author: Steele Hays, Justice.

text:
    Owen ROBINSON, a Minor, By and Through His Mother and Next Friend, Ella ROBINSON, and Dwight RIVERS, a minor, By and Through His Mother and Next Friend, Mayzellar ROBINSON v. Anthony SHOCK, Superintendent, Pine Bluff Training School
    CR 83-120
    667 S.W.2d 956
    Supreme Court of Arkansas
    Opinion delivered April 23, 1984

      East Arkansas Legal Services, by: Charles Q. Grimm, for appellants.

      Steve Clark, Atty. Gen., by: Elizabeth Dowling, Asst. Atty. Gen., for appellee.
   Steele Hays, Justice.

By this appeal we are asked to decide whether habeas corpus is the proper remedy to obtain the release of juvenile offenders committed without legal counsel.

The two minors in this case were found to be juvenile delinquents by the Juvenile Court of Lee County, Arkansas and were committed to the Arkansas Department of Youth Services in Jefferson County for indefinite confinement. Neither juvenile was represented by counsel, nor was the right to counsel waived. After the time for appeal had run the mothers of the boys petitioned the Jefferson Circuit Court for a writ of habeas corpus. At a hearing on the petition the state stipulated that the two boys were denied counsel and that such denial was error, but argued that habeas was not the proper remedy and the trial court agreed. It found the order of commitment regular and valid on its face, that it was without jurisdiction to review the facts behind the order of commitment, and that the petitioners should seek post-conviction relief through the Juvenile or Circuit Court of Lée County The state contends the question is now moot as both individuals have been released from custody. However, juvenile commitments are generally of short duration, making this question one that will tend to recur but evade review, and for that reason we will address the problem. See Arkansas Television Co. v. Tedder, 281 Ark. 152, 662 S.W.2d 174 (1983); Shiras v. Britt, 267 Ark. 97, 589 S.W.2d 18 (1979) and Commercial Printing Co. v. Lee, 262 Ark. 87, 553 S.W.2d 270 (1977).

We have considered first the trial court’s observation that relief should be sought under A.R.Cr.P. Rule 37 and find that course inappropriate. The scope of Rule 37 is set out in Rule 37.1, the pertinent part stating:

A prisoner in custody under sentence of a circuit court and whose case was not appealed to the Supreme Court. . .

A juvenile who has been adjudged delinquent and committed to Youth Services is not a “prisoner in custody,” nor is he “under sentence by a circuit court.” The provisions of the Juvenile Code, Ark. Stat. Ann. § 41-401, et seq, make this clear. Section 45-4Ó2 sets out the purpose of the act and states:

This Act shall be liberally construed to the end that its purposes may be carried out, to wit: That the care, custody, and discipline of juveniles shall approximate as nearly as possible that which should be given them by their parents. . . .That in cases of delinquency of juveniles in need of supervision, as far as practicable, the juvenile shall be treated not as a criminal, but as misdirected, misguided, and in need of aid, encouragement, assistance and counseling, and if such juvenile cannot be properly cared for and corrected in his own home with the assistance and help of a probation officer or other persons designated by the juvenile court, that he be placed in a suitable home, agency, institution, or other facility where he may be helped, educated, and equipped for useful citizenship.

The reading of other provisions in the code, including § 45-411.1, § 45-421 and § 45-436, which deal with the release of juveniles from custody, detention hearings and predisposition and disposition hearings, particularly when read with the stated purposes of the code, readily suggests the different treatment that is to be accorded juvenile offenders. These statutes and others in the code, along with the stated purpose, implicitly direct that juvenile offenders are not to be treated as “prisoners in custody” or “sentenced” as adult offenders. Additionally, §§ 45-405 and 45-406 give original and exclusive jurisdiction of juvenile matters to the county courts, so that juvenile offenders are not “under sentence of a circuit court.” The structure and purpose of the juvenile code, therefore, make it incompatible with relief within the scope of Rule 37, which contemplates the trial, conviction and sentencing of an adult prisoner under our criminal code.

We turn to the question of whether habeas corpus is the proper remedy in this situation. Although we have not dealt previously with the issue now presented, habeas corpus has been the traditional form of relief under circumstances where juveniles are concerned. See State v. Ballard, 209 Ark. 397, 190 S.W.2d 522 (1945); State Dept. of Public Welfare v. Lipe, 257 Ark. 1015, 521 S.W.2d 526 (1975). And generally, the writ will not be issued if the petitioner is in custody pursuant to a valid order, or under process regular on its face and the court making the commitment did not lack jurisdiction. See Bargo, Howell, Morse, et al v. Lockhart and Clark, 279 Ark. 180, 650 S.W.2d 227, (1983); Mitchell v. State, 233 Ark. 578, 346 S.W.2d 201 (1961). But as noted above, juvenile offenders are not adult offenders and are not treated as such. Although some overlapping occurs, the entire process and the purpose of the juvenile code set it apart from the criminal code and many of the considerations involved in dealing with j uvenile offenders are significantly different. Therefore, what may constitute a valid order for an adult prisoner under our case law will not be facially valid where a juvenile offender in custody is involved. The constitutional right to counsel has been extended to juveniles, In re. Gault, 378 U. S. 1. (1967), and the juvenile code upholds that right in specific terms. Ark. Stat. Ann. § 45-413. When that right has been denied to the juvenile within the juvenile commitment process, then an order emanating from such a proceeding which does not reflect the fact that the juvenile was represented by legal counsel will not constitute a facially valid order.

This treatment of the problem is comparable to that followed when an individual committed to the state hospital, deprived of his or her liberty without due process, seeks redress through habeas. In Rowlands v. Rogers, 199 Ark. 1041, 137 S.W.2d 246 (1940) the petitioner was committed to the state hospital under commitment proceedings materially lacking in due process. We noted that ordinarily if a petitioner is in custody under process regular on its face, that nothing would be considered except the jurisdiction of the court. However, we went on to cite our habeas statute § 34-1733, which lists those instances when a prisoner can be discharged, and found the fourth case applicable:

Where the process, though in proper form, has been issued in a case, or under circumstances, not authorized by law.

We concluded by stating that the case came within that subdivision inasmuch as the order was issued under circumstances not authorized by law.

In reviewing habeas corpus, our case law has treated criminal cases differently than civil cases, or juvenile cases, which are quasi-criminal in nature. In criminal cases we have adhered more strictly to the principle that if the process is regular on its face, we will not look beyond the question of jursidiction of the court. See Bargo, supra; Mitchell, supra; Ex-parte Williams, 99 Ark. 475 (1911). However, in the civil cases, such as Rowlands, we have not been so literal. The safeguards for due process and subsequent relief that have developed around the criminal process are not as available to the state hospital inmates, or the juvenile offender committed to the custody of the state. Consequently, in the furtherance of justice the courts have looked beyond the mere face of an order in determining its validity. When substantial due process has been denied and an individual has been deprived of his liberty, that deprivation must be considered as an integral part of the order. Unless the legislature provides some other statutory relief for individuals incarcerated under circumstances such as the petitioner in Rowlands and the two juveniles in this case, habeas corpus remains, as it has been traditionally, the appropriate remedy.

We think it well to note that juvenile courts are courts of limited jurisdiction and may exercise only those powers expressly conferred upon them by law, the nature, extent and exercise of their jurisdiction being dependent on express constitutional or statutory provisions. Jennings v. Ft. Smith Dist. of Sebastian Co., 115 Ark. 130, 117 S.W. 920 (1914); Benton v. Thompson, 187 Ark. 208, 58 S.W.2d 924 (1933); County Board of Election Comm’rs of Lonoke Co. v. Waggoner, 190 Ark. 341, 78 S.W.2d 821 (1935). Wehaveheld the judgments of such courts can be supported only by a record which shows jurisdiction, that no presumptions will be indulged in that jurisdiction exists. Minetree v. Minetree, 181 Ark. 111, 26 S.W.2d 101 (1930).

Reversed.

Hickman, J., dissents.

       This writ has also been recognized as the traditional remedy for individuals committed to the state hospital. See Von Luce v. Rankin, 267 Ark. 34. 588 S.W.2d 445 (1979).


source: Caselaw Access Project

author: P. A. Hollingsworth, Justice.

license: Public Domain

text:
    TEXAS OIL & GAS CORP. v. HAWKINS OIL & GAS, INC.
    84-36
    668 S.W.2d 16
    Supreme Court of Arkansas
    Opinion delivered April 23, 1984
    [Rehearing denied June 18, 1984.]

      Martin, Vater & Karr, by: Charles Karr, for appeljant.

      Smith, Stroud, McClerkin, Dunn ir Nutter, by: Hayes C. McClerkin, for appellee.
   P. A. Hollingsworth, Justice.

The sole issue raised in this appeal concerns the ownership of certain oil and gas leases. The appellee, Hawkins Oil & Gas Inc. (hereinafter “Hawkins”) entered into a Joint Operating Agreement with the appellant, Texas Oil & Gas Corp. (hereinafter “Texas”) for the drilling of a well identified as the Knuckles#l Unit. Texas was the operator of the unit and Hawkins was a nonoperator.

