text:
    William Earl FIELDS v. STATE of Arkansas
    CR 73-89
    502 S.W. 2d 480
    Opinion delivered November 26, 1973
    [Rehearing denied January 14, 1974.]

      Oscar Fendler, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Phillip M. Wilson, Asst. Atty. Gen., for appellee.
   Carleton Harris, Chief Justice.

William Earl Fields, appellant herein, age 25, stationed at the Air Base in Blytheville, was charged on three separate instances of knowingly and intentionally exposing his private parts to several minor children under the age of 16 years, and on trial was found guilty by a jury on all three charges, receiving a sentence of six months on one, one year on another, and one and one-half years on the third. The trial court directed that these sentences run consecutively and judgment was so entered. From that judgment, appellant brings this appeal. For reversal, eleven points are asserted, which we proceed to discuss in the order listed.

I.
The trial court erred so many times that it was impossible for defendant-appellant Fields to obtain a fair and impartial trial.
The trial court erred when it ruled that the case be tried in Division 2 of the Second Judicial District when it should have been tried in Division 1.
J — J
The trial court erred when it limited defendant-appellant Fields and his counsel in the time in which he could file additional pleadings.
IV.
The trial court erred when it denied defendant-appellant Fields’ Motion to Quash Venire or Jury Panel.
V.
The trial court erred when it failed to disqualify itself after testimony of defendant-appellant Fields and of his father.
VI.
The trial court erred when it failed to prohibit the testimony of a minor who had no understanding of the obligation of an oath.
VII.
The trial court erred when it failed to prohibit the testimony relating to prior alleged similar acts of defendant Fields in March 1972.
VIII.
The trial court erred when it allowed to remain in evidence State’s Exhibit 1, the football jersey, because it was obtained under a faulty search warrant.
IX.
The trial court erred when it denied defendant’s offered Instruction No. 3.
X.
The trial court erred when it denied the defendant’s offers of evidence because this proffered evidence did relate to degree of punishment the jury might assess against Fields if it found him guilty.
XI.
The trial court erred when it allowed the State to discuss in the presence of the jury the refusal of defendant to sign printed form concerning his constitutional rights.
I.

This point is what is known as a “scatter-load”, based on the other alleged errors, and need not be discussed separately.

II.

Appellant asserts that error was committed because his case was tried in Division 2 of the Second Judicial District when it should have been tried in Division 1. In support of this allegation, appellant relies upon Ark. Stat. Ann. § 22-322.12 (Supp. 1971). This contention was first made before the court on the day before trial when a motion was filed to release appellant on bond, the objection to the trial during the civil term was made, and a continuance was requested until April 2, 1973, when the First Division Court would be trying criminal cases. It is argued that the record does not reflect that Judge Harrison, in Division 2, entered an order assigning these cases on the criminal docket of Division 1 to his division for trial. This contention refers to Arjc. Stat. Ann. § 22-322.3 (Repl. 1962) which requires a written order by the court before the clerk could assign cases. That provision, however, was superseded by § 22-322.12 which requires an “appropriate” order for the reassignment of a case from one docket to another. The standard for the assignment is that the arrangement is found to be best for the dispatch of business. When the pretrial hearing was held on January 2, no complaint was raised about the dates set for trial, nor was there any complaint about the court that would try the case. Therefore, it would not appear that there was any prej udice because of the clerical methods employed by the court in making the transfer; nor does there appear to be any abuse of discretion on the part of the court, for the record discloses that Division 1 conducted the preliminary handling of the case at a time when Judge Harrison was the presiding judge of the Criminal Division, and was thus actually in a better position to continue with the disposition of the case. We pointed out in Gardner v. State, 252 Ark. 828, 481 S.W. 2d 342, that one of the main purposes of Act 505 of 1965 (creating the several divisions, designating one as “Criminal” and the other two as “Civil”) was to permit- the' transfer of civil or criminal cases in order that litigation would be disposed of more expeditiously. We fail to see how appellant suffered prejudice because of the transfer, and it might also be mentioned that Ark. Stat. Ann. § 22-322.7 (Repl. 1962) provides that it “shall not be reversible error that any case is tried in the division to which it has not been especially assigned***.” Also, see Blackstead Mercantile Co. v. Bond, 104 Ark. 45, 148 S.W. 262.

III.

Two of these charges were filed in the month of July, 1972, and the third was filed in September of that year. A pretrial conference was set for, and held, on January 2, 1973, at which time the case was set for trial for January 16, 1973. Although the length of time mentioned was more than adequate for the filing of motions, and although a pretrial conference was held on January 2, it was not until January 15, one day before the time set for trial, that counsel for appellant announced that he had other pleadings to file. The court told counsel that he would not entertain any pleadings the next morning, and gave counsel until 11:00 A.M. to file whatever he desired to file, the time period amounting to about an hour. It is vigorously argued that this limitation was unreasonable, and requires a reversal.

Of course, under some circumstances, the period of time allotted would quickly be considered unreasonable, but as previously pointed out, adequate time had already been afforded for the filing of any pleadings. Within the hour, counsel returned and filed a Motion to Quash the Jury Panel. In oral argument, counsel candidly admitted that at the time he said that he would file more pleadings, he had no particular pleading in mind, but simply intended to study the matter further and determine what pleadings he did care to file. He seemed rather surprised that he was not permitted to file additional pleadings up until the time the trial started; however, we can take judicial notice that many trial courts, as a matter of precluding continuances after witnesses have been notified to appear, and as a matter of preventing disruption of the orderly process, have rules limiting the time that additional motions may be filed before the date of trial. This is not a matter relating to a sudden occurrence of some unexpected event that made necessary the filing of an additional motion. We find no merit in this contention.

IV.

This was the motion that was filed the day before the trial and it asserts that the “Jury Panel or Venire does not have any colored persons on it. It is a well-known fact that between 25% to 30% of the registered voters of the Chickasawba District of Mississippi County, Arkansas, are colored. This failure to have colored persons on the venire is in violation of the constitutional rights of this defendant.”

In the first place, let it be pointed out that the United States Supreme Court has never said that the failure to have members of the black race on a particular panel, is discriminatory; rather their holdings have been based on systematic exclusion of members of that race from the jury panel.

In Apodaca v. Oregon, 406 U.S. 404, 32 L. Ed. 2d 184, the court rejected an argument that every distinct voice in the community has a right to be represented on every jury, stating:

“All that the Constitution forbids, however, is systematic exclusion of identifiable segments of the community from jury panels and from the juries ultimately drawn from those panels; a defendant may not, for example, challenge the makeup of a jury merely because no members of his race are on the jury, but must prove that his race has been systematically excluded. [Citing cases].”

In Swain v. Alabama, 380 U.S. 202, 13 L. Ed. 2d 759, the court said:

“Although a Negro defendant is not entitled to a jury containing members of his race, a State’s purposeful or deliberate denial to Negroes on account of race of participation as jurors in the administration of justice violates the Equal Protection Clause.”

In the case now before us, there is no evidence of systematic discrimination and remarks of counsel clearly indicate that his contention is that there were no black persons on the panel at the time of this trial. Counsel offered the testimony of the Deputy Circuit Court Clerk to the effect that there was only one Negro on the panel for the term of court beginning the first of January, 1973, and that person had been excused for the term. However, the deputy clerk testified that members of the Negro race had served as jurors in 1972 and, to her knowledge, for at least six to eight prior years. In Peters v. Kiff, supra, the Supreme Court held that since discrimination in jury selection will not be presumed, a defendant carries the burden of proving such discrimination, but once a prima facie case, or strong inference of race discrimination in jury selection has been presented, the burden shifts to the state to overcome the presumption. Appellant offered only the evidence mentioned; he was not refused the right to offer additional testimony, and the evidence offered certainly was not sufficient to establish a prima facie case, or raise a presumption of discrimination.

V.

