text:
    ARKANSAS STATE HIGHWAY COMMISSION v. N.W.A. REALTY CORP., et al
    77-78
    557 S.W. 2d 620
    Opinion delivered November 21, 1977
    (Division II)

      Thomas B. Keys and Philip N. Gowen, for appellant.

      James W. Gallman, of Gallman & Wiley, for appellees.
   John A. Fogleman, Justice.

Appellant asks reversal of the judgment awarding compensation to appellees for appellant’s taking, on March 5, 1975, 0.56 acres of a 4.37-acre tract of land, because of the failure of the trial court to exclude certain testimony relating to sale of other lands on the ground that they were not comparable as a matter of law. We find no reversible error in this respect and affirm.

The tract of land from which the right of way was taken fronted on Highway 71, approximately five miles north of Bentonville. It was located near the center of Bella Vista about one-half mile north of an establishment known as the Hill and Dale Restaurant. Otherwise, Bella Vista is owned by Cooper Communities, Inc. Testimony of Jackie Phillips, who, with his wife, is the owner of all the corporate stock of appellee, established that appellees’ property was the only highway frontage available in the immediate vicinity and for a distance of about seven miles to the north to the Arkansas-Missouri line, except for one small grocery store. This was attributable to the fact that Cooper Communities, Inc. owned all the property to the north, south and east of appellees’ tract and would not sell any of it for commercial purposes. That company had its own commercial development to the north but would only lease the property for terms of not more than twenty years. A part of the second floor of the property was used for appellees ’ real estate office and there was also a gift shop on that floor. According to Phillips, who said the corporation took listings and sold real property in the area, the highest and best use of the property was for commercial purposes, being suitable for a motel, service station, different kinds of shops or almost any business. In his opinion, the closest comparable property was near the Holiday Inn just north of the city limits of Bentonville.

Ralph King, of Bella Vista, was in the real estate business but dealt only in his own property, mostly commercial. He had been buying and selling commercial property near Bentonville for a little over six years. He had handled a substantial part of the development of the commercial property along Highway 71 on the north edge of Bentonville. In his opinion, appellees’ property was comparable to that in which he had been dealing. He agreed that the highest and best use of appellees’ property was for commercial purposes and that it was the only such property available for several miles. He related the details of sales of property he had made at the northern edge of Bentonville, all of which took place in 1974. He said that Bella Vista was growing faster than Bentonville.

Keith Schultz, a Fayetteville real estate broker and appraiser, could find no sales in the immediate vicinity of appellees’ property, due to the Cooper Community ownership. He then attempted to find the nearest property that could be used for comparison. He found that the highway traffic count in front of appellees’ property was as great as that at the north end of Bentonville. He found considerable real property for sale near the Holiday Inn at Bentonville, but none in the vicinity of appellees’ land. For comparison, he used sales of property on Highway 71 just north of Bentonville and about 3 Vz miles south of appellees’ property. He found that when these tracts were sold, they were little more, than pasture land with no development around them. The sales were in tracts of less than one acre, and were made at a time when that area of Bentonville had not been developed. They took place in 1972, 1973 and 1974. He said that in arriving at his opinion of the value of appellees’ land, it was necessary that he make adjustments for differences attributable to time and distance. In doing so, he discounted the value reflected by these sales by 40%. Appellant moved that the opinion testimony of this witness be stricken because it was based upon sales that were not comparable as a matter of law.

Appellant relies upon our decisions in Arkansas State Highway Commission v. Roberts, 246 Ark. 1216, 441 S.W. 2d 808; City of Little Rock v. Sawyer, 228 Ark. 516, 309 S.W. 2d 30 and Arkansas State Highway Commission v. Witkowski, 236 Ark. 66, 364 S.W. 2d 309. It correctly points out that under the authority of these cases a sale must be comparable to be admissible in evidence, that its comparability must be shown, and .although there can be no fixed definition of similarity or comparability, there must be some reasonable resemblance.

In Sewer & Waterworks Imp. Dist. No. 1 v. McClendon, 187 Ark. 510, 60 S.W. 2d 920, we said:

Appellant next contends for a reversal of the judgment because the court permitted Zembra Everett to testify as to the value of his farm situated about seven miles from Lewisville. He testified as to the acreage of his farm and the character of improvements thereon and what he sold it for about the time the disposal plant was constructed. There were similarities detailed by him between his tract and appellee’s land; so the testimony was admissible notwithstanding they were separated by a distance of seven miles. In these days of good roads and rapid means of transit, it cannot be said as a matter of law that the lands were in different localities. The description of the two tracts make the testimony of Everett admissible under the rule of evidence announced in the case of St. Louis Iron Mountain & Southern Railway Company v. Maxfield, 94 Ark. 135, 126 S.W. 83, 26 L.R.A. (N.S.) 1111.