At the time the Joint Operating Agreement was executed, June 25, 1981, Hawkins had acquired certain leases in theNW 1/4 of theNW 1/4 of Section 6, Township 9 North, Range 22 West, in Johnson County, Arkansas. The leases were acquired from the heirs of Alexander B. Hamilton in the mistaken belief that he was predeceased by his wife, Sarah Eliza Hamilton, and that they had no children. In fact, Alexander Hamilton died before his wife and devised his mineral interest to her.

Prior to the execution of the Joint Operating Agreement, Hawkins had proposed to Texas that Hawkins drill a well in Section 6, but by mutual agreement of the parties, Texas was to be named the operator of the unit drilling operations in as much as it had a predominant position in Section 6. As a result of this decision, all of Hawkins’ abstracts and title opinions were delivered to Texas on May 4, 1981.

During the period these acts were transpiring, the Knuckles #1 Well was being drilled, and on November 13, 1981, the well blew out, requiring evacuation of the area.

On December 3, 1981, after reading the abstracts and title opinions, Texas determined that the heirs of Alexander B. Hamilton did not own the minerals in the NW 1/4 of the NW 1/4 of Section 6. Without notifying its nonoperator signator, Hawkins, Texas acquired leases contrary to the position of Hawkins from the heirs of Sarah Eliza Hamilton.

Hawkins filed suit claiming a fiduciary relationship and as a result of the actions of Texas, the trial court found that Texas was holding in trust for Hawkins one half of the interest in leases acquired by Texas from the heirs of Sarah Eliza Hamilton. As a result of that decree, we hear this appeal. We affirm. Jurisdiction rests in this Court under Rule 29 (1) (n).

The appellees contend that the agreement executed by the parties created a fiduciary relationship whereby Texas was to act for the benefit of all the nonoperators and therefore owed all the nonoperators the duty of fair dealing. We are urged to accept that Texas was precluded from buying for itself the outstanding interest in the subject matter of the joint venture and that Hawkins is entitled to share in Texas’ purchase of the leases.

We have held that the elements of a partnership must be present in a joint adventure. State ex rel Attorney General v. Gus Blass Company, 193 Ark. 1159, 105 S.W.2d 853 (1937). We later clarified this language by stating, “We did not say in the Gus Blass Co. case that a joint venture must contain every element of a partnership, for then there would be no difference between the two. What we said was that a joint adventure is ‘in the nature of a partnership of a limited character,’ and we then examined the agreement in question to determine whether it was sufficiently similar to a partnership to constitute a joint adventure.” Johnson v. Lion Oil Company, 216 Ark. 736, 227 S.W.2d 162 (1950). We are persuaded the similarities are present here.

We now decide whether the obligations of this joint adventure extended to the Sarah Eliza Hamilton interest. We have previously adopted the view expressed by the majority in Meinhard v. Salmon, 249 N.Y. 458, 164 N.E. 545 (1928). There, as here, Salmon quickly and quietly took a new lease for his own benefit without notice to his coadventurer. In holding that Meinhard was entitled to share in the new lease, the learned jurist, Cardoza, C.J. said in language worth repeating:

Joint adventurers, like co-partners, owe to one another, while the enterprise continues, the duty of the finest loyalty. Many forms of conduct permissible in a workaday world for those acting at arm’s length are forbidden to those bound by fiduciary ties. A trustee is held to something stricter than the morals of the market place. Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior ... .A managing coadventurer appropriating the benefit of such lease without warning to his partner might fairly expect to be reproached with conduct that was underhand, or lacking, to say the least, in reasonable candor, if the partner were to surprise him in the act of signing the new instrument. Conduct subject to that reproach does not receive from equity a healing benediction.

In this instance, there was a fiduciary relationship. There was a relationship of trust and confidence between the parties as a result of their execution of the Joint Operating Agreement. Therefore, the operator owed to the non-operator a duty of fair dealing.

Affirmed.


author: Richard B. Adkisson, Chief Justice.

text:
    Jerry D. FRANKLIN v. Edna Mae GRIFFITH, ADM’X of the Estate of Asa J. GRIFFITH, deceased, and Keitha Jean WILLIAMSON, ADM’X of the Estate of Sammy Joe WILLIAMSON, deceased
    83-311
    668 S.W.2d 518
    Supreme Court of Arkansas
    Opinion delivered April 30, 1984
    [Rehearing denied May 29, 1984.]

      Laser, Sharp & Huckabay, P. A., for appellant.

      Honey & Rodgers; Young, Patton & Folsom; and Shackleford, Shackleford ir Phillips, P. A., for appellee.
   Richard B. Adkisson, Chief Justice.

Appellant, Jerry D. Franklin, brings this interlocutory appeal pursuant to Ark. Stat. Ann. § 27-2102 (Repl. 1979) from an order appointing a receiver to prosecute on his behalf a cause of action against his insurer, Western Preferred Casualty Company (hereinafter Western). The alleged cause of action arose as a result of Western’s wrongful refusal to settle a claim under an automobile liability insurance policy. Franklin contends on appeal that the trial court erred in finding a basis for personal jurisdiction over him in the appointment of a receiver. We agree.

The appellees obtained judgments totalling over $1,000,000.00 against Franklin as a result of a motor vehicle accident in which the husbands of the appellees were killed. Franklin was insured by Western with policy limits of $100,000.00 per person. Appellees had offered to settle their claims within the policy limits, but Western refused, giving rise to the cause of action of failure to settle within the policy limits. The automobile accident occurred in Arkansas, but Franklin was and has remained at all times a resident of Louisiana.

Appellant argues that personal jurisdiction cannot be gained through Arkansas’ long-arm statute (Ark. Stat. Ann. § 27-2502 (Repl. 1979) which provides:

Bases of personal j urisdiction over persons outside this state . . .
A court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a cause of action arising from the person’s
(a) transacting any business in this State;
(b) contracting to supply services or things in this State;
(c) causing tortious inj ury by an act or omission in this State;
(d) causing tortious inj ury in this State by an act or omission outside this State if he regularly does or solicits business, or engages in any other persistent course of conduct in this State or derives substantial revenue from goods consumed or services used in this State;
(e) having an interest in, using, or possessing real property in this State;
(f) contracting to insure any person, property, or risk located within this State at the time of contracting; or
(g) receipt, whether in or out of this State, as a creditor or distributee or one claiming as such, of money or property from an executor, administrator or other personal representative serving under appointment by any probate court of this State.
When jurisdiction over a person is based soley upon this section, only a cause of action arising from acts enumerated in this section may be asserted against him.

It is true that appellant committed a tortious injury in this State which served as a basis for personal jurisdiction over him in the action for personal injuries, however, this tortious act did not give rise to the cause of action of failure to settle which was an act of Western and not of Franklin. The trial court erred in holding that Franklin’s conduct was sufficient to support personal jurisdiction under the long-arm statute.

Appellees argue on appeal that they have personal jurisdiction over appellant because of Ark. Stat. Ann. §§ 27-339.1 (Supp. 1983), 27-341 (Repl. 1979) and 27-342.1 (Repl. 1979). However, Section 27-341 has been superseded, and service on the Secretary of State permitted under Sections 27-339.1 and 27-342.1 was not attempted.

Reversed and dismissed.


author: Richard B. Adkisson, Chief Justice. Darrell Hickman, Justice,

text:
    Kathy Pearson BOONE v. STATE of Arkansas
    CR 83-136
    668 S.W.2d 17
    Supreme Court of Arkansas
    Opinion delivered April 30, 1984
    [Rehearing denied June 4, 1984.]

      Rick Burch; and Howard & Howard, by: William B. Howard, for appellant.

      Steve Clark, Atty. Gen., by: Theodore Holder, Asst. Atty. Gen., for appellee.

      Purtle, J., would grant rehearing.

   Richard B. Adkisson, Chief Justice.

Following a trial by jury in Clay County Circuit Court, appellant, Kathy Pearson Boone, was convicted of second degree murder in connection with the death of her four year old son and was sentenced to twenty years imprisonment. On appeal we affirm.

Appellant first argues that there is insufficient evidence to support the conviction. The State’s theory of the case was that the child died of repeated beatings administered by her boyfriend while appellant, having a legal duty to prevent them, stood by and did nothing.

On Thursday morning, August 6, 1981, the child died of peritonitis resulting from a blow to the abdomen which had ruptured his intestine. At the time of the child’s death, appellant and the boy lived with appellant’s mother who baby sat the child during the day. During the two weeks prior to the child’s death, appellant would arrive home around 4:00 p.m., take the little boy with her to the house of her fiance, and return home later in the evening. On the Monday and Tuesday before the child’s death, appellant did not take the child with her, but on the Wednesday before he died the child did accompany appellant to her fiance’s house. Appellant’s mother testified that from the time appellant began dating her fiance, she noticed bruises on the child, discussed this with her daughter, and, when the bruises increased, “had arguments about it.”

A co-worker of appellant testified that appellant told her that appellant’s fiance, Steve Boone, had whipped the child four or five times consecutively for wetting his pants. Another co-worker overheard a telephone conversation made by appellant in which appellant stated “Momma, I know Steven has whipped that child or that baby too hard; he said he wouldn’t do it anymore.” Another co-worker testified that appellant confided to her that once when the child was taking a bath “Steve came in there and jerked [the child] up and whipped him without any clothes on.” She also testified that one day appellant told her that the child’s grandmother said something about “if I don’t quit finding bruises on Terry Wayne or something, I can get you all for child abuse.” She stated that appellant asked her if they could do that and her answer was “yes, they can.”