Appellant and his father testified in chambers that they believed Judge Harrison was biased and should disqualify himself in the case. Appellant, in reply to a question from his counsel, stated that he was present when the judge “turned down your motion for continuance, he stated that — when he turned down your motion to lower the bond to $5,000 — he said ‘You were out on bond before and you committed two other criminal acts *** to me that in his eyes I am already guilty.’ ”

Appellant’s father testified:

“On two occasions when I talked to the Judge in front of you [Mr. Fendler] and Mr. Partlow and the two clerks, I asked if anything could be done at all that would get him medical treatment rather than be put in the pen, and he stated that when he was in the pen, he could get medical help. On two occasions he made this statement, and the statement he made this morning, so far as he was concerned, my son is already guilty.”

Let it first be pointed out that, according to the record, on October 9, 1972, formal arraignment was waived and a plea of not guilty by reason of insanity had been entered; likewise, a motion had been made to commit appellant to the State Hospital for thirty days observation and examination, which had been granted, and Judge Harrison had signed the order of commitment. In addition, at the pretrial hearing on January 2, counsel for appellant had acquainted the court with his efforts to get appellant into a mental hospital, stating that his client needed psychiatric treatment, having a nervous disorder related to sex. So — the remark of the court certainly did not indicate any prejudice. Be that as it may, it must be remembered that all remarks herein mentioned were made prior to the commencement of the trial, and outside the hearing of any members of the jury panel. In Walker v. State, 241 Ark. 300, 408 S.W. 2d 905, the trial court made remarks considerably stronger than those in the present instance, but we held no showing of disqualifying prejudice had been shown, pointing out that the fact that a trial judge may have a personal opinion as to the merits of the case does not make the trial court so biased and prejudiced as to require his disqualification, and commenting that the “mischief occurs when the trial court communicates to the jury by word or deed a personal bias, prejudice or animus toward the accused, causing the accused to be denied a fair and impartial trial.” It is mentioned that statements by a trial court, in no way communicated to the trial jury, could not constitute bias or prejudice requiring disqualification. We find no merit in this contention.

VI.

Wayne Porter, a ten-year-old boy, testified as to the charge occurring on July 21, being in the company of Donna Pipkin, age 15, Lisa Bigham, age 8, and Vickie Carner, age 14. When asked if he understood that he was under oath, the boy replied, “I didn’t know that until you just now told me.” He stated that he realized that he was supposed to tell the truth but when first asked if he knew what would happen if he didn’t tell the truth, he replied, “Well, not really.” He said that he knew that it would be bad if he didn’t tell the truth and stated in reply to what would happen if an untruth were told, “I imagine I would get punished for it.” At the suggestion of counsel for appellant through a leading question, Wayne testified that he meant he would get a spanking from his Mother and Dad. He stated that he did not attend Sunday School and Church. Over objections, the court permitted Wayne to testify. The next morning, in chambers, before the trial resumed, the court asked counsel for appellant if he desired to renew his motion as to this witness and upon being told that counsel still desired to so move, the record reveals the following:

"The Court is going to strike the testimony of the witness, Wayne Porter, giving to this defendant something which the Court really doesn’t feel he is entitled to, but in order to ensure to the defendant an absolutely and completely fair trial in every respect, and so that no question can be raised whatsoever about the competency of any testimony, and in view of the fart that this request has been made, it will be honored and the jury will be admonished to disregard it.
"MR. FENDLER: At this time on behalf of the defendant, Judge Harrison, I am moving the Court to declare a mistrial on these cases because the testimony was given over my objection as defense counsel. My motion at that time should have been granted and at this time is prejudicial to my case and will cause a very bad effect on the jury. I am making a motion for mistrial at this time. In the alternative, if you don’t grant my motion for mistrial, then I would request the strongest admonition to the jury; you will very strongly tell them to get it out of your mind once you have heard it, but since Mr. Fendler asked it be denied yesterday and the motion was overruled; and no reference to be made to it in the arguments.
“COURT: In view of the rulings of the Court, you were not entitled to it initially. Of course, the Court is of the same feeling you are not entitled to it now, but the Court, as I stated, in order to give to you and this defendant every avenue that might be available to present for the defendant in an effort to see and ensure an absolutely fair trial, this is the only reason the Court brings this up at this tim^, and if this is the attitude of the defendant, and he doesn’t care to have this granted except and on condition a mistrial be granted, that will be denied, and we will continue with the trial.
“MR. FENDLER: Note my exceptions.
“COURT: The ruling will remain as initially made.”

Taking the matter from the outset, the actual point for reversal is that Wayne “had no understanding of the obligation of an oath”, and appellant principally relies upon the cases of Crosby v. State, 93 Ark. 156, 124 S.W. 781, and Hudson v. State, 207 Ark. 18, 179 S.W. 2d 165. In the first, this court held, that in understanding the nature of an oath, the child must be under the immediate sense of his responsibility to God with a conscientious sense of the wickedness of falsehood. In the last cited opinion, Hudson was convicted of murdering his wife. The daughter of the deceased, an eight-year-old girl named Pauline, testified and it was contended that this little girl was not competent to testify. The opinion reveals the following facts:

“Counsel for appellant cross-examined Pauline in respect of qualification and asked : ‘Did you hold up your hand today when they called the names of all those folks back in the courtroom?’ (2) ‘Do you know what an oath is?’ (3) ‘When (the Circuit Clerk) asked you if you agreed to tell the truth, the whole truth, and nothing but the truth, did you know what he was asking?’ To each question a negative answer was given. The little girl asserted that she knew the difference between right and wrong, but did not know what happened to one who did wrong; but she knew about God, and if she did wrong she knew He would do something about it. She later said: ‘He will kill you.’ She knew what the truth was, but when asked to define it replied, ‘I don’t know.’ ”

The court then held her testimony admissible “having had her attention called to a Supreme Being who rewards or punishes in a manner she thinks she understands [and] assents to the proposition that the testimony given will not be false.” We then commented:

“The distinction is one of definition, rather than understanding. It is the exceptional person who, when called to testify, knows what punishment will result from perjury; nor is Pauline to be held incompetent because she did not know what the Circuit Clerk meant when he asked her if she agreed ‘to tell the truth, the whole truth, and nothing but the truth.’ That she did not hold up a hand when ‘they called the names of all those folks back in the courtroom’ is not of controlling importance. She was interrogated by the Judge, who impressed upon her full solemnity of the situation in so far as her degree of maturity permitted.”

Over the years, these holdings have been somewhat modified and the Crosby case is mentioned in our last case on this subject, Allen v. State, 253 Ark. 732, 488 S.W. 2d 712. There, Allen was charged with the rape of an eight-year-old girl, convicted, and sentenced to life imprisonment. On appeal, inter alia, appellant contended that the trial court abused its discretion in permitting this little girl to testify. On this point, this court said:

“As to the requirement of understanding the nature and effect of the oath, we said in Crosby v. State, 93 Ark. 156, 124 S.W. 781, that the child must be under an immediate sense of his responsibility to God with a conscientious sense of the wickedness of falsehood. But this court has found no abuse of discretion in the trial court’s determination of competency where the child realizes that he is obliged to tell the truth and that he will be punished for not doing so, i.e., that he will be punished for not telling the truth because telling falsehoods results in punishment. In Crosby, the witness did not know what the consequences of his failure to testify truthfully would be and was not asked anything from which it could be inferred that he had a sufficient sense of the danger and wickedness of false swearing or that he comprehended and appreciated the sanctity and obligation of an oath. In DeVoe v. State, 193 Ark. 3, 97 S.W. 2d 75, we had this to say regarding an eight-year-old prosecutrix in a rape case:
'As to her competency, it may be said, first, that her competency was peculiarly within the trial court’s discretion, and the trial court’s ruling on the question will not be disturbed unless there was a gross abuse of discretion ***. The witness in the present case was eight years old, appeared to be intelligent, to understand what was meant by an oath, and she testified intelligently. We are of the opinion that the trial court did not abuse its discretion in permitting the witness to testify.’
“We cannot say that there was an abuse of the judge’s discretion in this case. Our view in this regard is bolstered by the apparent intelligence of the witness disclosed by her testimony and the responsiveness of her answers to the questions propounded to her.”