We have held there is no hard and fast rule as to time beyond which a sale may be considered comparable and that remoteness goes to the weight to be given the evidence, rather than to its admissibility. Housing Authority of the City of Little Rock v. Sparks, 234 Ark. 868, 355 S.W. 2d 166. In a case in which the sale used for comparison was four miles away from the property taken, we declined to hold that the sale was not comparable. Arkansas State Highway Commission v. Stallings, 248 Ark. 1207, 455 S.W. 2d 874.

In another case where the sales relied upon were 2, 2 Vi and 13 miles respectively from the property taken, we held that separation of two tracts by distance, where they are otherwise similar, is not sufficient to show that the sale of one is not evidence of the value of the other, when it cannot be said as a matter of law that they are in different localities. Arkansas State Highway Commission v. Highfill, 250 Ark. 291, 464 S.W. 2d 784.

The question of similarity or dissimilarity of the lands near Bentonville was basically a question for the trial judge. Baker v. City of Little Rock, 247 Ark. 518, 446 S.W. 2d 253. It is the well established rule that the decision of the question whether the conditions surrounding another tract of land or its sale are sufficiently similar to the circumstances of the pending case and the land involved to admit evidence of its sale price as evidence of the value of the land in question rests largely in the discretion of the trial court. Annot., 118 ALR 869, 904; 85 ALR 2d 110, 126. The ruling of the trial court on the question should be disturbed only for abuse of that discretion. The proposition is well stated by the textwriter at 5 Nichols on Eminent Domain 21-55, et seq § 21.31, viz:

*** [Njo general rule can be laid down regarding the degree of similarity that must exist to make such evidence admissible. It must necessarily vary with the circumstances of each particular case. Whether the properties are sufficiently similar to have some bearing on the value under consideration, and to be of any aid to the jury, must necessarily rest largely in the sound discretion of the trial court, which will not be interfered with unless abused. The exact limits, either of similarity or difference, or of nearness or remoteness in point of time, is difficult, if not impossible, to prescribe by any arbitrary rule, but must to a large extent depend on the location and the character of the property and the circumstances of the case. It is to be considered with reference to the light thrown on the issue, and not as a mere method of raising a legal puzzle.
When evidence of the price paid at a voluntary sale of other land is offered by one of the parties at the trial of a land damage case, as tending to prove the value of the land taken or damaged, the admissibility of such evidence depends upon the decision on the question whether such other land.is sufficiently like the land in controversy and the sale sufficiently near in point of time to make the evidence of the price paid helpful to the jury. This question is a preliminary question of fact, to be determined by the judge presiding at the trial, and his decision upon such a question will not be set aside if there is any evidence to support it. It follows that the admissibility of evidence of sales of other land, as stated above, is largely within the discretion of the trial court, and the verdict of the jury will not be set aside by a higher tribunal merely because it disagrees with his conclusion. The discretion of the trial court is not, however, unlimited, and if evidence of sales which was admissible as a matter of law is excluded, or evidence of sales which was inadmissible as a matter of law is admitted, the verdict will be set aside upon exceptions properly taken.

That writer, addressing himself to the question of proximity, at 5 Nichols on Eminent Domain 21-67, et seq § 21.31 [1] also says:

*** The court, too, should exercise its discretion in accordance with the necessities of the case, and if land is of a character not commonly bought and sold, should allow evidence of the sales of similar land to be admitted, though located several miles from the land taken.
In any event, as with other aspects of this problem, it lies within the sound discretion of the court to fix the limits of proximity within which evidence of sales may be adduced. ***

Many times it will be necessary, as it was here, for an opinion witness to make adjustments or to explain the difference between similar tracts. St. Louis, I.M. & S. Ry. Co. v. Theodore Maxfield Co., 94 Ark. 135, 126 S.W. 83; Arkansas State Highway Commission v. Sargent, 241 Ark. 783, 410 S.W. 2d 381. See also, Arkansas State Highway Commission v. Taylor, 247 Ark. 742, 447 S.W. 2d 646. It was not demonstrated that the adjustment made by Schultz had no reasonable basis.

Although appellant offered testimony of opinion witnesses that in some respects contradicted that on behalf of appellees, particularly as to the similarity of the property at the edge of Bentonville, we are in no position to say that the circuit judge abused his discretion in admitting this testimony.

The judgment is affirmed.

We agree. Harris, C.J., and Holt and Roy, JJ.


source: Caselaw Access Project

author: John A. Fqgleman, Justice.

license: Public Domain

text:
    Otha Lee RUSSELL and Lovell DAVIS v. STATE of Arkansas
    CR 77-124
    559 S.W. 2d 7
    Opinion delivered November 21, 1977
    (Division II)
    [Rehearing denied January 9, 1978.]

      Hightower and McCaa, by: James C. McCaa, III and Thomas G. Montgomery, for appellants.