Appellant’s mother further testified that on the day of the child’s death, Thursday, August 6, 1981, the little boy had bruises on his legs and his bottom and multiple bruises on the side of his face and on his forehead. She also stated that on the Wednesday evening the little boy was running a fever and vomited all night. On Thursday morning, appellant and her mother took the child to the doctor’s office where he was pronounced dead upon arrival. The nurse who received the child and attempted to revive him testified there were multiple bruises all over the child.

The Assistant State Medical Examiner who performed the autopsy on the child testified that, based on his findings, he 'made a diagnosis of “battered child syndrome” and established the cause of death to be a blow to the abdomen which caused a rupture of a part of the small intestine. He testified that the injury was consistent with the symptoms suffered by the child before his death. He further testified that the child’s injury was consistent with an injury that could have occurred between twelve to twenty-four hours before death, i.e., on the Wednesday before the day he died. He testified that a fall from a swing set or a child falling on top of the little boy would not be sufficient to cause such an injury. He testified that the bruises found on Terry were a part of his finding of “battered child syndrome,” an accepted medical diagnosis. He stated that bruises would not just suddenly appear and that because the bruises appeared on soft tissue, not bony prominences, the bruises indicated “battered child syndrome.” He further stated that even without the bruises he would have suspected child abuse because of the nature of the intestinal injury with no reasonable explanation to account for it.

Appellant was convicted pursuant to Ark. Stat. Ann. § 41-1503 (Repl. 1977) which reads in pertinent part: “Murder in the second degree (1) A person commits murder in the second degree if:. . . (b) he knowingly causes the death of another person under circumstances manifesting extreme indifference to the value of human life.” The evidence supports a conclusion that appellant stood by and repeatedly exposed her son to beatings which resulted in his death. Appellant had legal custody of the child and the duty to prevent such abuse. We find sufficient evidence to support the jury’s finding that the child died from an injury resulting from a blow to the abdomen. There is no doubt that appellant could not have been around the child without knowledge of such abuse. Williams v. State, 267 Ark. 527, 593 S.W.2d 8 (1979).

Although the evidence connecting appellant and her boyfriend with the child’s death is circumstantial, the question of whether the circumstantial evidence excludes every other reasonable hypothesis is for the fact finder to determine. Smith v. State, 264 Ark. 874, 575 S.W.2d 677 (1979). Our responsibility is to determine whether the verdict is supported by substantial evidence, which means whether the jury could have reached its conclusion without having to resort to speculation or conjecture. Cassell v. State, 273 Ark. 59, 616 S.W.2d 485 (1981). See also Ward v. State, 6 Ark. App. 349, 642 S.W.2d 328 (1982). On appeal the evidence will be viewed in the light most favorable to the appellee, and the jury verdict will be affirmed if there is sufficient evidence to support it. Shields v. State, 281 Ark. 420, 664 S.W.2d 866(1984).

Appellant next argues that the trial court erred in its sua sponte order for a second change of venue from Craighead County to Clay County. On August 5, 1981, appellant was charged with second degree murder in Greene County Circuit Court. On September 17, 1982, appellant requested a change of venue because of widespread prejudicial publicity. On September 28, 1982, a hearing was had in Greene County Circuit Court and a change of venue was ordered to Craighead County. On February 22, 1983, the prosecuting attorney’s office requested a trial date and trial was set for March 14, 1983. On March 3, 1983, upon a review and finding of no available facilities in Craighead County for the week of March 14, 1983, the Greene County Circuit Judge Gerald Brown ordered the venue changed from Craighead County to Clay County. All three counties are in the same judicial district.

Appellant contends that the trial court’s order which changed venue from Craighead County to Clay County violated Article II, Section 10 of the Constitution of Arkansas which provides that "venue may be changed to any other county in the judicial district in which the indictment is found, upon the application of the accused . . .” Appellant also argues that the trial court’s order for a second change of venue violated Article II, Section 8 of the Constitution of Arkansas because the trial court acted in the absence of appellant and her counsel thereby depriving her of due process of law. Appellant cites settled Arkansas law that after indictment for a felony, the defendant must be present at each substantive step in his case. Bearden v. State, 44 Ark. 331 (1884). At the beginning of trial on March 14, 1983, the trial court asked both parties if they were ready for trial. Counsel for appellant replied: “We are not aware this case has been transferred so we don’t consent, but we are here.” Appellant contends this statement constituted an objection. We do not agree. An objection, to be effective must be made at the first opportunity and must apprise the trial court of the specific ground upon which it is based. See Earl v. State, 272 Ark. 5, 612 S.W.2d 98 (1981). Here appellant failed to state the basis for his objection and failed to obtain a ruling from the trial court. Wood v. State, 276 Ark. 346, 635 S.W.2d 224 (1982); Wicks v. State, 270 Ark. 781, 606 S.W.2d 366(1980).

The State cross-appeals pursuant to Ark. Stat. Ann. § 43-2720 and Ark. R. Crim. P. 36.10, a procedure which affords law officers to take opinion of the Supreme Court upon questions of importance to the correct and uniform administration of the law. State v. Taylor, 180 Ark. 588, 22 S.W.2d 34 (1929); State v. Lee, 277 Ark. 142, 639 S.W.2d 745 (1982). The State argues that a statement made by the victim shortly before his death that appellant’s fiance, Steve Boone, had beaten him was improperly excluded by the trial court as evidence constituting a dying declaration. (Steve Boone was a co-defendant severed from the case and tried separately.) In order to qualify as a dying declaration the statement must be made by a witness (1) who was a competent witness (“Every person is competent to be a witness except as otherwise provided in these rules.” Unif. Rules of Evid. 601) (2) who believed at the time of the statement that his death was imminent and (3) whose declaration referred to the cause of his death. Ark. Unif. R. of Evid. 804(b)(2). On June 29, 1982, at an evidentiary hearing prior to the trial of Steve Boone, the child’s grandfather testified that on the morning of Thursday, August 6, 1981, he sat down next to the boy on the couch. The child vomited blood, then looked at his grandfather and said “Steve beat me last night.” The grandfather testified he heard the child repeat the same words to his wife. The child’s grandmother testified that about 30 minutes later the child’s mother arrived to take him to the doctor. The little boy said to his mother, “Mama, am I going to die?” to which she replied “No, baby.” The trial court suppressed this evidence, ruling that the child did not believe he was going to die because no one had told him he was going to die.

For a statement to be admissible as a dying declaration, it must be shown that the declarant was possessed of a sense of imminent, inevitable death. This fact need not be shown by the declarant’s express words alone. It can be supplied by inferences fairly drawn from his condition. Barnard, Adm’x v. Keathley, 249 Ark. 346, 349, 459 S.W.2d 121 (1970). The fact that the child had vomited blood and the fact that he asked his mother if he were going to die strongly suggests that the little boy sensed his impending death. Even more significant was the fact that he made his statement before his mother told him he was not going to die. We cannot say there is no substantial evidence to support a conclusion that the child believed he was about to die. In order to qualify as a dying declaration, the statement must refer to the cause of death. The little boy’s statement to his grandfather which was made approximately one hour before his death and which declared “Steve beat njie last night,” clearly referred to the cause of death, a blow of sufficient force to rupture his intestine. Accordingly we conclude that the statement proffered as a dying declaration was erroneously suppressed.

Affirmed as to appellant; error declared as to cross-appellant.

Hickman, Purtle and Hollingsworth, JJ., dissent.

Darrell Hickman, Justice,

dissenting. We have, in my judgment, at times distorted the rule requiring substantial evidence, or corroborative evidence of a accomplice’s testimony beyond credibility. See Cassell v. State, 273 Ark. 59, 616 S.W.2d 485 (1981).

In this case a mother was convicted of the second degree murder of her child. The only substantial evidence of her guilt is that she had custody and control over the child during a period of time in which the child was undoubtedly severely abused. We are supposed to, if we can, block from our minds a statement the child made the day he died to one of his grandparents that “Steve beat me last night.” That evidence was inadmissible and was not considered by the jury. A doctor testified that the child could be diagnosed as suffering from the “battered child syndrome.” Where is there other evidence that this woman knowingly killed her child under circumstances manifesting extreme indifference to the value of human life or that she was an accomplice to such a crime?

I could support a conviction of negligent homicide, but not second degree murder. The state simply sought and obtained a conviction for a higher degree of guilt than that supported by the evidence.

I would reverse and dismiss.

Purtle, J., and Hollingsworth, J., join.


author: Richard B. Adkisson, Chief Justice. Darrell Hickman, Justice, P. A. Hollingsworth, Justice,

text:
    Gilbert SHOCKLEY v. STATE of Arkansas
    CR 83-149
    668 S.W.2d 22
    Supreme Court of Arkansas
    Opinion delivered April 30, 1984

      John W. Achor, and Jeff Rosenzweig, for appellant.

      Steve Clark, Atty. Gen., by: Velda West Vanderbilt, Asst. Atty. Gen., for appellee.
   Richard B. Adkisson, Chief Justice.