Actually, in Allen the record does not reveal that anything at all was said about an oath, and in qualifying the witness, no questions were asked relative to whether the prosecuting witness understood the obligation of an oath. In the case presently before us, Wayne did testify that he realized that he should tell the truth and that he would likely be punished for not doing so, and he also stated that the taking of the oath had been explained to him. No such evidence as this last appears in Allen. Further, questioning indicated normal intelligence for one that age. He mentioned his friends, how far away they lived from his home, what the children were doing at the time of the occurrence testified about, and he gave a clear description of what the party who exposed himself was doing when he observed him. His identification of appellant was weak, and it appeared that he was reluctant to disagree with counsel on cross-examination. Yet, a reading of the record very definitely leaves the impression that the little boy was endeavoring to tell the truth.

Apparently, the court subsequently, as a matter of avoiding any possible error, made the offer heretofore set out to strike the testimony. As shown by the record, counsel for appellant moved for a mistrial, with an alternative request, that if this be denied, that the "strongest admonition” be given to the jury. It would appear that the court did not hear the alternative for the judge then said that if counsel did not care to have the motion to strike granted “except and on condition a mis-trial be granted, that will be denied and we will continue with the trial.” Counsel did not further pursue the matter other than to say "Note my exceptions”, and did not call to the attention of the court that he had made an alternate request, and it certainly appears, if he were insistent on the alternative that this would have been done. At any rate, the court consistently stated that it considered the little boy competent, and we are of the view that, certainly under our most recent case, no abuse of discretion was shown.

It might be well to also point out that nine other children testified to the acts committed by appellant; that three others, including a fourteen and fifteen-year-old girl, testified to this particular act, and the testimony was only cumulative. Without any hesitation, under the circumstances herein, we would say that, if error was committed, it could not have been prejudicial. In other words, in viewing all of the testimony herein and considering its overwhelming nature, we think unquestionably that the removal of Wayne’s testimony from the case would not have affected the jury verdict.

VII.

This alleged error refers to the testimony of Sandra Mitchell, 13 years of age, and Teresa Shoemaker, 13 years of age, both of these little girls testifying that Fields deliberately exposed himself to them in March, 1972. This was not one of the offenses charged, but was offered by the state as a matter of showing the intent of appellant. The statute itself, Ark. Stat. Ann. § 11-1127 (Repl. 1964), reads:

“It shall be unlawful for any person with lascivious intent to knowingly and intentionally expose his or her private parts or genital organs to any other person, male or female, under the age of sixteen (16) years.”

It is thus apparent that intent is an integral part of the offense, and the evidence mentioned was offered for this purpose. These two children testified to practically the same acts on the part of appellant as had been allegedly committed before the other children, and we think the evidence was admissible. In Ward v. State, 236 Ark. 878, 370 S.W. 2d 425, appellant was charged with fondling a male child under the age of 14 years in violation of § 41-1128. There, evidence of a similar offense committed several years before was offered by the state, and on appeal, was approved by this court. We pointed out that a different rule, as to evidence reflecting intent, applies to unnatural sex cases and quoted from an earlier case. See Alford v. State, 223 Ark. 330, 266 S.W. 2d 804, and cases cited therein. The alleged offense, here offered in testimony, had only occurred a few months before the instances of similar conduct with which appellant was charged, and we think unquestionably, under our cases, that this was competent testimony. The court’s instruction-lb told the jury that evidence of the similar offense was admitted solely for the purpose of showing appellant’s intent, motive, habits, and practices, and could only be considered for that purpose.

VIII.

Sandra Mitchell, Teresa Shoemaker and Sherry Richardson all stated that the person who exposed himself was wearing a maroon and white football jersey; the first two said that it -bore the number 67, and the last mentioned that it bore the number 7 8, though she said that she was not sure about the number.

Officer Robbie Cox, Chief of Police at Blytheville, obtained a search warrant, the affidavit for the warrant stating that Cox had reason to believe that at Barracks 612, No. 3, Blytheville Air Force Base, there was concealed one maroon football jersey with the numerals 67 which Fields was wearing at the time of the alleged incident. The facts tending to establish the grounds for issuance were listed as statements from Teresa Shoemaker and Sandra Mitchell, who had been interviewed separately. Appellant objected to the exhibit, pointing out that the affidavit listed a maroon football jersey, and the officer came back with a white football jersey. The jersey, offered in evidence, is white with a maroon number 67 on both front and back. It was pointed out by the court that when this jersey was offered in evidence, no objection was offered until after the state had finished its examination and the witness had been taken on cross-examination. Aside from that, however, we find no merit in the contention of error. Cox testified that the. description of the jersey as maroon, was either his error or that of a typist because he did receive the information from the little girls that the jersey was maroon and white, and with the numerals 67. Appellant cites the old case of State v. Nejin, 74 So. 103 (1917), where the Louisiana Superior Court said that "Where the purpose of the search is to find specific property, it should be so particularly described as to preclude the possibility of seizing any other.” This same language is used in Lea v. State, 181 S.W. 2d 351 (1944) and Cagle v. State, 180 S.W. 2d 928 (1944). Nejin, however, also points out that the language "particularly describing the place to be searched and the persons or things to be seized” is to be reasonably interpreted and does not necessarily mean a minute and detailed description of the property to be seized. In the Tennessee case of Poole v. State, 467 S.W. 2d 826 (1971), the defendants insisted that the property for which a search had been made, was not adequately described with particularity, the description being “one electric heater, one orange colored ice jug, 16 gauge shotgun, shells, 22 shells and so forth.” In rejecting this contention, the Court of Criminal Appeals of Tennessee said:

“We think, as did the trial judge, that these items were about as particularly described as such commodities can be. Such merchandise is difficult to describe. It may be said that the heater should be described as a ‘G.E.’ or a ‘Westinghouse’, it could also be argued there are thousands of G.E. heaters and thousands of Westinghouse heaters. Shotgun shells might be described as Remington, Western or Winchester or by name of the manufacturers, still it could be argued there are untold numbers of Winchester, Remington or ‘Peters’ shotgun shells 12’s 16’s and 20’s.”

A somewhat comparable situation existed in the Arkansas case of Easley v. State, 249 Ark. 405, 459 S.W. 2d 410. There it was contended that the description of the property to be searched was insufficient, the search warrant stating that the property sought was concealed in “the house occupied by Bud Easley in or near Hiwasse in the County of Benton.” In rejecting the contention, this court said:

“A search warrant is directed to the officer who is to make the search and Easley does not contend that the officers searched the wrong house under the warrant. Common sense dictates that the constitutional requirement that a search warrant contain a particular description of the property to be searched, is designed and intended to aid the officers in locating the right property to be searched, as well as to protect innocent property owners from unreasonable searches and seizures and prevent officers from searching the wrong property.”

Here, the testimony reflects that the information given was correct, but that a mistake was made in the affidavit. After all, what was the most important part of the description relative to identifying the property? Unquestionably, it was the number 67. This was a particular, specific description, and we think, in accord with the authority quoted, would have prevented the officers from taking the wrong property. Of course, by necessity, a football jersey bearing numerals, would have to be of two colors, in order that the numbers could be identified. We conclude that the contention is without merit.

IX.

Appellant’s Offered Instruction No. 3 was AMI Civil Instruction 102, which provides,

“In considering the evidence in this case you are not required to set aside your common knowledge but you have a right to consider all of the evidence in the light of your own experiences and observations in the affairs of life.”

In considering this point, it might be stated at the outset that we are puzzled as to the purpose in offering this instruction. What would be the experiences and observations of members of the jury as related to the evidence offered in this case? What would be the “common knowledge” referred to? At any rate, it certainly appears that the requested instruction is abstract and we cannot see where it is at all germane to the factual issues being tried. It is not error to refuse to give an abstract instruction. Stevens v. State, 246 Ark. 1200, 441 S.W. 2d 451. For that matter, the instruction, at most, could only have been cautionary, and we have held that the giving or refusing of a cautionary instruction lies within the sound discretion of the trial court. Baxter v. State, 227 Ark. 215, 298 S.W. 2d 47.

X.