      Bill Clinton, Atty. Gen., by: Robert J. Govar, Asst. Atty. Gen., for appellee.
   John A. Fqgleman, Justice.

Otha Lee Russell and Lovell Davis were jointly charged, along with Rosie Shumate, with the aggravated robbery of Christopher Layman, Manager of the Crawfordsville Branch of Earle State Bank in Crawfordsville on September 1, 1976. They were jointly tried and found guilty. A verdict of acquittal of Rosie Shumate was directed. Both appeal, seeking reversal of the judgments of conviction. We find no reversible error and affirm both judgments.

We shall first consider the appeal of Russell. He presents two points for reversal, viz:

I
THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE APPELLANT’S MOTION FOR CONTINUANCE, EFFECTIVELY DENYING THE APPELLANT HIS CONSTITUTIONAL RIGHTS TO EFFECTIVE ASSISTANCE OF COUNSEL AND TO DUE PROCESS OF LAW AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.
II
THE TRIAL COURT ERRED IN PERMITTING THE STATE TO INTRODUCE EVIDENCE OF OTHER CRIMES NOT CONTAINED IN THE INFORMATION FOR WHICH THE APPELLANT WAS TRIED.

The trial was held on November 30 and December 1, 1976. Russell was represented by appointed counsel, James C. McCaa III. Notice of trial date dated November 10, 1976, was given by the clerk, who certified that a copy was served on the defendant Russell and his attorney, James McCaa III, by mail, posted on November 10. Just before the trial was commenced, Russell’s attorney orally moved for a continuance on the ground that he was appointed appellant’s attorney on November 10, only 20 days preceding the trial and had not had sufficient time to prepare an adequate defense. The motion for continuance was denied. The trial judge had checked the record and found that it reflected that McCaa had been appointed and notified of his appointment on September 20, 1976. McCaa stated that he did not recall having received any notice earlier than approximately November 10.

Rule 27.3, Arkansas Rules of Criminal Procedure, provides that the court shall grant a continuance only upon a showing of good cause. In this respect, it is not materially different from Ark. Stat. Ann. § 43-1705 (Repl. 1964) which provided that the court may postpone a trial upon sufficient cause shown by either party. The matter of continuances is addressed to the sound judicial discretion of the trial court, and its action will not be reversed on appeal in the absence of such a clear abuse of that discretion as to amount to a denial of justice. Kelley v. State, 261 Ark. 31, 545 S.W. 2d 919. The burden of demonstrating that there has been an abuse rests upon appellant. Kelley v. State, supra.

Assuming that Russell’s attorney did not receive notice of his appointment until November 10, he has failed to show any abuse of discretion. Even though the notice indicated that the appointment covered six different charges against Russell, as he suggests, the trial court was never advised, either when the motion was presented, or by motion for new trial, what the attorney failed to do that could have been done, or what he did that he would not have done, if he had been afforded more time. Although we could hardly find an abuse of discretion upon some basis not presented to the trial court, appellant does not even suggest here what effect the time limitation had upon his defense. The only prejudice he mentions is the 45-year sentence imposed.

We have upheld denials of motions for continuance on similar contentions many times. In Shinsky v. State, 250 Ark. 614, 466 S.W. 2d 909, we held that there was no abuse of discretion in denial of a motion for continuance which simply stated that appellant’s counsel had not had adequate time to prepare a defense, even though almost four weeks intervened between the defendant’s arrest and trial. We find no significant difference between that case and this one. We have held that there was no abuse of discretion or arbitrary action in refusal of a continuance when the defendants had about three weeks to prepare for trial, Meyer v. State, 218 Ark. 440, 236 S.W. 2d 996, and in the absence of any showing of prejudice, we cannot say that refusal of a continuance is error. Nash v. State, 248 Ark. 323, 451 S.W. 2d 869.

Russell’s argument on the second point is that the court permitted the state to produce evidence of an aggravated robbery in the theft of a truck, of interference with a law enforcement officer, of kidnapping, and another aggravated robbery charge. He emphasizes the fact that he was charged with these other crimes in informations separate and distinct from the charge of aggravated robbery on which he was tried. We find no merit in this contention. In the first place, the abstract of the record does not disclose any objection by Russell to any of this testimony. Furthermore, the evidence presented related a continuous course of conduct beginning with the entry of the robbers into the office of the bank until their apprehension after they had abducted one of the bank employees in leaving the bank. During this interval, they had taken the automobile of the bank’s manager and used it to flee from the scene, had commandeered a pickup truck belonging to Henry Williams, after they had run the bank manager’s auto into a ditch, and had fired at the officers who were pursuing them. Appellants were then apprehended at a road block. At that time, they were occupying the pickup truck and were in possession of the money stolen from the bank, along with some firearms and ammunition.

