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

text:
    Carl Albert COLLINS v. STATE of Arkansas
    CR 75-110
    548 S.W. 2d 106
    Opinion delivered March 7, 1977
    (In Banc)

      John Barry Baker and Robert R. Estes, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Robert A. Newcomb, Asst. Atty. Gen., for appellee.
   John A. Fogreman, Justice.

The judgment sentencing appellant Carl Albert Collins to death by electrocution under Act 438 of 1973 (Ark. Stat. Ann., Title 41, Chap. 47, Supp. 1973) was affirmed by this court on December 22, 1975. See Collins v. Stale, 259 Ark. 9, 531 S.W. 2d 13. Thereafter, petition for writ of certiorari for review of our judgment affirming the judgment of the Circuit Court of Washington County was filed in the Supreme Court of the United States. That court, on October 4, 1976, vacated our judgment, insofar as it left undisturbed the death penalty imposed, and ordered that this cause be remanded to this court for further consideration in light of Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976); Proffitt v. Florida, 428 U.S. 242, 96 S. Ct. 2960, 49 L. Ed. 2d 913 (1976); Jurek v. Texas, 428 U.S. 262, 96 S. Ct. 2950, 49 L. Ed. 2d 929 (1976); Woodson and Waxton v. North Carolina, 428 U.S. 280, 96 S. Ct. 2978, 49 L. Ed. 2d 944 (1976); and Roberts v. Louisiana, 428 U.S. 325, 96 S. Ct. 3001, 49 L. Ed. 2d 974 (1976). The mandate remanding the case was issued on November 16, 1976 and filed here on November 18, 1976.

Our consideration of the imposition of the death penalty in this case (the only part of our judgment that was vacated), in the light of these decisions, leads us to the same conclusions we reached when the case was previously considered, i.e., that the statute under which the death penalty was imposed is constitutional and valid; that the pertinent issues were properly submitted to the jury, whose verdict was sustained by the evidence; and that death by electrocution is not unconstitutionally cruel. We adopt our earlier opinion in this case and reiterate all that we there said. Fundamentally, our present consideration is concerned with determining whether the death penalty statute under which appellant Collins was sentenced falls within the constitutional perimeter discernible from the 1976 quintuplet offspring of Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972).

Our review is not simplified by the same multiplicity of opinions in these cases that we found in Furman; however, our principal consideration must of necessity be directed toward the opinions of the Stewart-Powell-Stevens plurality (hereinafter referred to as the Stewart plurality) in Gregg, Proffitt and Jfurek, because from our analysis, the participation of at least one member of this plurality was essential to the sustention of the death penalty in those three cases. In viewing the statute under which appellant was sentenced, we cannot forget, however, that these opinions are not majority opinions in any. of the three cases. It is important that we keep in mind what the Stewart plurality does not say while tracing what it does say. Let us first note, however, certain definite conclusions we find from reading all the opinions in all the five cases in the light of which we are mandated to review our holding in this case. They are:

1. The death penalty is not per se cruel and unusual punishment prohibited by the Eighth Amendment to the United States Constitution.
2. Imposition of a death penalty pursuant to a law imposing a mandatory death penalty for a broad category of homicidal offenses constitutes cruel and unusual punishment prohibited by the Eighth Amendment.
3. Each distinct system permitting the imposition of the death penalty for a criminal offense must be examined to determine whether it violates Eighth Amendment prohibitions against cruel and unusual punishment.
4. The basic concern, expressed in Furman v. Georgia, supra, centered on defendants who were being condemned to death capriciously and arbitrarily.
5. Facially the procedures in Georgia, Florida and Texas satisfy the Eighth Amendment requirement. Those in North Carolina and Louisiana do not.

The Supreme Court of the United States did nothing more in the Furman offspring than consider each of the statutes of the five respondent states to determine whether the particular state afforded adequate safeguards against the capricious and freakish imposition of the death penalty. See State v. Bayless, 48 Ohio State 2d 73, 357 N.E. 2d 1035 (1976). Our analysis of our own procedures leads us to the conclusion that the death sentence was constitutionally imposed in this case.

We approach the consideration of the question before us mindful of the strong presumption of constitutionality appurtenant to every legislative enactment, unless it appears upon its face to be within a specific prohibition, such as one of those in the first ten amendments to the United States Constitution. Stone v. State, 254 Ark. 1011, 498 S.W. 2d 634; Williams v. State, 253 Ark. 973, 490 S.W. 2d 117; Neal v. Still, 248 Ark. 1132, 455 S.W. 2d 921; Dabbs v. State, 39 Ark. 353, 43 Am. Rep. 275; San Antonio School District v. Rodriguez, 411 U.S. 1, 93 S. Ct. 1278, 36 L. Ed. 2d 16 (1973), also, Stewart, J.,. concurring p. 59. See also, plurality opinion, Lemon v. Kurtzman, 411 U.S. 192, 93 S. Ct. 1463, 36 L. Ed. 2d 151 (1973), citing Stewart, J., concurring in Rodriguezi Schlib v. Kuebel, 404 U.S. 357, 92 S. Ct. 479, 30 L. Ed. 2d 502 (1971); McDonald v. Board of Election Com., 394 U.S. 802, 89 S. Ct. 1404, 22 L. Ed. 2d 739 (1969); McGowan v. Maryland, 366 U.S. 420, 81 S. Ct. 1101, 6 L. Ed. 2d 393 (1961); United States v. Carolene Products Co., 304 U.S. 144, 58 S. Ct. 778, 82 L. Ed. 1234 (1938); Fleming v. Nestor, 363 U.S. 603, 80 S. Ct. 1367, 4 L. Ed. 2d 1435 (1960); New York v. O’Neill, 359 U.S. 1, 79 S. Ct. 564, 3 L. Ed. 2d 585 (1959); Alaska Packers Association v. Industrial Accident Com., 294 U.S. 532, 55 S. Ct. 518, 79 L. Ed. 1044 (1935); Borden’s Farm Products Co. v. Baldwin, 293 U.S. 194, 55 S. Ct. 187, 79 L. Ed. 281 (1933).

We need not spend a great deal of time on such features of the Arkansas statute as the definition of the crime for which the death penalty may be imposed and the bifurcated trial. Since the crime in this case was murder, we view the statute only as it pertains to homicides. It is crystal clear that insofar as homicide is concerned there are under this statute several degrees all included (or potentially so) in capital felony. They are:

Capita! felony murder.
Life felony murder.
Felony murder in the first degree. See, Ark. Stat. Ann.
§§ 41-2201, 2205 (Repl. 1964).
Felony murder in the second degree. See, Ark. Stat.
Ann. §§ 41-2201, 2206 (Repl. 1964).
Voluntary manslaughter. See Ark. Stat. Ann. §§ 41-
2207, 2208 (Repl. 1964).
Involuntary manslaughter. See Ark. Stat. Ann. §§ 41-
2207, 2209 (Repl. 1964).
Negligent homicide. See Ark. Stat. Ann. § 75-1101
(Reph 1957).

The definition of capital felony murder strictly limits the homicidal offenses for which the death penalty may be imposed. Ark. Stat. Ann. §§ 41-4701, 4702 (Supp. 1973). This limitation seems constitutionally adequate. Jurek v. Texas, supra. The imposition of the death sentence is not mandatory in any case, for the jury may find mitigating circumstances which outweigh any aggravating circumstances it finds to exist. Ark. Stat.'Ann. §§ 41-4703, 4710, 4712 (Supp. 1973). The statute provides adequate guidelines, so limiting and directing the exercise of the jury’s discretion that an arbitrary, capricious, wanton or freakish exercise of that discretion is improbable. Gregg v. Georgia, supra; Proffitt v. Florida, supra; Jurek v. Texas, supra; Collins v. State, supra. See also, Neal v. State, 259 Ark. 27, 531 S.W. 2d 17. Cf. Woodson v. North Carolina, supra; Roberts v. Louisiana, supra. The Arkansas statutes applicable here require that the sentencing authority focus on the particularized nature of the crime, just as the law did in Georgia, Florida and Texas. Ark. Stat. Ann. §§41-4702, 41-4712 (Supp. 1973). The bifurcated trial mandated by our statutes in effect at the time of appellant’s trial |Ark. Stat. Ann. §§ 41-4710 — 41-4713 (Supp. 1973)] seems to have been approved, although not required. The aggravating and mitigating circumstances that may be considered under our statute seem to meet constitutional muster. Ark. Stat. Ann. § 41-4711, 4712 (Supp. 1973). See Gregg v. Georgia, supra; Proffit v. Florida, supra.

It is urged, however, that our system does not meet Gregg-Proffit-Jurek standards necessary to avoid Eighth and Fourteenth Amendment prohibitions for lack of a mandatory appeal of a judgment imposing the death penalty and of appellate review which compares cases in which the death penalty has been imposed.

We find nothing in any opinion, and certainly no majority, which supports a holding that there must be either a mandatory or automatic appeal of a judgment imposing the death penalty or that there must be appellate review which compares cases in which the death penalty.has been imposed. We again point out that the Supreme Court of the United States did nothing more than consider the statutes of each of five states to determine whether there were sufficient safeguards against the capricious and freakish imposition of the death penalty. It is true that the Stewart plurality found that, in addition to bifurcated trial with sentencing dependent upon a jury’s or trial judge’s findings as to aggravating or mitigating circumstances, appellate review is an important safeguard, when that review is for error and appropriateness of the sentence, and to determine whether: the sentence was imposed under the influence of passion and prejudice or any arbitrary factor; the evidence supports the jury’s or judge’s finding of statutory aggravating circumstances; the sentence is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. Gregg v. Georgia, supra.

The North Carolina death penalty statute seems to have fallen because there was no way for the state judiciary, through appellate review, to check the arbitrary and capricious exercise of the power of the jury to determine who shall live or die. Woodson v. North Carolina, supra. See also, Roberts v. Louisiana, supra. It seems to us that the only actual requirement, even of the Stewart plurality, is that a meaningful appellate review is available to insure that death penalties are not arbitrarily, capriciously or freakishly imposed. The important question is whether the system creates a substantial risk of arbitrariness or caprice.