The evidence referred to under this point was competent, says appellant, because it related to the degree of punishment the jury might assess against Fields if it found him guilty. It will be recalled that Fields first entered a plea of not guilty by reason of insanity, but subsequently changed that plea to “not guilty’’. There is a great deal of difference in the proof that would be relevant under these two pleas. Of course, under the first plea, there is an admission of guilt of the act charged, but one contends that because of a defective mental condition and the inability to determine right from wrong, such defendant is not responsible for his act. Under this plea, evidence of a psychiatrist would, of course, be most pertinent, and evidence of irrational acts would be admissible, but the plea of “not guilty’’ simply means that a defendant is saying, “I didn’t do it!” Appellant offered the evidence of Dr. Joe E. Hutchison, Psychiatrist at the Arkansas State Hospital in Little Rock, Dr. Hutchison being one of the staff who observed appellant during his thirty-day stay in the hospital for observation. The doctor explained the tests that are given, stated that the function of the staff was to determine “whether there is enough ego or personality disintegration which would disable the accused, make them irresponsible or mentally incompetent”, and testified that Fields probably was not mentally ill to the degree of legal irresponsibility. Counsel then asked if the doctor thought Fields was amenable to therapy and the court suggested that further hearing be conducted out of the presence of the jury. In chambers, Dr. Hutchison said that, speaking personally, he felt that Fields would be one of the most favorable candidates for therapy. He described this therapy as “Psychotherapy. Group psychotherapy treatment, and also they call it behavorial modification, which specifically would be deconditioning. *** If he had the right type of therapy, in my personal opinion his prognosis would be good.” The doctor said that Fields had a superior I.Q.; that is, between 130 and 140. Finally, counsel asked Dr. Hutchison if “in your observation as a psychiatrist for years, and particularly in the State Hospital, what do you think is going to happen to him if he is sent to the penitentiary or given any confinement?” The court, after objection, held this question, as well as the doctor’s other testimony, to be incompetent because no defense of insanity had been interposed, and stated that further questions along that line would not be permitted. Counsel then made his offer of what the witness would state as follows: '

“Judge, if he were allowed to answer, this witness would say that sending this man to the penitentiary would destroy him; that it would be the worst possible thing that could happen, having him confined. This man needs to be treated as an outpatient and not even as an inpatient in an institution, and that if he were treated as an outpatient, with the proper type of psychiatrists handling this that knew these problems, that very likely, most likely, there will be a complete recovery.”

Counsel then referred to lay witnesses, persons who had known appellant for a number of years, stating that these persons would all testify that in their opinion, even a short stay in the penitentiary would “destroy” appellant. It was stipulated by the state that those particular people would give the answer stated.

The court acted properly in refusing appellant’s request to present this evidence. The effect upon an individual of being sent to the penitentiary has nothing to do with one’s guilt or innocence on the charge being tried. Unfortunately, it may well be that many young people who are sent to the penitentiary are not “helped”, i.e., made better citizens by virtue of having been there. We daresay that this same contention could be raised by divers persons who have violated the law, but, in determining guilt or innocence, such testimony is entirely and completely irrelevant.

Of course, evidence of good reputation in the community is admissible, and the trial court not only permitted this type of evidence, but also permitted witnesses to mention specific acts of good conduct. For instance, Lt. George Bolton, III, located at the Blytheville Air Force Base and working in Personnel, testified that the records did not reflect any type of military disciplinary action taken against Fields during his service and the witness was permitted to read a portion of the last Airman Proficiency Report on Fields, and also commented from the report that “Staff Sgt. Fields was selected as pride man of the month for June, 1972 in the A.G.E. Branch.” The witness further read under “Educational and Training Accomplishments” from a report dated between December 3, 1970 and December 2, 1971, “Staff Sgt. Fields is an outstanding Airman. He has demonstrated his willingness to get ahead by having enrolled in off-base college courses during his off duty hours.”

Col. William C. Brewer, Deputy Commander for Maintenance for the 97 th Bomb Wing at the Air Force Base, testified in a similar vein.

Numerous other witnesses, some of whom had known appellant for many years, testified as to his generally good reputation, including his former Scoutmaster, a former District Executive of the Boy Scouts of America, and one of his school teachers. His father, Chief Switchman for Southwestern Bell Telephone Company in that area, testified in detail about the boy’s civic activities, the numerous honors that he had been awarded, and various other similar favorable facts. A hearing was then conducted out of chambers as to evidence appellant desired to offer through the father that the latter had contacted a psychologist and psychiatrist in Memphis, and made arrangements for appellant to have psychiatric treatment. As previously stated, this last was inadmissible evidence. Appellant also offered testimony, which was rejected by the court, of the parents of one of the little girls, that they did not desire to prosecute, considering the defendant to be sick.

Appellant vigorously argues that testimony of the various people relating to the effect of sending appellant to the penitentiary was admissible, but we cannot agree. Of course, had appellant entered a plea of guilty, extraneous factors could have been presented as a matter of aiding the court in determining the proper sentence. A sentencing court is entitled to receive reports of a probation officer, and any other evidence that might be helpful in this respect, but, in determining guilt or innocence, this evidence is not proper for a jury.

XI.

Officer Mike Richardson of the Blytheville Police Department was asked, following the arrest of Fields, if the latter was advised of his constitutional rights. The witness answered in the affirmative and said that any person arrested is given a form that explains those rights. He testified that Fields was given such a form and then started to state what the form reflected when counsel for appellant objected, saying, “Judge, I would object to this, whatever the form is, to show he signed it, would be the best evidence; not what this witness says.” Counsel then demanded that the signed form be shown. The prosecuting attorney thereupon stated that the defendant had refused to sign the form and counsel objected. In chambers, it was contended that appellant had been prejudiced by the statement made in the presence of the jury that the form had not been signed. We do not agree. No confession was given by appellant, nor was any evidence offered that he had admitted any charge or circumstance; in fact, there was no testimony as to anything that appellant might have said. It is difficult to say how the failure to sign the rights form could have been prejudicial. The refusal to sign frequently occurs, and it certainly is not any sort of admission of guilt; at most, it could only be argued that failure to sign demonstrates that one has not been told his rights before making a statement — and since no statement was here involved, there could have been no prejudice. In oral argument, counsel stated that it would cause the jury to think that appellant was “non-cooperative” with the officers, but we fail to see the significance. It might be said that, in chambers, the prosecuting attorney mentioned that he thought the refusal to deny the charge was an admission against interest and that he intended to argue that to the jury. If the state had made such an argument to the jury, prejudicial error would have resulted, but this was not permitted and was not done. The incident did not constitute error. Of course, counsel brought the matter up himself in asking the officer to present a signed form. More than that, however, the court instructed the jury to disregard the questions relative to advising the defendant as “to his rights and the form that was presented to the defendant.” Counsel expressed his appreciation to the court for this admonishment and the matter thus rested.

Appellant was diligently represented and it appears that every possible defense to the charge was presented on trial. In this opinion, we have discussed these contentions at length and found them to be without merit. The matter mentioned in Point X, and which is so fervently argued by counsel, is one that properly addresses itself to the Executive Branch of Government.

Finding no reversible error, the judgment is affirmed.

It is so ordered.

Byrd, J., dissents.

Fogleman, J., not participating.

      “The Circuit Court Clerks of each of the courts in the several counties shall keep and maintain two (2) separate dockets, one (1) for criminal cases and one (1) for civil cases, and each case filed shall be entered in the proper docket. The Judge of the First Division shall preside over cases assigned to the Criminal Docket and the Judge of the Second and Third Divisions shall preside over cases assigned to the Civil Docket. During each term of either division of the Circuit Court, the presiding Judge, by appropriate orders, may assign the first instance, or reassign, any case, Criminal or Civil, from one docket to the other as may be found best for the dispatch of business. The Judges of the three (3) Divisions will alternate in the holding of courts in the three (3) divisions so that each judge will hold approximately one-third (1/3) of the first division (criminal) terms in each county of the district, and two-thirds (2/3) of the second and third division (civil) terms in each, county of the district.”

      The compiler also comments, “This section is deemed to be superseded by § 22-322.12 effective January 1, 1967.”

      Judge Harrison had conducted the hearing when appellant was sent to the State Hospital for observation.

