvis, Deputy Atty. Gen., for appellee.
   Frank Holt, Justice.

The trial court, sitting as a jury, found the appellant guilty of theft of property and sentenced him to three years’ imprisonment in the Department of Correction. Appellant contends the trial court erred in allowing hearsay testimony, over appellant’s objection, relating to the value of four men’s suits which were stolen from a local store. We must agree.

The burden was upon the state to show by competent evidence that the value of the property exceeded $100 in order to constitute a felony as charged here. Ark. Stat. Ann. § 41-2203 (2)(b)(i) (Repl. 1977).

The only witness who testified as to the value of the property was the security guard who apprehended the appellant. On direct examination this witness testified that the four stolen men’s suits were valued at $75 each or a total of $300. On cross-examination he testified that his only information as to value was based upon his observation of the price tags on the suits. The appellant objected stating, inter alia, that this witness’ knowledge of any kind of value of the property “would be strictly hearsay.” The court permitted the state to further question the witness as to value. The witness could only respond that each suit had a price tag of $75. Again the appellant interposed, “That’s hearsay.” The price tags were not in evidence although they had been introduced in the municipal court proceeding which was made a part of the record on the trial de novo. No salesperson or any other employee, who had knowledge of the property’s value from the business books or records of the store, was called as a witness. The security guard’s testimony, to which a sufficient objection was made, must be characterized as inadmissible hearsay. Inasmuch as no other evidence was adduced as to the fair market value of the property, the evidence is insufficient to support a finding of theft of property valqed in excess of $100. Courtney v. State, 252 Ark. 620, 480 S.W. 2d 351 (1972); and Wigmore, Evidence, § 1362 (3rd ed., 1975). The state relies upon Boone v. State, 264 Ark. 169, 568 S.W. 2d 229 (1978). However, there no objection was made to the witness reciting the value of the property as reflected by the price tag.

Appellant also asserts that the evidence was insufficient with respect to the actual theft of the property. He maintains that, in a theft from a store, asportation or concealment is a primary concern in determining whether a theft has been committed, since merchandise may be moved around the store without a theft occurring, even if the intent exists, if the merchandise is placed down somewhere else in the store. Appellant misreads our statute on theft of property.

Ark. Stat. Ann. § 41-2203 (Repl. 1977) provides that “[a] person commits theft of property if he: (a) knowingly takes or exercises unauthorized control over .... the property of another person, with the purpose of depriving the owner thereof. . . . ” The comments to the statute make it plain that asportation and caption are not requisites of wrongful appropriation. Rather, they “are but circumstances to be considered along with all others relevant to the ultimate issue whether the behavior of the actor constituted a negation or usurpation of the owner’s dominsion.” See also Rogers v. State, 249 Ark. 39, 458 S.W. 2d 369 (1970).

Viewing the testimony in the light most favorable to the state, evidence was adduced that appellant, after saying to his companion, “everything is O.K.,” removed a hook knife from his right rear pocket, cut the pastic cords attaching the four suits to the clothes rack, and removed them from the rack. He handed two of the suits to a companion and they started to leave the store with appellant carrying the other two which he handed to his companion before they exited the store. When appellant was apprehended outside the store, he had a hook knife in his right rear pocket. The evidence is amply sufficient to show unauthorized control over the property with intent to deprive the store of its property.

Reversed and remanded.

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