It is significant that in Jurek, some oí the federal constitutional requirements were found to have been met by a state supreme court interpretation of the Texas capital sentencing act which would permit evidence of mitigating circumstances and appellate review of the sufficiency of the evidence to support the jury’s answers to questions relating to statutory questions required in the sentencing phase of a bifurcated trial. True enough, the opinion states that Texas law provides for an expedited appeal. Nothing whatever is said about comparison of sentences.

The idea that in Gregg, Proffit, and Jurek, the United States Supreme Court has held that there must be a mandatory or automatic appeal from the imposition of the death penalty by a state trial court seems to have crumbled with the recent actions of the court in Gilmore v. State of Utah, 429 U.S. 1012, 97 S. Ct. 436, 50 L. Ed. 2d 632 (1976), in which, on December 13, 1976, that court found that Gary Mark Gilmore, who had been sentenced to death, made a knowing and intelligent waiver of any and all federal rights he might have had. In a concurring opinion by the Chief Justice and Mr. Justice Powell, it is clearly pointed out that Gilmore had waived his right of appeal under state law, and the history of that waiver is recited. True enough, the order of the United States Supreme Court (White, Brennan, Marshall and Blackmun dissenting) does not specifically refer to this waiver. It does, however, state: If the Constitution of the United States requires that a state provide a mandatory appeal in such cases, we do not see how there can be a knowing and intelligent waiver of “any and all federal rights” when there has been no appeal from the state trial court’s judgment imposing the death sentence. In any event, the Stewart plurality has said that it had no intention to suggest that the procedures approved in Gregg would be the only ones permissible under Furman or that a system constructed on these general lines would inevitably satisfy Fur-man; but that each system must be examined on an individual basis. Gregg v. Georgia, supra.

*** that the State’s determinations of his competence knowingly and intelligently to waive any and all such rights were firmly grounded.

Most of the major concerns of the United States Supreme Court can be met by a statute that insures that the sentencing authority is given adequate information relevant to imposition of sentence and provided with standards to guide its use of that information. Our statutes clearly insure the meeting of these requirements at the jury trial. But another concern of the Stewart plurality is the existence of an adequate power in the judiciary to check the arbitrary and capricious exercise of the power of the jury to impose the death penalty. Our system supplies considerable protection against the arbitrary, capricious or freakish imposition of the death sentence. It does not suffer from the deficiencies found in Furman. The Arkansas judiciary is vested with broad powers to check the arbitrary, capricious, wanton or freakish imposition of the death sentence by a jury. Those powers exist at both trial and appellate levels.

The trial judge is not required to impose the death penalty in every case in which the jury verdict prescribes it. Upon return of a verdict of guilty in any felony case, the entry of judgment may be postponed by the trial court for not more than 30 days. During this time probation reports may be sub^ mitted, and matters of mitigation, or any other matter the court or the defendant may deem appropriate to consider before the pronouncement of sentence and the entry of formal judgment may be presented. Ark. Stat. Ann. § 43-2301 (Supp. 1973, Supp. 1975). We have said that the trial judge in imposing sentence should have the benefit of all available information about the defendant, both favorable and adverse. Meyers v. State, 252 Ark. 367, 479 S.W. 2d 238. See also, Hudspeth v. State, 188 Ark. 323, 67 S.W. 2d 191. When the defendant appears for sentencing, he must be asked if he has any legal cause why sentence should not be pronounced against him. Ark. Stat. Ann. § 43-2302 (Repl. 1964). He may show for cause against the judgment any sufficient ground for new trial or for arrest of judgment. Ark. Stat. Ann. § 43-2304 (Repl. 1964). Denial of the right of allocution is error. Tate v. State, 258 Ark. 135, 524 S.W. 2d 624, 726 (opinion on rehearing). The trial court has power to modify any unexecuted sentence and its own judgment at any time during the term of court in which it was rendered. Charles v. State, 256 Ark. 690, 510 S.W. 2d 68; Emerson v. Boyles, 170 Ark. 621, 280 S.W. 1005.

The trial court has the power, in its discretion, to reduce a death sentence to life imprisonment, or to grant a new trial. Black v. State, 215 Ark. 618, 222 S.W. 2d 816, cert. den. 338 U.S. 956, 70 S. Ct. 490, 94 L. Ed. 590. See also, Ark. Stat. Ann. § 43-2310 (Repl. 1964). Ark. Stat.. Ann. § 43-2203 (Repl. 1964) is pertinent to the right of allocution, because it sets out permissible grounds for new trial where rights of a defendant have been prejudiced. Among them are cases where the verdict is against law and evidence and where from the misconduct of the jury or any other cause, the court is of the opinion that the defendant has not received a fair and impartial trial.

In considering grounds for a new trial, powers of the trial judge are great and the latitude of his discretion broad, and have always been, in this state. In Oliver v. State, 34 Ark. 632, where a verdict of manslaughter had been returned, this court spoke of the powers and duties of circuit judges in this regard:

*** They preside in the courts and take personal cognizance of all that occurrs in the progress of causes. It is their duty to see that juries do not transcend the proper limits of their authority, and that all trials are fair and in accordance with law. The circuit judge has the discretion to grant new trials in all cases where he is satisfied that the ends of justice will be best subserved thereby, and should not hesitate to exercise it where he is dissatisfied with a verdict, as having reason to believe it the result of excitement, passion, prejudice, or any other influence save a calm consideration of the facts in evidence.

The presiding circuit judge must necessarily have a wide discretion to set aside a verdict where, in his judgment, it was tainted by passion, sympathy, prejudice, corruption, or any other sinister influence, and therefore was not responsive to the law and the evidence; and his exercise of that discretion will not be interfered with on appeal unless there has been an abuse of discretion. Freels v. State, 130 Ark. 189, 196 S.W. 913.

Although the right to fix punishment is primarily a duty enjoined upon juries, we have recognized, in a case where the death penalty was imposed and sustained, that in cases where the evidence does not sustain the degree of crime expressed in the jury verdict, but does support a lower degree, a plea for partial relief by reducing the sentence to life imprisonment can be granted. Hildreth v. State, 215 Ark. 808, 223 S.W. 2d 757. Even though we spoke in that case primarily to the power of this court, what we said applies equally to the power of the trial judge to reduce a penalty of death to one of life imprisonment without parole where the evidence does not support the jury verdict on the sentencing phase of the trial. There can be no doubt about the trial court’s power in this respect. Ark. Stat. Ann. § 43-2310 (Repl. 1964) provides:

Reduction of verdict. — The court shall have power, in all cases of conviction, to reduce the extent or duration of the punishment assessed by a jury, if, in the opinion of the court, the conviction is proper, and the punishment assessed is greater than under the circumstances of the case, ought to be inflicted, so that the punishment be not, in any case, reduced below the limit prescribed by law in such cases.

See also, Tabor v. State, 246 Ark. 983, 440 S.W. 2d 536.

In practice we have regarded this statute as giving the trial judge an opportunity to review the sentence, from his superior ability to evaluate facts, afforded by seeing and hearing the parties and witnesses and knowing the trial atmosphere, as he would weigh the evidence in considering a motion for new trial. The Missouri Supreme Court has given similar treatment to a virtually identical statute in that state. State v. Rizor, 353 Mo. 368, 182 S.W. 2d 525 (1944). Like that court, we have often treated the extent and duration of the punishment as a cognizable question on appeal where there was evidence of passion and prejudice.

If the evidence proves insufficient to support a jury’s verdict of a higher offense, the trial court may sentence the defendant for a lesser included offense where the evidence clearly shows the commission of the latter (and this court, in its discretion, may reduce the sentence to that prescribed for the lesser offense). Caton v. State, 252 Ark. 420, 479 S.W. 2d 537. This rule applies in murder cases as well as for other felonies. Simpson v. State, 56 Ark. 8, 19 S.W. 99. Even when there was no distinction in different types of murder for which the death penalty, or at the discretion of the jury, life imprisonment, could be imposed, the death penalty was treated by this court as if it were a higher degree of murder in the first degree than murder in the first degree when the death penalty was not imposed. Sneed v. State, 159 Ark. 65, 255 S.W. 895. The rationale for doing so is even greater under the statutes in effect at the time appellant was sentenced. Previously, the death sentence was mandatory, unless the jury, at its discretion, decided to impose life imprisonment instead. Ark. Stat. Ann. §§ 41-2227, 43-2611, 43-2153 (Repl. 1964). Under the statute in effect when Collins was tried, there is a clear delineation of separate degrees of crime, i.e., capital felony, life felony without parole, life felony and felony. Ark. Stat. Ann. § 41-4701 (Supp. 1973). Capital felonies are clearly defined and limited. Ark. Stat. Ann. § 41-4702 (Supp. 1973). The next lesser included offense is life felony without parole, which differs from capital felony only in that there are mitigating circumstances, which are expressly stated. Ark. Stat. Ann. §§41-4703, 4712 (Supp. 1973). The next lesser degree is life felony, which includes all crimes for which life imprisonment or the death penalty had been formerly prescribed. Ark. Stat. Ann. § 41-4704 (Supp. 1973). All other crimes were felonies. Ark. Stat. Ann. § 41-4705 (Supp. 1973).

Thus, it is quite clear that the trial judge has the power and the duty to reduce the punishment from that for capital felony to that for life felony or any of the other degrees of homicide, if he finds the evidence insufficient to support the higher degree of homicide and sufficient only to support the lesser degree. Thus, if he found there was no sufficient evidence to support the jury’s finding on any aggravating circumstance enumerated in §41-4711, and that there was not sufficient evidence to support its finding that sufficient aggravating circumstances existed or that there were not sufficient mitigating circumstances to outweigh the aggravating circumstances, but there was sufficient evidence to support the finding of guilt, he should impose a sentence of life imprisonment without parole as punishment for the lesser degree of homicide, life felony without parole. Ark. Stat. Ann. § 41-4710 (Supp. 1973).

The power of the trial court may be exercised at an even later stage in the criminal justice process. Post-conviction relief may be granted, under appropriate circumstances, by the trial court under Rule 37 of the Arkansas Rules of Criminal Procedure, which would apply today, but which existed at the time of the trial and judgment in this case in substantially identical form as Criminal Procedure Rule 1 [Vol. 3A, Ark. Stat. Ann. (Supp. 1973, Supp. 1975)]. The arbitrary, capricious, wanton or freakish imposition of the death penalty would seem to be a ground for modification of a sentence to death on the ground that it was imposed in violation of the Constitution and laws of the United States or of this state or that it was in excess of the maximum authorized by law or that it was otherwise subject to collateral attack.