      Appellant says that his consent was necessary for he was not seeking a speedy trial. We do not agree. In Standards Relating to a Speedy Trial promulgated by the American Bar Association Project on Minimum Standards for Criminal Justice, Section 1.1 [Approved Draft, 1968], it is pointed out that the principles set out in the report deal primarily with the protection of the defendant, but that the public too is interested in a speedy trial. "From the point of view of the public, a speedy trial is necessary to preserve the means of proving the charge, to maximize the deterrent effect of prosecution and conviction, and to avoid, in some cases, an extended period of pretrial freedom by the defendant during which time he may flee, commit other crimes, or intimidate witnesses.”

      This case came from the same Chickasawba District where two divisions were then in existence.

      From the record:
      “This Court is not going to entertain any pleadings in the morning, Mr. Fendler. If you have any, you have to get them in and get them filed before noon today. You have had since July ‘72 to file your pleadings, and to get ready for trial. You announced ready for trial on the 2nd of January. You then told the Court you wanted to plead the defendant guilty because he was guilty. You then had a conference and came back and told the Court that you didn’t want to plead him guilty, and then I was informed again Friday or Saturday that you had informed the prosecuting attorney again that he was guilty and you were going to plead him guilty this morning, and then this morning you appear with this motion, and say he is not guilty, and you want a trial, so the matter will be for trial in the morning.”

      In Peters v. Kiff, 407 U.S. 493, 33 L. Ed. 2d 83, the Supreme Court pointed out that the right to seek relief because of discrimination against members of a particular race in the selection of juries is not limited to a criminal defendant of that particular race, but may be exercised by a defendant of any race where jury members of any other race have been arbitrarily excluded.

      The United States District Court for the Eastern District of Arkansas, Pine Bluff Division, concurred in this view, stating:
      “But, as pointed out by the Supreme Court, latent, subjective prejudice of that sort is not enough to require a judge to disqualify himself in a jury case.” See Walker v. Bishop, 295 F. Supp. 767, 773.

      “(5) Amplifying this line of examination, the following questions were asked and answers given: ‘Q. What do you mean by that? A. Tell the truth. Q. Tell the truth? A. Yes, sir. Q. And if you didn't tell the truth, what would happen to you? If you are not telling me the truth about what I am asking you, what is going to happen to you? A. I don’t know ... Q. As far as you know, there wouldn’t anything happen to you if you didn’t tell (those men over there) the truth. Is that right? A. Yes, sir.’
      (6) Question: ‘Pauline, you say you know the difference between right and wrong? A. Yes, sir. Q. You have been taught that at home, and in Sunday School? A. Yes, sir. Q. Is it right or wrong to tell a story? A. It’s right. Q. It is right? A. It’s wrong. Q. What happens to you if you tell a story? A. The bad man will get yoü. Q. Where did you learn that? A. Nowhere. Q. Now, do you know what swearing is? A. No, sir. Q. Would you swear something is so that is not so? A. No, sir. Q. If you were to sit here today in that chair and tell these people a story, or something . . . that wasn’t true, what would happen to you? A. The bad man would get me. Q. Would that be right, or wrong, for you to do that? A. It would be wrong.’ ”

      Sandra was one of those to whom Fields allegedly exposed himself on July 17 and Teresa was also present on that occasion but did not view the act, Teresa, upon observing the car, hollering “Run”.

      On another similar occasion, Vicki Camer obtained the license number of the automobile.

      The word "o£” does not follow “all” in AMI Instruction 102, and the requested instruction transposed the words "observations” and “experiences.”

      From the report:
      “Staff Sgt. Fields is a personable and conscientious individual. He strives for perfection in everything. He is dependable, self-confident, and is continually striving to improve his performance in his job knowledge. He has a deep sense of responsibility and is loyal to both his subordinates and superiors alike.”

      As pointed out in the American Bar Association Minimum Standards for Criminal Justice as Relating to Sentencing Alternatives and Procedures, Section 1.1 (b), p. 46:
      “It is also clear that sentencing by the jury is inconsistent with the principle that the sentencing decision should be based upon complete information about the defendant himself as well as his offense. Much of the information most helpful at the sentencing stage is properly inadmissible on the question of guilt, and to admit it only on the question of sentence is highly prejudicial.if the jury is to consider both questions at the same time.' Separation of the questions, on the other hand, involves separate trials, a time consuming and costly venture that presents little gain in compensation.” [Our emphasis].

        Miranda v. Arizona, 384 U.S. 436 (1966).


source: Caselaw Access Project

author: George Rose Smith, Justice.

license: Public Domain

text:
    Walter COMSTOCK et ux v. Alcye SMITH
    73-148
    501 S.W. 2d 617
    Opinion delivered November 26, 1973

      Joe Purcell, for appellants.

      Wright, Lindsey ir Jennings, for appellee.
   George Rose Smith, Justice.

In 1969 Grace Buffing-ton sold a house and lot in the city of Benton to the appellants, Mr. and Mrs. Walter Comstock. The purchase price was to be paid in monthly installments. Mrs. Buffington died testate in 1971, leaving her interest in the property to her sister, the appellee Alcye Smith. Mrs. Smith brought this suit to cancel the contract. The chancellor found the agreement of sale to be void, as a violation of the rule against perpetuities. Whether that finding is correct is the principal issue here.

The facts are undisputed. For 25 months before the sale the Comstocks had been occupying the property as tenants, at a rental of $85 a month. The contract of sale recited down payment of $2,125, but no money was actually paid, the recited figure being merely the total amount of rent previously paid by the Comstocks. The true sales price was $18,000, payable in monthly installments of $85 each until the purchase price, together with interest at the rate of TA per cent per annum, was paid in full.

The original complaint sought cancellation of the contract on the grounds that the seller was mentally incompetent and that the agreement was unfair and impossible of performance. When the case was tried upon that theory the chancellor sustained the defendants’ demurrer to the evidence at the close of the plaintiff’s proof. Thereafter, and apparently before a decree was entered, the court permitted the plaintiff to amend her complaint to assert a violation of the rule against per-petuities. We cannot say that the court abused its discretion in allowing the complaint to be amended, especially as no prejudice to the defendants resulted from the slight delay that occurred. Ark. Stat. Ann. § 27-1160 (Repl. 1962); Harris v. Starr, 226 Ark. 127, 288 S.W. 2d 332 (1956).

The chancellor was right in concluding, after a second hearing, that the contract violates the rule against perpetuities. Under that rule an interest must vest within a period measured by a life or lives in being plus 21 years. Gray, The Rule Against Perpetuities, § 201 (3d ed., 1915). In the case at hand the monthly payment of $85 was less than the interest upon $18,000, at 7/4 per cent per annum. There was no requirement that the principal debt be paid at any specified time. Consequently the purchasers and their successors in interest might have made payments for scores or even hundreds of years without violating their contract Or acquiring a right to a conveyance of the property. Thus the alienability of the title might be fettered for a period far beyond that allowed by the rule against perpetuities. While the rule does not apply to executory contracts not affecting an interest in property, it does apply to a contract which creates a property right that can be enforced by specific performance. Gray, supra, § 330; Restatement of Contracts, §§ 593 and 401 (1944); First Nat. Bk. & Tr. Co. of Lexington v. Purcell, Ky., 244 S.W. 2d 458 (1951); Kershner v. Hurlburt, Mo., 277 S.W. 2d 619 (1955); First Huntington Nat. Bk. v. Gideon-Broh Realty Co., 139 W. Va. 130, 79 S.E. 2d 675 (1953). The contract in the case at bar falls within that category.

The appellants, in arguing that the contract is valid, rely upon a paragraph in the agreement which provides that the purchasers cannot sell, transfer, or assign the contract, or lease the land, without the consent of the seller, and that if such a sale, transfer, assignment, or lease is made contrary to the contract the seller may declare the entire balance of the purchase price immediately due or may rescind the contract. The appellants contend that since they, must have the seller’s consent to transfer the property by deed, by will, or by intestacy, the contract must be performed if at all within their own lifetimes.

That argument is unsound. The interest must vest within the time allowed by the rule. If there is any possibility that the contingent event may happen beyond the limits of the rule the transaction is void. Gray, supra, § 214; Moody v. Walker, 3 Ark. 147 (1840). In Tucker v. Pulaski Fed. S. & L. Assn., 252 Ark. 849, 481 S.W. 2d 725 (1972), we held that a court of chancery will not permit an acceleration clause to be exercised in a manner that is unfair to the debtor. Consequently, as that opinion recognizes, there could be many situations in which the appellants or their successors might validly transfer their interest in the contract without the consent of the seller or her successors. Thus there is unquestionably a possibility that the life of the agreement might extend beyond the time allowed by the rule.