Even though evidence of separate and isolated crimes or facts having no bearing upon the charge under investigation cannot be shown, evidence showing all the circumstances connected with that particular crime may be shown, even if in doing so, other criminal offenses are brought to light. Butt v. State, 81 Ark. 173, 98 S.W. 723, 118 Am. St. Rep. 42. We have held that when acts are intermingled and contemporaneous with one another, evidence of any or all of them is admissible to show the circumstances surrounding the whole criminal episode. Polk v. State, 252 Ark. 320, 478 S.W. 2d 738. There the “other crime” was a robbery of which the defendant had been acquitted, but evidence of the robbery was held admissible in the trial of a separate charge of larceny based on the theft of an automobile used in leaving the scene of the robbery. See also, Decker v. State, 255 Ark. 138, 499 S.W. 2d 612. To be contemporaneous, such acts need not be done simultaneously with the offense charged. If they are substantially contemporaneous, and are intermingled to such an extent that they form an indivisible criminal transaction and the full proof of any one of them cannot be presented without showing the others, then evidence of any or all of them is admissible against a defendant on trial for any offense which is a part of the whole criminal scheme. Harris v. State, 239 Ark. 771, 394 S.W. 2d 135, cert. den. 386 U.S. 964, 87 S. Ct. 1043, 18 L. Ed. 2d 114. Thus, we have held that robbery of the husband after the rape of his wife was admissible in a trial on the charge of rape,-over the objection that the robbery was a separate crime having no bearing upon the charge of rape. Ingram v. State, 255 Ark. 6, 498 S.W. 2d 862. There the husband and wife were together when they were abducted before the rape and the husband had been locked in the trunk of an automobile during the actual rape. We said that the proof of the robbery was relevant as tending to show that the defendants committing it were the perpetrators of the offense of rape, even though both the husband and wife identified the defendants. It certainly could not be said that evidence of the apprehension of defendants at the road block and their possession of weapons, ammunition and the money stolen from the bank was inadmissible for the purpose of establishing the identity of the perpetrators of the crime, beyond reasonable doubt, and to corroborate the testimony of the witnesses at the bank as to elements of the crime charged. If this evidence was admissible, then it was permissible to connect the apprehension with the robbery, by evidence of the continuous sequence of events intervening. They were all a part of one unbroken transaction and were admissible to explain the acts of the defendants and to put the jury in possession of the entire transaction. Renfroe v. State. 84 Ark. 16, 104 S.W. 542.

Evidence pertaining to the flight of the accused from the scene of the robbery was admissible as a circumstance to be considered with other evidence in determining probable guilt of the accused, including evidence of any criminal conduct constituting an inseparable part of the flight, even though evidence of the flight is cumulative. Murphy v. State, 255 Ark. 90, 498 S.W. 2d 884. The evidence questioned here was clearly admissible.

Appellant Lovell Davis also raises two points for reversal. His first point is identical to Russell’s second point and his argument is a verbatim copy of that made on behalf of Russell. What we have said in treating Russell’s second point disposes of this issue, except for the fact that an objection to testimony of any witness about the flight from the bank, the abduction of the employee, the stealing of a vehicle and the subsequent stealing of a truck was made by Davis’ attorney.

Davis also asserts the following point for reversal:

THE TRIAL COURT ERRED BY GRANTING THE STATE’S MOTION FOR DISCOVERY AND PRECLUDING THE TESTIMONY OF THE APPELLANT’S WITNESS.

The prosecuting attorney moved to require the defendant to disclose the nature of the defense to be asserted and the names and addresses of persons whom defense counsel intended to call as witnesses in support thereof. The motion was made under Rule 18.3, Rules of Criminal Procedure. Davis responded by asserting that Rule 18.3 was not intended to allow the state to discover in advance of trial “all defenses and/or witnesses” intended to be presented at trial; and, if so, that the rule is unconstitutional under the Fifth and Fourteenth Amendments to the Constitution of the United States. The trial court granted the motion but Davis, on advice of counsel, refused to furnish the information requested.

At the conclusion of the evidence on behalf of the state, appellant’s attorney made the following statement:

There was a witness that I intended to call, Mr. James Gracey, and Mr. Gracey has not been summoned or brought forward because of the Court’s ruling, but the defendant did not comply with the order to provide Mr. Gracey’s name to the prosecution in advance. This is the first time that Mr. Gracey’s name has been brought forward.

Later, the attorney said that he was not producing Mr. Gracey, “at this time” and, when the trial judge responded that it was the attorney’s duty to comply with the court’s orders, the attorney stated that he had not received Mr. Gracey’s name until after the court had made the order requiring disclosure of the names of witnesses. The attorney’s concluding remark was:

Your Honor, if I may reply; I do feel that I had complied with the Court’s orders, and I am advising of the names of the witnesses at this time, at the time to present the defense, and that the witnesses will not be called, and that the defendant, Lovell Davis, intends to rest his case at this time in that regard in compliance with the Court’s ruling.