Concededly, there is no mandatory appellate review in Arkansas. The likelihood that a death penalty would be executed without such an appeal, in the absence of a knowing and intelligent waiver, is highly improbable. At the time the sentence is announced and judgment is entered thereon, the trial judge must advise the defendant of his right to appeal. Ark. Stat. Ann. § 43-2301 (Supp. 1973, Supp. 1975). Defense counsel also has the responsibility for explaining to the defendant the meaning and consequences of the judgment and advising him of his right to appeal. American Bar Association Standards for Criminal Justice, The Prosecution and Defense Function, Part VIII, § 8.2. See also, American Bar Association Standards, Post Conviction Remedies, § 4.4 (b) (Approved Draft, 1968). Under present rules, defense counsel may not withdraw from the case after notice of appeal is given without permission of this court. Rule 36.26 Rules of Criminal Procedure; Rule 9, Rules of Circuit and Chancery Courts. Any person convicted of a felony in a circuit court of this state has the right of appeal to this court. Ark. Stat. Ann. § 43-2701 (Supp. 1973, Supp. 1975). Notice of appeal must be filed with the trial court within 30 days from the date of sentencing and entry of judgment, unless a motion for new trial is earlier filed in which case, the time for filing notice of appeal does not expire until 30 days after the motion has been disposed of. Ark. Stat. Ann. §§ 43-2703, 2704 (Supp. 1973, Supp. 1975). Of course, this appellant did appeal, so the question of waiver, or right to waive appeal, is significant only to the extent that it has a bearing on the question of whether an appellate review is mandated by Eighth and Fourteenth Amendment requirements.

Appeals in criminal cases take precedence over all other cases on our docket. Ark. Stat. Ann. § 43-2701 (Rep!. 1964). On appellate review, this court has the power to reduce the punishment, from that imposed by a circuit court for a higher degree of an offense than the evidence will support, to the punishment for that degree which the evidence will support. Caton v. State, 252 Ark. 420, 479 S.W. 2d 537. We have held that Ark. Stat. Ann. § 27-2144 (Repl. 1962) empowering this court to modify the judgment or order appealed from and enter such judgment as this court may, in its discretion deem just, is applicable to criminal cases. Blake v. State, 186 Ark. 77, 52 S.W. 2d 644; Webb v. State, 154 Ark. 67, 242 S.W. 380; Smith v. State, 205 Ark. 1075, 172 S.W. 2d 248. We have exercised this power in homicide cases, (see, e.g., Blake v. State, supra; Webb v. State, supra; Brown v. Stale, 34 Ark. 232) and in some instances in cases where the death penalty had been imposed. See, e.g., Blake v. State, supra; Webb v. Stale, supra. In Blake, we had this to say about our practice in the exercise of this power:

This power has frequently been exercised by this court in subsequent cases, and while the practice usually followed is to reverse the judgment on account of the excessive punishment, unless the Attorney General will consent that the trial court impose a lower sentence, that practice has not always been followed. The court, when it is thought proper to do so, has itself fixed the reduced punishment.

See also, Smith v. State, supra. We have also recently said that we might reduce the penalty unless the Attorney General elects to take a new trial. Gaskin v. State, 244 Ark. 541, 426 S.W. 2d 407. In Hadley v. State, 196 Ark. 307, 117 S.W. 2d 352, this court observed that there were numerous instances in which it had reduced the punishment of an appellant from death or life imprisonment. We lately recognized that we had the power to fix a reduced punishment where the death penalty had been imposed in Bagley v. State, 247 Ark. 113, 444 S.W. 2d 567.

The power of this court to reduce a sentence if it is deemed excessive was recognized in Ark. Stat. Ann. § 43-2725.2 (Supp. 1973, Supp. 1975). We have construed that act to preserve the distinction between executive clemency and appropriate judicial review of a sentence where there is error pertaining to the sentence. In Abbott v. State, 256 Ark. 558, 508 S.W. 2d 733, we said:

*** Although we have previously found it unnecessary to pass directly on the constitutionality of this provision insofar as it might be construed to empower this court to reduce a sentence otherwise proper and within statutory limits in cases arising after passage of the act, it should be dear that legislative action cannot override constitutional provisions. We strongly intimated that this
act was ineffective to overrule the holding in Osborne v. State, supra, in Hurst v. State, supra, and cited the case of People v. Odle, 37 Cal. 2d 52, 230 P. 2d 345 (1951). In that case a similar statute was construed by the California court to do no more than authorize it to reduce the punishment in lieu of granting a new trial, when the only error found on appellate review related to the punishment imposed and was prejudicial. It specifically held that the statute granted no power to modify a sentence where there was no error in the proceeding. To construe the statute otherwise, said the court, speaking through Justice Traynor. would give the reviewing court clemency powers similar to those vested in the Governor by the California Constitution. That court clearly recognized that any construction of the statute extending the power of the appellate court any further would raise serious constitutional questions relating to the separation of powers. We think the construction given to the California statute by that state’s Supreme Court was correct and that the same construction should be given our statute. When given that construction, it is clearly constitutional. If construed to give this court the power to reduce a sentence in the absence of error pertaining to the sentence, the statute would be unconstitutional for violation of Art. 6, Sec. 18 and Art. 4, Sec. 2 of the Arkansas Constitution, and upon the authority of Osborne v. State, supra.

Such cases as Osborne v. State, 237 Ark. 5, 371 S.W. 2d 518; Atwell v. State, 244 Ark. 739, 427 S.W. 2d 1; and Hooper v. State, 257 Ark. 103, 514 S.W. 2d 394 do not limit our review in death penalty cases. There is a vast difference in reviewing a sentence for error (including error resulting from insufficient evidentiary support) in the sentencing procedure and reviewing a sentence resulting from a proper and legal sentencing procedure where sufficiency of evidence is not a basis for review. There is also a great difference in reducing a sentence when thei;e is error in fixing the degree of the crime and reducing a sentence when there is not. The former has nothing to do with clemency. There is also a difference where nature of the punishment rather than the duration is at issue. See Sneed v. State, 159 Ark. 65, 255 S.W. 895. We long ago recognized that the constitutional ban of cruel and unusual punishment is directed against the character of the punishment and not its duration. Williams v. State, 125 Ark. 287, 188 S.W. 826.

We have clearly made the distinction between those cases where reduction of the sentence is clemency and when it is a matter of properjudicial review. In Rorie v. State, 215 Ark. 282, 220 S.W. 2d 421, we said:

*** When this Court finds that the evidence is insufficient to support the punishment assessed, then we have the power to modify the punishment. Our cases clearly reflect, however, that this modification is done, not on a basis of judicial clemency, but only in a case in which the evidence would not sustain the higher punishment assessed. ***
In Smith v. State, 194 Ark. 1041, 110 S.W. 2d 24, we said:
*** It may be of a character so aggravated in its nature as to call for thé severest possible penalty. If the jury thought so, then the trial court, wherein all the evidence was heard, must have determined that the verdict, severe as it was, was justified. We cannot presume otherwise. Besides, this court possesses no power inherent in the office of the chief executive, permitting us to pardon or remit penalties, although we may reduce extreme penalties when not supported by the evidence.

Allison v. State, 204 Ark. 609, 164 S.W. 2d 442, may be an aberration. It was decided when the death penalty was to be imposed for rape unless the jury, at its discretion, fixed the punishment at life imprisonment. We cannot now tell whether the court was saying, in Allison, that it had no power to reduce the sentence or that it declined to do so on the basis of the facts. If we were saying the former, the decision is not consistent with cases decided earlier. In any event, different degrees of the offense were not involved, as is the case here. Allison was cited in Nail v. State, 231 Ark. 70, 328 S.W. 2d 836, where this court had reviewed the evidence and found it sufficient to support the verdict of guilt of first degree murder. But in Nail, we said that this court has no power to change the punishment fixed by the jury unless the proof fails to sustain the charge for which the defendant is convicted. This distinction is important when life felony murder is a lesser included offense on a charge of capital felony murder. It should also be noted that in Nail, Rorie is cited as authority. It is also worthy of note that McCall v. State, 230 Ark. 425, 323 S.W. 2d 421, is also cited as authority in Nail. In McCall, it was recognized that this court could reduce the punishment for the purpose of eliminating some error committed by the trial court. Somewhat later than Allison, we considered the matter in Clark v. State, 246 Ark. 876, 440 S.W. 2d 205, saying:

Thus the trial court’s error had no bearing upon the jury’s determination of guilt or innocence. It affected only the extent of the punishment to be imposed. In that situation we have a choice among several corrective measures. We may, depending upon the facts, reduce the punishment to the maximum for the lesser offense, reduce it to the minimum for the lesser offense, fix it ourselves at some intermediate point, remand the case to the trial court for the assessment of the penalty, or grant a new trial either absolutely or conditionally. Several of the cases were discussed in Bailey v. State, 206 Ark. 121, 173 S.W. 2d 1010 (1943).

Thus, neither Allison nor Nail would limit the power of this court to review a sentence of death imposed under the statutes governing the trial of Collins. We have in cases decided subsequently to Allison considered the circumstances revealed by the evidence to determine whether the death penalty was greater punishment than should have been imposed. See Davis v. State, 246 Ark. 838, 440 S.W. 2d 244, cert. den. 403 U.S. 954, 91 S. Ct. 2273, 29 L. Ed. 2d 865 [where we recognized the discretion of the trial court to reduce the punishment under Ark. Stat. Ann. § 43-2310 (Repl. 1964)]; Young v. State, 230 Ark. 737, 324 S.W. 2d 524. See also, Walton v. State, 232 Ark. 86, 334 S.W. 2d 657; Hall v. State, 209 Ark. 180, 189 S.W. 2d 917.