Appellant, Gilbert Shockley, was convicted of rape, aggravated robbery, burglary, and theft of property and was sentenced as an habitual offender pursuant to the provisions of Ark. Stat. Ann. § 41-1005 (Supp. 1988) to two terms of life imprisonment, 80 years, and 20 years respectively. The Pulaski County Circuit Court ordered the sentences to be served consecutively. On appeal appellant argues (1) the unconstitutionality of Ark. Stat. Ann. § 41-1005 (Supp. 1988) and (2) error by the trial court in its admission of rebuttal testimony alleged to be unreliable and prejudicial. We affirm.

On December 30, 1982, around 7:30 p.m., appellant entered the victim’s home, approached her with a gun, took her jewelry, and raped her twice “holding the gun over her head.” The victim identified appellant in a police line up, identified his voice, and recognized an earring he was wearing as one that had been taken from her.

Appellant first argues that the habitual offender statute, Ark. Stat. Ann. § 41-1005 (Supp. 1983), is unconstitutional because it allows the trial court to instruct the jury as to the number of previous convictions. It is argued that this procedure violates Ark. Const, art. 7, § 23, which states that “Judges shall not instruct juries on matters of fact, but shall declare the law.” The State proved appellant had at least two prior convictions: one on July 12, 1983, for robbery and the second on September 8, 1977, for burglary and for battery. It was not error for the trial court to instruct the jury on the number of prior felony convictions of the defendant because this is a matter of law and not a question of fact. However, the trial court erroneously instructed the jury that appellant had three prior convictions because the Court apparently overlooked Ark. Stat. Ann. § 41-1001 (Supp. 1983) which provides that a burglary and its object are to be considered one felony. But, appellant failed to object to this jury instruction or to proffer one of his own. His failure to do so precludes consideration of this issue on appeal. Orisini v. State, 281 Ark. 348, 665 S.W.2d 245 (1984); Osborne v. State, 278 Ark. 45, 643 S.W.2d 251 (1982); ARCiv.P. Rule 51.

Appellant further contends that the trial court erred in the admission of rebuttal testimony offered by the State. Appellant offered an alibi witness who testified that appellant came to her house and remained there from noon on December 80 until 12:30 the next day. On rebuttal the State called the night auditor of the Markham Inn to contradict the testimony of the alibi witnesses. The night auditor testified that appellant had checked in the Markham Inn the night of December 30 and that he had made a list of persons who had checked in that night. This was proper rebuttal testimony and there was no error. We conclude the trial court did not abuse its discretion in the admission of rebuttal testimony to impeach the testimony of the alibi witness regarding appellant’s whereabouts on the night of the crime.

The dissent contends that the State’s use of its peremptory challenges resulted in the systematic exclusion of blacks from the j ury. Appellant failed to argue this issue on appeal. Failure to raise an issue on appeal precludes our consideration of the issue.

Affirmed.

Dudley, J., not participating.

Hickman, J., concurs.

Purtle and Hollingsworth, JJ., dissent.

Darrell Hickman, Justice,

concurring. The reason it is not a violation of the Arkansas Constitution to instruct the jury on prior convictions is because the constitutional function of a jury is only to determine the guilt or innocence of a defendant. See Froman v. State, 232 Ark. 697, 339 S.W.2d 601 (1960). At the time the constitution was adopted and at common law, the judge, not the jury, heard all evidence regarding the sentence and set the punishment. So any “fact” to be found by a jury during sentencing is not one contemplated by Art. 7 § 23 of the Arkansas Constitution.

P. A. Hollingsworth, Justice,

dissenting. I dissent from the majority opinion because this Court fails to examine a practice that violates the sixth and fourteenth amendments to the federal Constitution. The defendant in this case is black and was convicted by an all white jury. Defense counsel in the course of j ury selection obj ected to the prosecutor’s use of the state’s peremptory challenges. The state was accused of systematically excluding blacks from the jury. To permit a prosecutor to remove jurors solely on the ground of race on the theory that members of one race have a potential affinity with other members of that race is almost inevitably to allow the party identified with the majority to obtain a jury with affinity to that majority. Using this practice, the state can eliminate blacks from the j ury while the black defendant is powerless to exclude white members since their number exceeds that of the peremptory challenges available. We look to other states to move forward in other areas of jurisprudence. See Day v. Day, 281 Ark. 261, 663 S.W.2d 719 (1984). But when it comes to anti-discrimination rules, we are reluctant to move into the twentieth century. I would follow Massachusetts and California and stop this abhorrent practice of excluding blacks from juries. See Commonwealth v. Soares, 377 Mass. 461, 387 N.E.2d 499 (1979); People v. Wheeler, 22 Cal. 3d 263, 148 Cal. Rptr. 890, 583 P. 2d 748 (1978).

Purtle, J., joins in this dissent.


author: George Rose Smith, Justice.

text:
    Buster NELSON v. Dick WAKEFIELD
    84-11
    668 S.W.2d 29
    Supreme Court of Arkansas
    Opinion delivered April 30, 1984

      Honey 6- Rodgers, by: Charles L. Honey, for appellant.

      Steel ir Steel, by: George Steel, Jr., for appellee.
   George Rose Smith, Justice.

This action for personal injuries was brought by the appellant, Buster Nelson, against Howard County Sheriff Dick Wakefield and others, to recover damages for physical abuse allegedly suffered by Nelson while he was a prisoner in the city-county jail at Nashville, Arkansas. In the original action Nelson took a nonsuit on June 24, 1982, after the statute of limitations had run. Nelson filed his present complaint on June 22, 1983, but the only summons issued against Sheriff Wakefield was served upon him by his own deputy sheriff on June 24. On November 30, 1983, the circuit court dismissed the action, finding that more than a year had passed since Nelson took a nonsuit and more than 60 days since the refiling of the complaint.

The only argument for reversal is that the action was properly refiled and the summons properly served under ARCP Rules 3 and 4, which we are called upon to interpret. Supreme Court Rule 29 (1) (c).

The case was rightly dismissed. A new action must be commenced within a year after a nonsuit. Ark. Stat. Ann. § 37-222 (Repl. 1962). Ever since the Civil Code of 1869 it has been the law that when the sheriff is a party to an action the summons is to be served by the coroner. Section 27-321 (Repl. 1979). ARCP Rule 4 (a), as amended on May 16, 1983, does not purport to change that statute, for the Rule provides that any summons is to be delivered for service to a sheriff or to a person authorized by law to serve it. Per curiam amendments, 279 Ark. 473 and 280 Ark. 608. The amended Rule 4 (i) does extend the time for service from 60 days to 120 days, but that is immaterial, for the trial court’s dismissal was more than 120 days after the filing of the present complaint. By then the statute of limitations had run.

Affirmed.


author: George Rose Smith, Justice. Darrell Hickman, Justice, John I. Purtle, Justice, P. A. Hollingsworth, Justice,

text:
    Michael J. CULHANE and Edith MILLWOOD v. STATE of ARKANSAS and CITY OF FAYETTEVILLE
    CR 83-158
    668 S.W.2d 24
    Supreme Court of Arkansas
    Opinion delivered April 30, 1984
    [Rehearing denied June 4, 1984.]

      Pearson, Woodruff ir Evans, by: C. Thomas Pearson, Jr., for appellants.

      Steve Clark, Atty. Gen., by. Alice Ann Burns, Dep. Atty. Gen., for appellees.

      Purtle, J., would grant rehearing.

   George Rose Smith, Justice.

The two appellants, Michael J. Culhane and Edith Millwood, employees of a K-Mart discount store in Springdale, were arrested and charged with a misdemeanor for refusing to leave a WalMart discount store in Springdale after being asked by the store manager to leave. Ark. Stat. Ann. § 71-1803 (Repl. 1979). From their convictions in muncipal court they appealed to the circuit court, where they were found guilty and fined $50 each. Their present appeal comes to us under Rule 29 (1) (a) and (c).

As will be seen from the fact, the real dispute is between K-Mart and Wal-Mart. It concerns their rival methods of determining each other’s prices. Both sides agree that comparison shopping is a common practice among retail stores in the area. Wal-Mart has a written rule, posted in its Springdale store, that comparison shoppers for competitors will be asked to leave the store if they attempt to write down Wal-Mart prices. K-Mart apparently does not have such a policy and permits its prices to be written down.

There was proof that one method of comparison shopping is for the shopper to go into a store, memorize a few prices, go outside and write them down, and continue that maneuver again and again. Wal-Mart has no objection to that procedure. On the day of the arrest, however, the two K-Mart employees went into the Wal-Mart store with clipboards and began writing down prices. They were not creating any sort of disturbance. When they refused to leave, the store manager called the Wal-Mart general office and was instructed to enforce the company’s policy. When the two shoppers again refused to leave, a police officer was called, who explained that he would have to give them a citation for violating the law if they did not leave. The two maintained their position and were arrested. A test case was apparently being made, for the two told the store manager that if they had to go to court they would inform the news media, which they did.

The appellants, in seeking to avoid the application of the statute to their case, make three arguments. We first quote the language of the statute:

Any person who enters a public place of business in this State, or upon the premises thereof, and is requested or ordered to leave therefrom by the owner, manager, or any employee thereof, and after having been so requested or ordered to leave, refuses so to do, shall be guilty of a trespass [and subject to certain penalties]. Section 71-1805.