The chancellor awarded the appellants $775.75 to reimburse them for taxes, insurance, and an improvement to the land. He refused, however, to allow them to recover their monthly payments, since the rental value of the land offset the amount of those payments. The court was right. The appellant, under a void contract, occupied the property as their residence. In the circumstances they have no standing in a court of equity to obtain the return of their payments without any deduction for the benefits they received. Compare Penney v. Vessells, 221 Ark. 389, 253 S.W. 2d 968 (1952); Dodd v. Mills, 219 Ark. 91, 240 S.W. 2d 25 (1951); Restatement of Restitution, § 157 (1937). One who demands equitable relief must in turn do equity.

Affirmed.


text:
    STATE of Arkansas v. Joseph H. WESTON
    CR 73-122
    501 S.W. 2d 622
    Opinion delivered November 26, 1973
    [Rehearing denied December 24, 1973.]

      Jim Guy Tucker, Atty. Gen. by: O. H. Hargraves, Deputy Atty. Gen., for appellant.

      Ted Boswell and Laser, Sharp, Haley, Young & Boswell, for appellee.
   George Rose Smith, Justice.

The appellee was charged by information with the offense of criminal libel. The information was amplified by a bill of particulars filed by the State at the defendant’s request. The trial court sustained a demurrer to the information and dismissed the charges, on the ground that the statute defining the offense is so vague as to be unconstitutional. Ark. Stat. Ann. § 41-2401 (Repl. 1964). The constitutionality of the statute on its face, as it applies to this information and bill of particulars, is the issue now before us.

The information charged that Weston, unlawfully and maliciously, in writing in a publication identified as the Sharp Citizen, blackened the memory of Larson Dickey, Sr., deceased, and defamed Larson Dickey, Jr., a living person, by the publication of writings tending to impeach their honesty, integrity, veracity, or reputation and thereby expose them to public hatred, contempt, and- or ridicule. In response to the motion for a bill of particulars the State filed a copy of the article, apparently an editorial, which gave rise to the charges.

That article, using the “editorial we,” states that Weston has received letters indicating that “Junior” Dickey and Les Anderson, the county judge of Sharp County, are organizing the citizens of Cave City “to place another advertisement in the newspapers all around Cave City about how the Sharp Citizen ought to be run out of business.” The article states that the two men will have to find a scribe to handle the paper work, because they cannot read or write. The article goes on to say: “Then, too, they will have to consider the cost of all those ads. The price would be greater than Junior Dickey could lay his hands on, even if he ran his still (the one he inherited from his father) every night for a month.” The article contains several other paragraphs, but we have given what we regard as the pertinent assertions.

The ownership or possession of an illicit still is a felony, punishable by confinement for not less than one year nor more than three years. Ark. Stat. Ann. §§ 48-936.1 and 48-936.2 (Supp. 1971 and Rep). 1964).

The statute now in question, which is said to be unconstitutionally vague, was adopted as part of the Revised Statutes of 1838 and reads as follows:

A libel is a malicious defamation, expressed either by writing, printing, or by signs or pictures, or the like, tending to blacken the memory of one who is dead, or to impeach the honesty, integrity, veracity, virtue or reputation, or to publish the natural defects, of one who is living, and thereby expose him to public hatred, contempt and ridicule. [Section 41-2401.]

Weston does not argue, and the Supreme Court of the United States has not held, that the guaranties of the First Amendment preclude the State from declaring the publication of a libel to be a criminal offense. Rather to the contrary, both the appellant and the appellee quote from and rely upon Professor Leflar’s article, Legal Liability for the Exercise of Free Speech, 10 Ark. L. Rev. 155 (1956), where the need for restrictions upon completely unfettered speech is recognized:

No responsible citizen can intelligently argue that the individual’s right to free speech could be absolute, in an ordered society made up of human beings . . . No society yet organized by mankind has been willing to permit the completely free and untrammeled communication of every possible idea that might emerge through the lips or pens of those who seek for one reason or another to affect their fellows by the use of words.
Ip TP
We are long accustomed to rules of law under which a man is legally liable for his harmful acts. . . . That words can be as harmful as physical acts nobody will deny. The fact of course is that words are acts, as much the voluntary product of a deliberate plan to engage in a course of conduct as is the swinging of a fist or the exertion of pressure on the gas pedal of a motor car.

Thus the narrow question is whether our statute, on its face, is so lacking in precision as to fall fatally short of defining the conduct that is being prohibited. We are unwilling to strike down the statute upon that ground. Libel, both civil and criminal, is notoriously difficult of exact definition. The definitions of libel in publications that seek the greatest possible precision do not differ materially from our statutory definition. Webster’s New International Dictionary (2d ed., 1934); Bouvier’s Law Dictionary (3d rev., 1914); Restatement of Torts, § 559 (1938). A number of other states have adopted statutes similar to ours. We have found no case holding such a definition to be unconstitutionally vague.

Counsel for the appellee do not suggest in their brief any definition of libel that would, in their opinion, withstand an attack based upon the First Amendment. The formulation of such a definition could hardly give effect to the intention of the legislature. That is, the more precise and inflexible the definition becomes, as by making it a libel to falsely charge another with being a liar or a thief, the more likely it is that the statutory language would fail to encompass many, many instances of slightly different language that the legislature would also make punishable if it were practical to do so. Thus the alternative to the general language now contained in the statute would be an enactment so specific that it would necessarily discriminate between utterances so similar as to be equally culpable.

The appellee devotes much of his brief to a discussion of the line of recent Supreme Court decisions that began with New York Times Co. v. Sullivan, 376 U.S. 254 (1964). (For an analysis of those cases see Note, 47 Notre Dame Lawyer 153 [1971].) Those decisions are not now pertinent to the case at hand, which comes to us upon demurrer to the information. There the court’s emphasis was upon the plaintiff’s burden of proving actual malice and upon the public status of the complaining party or the public interest in the subject matter of the asserted defamation. Here the existence and effect of actual malice are elements to be developed by the proof rather than to be set out in the information. Similarly, whether the asserted ownership or possession of a still is a matter of pressing public interest cannot be determined upon demurrer to the charges.

The trial court was in error in sustaining the demurrer. Inasmuch as the appellee has not yet been placed in jeopardy, State v. Gill, 33 Ark. 129 (1878), the judgment is reversed and the cause remanded for further proceedings.


author: Lyle Brown, Justice.

text:
    Mary L. ROBINSON et al v. Isiah CLINE
    73-70
    501 S.W. 2d 244
    Opinion delivered November 26, 1973

      Dickey, Dickey if Drake, Ltd,., for appellants.

      Reinberger, Eilbott, Smith if Staten, for appellee.
   Lyle Brown, Justice.

Appellants, ten in number, are the sole heirs of Wm. Middleton, who died intestate. Appellants sought to cancel a rental and option to purchase agreement executed between Wm. Middleton and appellee, Isiah Cline. The trial court denied appellants relief and ordered them to carry out the option to purchase agreement as requested by appellee in his cross-complaint. It was appellants’ contention that appellee was in arrears on his rental payments which they say resulted in a forfeiture of the agreement. On that critical point the trial court held the testimony to be completely opposite, which we take to mean evenly balanced; but the court held that any default in late payments had been waived by appellants.

The contract was executed between Middleton and Cline on April 15, 1966. By its terms Middleton rented to appellee, Cline, forty acres of land for a period of five years. The contract provided for a rental of $25.00 per month, beginning May 1, 1966, “and each month thereafter”. During the five year period, appellee had the option of purchasing the property for $11,886.81. It was provided that if all rental payments were made and the option taken, Middleton would convey good title to appellee. There was no provision for forfeiture; nor was there a “time is of the essence” clause in the contract.