In capital offenses, for many years all errors of the lower court prejudicial to the rights of appellant have been required to be heard and considered by this court and, if we found any prejudicial error by the trial court, this court was required to reverse and remand the cause for a new trial, or, in the discretion of this court, modify the judgment. Ark. Stat. Ann. § 43-2723 (Repl. 1964). In 1971, this particular statute was repealed but the scope of appellate review was not materially changed, except to extend this type of review to sentences for life imprisonment as well as death sentences. See Ark. Stat. Ann. § 43-2725 (Supp. 1973, Supp. 1975). The earlier statute was construed to mean that this mandated review required an examination of the trial record, even though the objectionable action which might be reversible error was not argued on appeal in any way. Rorie v. State, 215 Ark, 282, 220 S.W. 2d 421; Hays v. State, 230 Ark. 731, 324 S.W. 2d 520; Young v. State, 230 Ark. 737, 324 S.W. 2d 524. We have made the same application of the later one, citing Rorie. Robertson v. State, 256 Ark. 366, 507 S.W. 2d 513. We applied this type of review on the first appeal in this case.

Appellate review of cases in which the death penalty has been imposed has always been more comprehensive than in other cases. For, e.g., error in failure to properly instruct the jury with reference to punishments that it might impose has been held to be reversible, even though defendant did not request such an instruction. Webb v. State, 154 Ark. 67, 242 S.W. 380, 383 (opinion on rehearing); Alford v. State, 223 Ark. 330, 266 S.W. 2d 804.

We have recognized the power of this court under Ark. Stat. Ann. § 27-2144 (Repl. 1962) to reduce the punishment to that appropriate for the crime in cases in which we found error only in the sentencing procedure. Wilburn v. State, 253 Ark. 608, 487 S.W. 2d 600; Walker v. State, 91 Ark. 497, 121 S.W. 925; Williams v. State, 66 Ark. 264, 50 S.W. 517. We have exercised this power in capital cases, by reducing the punishment to life imprisonment, when error by the trial court could have affected the sentence only, holding that a new trial would not be required in such cases. Crowe v. State, 178 Ark. 1121, 13 S.W. 2d 606. In some of these cases we have reduced the penalty to life imprisonment subject to the election of the Attorney General to request a new trial. See Williams v. State, 183 Ark. 870, 39 S.W. 2d 295. We have recognized the existence of this power as recently as Bagley v. State, 247 Ark. 113, 444 S.W. 2d 567.

Unquestionably this court has the right, power and duty to reduce the punishment in any case where there is any indication that it resulted from passion and prejudice. Hadley v. State, 196 Ark. 307, 117 S.W. 2d 352; Wilkerson v. State, 209 Ark. 138, 189 S.W. 2d 800. We have done so by reducing a sentence of death on a rape charge to life imprisonment. Hogan v. State, 191 Ark. 437, 86 S.W. 2d 931. We have also carefully reviewed evidence to determine whether there was an abuse of discretion by the trial court or jury in fixing a punishment within statutory limits. Wilkerson v. State, supra; Rutledge v. State, 222 Ark. 504, 262 S.W. 2d 650.

The powers of this court to order a new trial are somewhat limited, but in cases such as the one before us, the court is not impotent. In Oliver v. State, 34 Ark. 632, where the charge was murder and the verdict manslaughter, this court ordered a new trial. The scope of review in such cases was thoroughly analyzed and articulately stated in the opinion by Justice Eakin, viz:

There is another class of cases, in which there has been evidence of some facts, from which the jury has inferred other facts necessary to sustain the verdict, in which this court has granted a new trial on the grounds that the facts shown did not warrant the inference, and that therefore the evidence was insufficient. *** These are not cases of conflict, but want of evidence. *** Of course, no positive rules can be announced of strict and unvarying application, but the general policy of the court may be fairly understood from what has been said.
It will be seen, and in view of a very common misapprehension it is worth noting, that this court has never adopted the rule of refusing a new trial in all or any cases, where there has been any evidence whatever, however weak, to support the verdict — what is called a scintilla of evidence. The following more rational rules seem to result from all the decisions:
1. Where there has been a conflict of evidence a new trial will not be granted here, merely because the preponderance of evidence, in the mind of the court, may seem to be against the verdict. That deference will be accorded to the jury whose peculiar province it is to compare, sift, and weigh the evidence; and to the circuit judge, whose duty it is to supervise the trial, and grant a new one, if, in his opinion, the verdict has resulted from improper influence, misconduct of jurors, excitement, prejudice, hasty judgment, misapprehension of the law, or any other of the recognized causes for a new trial.
2. But in all cases, even those of conflict, this court will direct a new trial, when, upon inspection of the evidence, the verdict is so clearly and palpably against the weight of it as to shock a sense of justice. The line lies between a mere preponderance within the bounds of a fair difference of opinion, and that gross preponderance which indicates an unreasoning passion or prejudice on the part of the jury, or misapprehension of the law, or disregard of the legitimate sphere of their action.
3. A new trial will be granted when there is no evidence at all to support the verdict, or where it fails in some material link. The jury will not be allowed to supply the missing link by inferences and presumptions from other facts unless they be legitimate and fair presumptions, such as naturally follow.
We come now to the delicate and responsible duty of applying these rules to the case before us. There is little conflict of evidence concerning the occurrences at the time of the killing, and nothing to affect materially the credit of any witness. Indeed they agree in an exceptional manner.
***
***Considering the character and motives of Yerby, it is so plain to us that the Olivers were in danger, and so probable that death would have resulted to one of them had Yerby not been killed, that it shocks our sense of justice, under the evidence presented, to deny him the benefit of self-defense. We think the verdict plainly and palpably contrary to the weight of evidence, and that this case falls legitimately within the exception to the rule against disturbing verdicts.

In addition, if the Attorney General feels that the evidence is insufficient to support a verdict, and this court has doubts about it, a new trial will be granted in the interest of justice. Thomas v. State, 72 Ark. 582, 82 S.W. 202; Blaylock v. State, 187 Ark. 606, 61 S.W. 2d 72. We have also reduced the punishment, even when the evidence was sufficient to support the verdict of guilt of the proper crime or degree of crime but the jury obviously failed to consider mitigating circumstances. See Traylor v. State, 80 Ark. 617, 96 S.W. 505; Petty v. State, 76 Ark. 515, 89 S.W. 465, even where the appellant had been sentenced to death. Davis v. State, 155 Ark. 245, 244 S.W. 750. We recognize that punishment is cruel and unusual when it is so wholly disproportionate to the nature of the offense as to shock the moral sense of the community. Carter v. State, 255 Ark. 225, 500 S.W. 2d 368; Geurin v. City of Little Rock, 203 Ark. 103, 155 S.W. 2d 719.

We find that the Arkansas system of prosecuting and sentencing those found guilty of a charge of capital felony murder provides adequate safeguards against arbitrary, capricious or freakish imposition of the death penalty to successfully pass constitutional examination in the light of the Eighth and Fourteenth Amendment standards ascertainable from the Woodson-Roberts-Gregg-Proffit-Jurek quintuplet offspring of Furman.

The offense of capital felony murder is carefully defined and narrowly restricted, and the focus of the trial is on a particularized crime. The jury making the determination must first find unanimously that the accused is guilty of one of the narrowly defined categories of the crime beyond a reasonable doubt. If a guilty verdict is returned, the same jury, in the sentencing phase of a bifurcated trial may then hear testimony tending to show one or more specifically enumerated groups of aggravating circumstances plus evidence relevant to mitigating circumstances; but the death penalty cannot be imposed unless the jury unanimously finds, beyond a reasonable doubt, that one or more aggravating circumstance exist (specifying in writing which of them does) and finds that aggravating circumstances outweigh any mitigating circumstances found to exist. This procedure permits the jury in either the first or second phase of the trial to consider the nature and circumstances of the crime and to give regard to the past life and habits of the particular offender. The view taken by the Arkansas lawmakers was that all serious felonies, such as murder, are not identical, either as to the gravity of the offense or the moral culpability of the offender. Collins v. State, 259 Ark. 8, 531 S.W. 2d 13. The jury will be given adequate information relevant to imposition of sentence. It is provided with standards to guide its use of that information. Thus, the possibility that the death sentence will be imposed arbitrarily or capriciously is substantially reduced.

There is ample means for the judiciary to check the wanton, arbitrary or capricious exercise of the power and discretion of the jury to determine who shall die for the crime of murder.

In the first place there is a meaningful check at the trial court level. The trial judge, before pronouncement of the death sentence and entry of judgment, may consider appropriate matters of mitigation, and any other matters appropriate, both favorable and adverse, to the defendant. The defendant must be given the opportunity to show legal cause why sentence should not be pronounced or any of the recognized grounds for a new trial, among which are: (1) the verdict is contrary to the law or the evidence; (2) misconduct of the jury; and (3) the defendant has not, in the opinion of the judge, received a fair and impartial trial. The latitude of the trial judge’s discretion is broad. He may set aside a verdict when he is satisfied the ends of justice would be thereby served and should do so where he has reason to believe it is the result of passion, prejudice or any factor other than a calm consideration of the facts in evidence. This discretion is applicable when the jury verdict would result in the imposition of the death penalty, if the judge finds, for any reason, that the circumstances of the case do not warrant the imposition of the death penalty.

The discretion of the jury and that of the trial judge are sufficiently directed and limited to minimize the risk of wholly arbitrary and capricious action in imposing the death penalty. The trial judge must advise the defendant, at the time of sentencing, of his right to appeal, and defense counsel has obligations to see that the right is preserved.

There is a meaningful appellate review by this court of the appropriateness of the death penalty in a particular case, considering both the punishment and any errors on points raised in the trial court, including the sufficiency of the evidence to support any part of the jury verdict. This appellate review includes: (1) a determination whether the sentence was the result of passion, prejudice or any arbitrary factor; (2) whether the evidence supports the jury’s finding of any statutory aggravating circumstances; (3) whether the evidence supports the jury’s findings on the question whether mitigating circumstances outweigh aggravating ones; (4) whether the sentence is excessive. On appellate review, this court can reduce the sentence, or grant a new trial, in its discretion, if the sentence is excessive or there is error affecting the sentence only, or where there is insufficient evidentiary support for the sentence. Of course, the exercise of discretion by the trial judge is always subject to review for abuse. The “freak” or disparate death sentence would certainly warrant reversal or reduction as shocking to our sense of justice.