It is first argued that the statute was impliedly repealed by Section 2004 of the 1975 Criminal Code, which reads: “A person commits criminal trespass if he purposefully enters or remains unlawfully in or upon a vehicle or the premises of another person.” Ark. Stat. Ann. § 41-2004 (Repl 1977). The Code section, however, is a general statute encompassing many possible situations; the statute now in question is specific, applying to only one situation. In such a case a general law does not impliedly repeal the specific law unless there is a plain conflict between the two. Winston v. Robinson and State, 270 Ark. 996, 606 S.W.2d 757 (1980). Here we discern no such conflict. Quite the contrary, the earlier statute might have been incorporated in the Criminal Code without any inconsistency or any doubt about the legislative intent.

The appellants’ second point, their principal one, is that the statute is so overly broad that it violates the First and Fourteenth Amendment, because it may interfere with federally protected rights. It is argued that the law might be used to discriminate among a store’s customers on the basis, say, of race or religion.

That argument in this instance is fanciful, not realistic. We are not dealing with attempted discrimination. The real parties in interest are K-Mart and Wal-Mart; the statute applies alike to both of them. The possibility of true discrimination in commercial establishments was dealt with by Congress in the Civil Rights Act of 1964, which prohibits discrimination or segregation on the ground of race, color, religion, or national origin. That law could not apply here, however, because it is specifically limited to certain types of establishment, including lodging places, eating places, and places of entertainment. 42 USCA § 2000a (1981). To the extent that the federal law does apply, of course it supersedes conflicting state statues. Hamm v. City of Rock Hill, 379 U.S. 306 (1964).

It is argued, however, that our statute might be used as a tool restricting someone’s constitutional rights. That, however, is true of many criminal laws. We have, for example, a statute that applies only to stores and creates a presumption of shoplifting when a person conceals unpurchased merchandise. Section 41-2202 (2). Perhaps that law could be used in a selective and discriminatory manner by a storekeeper, but that possibility does not invalidate the statute.

We considered a similar contention in State v. Weston, 255 Ark. 567, 501 S.W.2d 622 (1973), where it was argued that our statutory definition of criminal libel was so lacking in precision, so overbroad, as to be unconstitutional. What we said there is pertinent here:

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

What the appellants ignore is the fact that K-Mart and Wal-Mart both have private property rights that are being protected by the statuté. The Supreme Court’s latest decision on this point is persuasive. Lloyd Corp. v. Tanner, 407 U.S. 551 (1972). There the Lloyd company owned a huge enclosed center or mall that contained many stores, sidewalks, parking facilities, and other components that made the mall far more like a public place than is a single store such as a Wal-Mart. On that basis the plaintiffs brought an action for a declaratory judgment to sustain their asserted right to distribute within the center handbills protesting the draft and the Vietnam war, even though all handbilling was prohibited by Lloyd. The Court upheld the prohibition, saying:

Respondents’ argument, even if otherwise meritorious, misapprehends the scope of the invitation extended to the public. The invitation is to come to the Center to do business with the tenants. . . . There is no open-ended invitation to the public to use the Center for any and all purposes, however incompatible with the interests of both the stores and the shoppers whom they serve.

In the same way, Wal-Mart invites the public to come to its store to shop and make purchases. The Lloyd case means that Wal-Mart could prohibit a person from exercising in its store what would be a protected right of free speech if asserted on a public sidewalk. That being true, Wal-Mart certainly can prohibit a competitor from remaining in the store not to enjoy a constitutional right but solely to gather information enabling the competitor to take business away from Wal-Mart.

A third argument, closely related to the second, is that K-Mart’s comparison shoppers were exercising their constitutional right to receive information. On this point their brief asserts that the First Amendment guarantees their position, as a matter of free speech: “That is, because the commercial speech to be received is the price of the items as posted in the store, the only place the right can be exercised is on the property. Criminal prosecution of the appellants for assertion of the right is not merely an abridgement of the right, it is a total extinguishment.”

This argument fails to recognize the basic premise that the right to receive information is properly invoked when the public would otherwise be denied those benefits of free communication that are embedded in the First Amendment. In the principal case recognizing the right to receive information, the Supreme Court relied upon that right as a basis for striking down a state law that made it unprofessional conduct for a pharmacist to advertise the prices of prescription drugs. Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976). K-Mart, however, is not seeking to gain information that would otherwise be denied to the consumer; Wal-Mart’s prices, like K-Mart’s own prices, are posted for everyone to see. K-Mart is obviously not attempting to protect the public, only to further its own competitive position in the market. It can, however, neutralize any advantage that WalMart gains from the statute by adopting an identical policy in its own stores.

Affirmed.

Hays, J., concurs.

Hickman, Purtle, and Hollingsworth, JJ., dissent.

Darrell Hickman, Justice,

dissenting. This is essentially a commercial struggle between two giant discount stores. But what is involved is more than their merchandising practices; what actually is involved is a statute which allows a proprietor to make a person guilty of a crime for doing nothing offensive.

The statute in question was passed in the early days of racial turmoil when stores were being challenged for discrimination. It permits a person to be ejected from an establishment for any reason, or no reason. The failure to obey an order to leave becomes a criminal act. The statute is altogether too vague to satisfy the usual constitutional requirements for criminal conduct. An invitee to a business cannot be held guilty of criminal trespass for no reason, and that is essentially what this statute permits. Such vague statutes have routinely been stricken. Brown v. Louisiana, 383 U.S. 131 (1969) (public library); Cox v. Louisiana, 379 U.S. 536(1965) (picketingin front of store); Shuttlesworth v. Birmingham, 382 U.S. 87 (1965) (demonstrating on a public street). Admittedly, those cases all relate to public areas rather than private businesses open to the public, and that is a valid distinction. But the court said in Shuttlesworth, supra:

That ordinance makes it a criminal offense for any person ‘to refuse or fail to comply with any lawful order, signal or direction of a police officer.’ Like the provisions of § 1142 discussed above, the literal terms of this ordinance are so broad as to evoke constitutional doubts of the utmost gravity.

Even so, in this case the statute permits a proprietor to make one guilty of criminal trespass when he is not. Regarding criminal trespass, 75 Am. Jur. 2d Trespass § 86 provides:

It does not seem to be clear, however, that although every trespass which is a disturbance of the peace is indictable, every trespass which is the subject of a civil action is not an indictable offense. To constitute the offense of criminal trespass, intentional acts must be used, or a wilful demonstration of force calculated to intimidate or alarm, or acts involving or tending to a breach of the peace. A mere invasion of private property without a disturbance of the peace is not a crime. However, although there is authority for the opposite view, it is usually held that even though an entry on premises is effected peaceably, if thereafter violent and abusive language is used and acts done reasonably calculated to intimidate or lead to a breach of the peace, the entrant is guilty of forcible trespass.

I have no quarrel with the right of a proprietor of a business in denying entrance to anyone undesirably dressed. Some formality in certain restaurants is rightfully expected — shoes and a shirt are the usual requirement for most establishments. Neither should any proprietor be required to endure disruptive conduct by a customer, however slight. But to be able to eject a customer or invitee for no such reason at any whim of the proprietor and make the refusal to leave a crime is going too far. The law does not permit such subjective determinations of criminal conduct. Lloyd Corp. v. Tamer, 407 U.S. 551 (1972), cited by the majority, is perfectly sound. The reason for no handbills was to prevent annoyance of customers, prohibit litter and avoid potential disturbances. The decision was made on a First Amendment basis.

Actually this case is somewhat ridiculous. It is not unlawful to enter a Walmart Store, hurriedly memorize the price of several items, run outside and write them down, and return innumerable times to repeat this comic performance; it is only the writing down that is prohibited. What about mumbling quietly into a hidden tape recorder? The statute allows a merchant to subjectively decide what is undesirable criminal conduct. It is entirely too subjective for constitutional standards. I would reverse and dismiss.

John I. Purtle, Justice,

dissenting. This case should never have been classified as a criminal case except for the enactment of such an absurd law. Arkansas Stat. Ann. § 71-1803 (Repl. 1979) is not even in the criminal code and rightfully so. This statute was a part of Act 169 of 1959 and is clearly a segregation statute. The statute is too broad to be understood by lawyers, judges or the public. Clearly it authorizes the management of a business to order out and/or have arrested people with grey hair, loud clothing, black hair, subdued clothing or black skin, or a person or persons wearing beads, crucifixes or gold earrings. If a person refused to call the owner “boss” or "your honor” he would be subject to these penal sanctions. How much broader could a law be? Whether argued by the parties properly or not, it is plain error not to strike down such a statute. It is our duty to do so when the trial court fails to do so.

I agree with that part of the majority opinion which states: “As will be seen from the facts, the real dispute is between K-Mart and Wal-Mart.” Competitive pricing should be encouraged, not discouraged. That is the free enterprise way of doing things in America. Incidentally, the action upheld here is a denial of appellants’ first amendment rights. Apparently the statute and this court will allow memorization of the prices of one’s competitor but not the simple recordation of them while on his property. This statute is clearly a vestige of segregation and should be struck down by this court here and now. The criminal code, Ark. Stat. Ann. § 41-2004 (Repl. 1977) obviously supersedes this statute, and it defines criminal trespass in a manner clearly understandable.

I would reverse and dismiss.

P. A. Hollingsworth, Justice,

dissenting. The majority overlooks the fact that the 1964 Civil Rights Act prohibits the enforcement of § 71-1803. The order to leave the store was given by a private party, for “private” reasons. The majority is allowing state action to enforce a private decision. The majority is in error in allowing a business, under color of state law, to enforce private infringement of federally protected rights.