Of course, there was not a compliance with the court’s orders and appellant’s attorney had previously admitted that there had not been. We have absolutely no means of saying that the trial court abused its discretion with reference to the witness Gracey. The court’s order certainly did not require disclosure of the identity of a witness of which the defendant was at the time unaware. There was no showing that, by the exercise of proper diligence, Davis or his attorney could not have discovered the witness or obtained his name. But the witness was not present to testify and no effort was made to subpoena him. And, fatal to Davis’ argument here, no proffer was made. So far as we know, or can tell from the record, Gracey’s testimony may well have been inadmissible. We simply cannot find reversible error on such a record.

It does not appear from the statement of this point that Davis contends that he was prevented from testifying by the court’s ruling, but in his argument, he states that, in compliance with the court’s order, the appellant “neither testified himself nor called James Gracey to testify.” There is absolutely nothing in the abstract of the record to show that the trial judge ever ruled that Davis could not testify or that Davis ever offered to testify.

On the record before us, we do not reach the constitutional question. We should point out, however, that a similar rule has been sustained in Williams v. Florida, 399 U.S. 78, 90 S. Ct. 1893, 26 L. Ed. 2d 446 (1970). There the rule required a defendant to give notice of an alibi defense and to furnish the prosecuting attorney with the names and addresses of witnesses by whom he expects to establish his alibi. The arguments against constitutionality rejected there were substantially those advanced by Davis here, and are the gist of the dissent of Justices Black and Douglas in that case. We should also state that it appears that reciprocal discovery procedures provided by Rule 17, Rules of Criminal Procedure, may well distinguish the Arkansas rule from that struck down in Wardius v. Oregon, 412 U.S. 470, 93 S. Ct. 2208, 37 L. Ed. 2d 82 (1973), where the court said that the growth of such discovery devices was a salutary development which enhanced the fairness of the adversary system.

The judgments are affirmed.

We agree. Harris, C.J., and Holt and Roy, JJ.


author: John A. Fogleman, Justice.

text:
    C. J. HENSON v. STATE of Arkansas
    CR 77-170
    557 S.W. 2d 617
    Opinion delivered November 21, 1977
    (Division II)

      Jeff Duty, for appellant.

      Bill Clinton, Atty. Gen., by: Robert M. Lyford, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

C. J. Henson was found guilty of violation of Ark. Stat. Ann. § 71-1301 (Repl. 1957) by acting as a real estate broker or salesman without a license. His appeal questions the applicability of the statute to his sale of a tract of real estate at auction under a power of attorney executed by the owner. It presents a question of statutory interpretation only. Since we agree with the state’s interpretation and not appellant’s, we affirm.

The statute makes it unlawful for any person to act as a real estate salesman or to advertise or assume to act as a real estate broker or salesman without having secured a regular valid license to do so issued by the Arkansas Real Estate Commission. It also makes it unlawful for any person to serve as auctioneer or participate in or supervise the auctioning of any real property in this state unless he has a valid regular license issued by the Arkansas Real Estate Commission authorizing him to act as a real estate broker or salesman. The definition of “real estate broker” in the act includes one who for compensation or the expectation of compensation auctions real estate. Ark. Stat. Ann. § 71-1302 (Supp. 1975).

Appellant acted under a power of attorney executed by the landowner giving appellant “full power to sell and convey [the land in question] in fee simple, with a general warranty of title” and “full power to do and perform all and every act and thing whatsoever, requisite, necessary or proper to be done in and about the premises, as fully to all intents and purposes as [the owner] might or could do if personally present.” No specific mention was made of a sale at auction.

Appellant argues that, under the rule of Parker v. Wilson, 99 Ark. 344, 137 S.W. 926, Ann. Cas. 1913 B 84, he was, in effect, the principal, rather than the agent, and stood in the shoes of the owner. Thus, he says, if the owner could have sold the property at auction, without running afoul of the statute, so could appellant.

We are somewhat at sea in trying to apply Parker v. Wilson, supra. No power of attorney was involved there and we find no language which supports appellant’s view of the case. We there held that a guardian was not an agent. The court there defined agency as follows:

An agency is defined to be “a contract, either express or implied, by which one of the parties confides to the other the management of some business, to be transacted in his name, or on his account, by which that other assumes to do the business and to render an account of it.” 2 Kent. Comm. 612. It creates a relation between two or more parties, one of whom is principal and the other agent. The agent is the substitute of his principal, and derives his authority to act from him.