There is no specific requirement that this court compare sentences in other cases; however, the scope of permissible review of the sentence on appeal would necessarily require that we consult prior cases as precedent for our determining whether there was error in the sentencing procedure, whether the evidence was sufficient to support any finding made by the jury, whether any of the findings was the result of passion or prejudice or any other arbitrary factor and whether there had been an abuse of the discretion of either the jury or the trial judge in imposing the sentence. We recognized in our first consideration of this case that, since the jury’s findings with respect to the various aggravating or mitigating circumstances must be in writing, the basis for its verdict will be known and can be compared with the punishment in other cases, noting that this general approach Jo the problem had been upheld in State v. Dixon, 283 S. 2d 1 (Fla., 1973); Coley v. State, 231 Ga. 829, 204 S.E. 2d 612 (1974); Jurek v. State, supra.

These sentencing and review procedures certainly leave no substantial risk that the death sentence will be imposed randomly, arbitrarily, capriciously, wantoply or freakishly, and tend to promote evenhanded, rational and consistent imposition of the death penalty. In addition to the powers and responsibilities of the judicial system, the Arkansas system of checks and balances provides for an additional safeguard as a check against the arbitrary, capricious, freakish or wanton imposition of the death penalty in the executive branch, i.e., the power of the Governor of Arkansas to commute a sentence. Art. 6, § 18, Constitution of Arkansas. This power should not be totally ignored in reviewing a state’s system to determine whether it provides adequate safeguards against the death penalty as cruel and unusual punishment prohibited by the Eighth Amendment to the United States Constitution. Recognition was given to the significance of this power in the statute under which Collins was tried. Ark. Stat. Ann. § 41-4714 (Supp. 1973).

A commutation is a modification of sentence or mitigation of the punishment to be given. Whan v. State, 485 S. W. 2d 275 (Tex. Cr. App., 1972), cert. den. 411 U.S. 934, 93 S. Ct. 1906, 36 L. Ed. 2d 394; Ex parte Collins, 94 Mo. 22, 6 S. W. 345 (1887); Application of White, 166 Misc. 481, 2 N.Y.S. 2d 582 (1938). It changes the punishment imposed to a less severe one and leaves the sentence in a modified form. Williams v. Brents, 171 Ark. 367, 284 S.W. 56; Duehay v. Thompson, 223 F. 305 (9 Cir., 1915), affd. 217 F. 484; Ex parte Collins, supra; Ex parte Denton, 69 Okla. Cr. 204, 101 P. 2d 276 (1940); People v. Frost, 133 App. Div. 179, 117 N.Y.S. 524, 23 N. Y. Cr. 544 (1909); People v. Larkman, 137 Misc. 466, 244 N.Y.S. 431 (1930). A death sentence may be modified to one of life imprisonment by commutation. Biddle v. Perovich, 274 U.S. 480, 47 S. Ct. 664, 71 L. Ed. 1161, 52 ALR 832 (1927); Ex parte Denton, supra; Duehay v. Thompson, supra; People v. Frost, supra. See also, Ex parte. Wells, 59 U.S. 307, 15 L. Ed. 421 (1855); Schick v. Reed, 419 U.S. 256, 95 S. Ct. 379, 42 L. Ed. 2d 430 (1974). We take judicial notice that this power has been exercised by Arkansas governors. See, e.g., Governor’s Clemency Proclamations, March 29, 1967 to_ Nos. 2395-2409, Office of the Secretary of State. The act applicable here provided procedures which would tend to prevent the arbitrary exercise of this power. It should be presumed that in the exercise of the power, the Governor would necessarily compare a sentence with other sentences which had been commuted as well as with sentences on which commutation had not been granted. He might well make comparisons with cases where this court had either affirmed death sentences or reduced them.

Comparative review of the sentence in this case is difficult because this is the first case to reach us for review since the repeal of the statute giving juries virtually unlimited discretion in deciding which of those found guilty of murder in the first degree should live or die. The affirmance of cases when that discretion was considered to be so broad furnishes no basis for comparison. This was a vicious murder of an elderly employer for pecuniary gain, which followed a brutal assault upon the employer’s elderly wife (who miraculously survived), apparently for the purpose of obtaining the weapon with which the mortal wound was inflicted. An inference that, after the vicious robbery-murder was committed, this once-convicted robber was bent upon the pursuit of other such crimes is justifiable from evidence of his theft of an automobile in Madison County and his alteration of the death weapon stolen from Welch to convert it into a sawed-off, double-barrelled shotgun, which he immediately took to the most populous area of the state. There was certainly sufficient evidence to support the jury’s finding of aggravating circumstances outweighing the mitigating circumstances of appellant’s youth. There was no substantial evidence which would support a finding of any other mitigating circumstance, and appellant’s youth in this case deserves little weight, in the circumstances. To say the least, we are unable to find any case in which this court has reduced a death penalty where there was such a dearth of mitigating circumstance and such seriously aggravating circumstances.

We adhere to the views we expressed on the former appeal and since we find that the iihposition of the death penalty was not in violation of the Eighth and Fourteenth Amendments to the United States Constitution, we reinstate the judgment and it is accordingly

Affirmed.

George Rose Smith, Holt and Hickman, JJ., dissent.

APPENDIX

Ark. Stat. Ann. § 41-1501 (Criminal Code 1976) changed the felony murder rule [formerly Ark. Stat. Ann. § 41-4702 (Supp. 1973)] by eliminating mass transit piracy and treason and adding escape in the first degree to the list of felonies to which the rule is applicable; and by including provisions creating accomplice liability (and affirmative defenses for an accomplice); by extending the rule to include a killing committed in immediate flight from an included felony; and by providing that the death be caused “under circumstances manifesting extreme indifference to the value of human life.”

It also changed the focus of an unlawful killing involving a public official from (E) the unlawful killing of a public official resulting from a premeditated design to kill anyone, to (d) the unlawful killing of anyone resulting from a premeditated design to kill a public official. It added murder pursuant to agreement as a capital murder.

Ark. Stat. Ann. § 41-1304 (Criminal Code 1976) is different from § 41-4712 (Supp. 1973) in that it states that mitigating circumstances are not limited to those provided in the statute and by adding as mitigation the fact that the defendant has no significant history of prior criminal activity.

Mitigating circumstances are no longer limited to those provided in the statute and now include the circumstance that the defendant has no significant history of prior criminal activity. Ark. Stat. Ann. § 41-1304 (Criminal Code, 1976) § 41-4712 (Supp. 1973).

Aggravating circumstances were changed somewhat as they relate to a person who has a prior record of commission of a felony. Ark. Stat. Ann. § 41-1303 (Criminal Code, 1976), § 41-4711 (Supp. 1973).

Substantive changes in trial procedure, § 41-1301 (Criminal Code, 1976), formerly § 41-4710 (Supp. 1973), include a provision that evidence of mitigating circumstances may be presented regardless of whether the evidence is admissible under the rules of evidence; and for waiver of the death penalty by the prosecutor, expressly or by stipulation as to the facts of mitigating and aggravating circumstances, after trial. § 41-1302 (Criminal Code, 1976) allocates the burden of proof during the sentencing phase of a capital trial.

George Rose Smith, Justice, dissenting. On July 2, 1976, the Supreme Court of the United States sustained newly enacted death-penalty statutes in Georgia, Florida and Texas. In all three cases Justice Stewart’s opinion stressed a provision for mandatory appellate review as a safeguard against arbitrary action in the trial court. In the Georgia case, for example, he pointed out that “[i]n addition to the conventional appellate process available in all criminal cases, provision is made for special expedited direct review by the Supreme Court of Georgia of the appropriateness of imposing the sentence of death in the particular case.”

In the present case the majority state: “Concededly, there is no mandatory appellate review in Arkansas.” An effort is then made to show that our present laws in fact assure an appellate review in every case. As the majority observe, however, the review depends upon the trial judge and defense counsel’s performance of duties imposed upon them by law or by professional obligation. In view of all the delays, oversights, and errors that can occur in any voluntary system of appellate review, I cannot agree that our procedure is fully as expeditious and effective as those which were sustained in the Georgia, Florida, and Texas cases.

As to the Gilmore opinions, I cannot read into them such a sweeping statement of law as the majority are able to find there. Any constitutional right can be waived. For instance, a jury trial is mandatory in criminal cases, but that right may be waived. Similarly, a person condemned to death could waive the benefit of a mandatory appellate review, but, as I understand the Supreme Court’s position in the three cases upholding the death-penalty statutes, the mandatory review ought to be provided in the first place, leaving the accused the option of affirmatively declining it if he so desired.

Of course Í concede the substantial possibility that in this case the majority will prove to be right and I to be wrong. Yet the opposite possibility also exists. In the circumstances an immediate revision of our statutes, to conform to those upheld in Georgia, Florida, or Texas, might in the long run prove to have been a wise precautionary measure.

Holt, J., joints in this dissent.

Darrell Hickman, Justice,

dissenting.

A majority of the justices of the United States Supreme Court, while disagreeing on the legal and moral questions of the death penalty, have agreed it is the arbitrary or freakish use of the penalty rather than the punishment itself which violates the United States Constitution. See Furman v. Georgia, 408 U.S. 238 (1972). In this context the Supreme Court finally approved the law and procedure in Georgia. Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909 (1976). The two opinions approving the Georgia law and procedure commented especially on two areas of responsibility — sentencing at the trial level and review of the sentence by the state appellate court. In Georgia, the trial judge must review the sentence and file a special written report justifying the death penalty. Appeal to the Georgia Supreme Court is prompt and automatic. The Georgia court determines if the death sentence was imposed under the influence of passion, prejudice or any other arbitrary factor. A special assistant to the court accumulates records of all capital cases for use in comparison. The sentence is then compared with sentences in similar cases to determine if it is excessive or disproportionate. The Georgia court has found that the law imposes on it a duty to set aside a death sentence that is out-of-line with the penalty in similar cases.

In the two opinions approving the Georgia law, special comment was made regarding the Georgia appellate review as a check against the random or arbitrary use of the death penalty. In the opinion written by Justice Stewart, the court said:

It is apparent that the Supreme Court of Georgia has taken its review responsibilitites seriously. Gregg, 428 U.S. 153, 96 S. Ct. 2909, 2940 (1976).

The opinion written by Justice White, after commenting on prompt and automatic review, report of the trial judge, comparison of similar cases and a history of setting aside excessive penalties, stated:

Indeed, if the Georgia Supreme Court properly performs the task assigned to it under the Georgia statutes, death sentences imposed for discriminatory reasons or wantonly or freakishly for any given category of crime will be set aside. Gregg, 428 U.S. 153, 96 S. Ct. 2909, 2949 (1976).