The trial court remarked that § 71-1803 was enacted in 1959 in the days of the walk-ins and sit-ins. It is apparent that the legislature was enacting a statute that was intended to punish blacks that entered public places in Arkansas and enjoyed the same privileges as white patrons. This was the sole purpose of the statute. It is acknowledged that §71-1803 is susceptible to overbroad interpretation and if the appellants had been black, they probably would not have been charged with refusing to leave a public place. It is argued that since no proof of racial discrimination is offered, the defense of overbreadth is inapplicable.

The majority applies the wrong test for deciding whether a statute overreaches federally protected freedoms. To challenge a statute as facially void due to overbreadth, a defendant charged under the statute need not show that its application deprived him of any such right. It is enough to show that the application may interfere with protected federal rights. Aptheker v. Sec. of State, 378 U.S. 500, 515-516 (1964).

It is the possibility that the individual will suffer the infringement rather than arrest that justifies a constitutional challenge by the mere showing of possible interference with protected federal rights. In one of the landmark cases of the civil rights era, the U.S. Supreme Court stated, “a decree may be invalid if it prohibits privileged exercises of First Amendment rights whether or not the record discloses that the petitioner has engaged in privileged conduct. For in appraising a statute’s inhibitory effect upon such rights, this Court has not hesitated to take into account possible application of the statute in other factual contexts besides that at bar.” N.A.A.C.P. v. Button, 371 U.S. 415, 432 (1963).

I am persuaded that the statute should be struck down and the trial court should be reversed.


author: Darrell Hickman, Justice.

text:
    Estate of Martha DAHLMANN, Deceased v. Estate of William F. DAHLMANN, Deceased
    84-22
    668 S.W.2d 520
    Supreme Court of Arkansas
    Opinion delivered April 30, 1984

      Epley, Epley & Castleberry, Ltd., by: Alan D. Epley, for appellant.

      R. Edward Buice, for appellee.
   Darrell Hickman, Justice.

William F. Dahlmann died on April 14, 1982. His will, executed on June 16, 1978, acknowledged his wife of thirty years but left her nothing. Mrs. Dahlman had become disabled in 1976andwas taken to Iowa where a guardian was appointed for her. She died two months after her husband without electing to take against his will. The will was filed for probate the same day that she died. Mrs. Dahlmann’s estate, the appellant, petitioned the probate court to award the estate statutory allowances and dower. The probate court correctly followed our decision in Lamb v. Ford, 239 Ark. 339, 389 S.W.2d 419 (1965), and rejected the appellant’s demands. We affirm the decree.

The appellant argues that Mrs. Dahlmann’s right to claim dower survived her death and descended to appellant. In support of that contention the appellant cites authority where the deceased died intestate; for that reason, the reliance is misplaced. Where a spouse dies testate, the surviving spouse must exercise the option to take against the will in his or her lifetime. Otherwise, the right is forfeited because it is personal and does not survive the surviving spouse. Ark. Stat. Ann. § 60-505 (Repl. 1971); Lamb v. Ford, supra; Jeffcoat v. Harper, 224 Ark. 778, 276 S.W.2d 429 (1955).

The appellant also argues that where a will leaves the surviving spouse nothing, he or she is not put to an election. We rejected that argument in Lamb v. Ford, supra, on the basis of Ark. Stat. Ann. § 60-501 (Supp. 1983), which provides in part:

When a married person dies testate as to all or any part of his or her estate, the surviving spouse shall have the right to take against the will provided the surviving spouse has married to the decedent continuously for a period in excess of one (1) year, and in the event of such election the rights of the surviving spouse in the estate of the deceased spouse shall be limited to the following: (a) The surviving spouse, if a woman, shall receive dower in the deceased husband’s real estate and personal property as if he had died intestate, which dower shall be additional to her homestead rights and statutory allowances; . . .

Even before the enactment of the above statute, which is part of the Probate Code of 1949, a surviving spouse was put to an election where a claim of dower was repugnant or inconsistent with the terms of the will. United States Fidelity & Guaranty Co. v. Edmondson, 187 Ark. 257, 59 S.W.2d 488 (1933); Gathright v. Gathright, 175 Ark. 1130, 1 S.W.2d 809 (1928).

Neither do we accept the appellant’s argument that the making of a will which excludes the surviving spouse is an “act” which impermissibly defeats the right of dower under Ark. Stat. Ann.§ 61-208(Supp. 1983). That statute provides:

No act, deed, or conveyance, executed or performed by one spouse without the assent of the other spouse, evinced by acknowledgement thereof in the manner required by law, shall pass the estate of dower or curtesy; and no judgment, default, covin or crime of one spouse shall prejudice the right of the other spouse to his or her curtesy or dower, or preclude him or her from the recovery thereof, if otherwise entitled thereto.

The appellant cites no authority for its contention, nor any persuasive reasoning. A spouse has the right to make a will which excludes a surviving spouse or provides for a bequest or devise in lieu of dower. That a surviving spouse may take against a will prevents any injustice that might result from the spouse’s exercise of that right.

Affirmed.


author: John I. Purtle, Justice.

text:
    Ralph COOMER d/b/a AIRPORT RESTAURANT and Ralph COOMER d/b/a 12th STREET PRODUCTION, INC. d/b/a THE RELAY STATION v. NATIONAL CREDIT CORPORATION
    83-300
    668 S.W.2d 521
    Supreme Court of Arkansas
    Opinion delivered April 30, 1984

      Pruitt & Hodnett, by: Jerry D. Pruitt, for appellant.

      Wright, Lindsey & Jennings, for appellee.
   John I. Purtle, Justice.

A jury found in favor of appellee National Credit Corporation (NCC) on its complaint for breach of contract and damages. Appellant (Coomer) argues that: 1) it was error for the court to fail to direct a verdict in his favor on the issue of mitigation of damages; 2) the court erred in refusing to direct a verdict in his favor on the issue of usury; and 3) it was error to refuse to direct a verdict in favor of 12th Street Productions. We do not find prejudicial error to have occurred during the trial of this case.

Coomer attempted to purchase three cash registers from the National Cash Register Company but could not come up with the money to pay for them. On May 26, 1978, he signed a document with NCC stating he was leasing two cash registers. On June 8, 1979, he entered into the same type of agreement for a third cash register. The terms of the documents allowed NCC to pick up the cash registers and dispose of them in the event lessee became delinquent in monthly payments. Both instruments became delinquent and the machines were possessed by NCC and sold. Pursuant to the terms of the agreement Coomer was given credit for the net proceeds from the sale, and judgments were rendered by the jury for amounts representing the difference in the amounts paid, plus the sale proceeds, and the amounts which would have been paid through the end of the leases. Coomer defended on the grounds the documents were actually sales contracts and were tainted by usury. He also contended NCC neglected its duty to mitigate the damages and that he executed the agreements in his personal capacity and not as agent or representative for any association or corporation. Coomer renewed his motions relating to the above defense at each opportunity. The jury verdicts were against him and in favor of NCC in the sum of $10,334.

Evidence in this case tends to indicate that used cash registers have very little resale value. The fact that the two older registers here brought only two hundred dollars ($200) each at a public auction supports the low value theory. The newer machine was in fact sold for $2,250. The lease did provide that lessee could purchase the machines at the termination of the leases for their fair market value. However, such provision does not within itself establish that the instruments were sales agreements. In the present case Coomer did in fact make an effort to purchase the cash registers but upon failure to do so he entered into the leasing agreement with NCC, which only handled the leasing of machines and equipment. It was Coomer’s burden to persuade the jury that the documents were sales agreements rather than leases. This he failed to do. Hough v. Continental Leasing Corp., 275 Ark. 340, 630 S.W.2d 19 (1982). There is substantial evidence in the record that these instruments are leases and are not disguised conditional sales contracts.

As to mitigation of damages the lease itself speaks to the issue. It provided that NCC would collect rent for the life of the agreement, and if default occurred, take possession of the registers and find a new lessee or sell them and credit the proceeds to the balance of the lease. This was done. NCC mitigated the damages in the only practical manner available. Had the lease covered an automobile or building the lessor would no doubt be expected to rent or lease the property to others because such property is ordinarily still leasable at the end of a lease. This is not the case with cash registers which rapidly change in design and use. At the time of default the registers had some value and if not sold the value would likely dwindle to nothing at the end of the lease period. Whether one acted reasonably in mitigating damages is generally, as here, a question of fact. Harris Construction Company et al v. Powers, 262 Ark. 96, 554 S.W.2d 332 (1977). The jury verdict was based upon substantial evidence.

The matter of usury was presented to the jury and decided adversely to Coomer. Although usury was a fact question we need not discuss it because the jury determined that the documents were leases and not sales agreements.

We now consider the question of whether the court erred in refusing to direct a verdict as to other defendants. The two other defendants were 12th Street Productions, Inc. doing business as The Relay Station and Airport Restaurant. The first lease was signed by Coomer as 12th Street Productions, Inc. d/b/a The Relay Station and the second was signed Airport Restaurant, by Ralph Coomer, owner. There is no evidence in the record and no authority cited by Coomer to indicate the trial court was in error on this matter.

We find no prejudicial error.