The principal witness for appellants was Mary L. Robinson, a daughter of the deceased Wm. J. Middleton. She was an administratrix of the estate and was responsible for rent collections from appellee. She said monthly payments were made to her and she executed receipts. According to her records, appellee failed to timely make payments in July, October, and November, 1968; in March, August, and October of 1969; and in February and May of 1970. However, she conceded that during those years her records showed that appellee made three “double payments”. According to her, that left six monthly payments not made. On cross-examination she was presented with a cancelled check for $25.00 for which she had no record of receiving. Taking that check into consideration, that left, according to her testimony, five unpaid monthly payments.

As to appellee’s attempt to exercise the option to purchase, Mrs. Robinson testified in substance: Appel-lee informed her in late 1970 or early 1971 that he desired to exercise the option; she did not tell him some monthly payments were in default; she said the heirs were opposed to the option to purchase because, in their opinion, their father had been overreached in executing the agreement. She conceded she continued to accept rental payments until 1971. Then she stopped cashing the checks, accumulating ten checks which she retained but did not cash.

Appellee testified he talked with Mrs. Robinson about exercising his option; that she put him off; that thereafter and on April 26, 1971, he had his attorney write a letter notifying Mrs. Robinson that he was ready and able to exercise the option; that as of that date he was current with his monthly payments; that he was unable, however, to find cancelled checks for July and October 1968; and that he recalled making some payments in cash and believed it was in 1968. He said after he verbally told Mrs. Robinson of his intent to exercise the option, he continued to make his rental payments until he wrote the letter in April 1971.

Appellee’s wife testified she acted as bookkeeper for the family; that she normally made the payments by check or by cash. She insisted they were current in their payments and that Mrs. Robinson never claimed they were behind until making the allegation in the lawsuit. She said she was unable to find some of the can-celled checks, that they could in fact have been lost.

Appellants’ first contention for reversal is that the trial court erred in not finding that appellee was delinquent in some of his monthly payments. The court found that “the testimony is diametrical on both sides as to whether there was an arrearage in the rentals to be paid”. An examination of the testimony hereinbefore abstracted leaves us in a position of being unable to say that the chancellor’s conclusion was in error. Appellants strenuously argue that the failure of appellee to produce checks or receipts for all payments conclusively sustains this point. On the other side of the coin, appellee and his wife insisted that they were current in their payments; that they sometimes paid in cash; and that some of their papers, accumulated over the period of some five years, could have been lost. It may have also been significant to the chancellor that appellants never claimed delinquency until the lawsuit was filed. Additionally, if appellee was delinquent, that fact would not of itself cause a forfeiture.

The second point for reversal is that the court was wrong in holding that appellants waived a right to forfeiture by accepting late payments and by failing to notify defendant of the breach. In connection with this point, there are four facts of significance which must be kept in mind. One, appellants accepted late payments in three different years and without protest. Two, appellants never notified appellee of any delinquency and intent to cancel. Third, there was no provision in the lease for forfeiture for failure to make payments on time. Fourth, there was no “time is of the essence” prb-vision in the lease. In view of those facts and in light of our pronouncements in two cases, we think the trial court was correct. One of those cases is Duncan v. Malcomb, 234 Ark. 146, 351 S.W. 2d 419 (1961). The lease in that case was for ten years with an option to renew for another ten years. The lease provided for forfeiture by appellee upon failure to pay the rent when due. Appellee made late payments of rent for the first two years and in the third year appellant demanded possession at a time when the rent was two months in arrears. No demand was made for the delinquent rent. The trial court held that appellant, lessor, had waived the requirement for prompt rental payments. We held that in the circumstances (receiving late payments without protest), appellant could hot declare a forfeiture without first giving reasonable notice of intent to cancel. Undoubtedly the notice required would be for the purpose of giving the lessee the opportunity of bringing his payments up to date and to be aware that in the future, no delinquent payments would be accepted. Quoting from Duncan, we also said: “Of course it is elementary that equity abhors forfeitures”.

The other case in point is that of Pierce v. Kennedy, 205 Ark. 419, 168 S.W. 2d 1115 (1943). Pierce rented lands to Kennedy for five years, the rent being $25.00 per month payable in advance. The lease contained an option whereby Kennedy could purchase the lands at any time within the five year period. The lease provided for termination of the option to purchase if there was any default in the payment of the rentals. Rents had been accepted which were not paid when due. This court refused to declare a forfeiture and quoting from a prior case said: “Where there has been a breach of a contract sufficient to cause a forfeiture, and the party entitled thereto, either expressly or by his conduct, waives it, equity will relieve the defaulting party from a forfeiture unless the violation of the contract was the result of gross negligence, or was willful or persistent”. In the case at bar we find no evidence that any delay in payment was caused by gross negligence, nor was there evidence of a willful and persistent course of conduct. The Pierce case quotes with approval from 32 Am. Jur., § 894, Landlord and Tenant: “A court of equity, even in the absence of special circumstances of fraud, accident, or mistake, may relieve against a forfeiture incurred by the breach of a covenant to pay rent, on the payment or tender of all arrears of rent and ínteres! by a defaulting lessee”.

Finally, it is argued that a guardian should have been appointed for Wm. Middleton, Jr., a minor, one of the appellants (plaintiffs below). Appellants argue that no judgment on appellee’s cross-complaint should be entered because the minor came into the case by his mother as next friend. We have a statute, Ark. Stat. Ann. § 27-825 (Repl. 1962), which requires the defense of an infant to be made by a guardian. From best we can tell by the record, the objection to the absence of a guardian was advanced in apt time. That fact distinguishes this case from Cannon v. Price, 202 Ark. 464, 150 S.W. 2d 755 (1941), which at first blush may seem to be out of harmony with our holding in the case at bar.

We hold that the case should be affirmed with respect to all parties except as to the minor; as to the latter, the cause is reversed.

Affirmed in part; reversed in part.

Harris, C. J., not participating.


author: John A. Fogleman, Justice.

text:
    HOGGARD & SONS ENTERPRISES, Inc. et al v. RUSSELL BURIAL ASSOCIATION of Piggott, IRBY BURIAL ASSOCIATION of Rector
    73-97
    501 S.W. 2d 613
    Opinion delivered November 26, 1973

      Gus R. Camp, for appellants.
    C. Joseph Calvin, for Irby Burial Association of Rector.

      John R. Lingle, for Russell Burial Association of Piggott.

      Amicus Curiae by Jim Guy Tucker, Atty. Gen., by: Milton Lueken, Asst. Atty. Gen.
   John A. Fogleman, Justice.

Appellant Hoggard & Sons Enterprises, Inc., operator of a funeral home in Piggott, brought one action against appellee Russell Burial Association, also of Piggott, and another against appellee Irby Burial Association of Rector, seeking to recover the face value of burial contracts or membership certificates issued by the two burial associations. Insofar as the case now stands, the first suit involves a certificate covering W.C. Maude Edwards and the second one covering George Lewis Clark. Personal representatives of the two estates later joined Hoggard & Sons as parties plaintiff, after each of the defendants demurred, alleging a defect of parties, and are appellants here.

It is alleged in the complaints that Hoggard & Sons furnished services and materials for funerals for Edwards and Clark, but that the two Burial Associations have refused to pay Hoggard & Sons the face amount of the contracts. After each of the respective personal representatives had become a party plaintiff, each of the defendants filed a demurrer. Russell Burial Association asserted the complaint and amended complaint showed that the court had no jurisdiction of the subject of the action and that there was a defect of parties plaintiff, and prayed that the complaint be dismissed. Irby Burial Association asserted the complaint did not state facts that show the court had jurisdiction and that there was a defect of parties plaintiff in that Hoggard & Sons was not a proper party plaintiff, asking that the complaint be dismissed for these reasons. Plaintiffs in each case filed a response to the demurrers. The two cases were consolidated for hearing on these demurrers. The trial court’s order on the demurrers recites that they were submitted upon the briefs in support of the demurrers, the responses to the demurrers and briefs in support thereof and evidence introduced into the record. It also recites that the defendants, as a part of their demurrers, had pleaded that the plaintiffs had not exhausted their administrative remedies before the Arkansas Burial Insurance Board.