In comparison, Arkansas has no provision for a special report by the trial judge; there is no mandatory appeal law; there is no special assistant collecting records of capital cases; there is no provision for comparing sentences; there is no recent history of reducing cases simply because they are excessive. To the contrary, this court reversed itself and found there was no legal authority to reduce a sentence simply because it was excessive. Osborne v. State, 237 Ark. 5, 371 S.W. 518 (1963). The Arkansas Legislature, after the Osborne case, gave this court the express authority to reduce sentences simply because they were excessive. Ark. State. Ann. § 43-2725.2 (Supp. 1975). This court even rejected that law, stating that such a power was unconstitutional because it amounted to the use of clemency power. Hooper v. State, 257 Ark. 103, 514 S.W. 2d 394 (1974).

The majority opinion quotes some cases in the early history of this court as evidence that this court has reduced sentences as excessive. See Hadley v. State, 196 Ark. 307, 117 S.W. 2d 352 (1938). However the Hadley case and other similar cases were specifically overruled by the Osborne case. The language of the Osborne case could not be more specific, and I quote it for emphasis.

Counsel vigorously maintains that the punishment is so severe that it should be reduced by this court. It is true that in a number of the older cases, including one as recent as Carson v. State, 206 Ark. 80, 173 S.W. 2d 122, we have assumed the power to mitigate the punishment imposed by the trial courts. The right to exercise clemency is, however, vested not in the courts but in the chief executive. Ark. Const., Art. 6, § 18. Our latest cases have uniformly followed the rule, which we think to be sound, that the sentence is to be fixed by the jury rather than by this court. If the testimony supports the conviction for the offense in question and if the sentence is within the limits set by the legislature, we are not at liberty to reduce it even though we may think it to be unduly harsh.

If this language were not enough, it was made perfectly clear in the Hooper case that this court would not reduce a sentence because it was excessive, or was based on passion and prejudice. For emphasis, I will quote the language from the Hooper case.

Finally, it is asserted that the verdict of the Jury is excessive and indicates passion and prejudice on the part of the jury. We have held that we have no authority to reduce a sentence that is not in excess of statutory limits, and we have consistently, in recent years, followed that rule.

The majority opinion, although implying otherwise, makes it clear the Osborne and Hooper cases will continue to be the law followed by a majority of the court. This means a sentence to death will not be reduced because it is excessive, out-of-line with punishment in similar cases, or the result of passion or prejudice.

I believe the decisions of this court in the Osborne and Hooper cases were wrong and should be overruled. It is not a matter of clemency to correct an injustice; it is simply the law at work.

The same date the Gregg case was published, the U.S. Supreme Court also approved the capital punishment laws in Florida and Texas. In approving the capital punishment laws in these states, the court used the principles of the Gregg case as an example; although the opinions were brief, the message was the same — the responsible use of capital punishment. Commenting on the Florida law, the court stated:

In fact, it is apparent that the Florida Court has undertaken responsibly to perform its function of death sentence review with a maximum of rationality and consistency. For example, it has several times compared the circumstances of a case under review with those of previous cases in which it has assessed the imposition of death sentences. Proffit v. Florida, 428 U.S. 242, 96 S. Ct. 2960, 2969 (1976).

Reviewing the Texas law, the court stated:

By providing prompt judicial review of the jury’s decision in a court with statewide jurisdiction, Texas has provided a means to promote the even-handed, rational and consistent imposition of death sentences under law. Because this system serves to assure that sentences of death will not be “wantonly” or “freakishly” imposed, it does not violate the Constitution. Jurek v. Texas, 428 U.S. 262, 96 S. Ct. 2950, 2958 (1976).

Comparing the procedures approved in these three cases with those in Arkansas, there is little doubt that a great deal remains to be done before the Arkansas law and procedure will be approved by the Supreme Court. First, there must be a law that the appeal of capital cases is prompt and automatic. Second, a majority of this court must accept the responsibility and see as its duty the obligation to compare sentences and to reduce any disproportionate sentence. Third, a majority of this court must recognize the authority and accept the duty to reduce any sentence found to be arbitrary, excessive or the result of passion or prejudice. In other words, this court cannot place the entire responsibility of the death penalty on the jury and the trial court, but must assume responsibility for insuring that the death penalty is rationally and fairly imposed.

It is clear to me that the Supreme Court of the United States would like nothing better than to put this matter at rest. However, approval is predicated on a procedure for a fair and impartial sentence at the trial level, and a procedure for prompt and meaningful review by the appellate court.

The majority of this court cannot yet see all the deficiencies in the Arkansas law, but to me they are quite clear. Therefore, I will dissent.

       This statute was substantially incorporated into the Arkansas Criminal Code of 1976. We point out some differences in an Appendix to this opinion. Although we find no significance in them, our evaluation in that respect is based upon a superficial examination, as the statute in its present state is not under review here.

       For the purposes of this opinion, it is unnecessary to consider other homicides characterized as murder. See, e.g., §§ 41-2211, 2213, 2214, 2215, 2216, 2217, 2218, 2219, 2220, 2221, 2222, 2223, 2224, 2225, 2226 (Repl. 1964).

       The Texas Court had pointed out that the Texas statute provided for automatic, swift and mandatory appellate review. Jurek v. State, Tex. Cr. App., 522 S.W. 2d 934 (1975).

       A statement by the Nebraska Supreme Court might well be applied here. “No longer will one man die and another live on the basis of race, or a woman live and a man die on the basis of sex.” State v. Stewart, 197 Neb. 497, 250 N.W. 2d 849 (1977).

       A motion for new trial is not a requisite for appellate review, but it is still permitted at any time prior to the time fixed for filing notice of appeal and has the effect of extending the time allowed for filing notice of appeal. Ark. Stat. Ann. §§ 43-2703, 43-2704 (Supp. 1973, Supp. 1975). We have also held that a motion for new trial may be heard and granted by a trial court after notice of appeal has been given and before the record has been filed in this court. State v. Adkisson, 251 Ark. 119, 471 S.W. 2d 332.

       Perhaps the mitigating circumstances were not limited to those stated. Cf. Ark. Stat. Ann. §§ 41-4712 and 41-4711 (Supp. 1973).


source: Caselaw Access Project

author: Conley Byrd, Justice.

license: Public Domain

text:
    Kathryn L. ALLEN v. FIRST NATIONAL BANK of Fort Smith, Executor of the Estate of George W. ALLEN, Deceased
    76-216 — 217
    547 S.W. 2d 118
    Opinion delivered March 7, 1977
    (In Banc)

      Warner & Smith, by: Wayne Harris and G. Alan Wooten, for appellant.

      Pearce, Robinson & McCord, by: Owen C. Pearce, for appellee.
   Conley Byrd, Justice.

Involved on these appeals are the rights of a divorced spouse to the proceeds of life insurance policies in which she was the designated beneficiary. The trial court considered several instruments and various factual circumstances from all of which it, relying upon such cases as Harris v. Brewer, 239 Ark. 614, 390 S.W. 2d 630 (1965), concluded that the decedent had evidenced his intent and had done sufficient acts to make his estate the beneficiary of the insurance proceeds. For reversal, appellant Kathryn L. Allen contends:

POINT I. “The trial court erred in finding that the property division and settlement of Dr. Allen and appellant confirmed by its decree divested appellant of any right, title, claim or interest she had or contemplated in Continental Assurance Policy No. LI 9195-A8.
POINT II. The trial court erred in finding that the ‘Change of Beneficiary’ executed by Dr. Allen on February 4, 1972, after the divorce, changed the beneficiary on all his life insurance policies to his estate, except for the $60,000.00 policy covered by the divorce decree.
POINT ill. The trial court erred in finding that the ‘Change of Beneficiary’ document coupled with the will provisions of Dr. Allen ¿ccomplished a change of beneficiaries in accordance with the laws of Arkansas.”

The stipulated facts show that prior to January 18, 1972, Kathryn L. Allen and the decedent Dr. George W. Allen were husband and wife. During that marriage several policies of life insurance, including the two here involved, were obtained by Dr. George W. Allen and appellant was the named beneficiary in most, if not all, of said policies. The divorce decree dated January 18, 1972 provided that Dr. George W. Allen would transfer to appellant $60,000.00 of life insurance and that he would pay the premiums and maintain it in force until appellant attained the age of 65. In return, appellant generally released and relinquished any claim and interest she might have in any of the properties mentioned in the decree. However, the decree did not specifically mention the policies here involved. Approximately two weeks following the divorce, Dr. Allen executed the following written instrument:

“CHANGE OF BENEFICIARIES OF LIFE INSURANCE POLICIES
At the time this instrument is executed, all of my policies of life insurance on my life are in the hands of Warner, Warner, Ragan & Smith, Attorneys who have represented my divorced wife Kathryn L. Allen in a divorce case between us recently concluded. Under the terms of the divorce Decree, $60,000.00 of life insurance coverage on my life is to be transferred to Kathryn L. Allen, and I am to pay the premiums of this insurance coverage and maintain it in force until Kathryn L. Allen has attained the age of 65
By this instrument, I hereby change the beneficiaries of all of these life insurance policies, except the $60,000.00 coverage (face amount) mentioned above which is to be transferred to Kathryn L. Allen, and maintained in force by me for her benefit.
From and after this date, the beneficiary of all of my life insurance policies, except the $60,000.00 coverage mentioned above which is to be transferred to Kathryn L. Allen, shall be the estate of George W. Allen.
Dated at Fort Smith, Arkansas, this 4th day of February, 1972.
/s/ George W. Allen”

Thereafter, Dr. Allen cashed in some of his life insurance policies and permitted others to lapse. After his remarriage he took out a $100,000 policy in favor of his new wife. However, no change of beneficiary was made on the two policies here involved. Dr. Allen died February 24, 1975. The proceeds of the $60,000.00 policy transferred in the divorce decree to appellant have been paid to appellant. The proceeds of the $100,000 life insurance policy in which the new wife was designated the beneficiary have been paid to the new wife. By his Will Dr. Allen provided: “I give, devise and bequeath all of my property and estate, real, personal and mixed, wherever located, and whether acquired before or after the execution of this Will, to my Trustee, in Trust. . . ” [for his three children by appellant]. It was stipulated that the instrument entitled “Change of Beneficiaries of Life Insurance Policies” was left in his lawyer’s office and was not transmitted to any insurance company. With respect to change of beneficiary, the Continental Assurance Company Policy provides:

“Any Insured who has not made an irrevocable designation of beneficiary may designate a new beneficiary at any time, without the consent of the beneficiary, by filing with the American Geriatrics Society a written request for such change, but such change shall become effective only upon receipt of such request at the Home Office of the Company. When such request is received by the Company, whether the Insured be then living or not, the change of beneficiary shall relate back to and take effect as of the date of execution of the written request, but without prejudice to the Company on account of any payment theretofore made by it.”