Affirmed.


text:
    F. Eugene RICHARDSON v. John M. GRINER and Beverly S. GRINER
    84-32
    668 S.W.2d 523
    Supreme Court of Arkansas
    Opinion delivered April 30, 1984
    [Rehearing denied June 4, 1984.]

      Raymond Harrill, for appellant.

      Mitchell, Williams, Selig, Jackson ir Tucker, for appellee.
   John I. Purtle, Justice.

The trial court dismissed appellant’s suit against appellees for collection of a $5,000 promissory note. The court held that the appellant was not a holder in due course and took the note by assignment subject to the defense of set-off by the makers against an intervening assignee. Appellant argues: 1) the trial court erred in finding appellant was not a holder in due course; 2) the court erred in finding that appellant took the note without the rights of a holder in due course, and; 3) it was error to refuse to bar the appellees’ set-off claim. We disagree with all three arguments.

The appellee executed a $5,000 promissory note to First Realty Corporation on September 25, 1980. Monthly payments on the note were to commence on January 15, 1981. A schedule was printed on the back of the note. The note was assigned by First Realty to Imran Bohra in exchange for property. On July 27, 1981, Bohra transferred the note to his attorney, F. Eugene Richardson, in payment for legal services rendered by Richardson. Prior to this assignment, appellees filed suit against Bohra for an accounting and default on the purchase of certain properties. The chancery court entered a decree against Bohra in favor of the appellees on April 26, 1982. On July 27, 1981, when appellant took the promissory note in assignment for legal services there was no entry of any payment on the back of the note.

The primary issue before us is whether appellant took the note without notice that it was overdue or was otherwise subject to defense on the part of any holder prior to appellant. Arkansas Stat. Ann. § 85-3-302 (Add. 1961), defines a holder in due course tó be one who in good faith takes an instrument for value and without notice that it is overdue or has been dishonored or is subject to any defense against or claim to it on the part of any person. The facts in this case clearly reveal that at the time appellant acquired the note no payments had been entered in the schedule on the back of the note. Six payments should have been made at the time of the transfer to appellant. Appellant found out during the meeting with Bohra, at the time of the assignment, that the note was past due. Appellant argues that the note was not declared to be in default until after he contacted the maker. It is not necessary to have the holder of the note declare that it is in default when this fact is obvious in other ways. Unless a person is a holder in due course the note is subject to all valid claims to it on the part of any person, and all defenses, counterclaims and set-offs. Arkansas Stat. Ann. § 85-3-306 (Add. 1961). Kirkpatrick v. First State Bank of DeQueen, 265 Ark. 285, 578 S.W.2d 28 (1979).

According to Ark. Stat. Ann. § 85-3-201 (1) (Add. 1961), transfer of an instrument vests in the transferee such rights as a transferor possesses. In the present case Bohra knew that the Girners had claims against him far in excess of the amount of the note here in question. From the record there is an indication that Bohra had been told by the Girners, prior to assignment of the note to Richardson, that he should consider the note paid. He was given credit in the amount of the note by the Girners on their claim against him.

In view of the fact that appellant had notice that payments on the note were overdue at the time he took the note, he was not a holder in due course. Therefore, the note was subject to the defense by the Girners against Bohra. The trial court allowed credit to be given to Bohra in the suit to obtain an accounting. It was proper for the court to allow the set-off, cancel and satisfy the note, and dismiss appellant’s claim.

Affirmed.

Hays, J., not participating.


author:
John I. Purtle, Justice. Richard B. Adkisson, Chief Justice, Darrell Hickman, Justice,
      P. A. Hollingsworth, Justice,

text:
    Marion Albert PRUETT v. STATE of Arkansas
    CR 83-58
    669 S.W.2d 186
    Supreme Court of Arkansas
    Opinion delivered April 30, 1984
    [Rehearing denied June 18, 1984.]

      John W. Settle, and Garner Taylor, Jr., for appellant.

      Steve Clark, Atty. Gen., by: Leslie M. Powell, Asst. Atty. Gen., for appellee.
   John I. Purtle, Justice.

This case comes to us on appeal from the Crawford County Circuit Court after a change of venue from Sebastian County. The appellant was tried and convicted of capital murder and sentenced to death. For reversal he argues 21 separate points. However, we will consolidate the points and set them out in the body of this opinion. We do not find prejudicial error in any of the points argued.

The first seven points argued challenge the trial court’s failure to grant a second change of venue and the selection of and failure to sequester the jury. The state did not oppose appellant’s first motion for a change of venue. The court changed the site of the trial from Sebastian County to Crawford County. The change of venue was granted because of the extensive publicity surrounding this case. Voir dire of the jury commenced in Crawford County on August 27, 1982. Appellant’s motion to sequester the j urors was denied. The trial court admonished the entire j ury panel not to read or listen to or observe any news account of this case. The first panel was exhausted after five days. A supplemental panel was summoned and the appellant promptly moved to quash the supplemental panel because it had not received the admonition given to the original panel. The trial court denied the motion after a hearing. Appellant then moved for another change of venue and a continuance. These motions were denied by the court. After the appellant exhausted his peremptory challenges the jury was completed. The court overruled appellant’s second motions to quash the jury panel and for a change of venue. The court rejected appellant’s request to present evidence in support of these motions. It is undisputed that the appellant was forced to accept jurors he would have peremptorily challenged had he not exhausted those challenges. It is likewise undisputed that publicity was great in Crawford County as well as Sebastian County. However, the jury finally selected was qualified within the meaning of the Witherspoon doctrine. The purpose of a change of venue and voir dire of the jury is to insure that an accused receives a trial by a fair and impartial jury.

The first 11 jurors were selected from a 65 member panel. Eight members of the supplemental panel were examined before the twelfth juror was seated. The alternate juror selected did not participate in the deliberations. Six jurors were excused for cause because they would automatically vote for the death penalty upon a finding of guilt on a capital murder charge. The court excused 26 jurors because of preconceived opinions of guilt or their knowledge about the case. Several were excused because of their relationship to the family of the victim or personal reasons. The number of jurors excused for cause by the trial court indicated that much publicity surrounded this case and that the court meticulously tried to select a fair and impartial jury. Of the 12 members who served on the jury only three had prior knowledge of the facts of the case. The court utilized individually sequestered voir dire in the jury selection process. This was another precaution which the trial court used to insure proper selection of a jury. The court went so far as to allow the striking of jurors who were already seated.

We have many times held that a change of venue lies within the discretion of the trial court. When it is determined that an accused can receive a fair and impartial jury trial the site of the trial is immaterial. Perry v. State, 277 Ark. 357, 642 S.W.2d 865 (1982). Also, the decision whether to sequester the jury lies within the discretion of the trial court and the burden of proving that appellant did not receive a fair and impartial trial, because of the failure to sequester the jury, is upon the appellant. Ford v. State, 276 Ark. 98, 633 S.W.2d 3 (1982). We recognize that the bare statement of a prospective juror that he can give the accused a fair and impartial trial is subject to question. Haynes v. State, 270 Ark. 685, 606 S.W.2d 563 (1980).

The appellant’s eighth assignment of error is the court’s failure to grant a continuance. When the appellant was arraigned on June 14, 1982, he chose to represent himself. However, the court appointed counsel to stand by and advise the appellant. Appellant objected to the trial date set, August 30, 1982, contending that he needed to work on the appeal from his death sentence in Mississippi. Also, appellant’s appointed counsel was then working on an appeal in another death case in that area. From the record we know that appellant’s attorney, a public defender, is swamped with work. However, we cannot appreciably slow the flow of the criminal justice system to accommodate overworked attorneys or judges. Another reason the appellant requested a continuance was that he was unable to discover the name of a physician whom he wanted to testify until after voir dire of the jury was completed. The primary reason stated in the motion for continuance was that, because of the foregoing facts, neither the appellant nor his counsel could be prepared to try the case on August 30, 1982. Perhaps it would have been better that the trial be continued for the reasons stated in the motions and due to the media attention given the case. However, such matters are addressed to the sound discretion of the trial court and we do not reverse unless that discretion is abused. Prokos v. State, 266 Ark. 50, 582 S.W.2d 36 (1979). The court attempted to cooperate in obtaining the presence of the witness; however, the witness was unable to appear at the time of the trial. The testimony of this witness was presented to the jury through statements of appellant’s counsel. Therefore, no prejudice resulted.

The appellant challenges the death qualification of prospective jurors. We need not tarry on this argument as it was clearly answered in the case of Rector v. State, 280 Ark. 385, 659 S.W.2d 168 (1983).

Appellant’s arguments 10 through 12 challenge the death penalty statute in Arkansas. The appellant filed a motion to quash the information, reduce the charge and reduce the penalty. All three motions were denied by the court. The argument that electrocution is cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution was rejected in Swindler v. State, 267 Ark. 418, 592 S.W.2d 91 (1979). The argument that the overlapping provisions of Ark. Stat. Ann. § 41-1501 (Repl. 1977) and Ark. Stat. Ann. § 41-1502 are impermissibly vague was disposed of in Ford v. State, 276 Ark. 98, 633 S.W.2d 3 (1982). The court was correct in overruling these motions.