Saying the agent is the substitute of his principal certainly does not make the agent the principal. Anyone purporting to act as real estate agent, broker or salesman, without any power of attorney, could come within the broad scope of this statement. But appellant says that under the Parser holding, if the owner could have sold the land at auction, so could appellant as attorney in fact. We do not so read the statute. It provides for exemptions in Ark. Stat. Ann. § 71-1302 (Supp. 1975) which are stated, in pertinent part, as follows:

The provisions of this Act shall not apply to any person, firm, partnership, co-partnership, association or corporation, who as owner or lessor shall perform any of the acts aforesaid with reference to property, owned or leased by them where such acts are performed in the regular course of, or as incident to the management of such property and the investment therein; nor shall the provisions of this Act apply to persons acting as attorney in fact under a full executed power of attorney from the owner authorizing the final consummation by performance of any contract for the sale, lease, or exchange of real estate, nor shall this Act be construed to include in any way the services rendered by an attorney at law in the performance of his duties as such attorney . . .

The exemption of the owner does not extend to an agent or attorney in fact. If it did, there would be little, if any, reason to add the specific exemption of an attorney in fact. Furthermore, the auctioning of real estate can hardly be said to come within the scope of “final consummation by performance of any contract for the sale, lease or exchange of real estate.” The word “consummation” in reference to contracts may carry different connotations in different contexts. The definition given in Black’s Law Dictionary and supported by most of the authorities listed under the definition in 9 Words and Phrases, p. 16, is: “To finish by completing what was intended; bring or carry to utmost point or degree; carry or bring to completion; finish; perfect; fulfill; achieve.” To consummate a contract is to carry it to its ultimate completion. Schulman v. City of New York, 178 Misc. 593, 35 N.Y.S. 2d 100 (1942).

We have contrasted the consummation of a sale of real estate with the procurement of a contract of sale by considering the former as the fulfillment of the contract. Vaughn v. O’Dell and Kleiner, 154 Ark. 165, 242 S.W. 554. When used with reference to real estate transactions, the word ordinarily means to bring to utmost completion by such acts as the conveyance of title or delivery of a deed, and not merely the contracting for a sale, or the execution of a contract obligating the parties. Beattie-Firth, Inc. v. Colebank, 143 W. Va. 740, 105 S.E. 2d 5 (1958); Cochran v. Ellsworth, 126 Cal. App. 2d 429, 272 P. 2d 904 (1954); Schulman v. City of New York, supra; Kirwan v. Parkway Distillery, Inc., 285 Ky. 605, 148 S.W. 2d 720 (1941). See also, McGill v. Flemming, 32 Cal. App. 2d 601, 90 P. 2d 341 (1939); Stern v. Gepo Realty Corp., 264 App. Div. 265, 35 N.Y.S. 2d 240 (1942). The descriptive adjective “final” eliminates consideration of any other meaning. Final means terminating, completed, last, ultimate, conclusive. Black’s Law Dictionary (DeLuxe 4th Ed.) 747; Webster’s New International Dictionary (Second Edition). Although real estate was not involved, we recently held that an agreement of a subcontractor arising out a proposal made in Arkansas, accepted by a general contractor in Arkansas and performed in Arkansas was finally consummated in Arkansas under an arbitration clause fixing the place of arbitration as the state where the agreement was finally consummated, even though the subcontractor accepted and executed the contract in Ohio and the bid proposal submitted to the general contractor contained the arbitration clause. Prepakt Concrete Company v. Whitehurst Bros., Inc., 261 Ark. 814, 552 S.W. 2d 212.

We find no basis for excluding or exempting appellant from the prohibitions and penal provisions of the statute. Accordingly, the judgment is affirmed.

We agree. Harris, C.J., and Holt and Roy, JJ.

       Although the terms are not synonymous, an attorney in fact is an agent even though all agents are not attorneys in fact. Porter v. Hermann, 8 Cal. 619 (1857); White v. Furgeson, 29 Ind. App. 144, 64 N.E. 49 (1902); Nardi v. Poinsatte, 46 F. 2d 347 (D.C. Ind., 1931). See also, Dick v. State, 107 Md. 11, 68 A. 576 (1908); Black’s Law Dictionary (DeLuxe 4th Ed.) 164. The title or designation is used principally to distinguish such an agent from an attorney at law. McLaren Gold Mines Co. v. Morton, 124 Mont. 382, 224 P. 2d 975 (1950). See also, Nardi v. Poinsatte, supra.


author: George Rose Smith, Justice.

text:
    Bedford G. WEBB v. Maxine Chrisco WEBB
    77-77
    557 S.W. 2d 878
    Opinion delivered November 28, 1977
    (Division I)

      Tackett, Moore, Dowd & Harrelson, by: C. Wayne Dowd, for appellant.

      Donald L. Corbin, for appellee.
   George Rose Smith, Justice.