With respect to the profit sharing plan with Investors Diversified Services, Inc., it was stipulated that appellant was the designated beneficiary under the Plan in Custodial Account “A” and that so far as here pertinent the profit sharing plan provides:

“(b) Distributions payable at death under this Article shall be made to the beneficiary designated by the Participant on an acceptable form. With respect to Participant’s interest held under Custodial Account “A” such designation may be changed by the Participant’s filing a written notice of change with the Employer with respect to Participant’s interest held under Custodial Account “B” such designation may be changed by Participant filing a written notice of change with the issuer of the contracts held thereunder in accordance with the terms of such contracts. If no beneficiary is designated as of the date of death of the Participant, such distributions shall be made to the estate of the Participant.”

POINT I. The rights of a divorced spouse after a property settlement to the proceeds of a life insurance policy as the designated beneficiary in policies specifically designated in the divorce decree were before us in Mabbitt v. Wilkerson, 220 Ark. 270, 247 S.W. 2d 201 (1952) and Harris v. Brewer, 239 Ark. 614, 390 S.W. 2d 630 (1965). While holding in both cases that the surviving ex-spouse could not take as a beneficiary, the latter case was affirmed by a 4 to 3 vote only upon the reluctant concurrence of Justice Ed. F. McFaddin who, in doing so, stated: Brewer, supra, detract from its value as a precedent, we need not now re-examine its precedential value, because both Mabbitt v. Wilkerson, supra, and Harris v. Brewer, supra, involved divorce decrees in which the specific policies of insurance were specifically mentioned and agreed upon. The property settlement here incorporated into the decree of divorce between appellant and Dr. Allen does not mention either of the policies here involved. In such situations the court has consistently determined the rights of the designated beneficiaries in such contracts of insurance according to contractual law without regard to the effect of a divorce between the insured and the beneficiary. See Walden v. McCollum, 172 Ark. 291, 288 S.W. 386 (1926). It therefore follows that the trial court erred in holding that the property division in the divorce decree divested appellant of her rights to the proceeds of the policies as a beneficiary.

“However, I have concluded that we should now give notice to the Bench and Bar that we will re-examine our former cases when a case like this one is next presented to us. For myself, I hereby give such notice. I think the weight of authority, and certainly the better reasoned cases, are contrary to our holding in Mabbitt v. Wilkerson ...” [220 Ark. 270, 247 S.W. 2d 201 (1952)].
While the dissenting and concurring opinions in Harris v.

POINT II. The “Change of Beneficiary” executed by Dr. Allen on February 4, 1972 and left in his lawyer’s office certainly cannot be considered as a substantial compliance with the contractual requirements for a change of beneficiary. Cases such as Tibbels v. Tibbels, 232 Ark. 857, 340 S.W. 2d 590 (1960), relied upon by the trial court are limited to those situations in which the insured has done everything reasonably possible to effectuate a change in beneficiary. It cannot be said that Dr. Allen’s conduct placed him in the position of having done everything reasonably possible. The record shows that he took no action for three years even though he made annual payments, surrendered and cashed policies and took out an additional policy in favor of his new wife. A mere announcement of a desire or preference, alone, does not amount to a change of a beneficiary, Dennis v. Equitable Life Assurance Society, 191 Ark. 825, 88 S.W. 2d 76 (1935).

POINT III. While our cases recognize that a change of beneficiary can be accomplished by will, Pedron v. Olds, 193 Ark. 1026, 105 S.W. 2d 70 (1937) and Clements v. Neblett, 237 Ark. 340, 372 S.W. 2d 816 (1963), the terms of the Will here only devises “all of my property and estate, real, personal and mixed wherever located. ...” Such language is insufficient to either identify the insurance policies involved or to show an intent to effectuate a change of beneficiary.

Having demonstrated that the property settlement in the divorce, the “Change of Beneficiaries” left in the lawyer’s office and the Will were ineffectual to amount to a change in the designation of appellant as the beneficiary in the life insurance policies involved, it follows that the decrees in favor of the estate of Dr. George W. Allen must be reversed and remanded for entry of decrees in favor of appellant Kathryn L. Allen not inconsistent with this opinion.

Reversed and remanded.

       The parties agree that the reasoning and opinions in life insurance cases are applicable to this profit sharing plan. See 5 ALR 3d 644.


author: Frank Holt, Justice.

text:
    H. Allen GIBSON v. Alana G. HEIMAN et al
    76-324
    547 S.W. 2d 111
    Opinion delivered March 7, 1977
    (Division I)

      Smith, Williams, Friday, Eldredge & Clark, by: David A. Orsini, for appellant.

      Me Math, Leatherman & Woods, by: Henry Woods, for appellees.
   Frank Holt, Justice.

In an action on a written contract, appellant sought recovery of fees for his engineering and construction manager services provided to Max Heiman, deceased, in connection with the construction of a project known as Country Club Manor Apartments. Appellees, administrators of the estate of Heiman, denied liability on the basis that the contract was unreasonable and unconscionable. Also appellant had breached the contract by substantial nonperformance and, therefore, any recovery should be on a quantum meruit basis. The chancellor found that appellant did not completely perform his contractual duties and appellant, on a quantum meruit basis, was adequately paid for his services. Appellant first contends that the findings of fact and conclusions of law and the judgment rendered by the chancellor are unsupported by the evidence and are contrary to the law and the facts.

According to the contract between appellant and Heiman, owner of the apartment project, the appellant was to render engineering services in the nature of planning, designing, assistance in construction loans, including costs and market studies, furnish and submit contract forms to bidders, construction observation and construction management for a fee of ten and one-half percent of the project construction costs, which eventually approximated $4,000,000. The total fee consisted of six and one-half percent for engineering services and four percent for construction management. He claimed he was due the sum of $417,861.93 and interest which represented his fee and additional services. Appellant had been paid $110,000 by Heiman before his death and appellant had also received $80,000 on his fee in settlement of his claim against the mortgagees of the project (a total of $190,000). Appellant argues that he fully performed the services required by the contract and is entitled to be paid according to the contract. The record indicates that the appellant, in the planning stage of his contractual duties, performed various duties of designing, providing specifications and preparing the necessary documents and data. However, there is evidence that appellant’s performance was faulty. Through certain design flaws, there developed problems with various apartments of the 210 apartment complex, such as sewage disposal when a storm occurred, lack of usable wall and closet space, improper door hangings, faulty locations of circuit breakers and electrical switches, lack of outside electrical receptacles and a maintenance storeroom, inadequate parking spaces (373 of 406 exist) and other complaints. These deficiencies were a result of poor design and lack of supervision and rendered the apartments difficult to rent.

Under the construction management phase of the contract, appellant’s duties were not specified. The contract does not define the term construction management and is admittedly ambiguous. Since the contract is ambiguous, it is construed most strongly against the party preparing it, here the appellant, and its meaning becomes a question of fact. Manhattan Factoring Corporation v. Orsburn, 238 Ark. 947, 385 S.W. 2d 785 (1965). Appellant argues that his duties as construction manager involved such things as surveys, obtaining information and governmental approval where necessary and negotiation of subcontractor bids for the general contractor’s approval. He contends that the majority of appellant’s duties as construction manager were complete at the time of the letting of the general contractor’s contract.

Appellant introduced a report of the American Council of Consulting Engineers as an aid in defining the scope and duties of construction management. This document provides, however, that, in addition to design duties in the planning stage, as soon as the construction contract is let, “the construction manager, working as the Owner’s Agent, provides general coordination and direction of the work of the various contractors.” Although appellant considered his duties as construction manager to deal primarily with financing the project and negotiations of bids, the chancellor felt, and we agree, that the term here, without being limited, requires supervision of construction in a position of authority between the contractors and the owner.

Mr. C. V. Barnes, a real estate developer, defined construction management as “the construction manager would be someone who in effect took the place of an owner, entrepreneur. He would do all the functions that normally an owner-developer would do if such a construction manager were not employed or engaged.” According to Jack Morgan, the general contractor for the project, a construction manager should supervise the project personally or his staff personnel on a fulltime basis. This conclusion is supported by a provision in the agreement between Morgan and Heiman wherein it states: “All work shall be done under the general supervision of the engineer.”

It is at this stage of his contractual duties that appellant’s nonperformance is most evident from the evidence. He admits that he did not supervise the construe-don. “I did not supervise. I observed for compliance with the plans and specifications. Mr. Morgan [the general contractor] does the supervising.” Further, it appears that appellant has neither the operational facilities nor the staff for day to day management on a project of this magnitude (210 apartments — approximately $4,000,000 in construction costs). Appellant operates alone from a small office and has no fulltime employees.

Mr. Maurice Mitchell, an attorney and co-administrator of Heiman’s estate, testified that appellant was uncooperative, incorrect in his information and more interested in financing the project than anything else. He felt that appellant delayed the project for four to five months by his lack of decision making. Tenants were waiting to occupy apartments. He had difficulty in getting appellant’s plans for a recreational facility which it appears was never built. He testified: “Every time he [appellant] got between us and a supplier, or a subcontractor, or the contractor, Jack Morgan, we had trouble.” Donna McClelland, resident manager of the apartments, testified she had problems in getting appellant to accomplish what was needed of him. There was evidence that she made a punch list consisting of twenty to thirty pages of legal size sheets “of items that were wrong and omitted, that had not been finished.” She herself had to ride “herd” on the contractor to get these items corrected and removed from her punch list. Sandra Morrison, an agent for the estate, testified that she had difficulty in getting appellant to act on complaints from the contractor, and she would sometimes have to follow up on them herself. There were problems about the recreational room plans, landscaping and the elevators. A storm caused sewage to back up in some bath tubs and appellant was unresponsive to the situation. Consequently, she had it corrected by calling one of the contractors.