Appellant next argues that the trial court erred in refusing to suppress appellant’s statement or to delete portions of it. A motion to suppress the statement made by the appellant during a press conference in Mississippi on October 28, 1981, was denied. During the televised press conference he referred to himself as a ‘ ‘mad dog killer. ” This news conference was at the appellant’s request after he stated to the officers that he knew more than they about his rights. In any event the news conference statement of October 28 was not introduced. An officer from Ft. Smith traveled to Mississippi on November 8, 1981, and secured a statement from the appellant. The officer first gave him his Miranda warnings. This statement was edited and introduced into the record. Appellant correctly argued that a custodial statement is presumed involuntary. Freeman v. State, 258 Ark. 617, 527 S.W.2d 909 (1975). There was conflicting testimony concerning the voluntariness of the appellant’s custodial statement. The trial court found that the statement was voluntary and we will not set aside such a finding unless it is clearly against the preponderance of the evidence. Degler v. State, 257 Ark. 388, 517 S.W.2d 515 (1974).

It is argued that the court erred in refusing to suppress a firearm and bullets which were obtained by illegal search. The facts surrounding the search are as follows: When appellant was initially stopped for a speeding violation, he was unable to produce a driving license. He was then requested to show vehicle registration. He opened the door on the passenger side and looked into the glove compartment. An officer observed drug paraphernalia in the open glove compartment. He also observed a strap under the front seat which he recognized to be a part of a gun holster. The appellant was arrested for speeding, driving without a license, and possession of drug paraphernalia. The gun, which was in the holster, was a clear and present danger to the officers under the circumstances of this case. The drug paraphernalia was properly seized as it was clearly before the eyes of the officer. Gatlin v. State, 262 Ark. 485, 559 S.W.2d 12 (1977). We think the gun was within the “plain view” doctrine as enunciated in Coolidge v. New Hampshire, 403 U.S. 443 (1971) and Gatlin v. State, supra. Since we hold that the weapon and bullets were legally obtained it follows that the ballistics tests were proper evidence.

The appellant argues that the trial court improperly refused to direct a verdict of acquittal. This motion amounted to a challenge of the sufficiency of the evidence. In view of our holdings concerning admission of evidence earlier in this opinion we think this argument does not have merit.

Appellant argues that the court erred in allowing the state to question him on cross-examination about details of his prior convictions. By a motion in limine appellant sought to curtail the cross-examination on the grounds that it was a conviction that impairs credibility. The unique argument is that the appellant could impeach his own credibility, pursuant to Unif. R. Evid., Rule 607, by merely acknowledging previous felony convictions. Appellant also argued that questions about prior convictions were more prejudicial than probative. The proper scope of cross-examination pursuant to Unif. R. Evid., Rule 609, is made on a case by case basis. Smith v. Slate, 277 Ark. 64, 639 S.W.2d 348 (1982). The better procedure to follow when prior convictions are involved is set out in Simmons v. State, 278 Ark. 305, 645 S.W.2d 680 (1983). In the present case the appellant made a closing argument in his own behalf and admitted killing the victim but denied responsibility due to intoxication. Under the facts and circumstances of this case we do not find that the trial court abused its discretion concerning impeachment by prior convictions. The jury was instructed concerning the defense of intoxication. The appellant objected to a portion of the instruction which stated: “Ordinarily, self-induced intoxication, whether by alcohol or drugs or other substances, is not a defense to prosecution. . . . The fact that a person was intoxicated at the time he allegedly committed an offense does not necessarily show that he was deprived of his mental abilities for a person may be intoxicated and at the same time, be able to form a purposeful intent.” This instruction was a modification of AMCI 4005. Appellant argues that it was confusing and was a comment on the evidence. We do not agree with the contention of appellant that this amounted to a comment on the evidence in violation of the Constitution of the State of Arkansas, Article 7, Section 23. Hill v. State, 252 Ark. 345, 479 S.W.2d 234 (1972). The instruction was proper since the appellant was alleging the affirmative defense of intoxication.

Appellant argues that a mistrial or admonition should have been granted when the prosecution asked a witness, "Do you put your patients under oath when you talk to them?” The witness was a clinical psychologist being cross-examined by the state. This occurred during the penalty phase of the trial. It is argued that the question amounted to a comment on the appellant’s silence since the appellant did not testify in his own behalf during the first part of the bifurcated trial. Certainly it would be improper for the state to comment on the appellant’s decision not to testify. Evans v. State, 221 Ark. 793, 255 S.W.2d 967 (1953). When a comment about an accused’s silence is made before a j ury by the prosecution a mistrial is proper. Prejudice is presumed in such cases. Adams v. State, 263 Ark. 536, 566 S.W.2d 387 (1978). This statement may have been prejudicial had it been made during the guilt or innocence stage of the trial. However, the statement could not have in any way contributed to the verdict of guilt in this case. Weaver v. State, 271 Ark. 853, 612 S.W.2d 324 (Ark. App. 1981). The court is in a position to note the manner of delivery of such statements and the inflections or emphasis used and is therefore in the better position to understand how the jury perceived it. Perry v. State, 277 Ark. 357, 642 S.W.2d 865 (1982). We do not think it was prejudice to deny a mistrial or admonition during the penalty phase of the trial. Such statements should be avoided in the future.

The appellant contends the court erred in refusing an instruction during the penalty stage of the trial and that the death sentence verdict was based on passion and prejudice. The rejected instruction was to the effect that if he were sentenced to life without parole he would serve the rest of his life in prison. We have many times held that the trial court should not attempt to explain matters concerning parole or executive clemency to a jury. Andrews v. State, 251 Ark. 279, 472 S.W.2d 86 (1971). We are unable to find any evidence in the record to reflect that the verdict in this case was the result of passion and prejudice.

Also, it is contended that, by comparison to other capital cases, the appellant should be sentenced to life without parole. Even though we are not required by law or precedent to make a comparison of sentences we have done so in this case and do not find that the death verdict should be set aside in this case.

In accordance with the provisions of Ark. Stat. Ann. § 43-2725 (Repl. 1977) and Rule 11 (f) of this court, we have reviewed the transcript and find no ruling adverse to the appellant which resulted in prejudicial error.

Affirmed.

Adkisson, C.J. and Hickman, J., concur.

Hollingsworth, J., dissents.

Richard B. Adkisson, Chief Justice,

concurring. “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.” Osborne v. State, 237 Ark. 5, 371 S.W.2d 518 (1963). See also, Miller v. State, 230 Ark. 352, 322 S.W.2d 685 (1959) and Hall v. State, 113 Ark. 454, 168 S.W. 1122 (1914). Although this is not an inexorable rule, it is the accepted rule of law in this state. Roberts v. State, 281 Ark. 218, 663 S.W.2d 178 (1984).

Anticipating that the United States Supreme Court would require comparison of sentences in death cases pursuant to the Eighth Amendment, this Court agreed to compare sentences in such cases. Collins v. State, 261 Ark. 195, 548 S.W.2d 106 (1977), cert. denied, 434 U.S. 878 (1977). However, the United States Supreme Court held otherwise in Pulley, Warden v. Harris, No. 82-1095 (Jan. 23, 1984), stating that the Eighth Amendment of the United States Constitution does not require an appellate court to compare death sentences with penalties imposed in similar cases.

Therefore, this Court should now revert to its long established position as reflected in Osborne and refuse to compare or reduce sentences absent some constitutional infraction.

Darrell Hickman, Justice,

concurring. This concurrence is addressed to the suggestion that we abandon comparative review in death cases.

In Collins v. State, 261 Ark. 195, 548 S.W.2d 106 (1972), cert. denied 434 U.S. 878 (1978), we took upon ourselves the obligation to review death sentences comparatively. Comparative review was not required by Arkansas law but was done to insure that the death sentence in Arkansas would not be freakishly imposed. That procedure has been used to reduce several sentences of death to life without parole. Henry v. State, 278 Ark. 478, 647 S.W.2d 419 (1983); Neal v. State, 274 Ark. 217, 623 S.W.2d 191 (1981); Sumlin v. State, 273 Ark. 185, 617 S.W.2d 372 (1981).

It is suggested that because the United States Supreme Court has ruled that the constitution does not require a comparative review, we should abandon the practice. Such a break would be a breach of faith by this court and would remove a check against the arbitrary and capricious imposition of the death penalty. In my judgment, the laborious and serious effort this court has made in reviewing death sentences to insure that decisions of the United States Supreme Court are followed will eventually work to the good of Arkansas and its legal system. When we approve a death sentence, it receives every consideration, not just a rubber stamp approval, and by all rights a great majority of our decisions should withstand scrutiny by other courts that use any reasonable standard of review. If we abandon our standards in the least, we stand to lose some credibility. In any event, we have our duty and responsibility regardless of what other courts may do.

Some thirty states use some form of comparative review. Pulley v. Harris, _U.S. _(Jan. 23, 1984) (Brennan, concurring). A study of all the opinions in Pulley indicates it is a desirable practice. We should not consider reneging on our obligation.

Dudley, J., joins in this concurrence.

P. A. Hollingsworth, Justice,

dissenting. I agree with appellant’s argument that the trial court erred in denying his motion challenging the death qualification of prospective jurors. I disagree with the majority’s holding in Rector v. State, 280 Ark. 385, 659 S.W.2d 168 (1983). In my view the appellant had a right to prove that death-qualified jurors are more prone to conviction than jurors who are not so qualified, and to further prove that the jury in this case was so qualified. Grigsby v. Mabry, 569 F. Supp. 1273 (E.D. Ark. 1983).