The record also reveals that the plaintiffs introduced into the record of this hearing answers by the defendants to interrogatories propounded by plaintiffs and the exhibits to these answers, and the defendants introduced plaintiffs’ answers to interrogatories propounded by the respective defendants. Upon this record the court sustained both demurrers on the ground that the plaintiffs had not exhausted their administrative remedies.

This record certainly made the appellees’ pleadings speaking demurrers and extended the court’s consideration far beyond a review of the face of the pleadings. A demurrer which sets up a ground dehors the record or which, to be sustained, requires reference to facts not appearing upon the face of the pleading is a speaking demurrer. Rider v. McElroy, 194 Ark. 1106, 110 S.W. 2d 492. A demurrer is proper when a defect appears upon the face of a complaint. Ark. Stat. Ann. § 27-1115 (Repl. 1962). Otherwise, such defects ordinarily are to be raised by answer. Ark. Stat. Ann. § 27-1119 (Repl. 1962). See Isgrig v. City of Little Rock, 225 Ark. 297, 280 S.W. 2d 891. Speaking demurrers are not to be considered, and it is erroneous for a trial court in passing upon a demurrer to decide a disputed question of fact or determine a mixed question of law and fact, since a demurrer properly raises only questions of law. Isgrig v. City of Little Rock, supra; Dodson v. Abercrombie, 218 Ark. 50, 234 S.W. 2d 30; Lawhon v. American Cyanamid & Chemical Co., 216 Ark. 23, 223 S.W. 2d 806. However, we have recognized motions to dismiss a complaint for want of jurisdiction when the lack thereof does not appear upon the face of the complaint. See, e.g., Arkansas Land & Cattle Co. v. Anderson-Tully Co., 248 Ark. 495, 452 S.W. 2d 632; Running v. Southwest Freight Lines, Inc., 227 Ark. 839, 303 S.W. 2d 578; May v. May, 221 Ark. 585, 254 S.W. 2d 95.

The trial court sustained the demurrers but did not specifically dismiss either complaint. We have been perplexed about the question of appealability of the court’s order. Ordinarily, the sustaining of a demurrer to a complaint is not an appealable order, but a subsequent judgment dismissing the complaint, if the plaintiff elects to stand thereon, is appealable. Rider v. McElroy, supra. But, in reversing the action of a circuit court, we have held that a demurrer alleging that the court did not have jurisdiction because of the pendency of a prior chancery court action, wherein the same parties and the same subject matter were involved, should have been treated as a motion to dismiss, when viewed in the light of the evidence introduced in support of the pleading. Askew v. Murdock Acceptance Corporation, 225 Ark. 68, 279 S.W. 2d 557. We said that the character and sufficiency of a pleading is to be determined, not by what it is called by the pleader but, by the facts which it sets up. The circuit judge must have heeded this admonition. His finding that the circuit court had no jurisdiction because plaintiffs had not exhausted their administrative remedies was tantamount to a dismissal. This result seems inevitable when we view the Administrative Procedures Act. Ark. Stat. Ann. §§ 5-701 — 714 (Supp. 1971). The parties could have judicial review, after the Arkansas Burial Association Board has acted, by filing a new petition which might be in Pulaski County rather than Clay County. Ark. Stat. Ann. § 5-705. For these reasons we deem the order appealable, as it would effectively terminate the present action in the Circuit Court of Clay County.

In answering interrogatories, Gardner McNabb, Secretary-Treasurer of Russell Burial Association, stated that the certificate issued by the association named no beneficiary, but provided for payment for merchandise and services furnished by a mortician chosen by the Secretary-Treasurer of the Association for the benefit of the deceased member covered. The sample certificate exhibited contained the following clause:

The failure of those in charge to comply with the rules and by laws as herein set forth shall forfeit the deceased member’s right to the benefits of the association.

According to McNabb, the by-laws appeared on the certificate itself. The certificate also revealed that the association would deliver a casket and conduct a funeral at a distance up to 50 miles from Piggott without extra charge, but if the member died at a place over 50 miles from Piggott an extra fee would be charged or a casket would be sent by express. There was also a provision on the face of the certificate that a deceased member’s right to benefits would be forfeited upon failure of “those in charge” to notify the Secretary-Treasurer or Russell Mortuary of a member’s death, until after his burial. The same persons constitute all the officers of both the association and the mortuary. McNabb stated that benefits under the certificate are usually paid to Russell Mortuary, unless the burial was outside the association’s service area, in which event, they are paid to the "contracting” funeral home. The service area is determined by the Arkansas Burial Association Board, according to McNabb. He said the only request for payment on account of the Edwards funeral was made by Hoggard & Sons Enterprises, Inc., after her burial.

According to plaintiff Hoggard’s answers to interrogatories, Lester Edwards contracted with it for Mrs. Edwards’ funeral, but the Hoggard funeral home was not designated by any officer of Russell Burial Association as the "contracting” funeral home. The total bill submitted to the Edwards family was for $1,058.70, with credit of $500 for "Russell Burial Association” allowance, pursuant to agreement with Lester Edwards. The Hoggard company advertises that it will honor all burial certificates.

The answers of Dan McBride, Secretary-Treasurer of Irby Burial Association, are of a similar tenor. They differed with respect to notice of death. McBride said he received notice from a member of the Clark family that a representative of plaintiff Hoggard was en route to Memphis to obtain the body of Clark and return it to Rector for burial, and was informed by an agent of plaintiff Hoggard that it would handle the burial services. He said he advised Hoggard that Irby Funeral Home was ready, willing and able to perform the service and offered to furnish the merchandise for use in the burial. Plaintiff Hoggard’s answers to Irby Funeral Home’s interrogatories were similar to those given in the other case, except that it was admitted that Hoggard & Sons Enterprises, Inc., proceeded to bury Clark after having been advised that Irby Funeral Home was the “designated” funeral home.

Appellants’ response to the Russell demurrer alleged, among other things, that the Arkansas Burial Association Board had “affirmed” the action taken in this case by the Russell Burial Association, and that § 66-1823 of Arkansas Statutes is illegal and unconstitutional.

There is no question about the status of the Arkansas Burial Assocition Board as an administrative agency under Ark. Stat. Ann. §§ 66-1801 — 1824 (Repl. 1956), or that its duly authorized rules and regulations have the force and effect of statutes. Ark. Stat. Ann. § 66-1823. Ap-pellees’ attack upon the court’s jurisdiction was mounted upon the provisions of Ark. Stat. Ann. § 66-1824, and that section apparently afforded the basis of the circuit court's ruling. That section empowers the board to determine issues between different burial associations and between burial associations and their respective members and to render binding decisions, subject to appeal.

We need not reach appellants’ arguments that this section of the act is unconstitutional because we agree with appellants’ argument that the trial court did have jurisdiction. Hoggard 8c Sons Enterprises, Inc., is not a burial association. The issues between it and the two burial associations are not “issues between different Burial Associations.” The respective personal representatives are not, at least in their representative capacities, members of either association, so there is no issue “between Burial Associations and their respective members” involved in the present litigation. Any construction which placed jurisdiction of all assertions of accrued liability on burial insurance certificates in the exclusive original jurisdiction of the board would extend the act far beyond the intent apparent from a reading of the act and would require careful evaluation of its constitutionality. It is appropriate that an administrative agency regulate this business and pass judgment upon internal disputes as well as disputes between two organizations engaged in that business. For example, the reasonableness of rules, by-laws and regulations of an association and of any changes made in them is certainly a proper field for the utilization of special competence of the board. Elections of officers will sometimes produce internal conflict. These are examples of the issues we feel were contemplated by the passage of this section. We find no intention on the part of the General Assembly, however, to substitute this board tor the courts in determining contractual liabilities, such as are asserted here. The principal technical questions involved here are questions of law, the determination of which is more appropriately addressed to the courts rather than to any administrative agency.

Since the issues are not within the jurisdiction of the Arkansas Burial Association Board, the order of the circuit court is reversed and the cause remanded.

      A superficial reading of the opinions in Askew and in Isgrig might lead to a conclusion that there is an inconsistency in these holdings. This is resolved by the fact that in Askew the evidence offeied was an important factor in changing the character of the pleading, while in Isgrig the demurring party actually relied upon its pleading as a classic demurrer, and there is no indication that any evidence was offered in its support.