It is well settled that the chancellor’s findings of fact will not be reversed unless clearly against the preponderance of the evidence. Titan Oil & Gas v. Shipley, 257 Ark. 278, 517 S.W. 2d 210 (1974); Minton & Simpson v. McGowan, 256 Ark. 726, 510 S.W. 2d 272 (1974); and Bollen v. McCarty, 252 Ark. 442, 479 S.W. 2d 568 (1972). Here the preponderance of the evidence supports the chancellor’s findings that appellant did not fully perform his contract and did not earn in excess of what he was paid ($190,000), on a quantum meruit basis, which was about five percent of the construction costs.

The thrust of appellant’s second point is that the chancellor erred in not finding according to appellant’s request for separate statements and conclusions of law and fact. The chancellor made separate findings of fact and conclusions of law. However, appellant attacks the finding by the court that appellant did not perform the engineering services required of him; appellant was required to supervise the construction of the project; appellant was in a position of authority to some extent over the contractor or subcontractor; construction management was not defined by the contract and that appellant, in this regard, failed to perform the contract; he was not entitled to certain amounts allegedly due for additional engineering services; the fee as sought was unreasonable and exorbitant; appellant did not earn in excess of what he was paid; and he is not entitled to interest, as a matter of law, on the sums he claims are due from the appellees. Findings of fact should be reviewed as a whole and liberally construed to ascertain their sufficiency. 5 Am. Jur. 2d § 844. Here we hold the chancellor’s findings, when reviewed as a whole, as previously and subsequently discussed, are clearly supported by a preponderance of the evidence.

Appellant’s third contention is that the court erred in permitting the introduction into evidence of the performance or nonperformance of contracts between appellant and other parties not involved in this proceeding and in admitting into evidence construction contracts not relevant to the issues before the court or within the scope of the pleadings. Evidence of two contracts which appellant had with other parties was admitted. The Nichols contract, which appellant was working on at the same time as the Heiman contract, was properly admitted to impeach appellant’s testimony that he spent practically 100% of his forty hour work week on the Heiman contract. Also evidence of performance or nonperformance was admissible for the purpose of defining “construction management,” inasmuch as the term here was admittedly ambiguous, and the Nichols contract also required appellant to furnish construction management services. See Wilkes v. Stacy, 113 Ark. 556, 169 S.W. 796 (1914). Further, here it was relevant to the reasonableness of the fee on a quantum meruit basis. Also the Breckenridge contract, an apartment project, and its performance or nonperformance by the appellant, were admissible to show the reasonableness of the fee received by appellant on the Heiman project, since the two projects were similar in nature and contemporaneous in time. In the Breckenridge contract, there was evidence that appellant earned about three percent of the construction cost as a fee for planning and supervising duties. As indicated, there was no error in the admission of the evidence as to these other construction contracts.

Appellant’s final point is that “the trial court erred in admitting into evidence over objection irrelevant statements to fees charged by architects and engineers on other projects, all of which were outside the scope of the pleadings and were given without any basis being established as to similarity and services performed or in similarity in the construction contract.” We cannot agree. The determination whether a non-expert witness has sufficient knowledge of the matter in question or has had sufficient opportunity for observation to be qualified to state an opinion lies largely within the sound judicial discretion of the trial judge and is not reviewable on appeal unless so clearly erroneous as to manifest an abuse of discretion. Farmers Equipment Co. v. Miller, 252 Ark. 1092, 482 S.W. 2d 805 (1972). Here, inasmuch as appellant only performed part of his contract, his recovery is limited to quantum meruit, or a reasonable value of the work done. Coley v. Green, 232 Ark. 289, 335 S.W. 2d 720 (1960); see also Royal Manor Apts. v. Powell Const. Co., 258 Ark. 166, 523 S.W. 2d 909 (1975); 98 CJS Work and Labor, §§ 34 and 66 (8) (1957); and Williston, Contracts, § 1459 (3d ed., 1970). Here the testimony complained of was that of Mr. Barnes, who has an educational background in architectural engineering and extensive experience in construction and development. Also Mr. Mitchell, experienced in real estate development since 1955, was permitted to testify. Their testimony, based on their experience in the construction industry, was that the fee paid to a consulting engineer or architect on an apartment complex for plans and supervision is generally six percent or less of the construction cost of building. Generally, a firm’s staff is sufficiently large enough to permit fulltime supervision. Here, there was only a one-man firm with no staff personnel. The evidence clearly shows that these witnesses were sufficiently familiar with architectural and engineering services to present competent testimony as to the fees customarily charged by architects and engineers on other projects of a similar nature. The chancellor did not abuse his discretionary authority in permitting them to testify.

As indicated, the chancellor’s findings that appellant failed to fully perform his contractual duties and did not earn in excess of what he was paid, on a quantum meruit basis, are supported by the preponderance of the evidence.

Affirmed.

We agree: Harris, C.L, and George Rose Smith and Byrd, JJ.


text:
    Bill WILKENS and Helen WILKENS v. STATE of Arkansas
    CR 76-190
    547 S.W. 2d 116
    Opinion delivered March 7, 1977
    (Division I)

      Jeff Duty and Jack Lessenberry, for appellants.

      William R. Wilson, Atty. Gen., by: Gary lshell, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

Following our reversal of the conviction of appellants in Wilkens v. State, 260 Ark. 168, 538 S.W. 2d 298 (1976), five pending informations, which charged the appellants, husband and wife, with the offenses of possessirn of stolen property, were consolidated for trial. Appellant Helen Wilkens was found guilty on four of the charges and her husband on three of them. The jury assessed five years punishment in the Department of Correction in each case. The appellants’ first contention for reversal is that a mistrial should have been granted when reference was made to the appellants having been involved in other crimes not listed on the informations. A deputy sheriff was permitted to testify as to numerous items which were discovered at the residence and the auction barn of the appellants. The court admonished the jury, as requested by appellants, that evidence of possession of these various items by the appellants was to be considered only for the purpose of determining the intent or knowledge of appellants. Evidence as to the possession of the articles here, recently stolen, was relevant to the alleged offenses of possession of stolen property. The possession tended to show the motive, intent, design and scheme of appellants to engage in the alleged illegal transactions. Cary v. State, 259 Ark. 510, 534 S.W. 2d 230 (1976); Derrick v. State, 259 Ark. 316, 532 S.W. 2d 431 (1976); Kurck v. State, 242 Ark. 742, 415 S.W. 2d 61 (1967); Haight v. State, 259 Ark. 478, 533 S.W. 2d 510 (1976); Puckett v. State, 194 Ark. 449, 108 S.W. 2d 468 (1937); and Long v. Stole, 192 Ark. 1089, 97 S.W. 2d 67 (1936).

It is next contended that the trial court erred by failing to grant appellants’ motion to suppress certain evidence seized pursuant to a search warrant. A deputy sheriff secured two search warrants, one for searching appellants’ residence and the other constituted authority to search their rented auction house. Both warrants directed that they be served in the day time. The search of the residence occurred during the day time (2:30 p.m.). However, the search of the auction house occurred that night (11:15 p.m.), when it was closed. It appears that at common law a search warrant was limited to the day time. However, presently a search warrant can be served at night when so provided by a statute or court rule. 68 Am. Jur. 2d, Searches and Seizures, § 110; 79 C.J.S., Searches and Seizures, § 83 c. In force at the time of the execution of these warrants was Ark. Stat. Ann. § 43-202 (Repl. 1964), which provides that a warrant to search for stolen property shall provide for an execution “in the day time.” However, § 43-203 provides that “If there be positive proof that any property stolen .... is concealed in any particular house or place, the warrant may order the searching of such house or place in the night time.” We also call attention to the present Rules of Grim. Proc., Rule 13.2, which is further restrictive. This rule provides:

.... Upon a finding by the issuing judicial officer of reasonable cause to believe that: (i) the place to be searched is difficult of speedy access; or (ii) the objects to be seized are in danger of imminent removal; or (iii) the warrant can only be safely or successfully executed at nighttime or under circumstances the occurrence of which is difficult to predict with accuracy; the issuing judicial officer may, by appropriate provision in the warrant, authorize its execution at any time, day or night, and within a reasonable time not to exceed sixty (60) days from the date of issuance.

Here, the search of the auction barn was in clear contravention to the directive of the issuing magistrate and, consequently, all of the property seized there must be suppressed.

It is next contended by appellants that the trial court erred in permitting testimony of extra judicial identification of the stolen property. The deputy sheriff was permitted to testify without objection upon direct examination that he returned certain property to various individuals and he was cross-examined upon the subject. However, upon direct, the officer was permitted, over objections of appellants, to testify that the various owners of the alleged stolen property made “positive identification” in his presence. It is true that some of the owners later testified and made “positive identification.” No authority exists for admitting extrajudicial identification as evidence of the guilt of a defendant because testimony as to extra judicial identification “is incompetent as either substantive or corroborative evidence if there has been no impeachment of the prosecuting witness or his testimony.” Trimble v. State, 227 Ark. 867, 302 S.W. 2d 83 (1957); and Gill v. State, 194 Ark. 521, 108 S.W. 2d 785 (1937). In the circumstances, we are of the view that the admission of the officer’s testimony was prejudicial error. Further, his extra judicial identification of the property of the owners who did not testify is patently a violation of the hearsay rule.

Appellants’ final point is that the prosecuting attorney’s closing argument was improper and so prejudicial that the convictions should be reversed. Even so, the asserted error is not likely to recur upon a retrial. Again, however, we deem it necessary to observe we have held that arguments which are outside the record or have no evidentiary support constitute prejudicial error. Long v. State, 260 Ark. 417, 542 S.W. 2d 742 (1976); Brown v. State, 143 Ark. 523, 222 S.W. 377 (1920); Hughes v. State, 154 Ark. 621, 243 S.W. 70 (1922); Pritchett v. State, 160 Ark. 233, 254 S.W. 544 (1923); and Williams v. State, 259 Ark. 667, 535 S.W. 2d 842 (1976).

The judgments are reversed and the causes remanded.

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