The only issues remaining in this divorce case relate to alimony. By a decree entered in October of 1976 the chancellor awarded the husband a divorce, for personal indignities. The decree directed him to pay $400 a month as alimony until February 1, 1977, and then to pay one third of his net income through December 31, 1977, “and nothing more.” The decree then provided that “either party may, prior to December 31, 1977, petition the Court for an increase or decrease in alimony, or cessation or extension of same upon a proper showing of good cause, and the court hereby retains jurisdiction of this cause of action for the consideration of any such motions.” By appeal the husband questions the allowance of any alimony at all and the court’s recited retention of jurisdiction for more than a year.

We cannot agree with the husband’s insistence that no alimony should have been awarded. For several years before the trial Webb had been earning a substantial income as a practicing lawyer and as a deputy prosecuting attorney. His wife, 43, had much more property than he had, but it was not productive! Moreover, she had undergone two serious operations, was suffering from osteoporosis and other ailments, with a guarded medical prognosis, and was unable to work. We cannot fairly hold that no alimony should have been allowed.

On the other hand, the chancellor was mistaken in directing the husband to make the payments we have recited “and nothing more. ” An award of alimony in fixed installments for a specified period is prima facie erroneous, as being an award of a gross sum instead of a continuing allowance. Beasley v. Beasley, 247 Ark. 338, 445 S.W. 2d 500 (1969); McIlroy v. McIlroy, 191 Ark. 45, 83 S.W. 2d 550 (1935); Walker v. Walker, 147 Ark. 376, 227 S.W. 762 (1921); Brown v. Brown, 38 Ark. 324 (1881). Of course, we do not exclude the possibility that such a'short-term award may be, as intimated in the Beasley case, a proper method of allocating to the wife an interest in her husband’s property. That depends upon the particular facts in the case.

Furthermore, after a case has been fully tried, as here, the final decree of divorce should defnnitely fix the rights of the parties, subject only to the court’s continuing power to modify alimony and support allowances in the light of changed circumstances. Here the decree, instead of finally determining the litigation, affirmatively declared the court’s intention to leave the parties in a state of uncertainty for more than 15 months.

The Walker and Brown cases, supra, are essentially similar to this one with respect to the allowance of alimony in a gross sum rather than as a continuing award. In both those cases we reversed the decree and remanded the cause for such an allowance of continuing alimony as should have been made in the first place. We adopt that procedure in this case, with one proviso: Inasmuch as no modification of the decree was possible during the pendency of this appeal, the chancellor may properly consider any change in the circumstances of either party that may have occurred since the date of the original decree, as amended.

Reversed and remanded.

We agree. Harris, C.J., and Holt and Roy, JJ.


text:
    Earl GORE et al v. Wallace EMERSON and Henry WILKINSON
    77-64
    557 S.W. 2d 880
    Opinion delivered November 28, 1977
    (In Banc)

      Dane & Felton, Ltd., by: Henry A. Allen, for appellants.

      John D. Bridgforth and Fletcher Long, Jr., for appellees.
   John A. Fogleman, Justice.

Appellant Earl Gore and several other petitioners, who are also appellants here, filed a petition in the Circuit Court of St. Francis County for prohibition to Mayor Wallace Emerson of Palestine as Judge of the City Court (formerly Mayor’s Court) of Palestine and Henry Wilkinson, as Judge of the Municipal Court of Forrest City to prevent further proceedings in said courts against them. They allege, and it is admitted, that appellants were charged on October 31, 1976, with throwing objects, a violation of a city ordinance of Palestine, and with disorderly conduct. On November 6, 1976, when their trial in the city court was set, their attorney appeared and objected to the jurisdiction of the court, on the ground that the mayor and the city court could not fairly and impartially decide the case, because of the position of Mayor of the city held by the judge of the court, citing Ward v. Village of Monroeville, 409 U.S. 57, 93 S. Ct. 80, 34 L. Ed. 2d 267 (1972). Petitioners alleged that they had first entered pleas of not guilty to all charges against them. The city court, with the mayor acting as judge, transferred the cases to the Municipal Court of Forrest City. Petitioners alleged that they objected to this transfer, but that the charges against them were set for trial in the Municipal Court of Forrest City on November 17, 1976.

Petitioners alleged that the City Court of Palestine was an unconstitutional and illegal court, that it had no jurisdiction over them at any time, and that it had no jurisdiction to transfer the cases to any other court. Specifically they charged that the mayor’s responsibility for city finances made his sitting as judge of that court a violation of their right to due process of law under the Fourteenth Amendment to the Constitution of the United States. They also asserted that there was no provision for a change of venue or transfer from the city court to the municipal court.

They also sought a declaratory judgment declaring that the City Court of Palestine is unconstitutional and illegal and that the mayor is without jurisdiction to try any case in that city, and ordering the mayor to refrain from sitting as judge or appointing anyone to sit in his stead.

Appellants rely upon Turney v. Ohio, 273 U.S. 510, 47 S. Ct. 437, 71 L. Ed. 749 (1926), as well as Ward v. Village of Monroeville, supra.

The circuit court held that the city court was not unconstitutional, because the mayor, who sits as its judge, is paid a fixed salary from the city’s general fund and does not receive any part of fines assessed or forfeitures declared, and inquires of any defendant brought into the court whether he desires a transfer to the Municipal Court of Forrest City. The circuit judge expressed the opinion that the Mayor, when sitting as judge of the court should give any defendant arraigned in the court the opportunity, first, to have his case transferred to the Municipal Court of Forrest City; and, if objection should be made, appoint someone else to sit as judge. The writ of prohibition and declaratory judgment were denied. We reverse in part.

The mayor of a second class city presides over council meetings and has the right to vote on matters submitted to a vote of the council. Mayor Emerson testified that all city purchases are made by the city council, in spite of the fact that city ordinances authorize him to make purchases for amounts less than $250 and, between $250 and $1,000, after having received bids. He also testified that the council approved all payments from city funds, in spite of an ordinance authorizing the mayor to approve any bills, debts or liabilities asserted against the city for payment out of any funds previously appropriated for that purpose but requiring confirmation by the council of all bills, debts or liabilities not covered by a previous appropriation. He also has the authority to sell city property if it is of a value under $1,000, but testified that he had never sold any. The mayor is a conservator of the peace. Ark. Stat. Ann. § 19-1204 (Repl. 1968). The mayor also has some authority to orally direct that an arrest be made. See Ark. Stat. Ann. § 43-405 (Repl. 1964). He actually directed that the arrests of some of the appellants be made.

Mayor Emerson, as Judge of the City Court, presides over all cases, taking guilty and nolo contendere pleas, accepting bond forfeitures and, when a transfer is not requested, deciding cases. On guilty pleas, he determines the amount of the fine imposed. The fines assessed, along with bond forfeitures, are paid into the city general fund. These fines and forfeitures amounted to $44,425.96 and provided 79% of Palestine’s general fund for the first eleven months of 1976.

Municipal corporations have the power to provide for fines, forfeitures and penalties for violations of their ordinances. Ark. Stat. Ann. § 19-2408 (Repl. 1968). The limitation on provisions for fines for first offenses is $500, for second offenses, $1,000 and for continuing offenses, $250 per day; however, if the offense is also a misdemeanor under state law, the city council may not provide for either less or greater penalties than those prescribed by state statutes. Ark. Stat. Ann. §§ 19-2409 (Supp. 1975), 19-2410 (Repl. 1968), and 19-2411 (Repl. 1968).

The mayor and two aldermen from each ward constitute the city council. Ark. Stat. Ann. § 19-1101 (Repl. 1968). The city court, presided over by the mayor, has the jurisdiction of a justice of the peace in matters arising under state law within the corporate limits, and exclusive jurisdiction of all prosecutions for violation of city ordinances and all fines and penalties assessed in all these cases go into the city treasury. Ark. Stat. Ann. §§ 19-1102, 19-2412 (Repl. 1968). There is a provision for the appointment by the mayor, at such times as he may choose, of any qualified elector of the city, or any attorney licensed in the state and residing in the county in which the city is located to sit as judge of the city court. The council is authorized to establish a schedule of fees or a monthly salary to be paid to the judge of the court out of the city’s general fund so long as the fee schedule or monthly salary is not based upon the conviction of any person by the court. Ark. Stat. Ann. § 22-812 (Supp. 1975).

In Tumey v. Ohio, supra, the United States Supreme Court held that it was a violation of the Fourteenth Amendment and deprivation of due process of law to subject the liberty or property of a defendant in a criminal case to a court, the judge of which has a direct, personal, substantial pecuniary interest in reaching a conclusion against him in the case. This case involved a fee system under which the mayor was compensated by a fee taxed as a part of the costs against a defendant who was convicted in the mayor’s court; but, if he was acquitted, the mayor was not compensated. The court went further, however. It pointed out that the particular statutes in question were intended to stimulate small municipalities in the same county with large cities to organize and maintain courts to try persons charged with violations of the liquor laws everywhere in the county. When the purpose was coupled with the mayor’s responsibilities as chief executive officer, charged with the business of looking after the village finances, the court found that the situation put the mayor in two practically and seriously inconsistent positions, one partisan and one judicial. This, held the court, necessarily involved a lack of due process of law in the trial of defendants charged with crimes before him. The court was careful to differentiate that situation from one in which the mayor could impose the usually minor penalties attaching to violations of city ordinances or to misdemeanors in which the mayor could pronounce final judgment without a jury. The court reasoned that the addition to the revenue involved would not be sufficient to justify the fear that the mayor would be influenced in his judicial judgment by that fact.

The court extended the doctrine of Turney in Ward. In Ward, the mayor was authorized to sit as judge in cases of ordinance violations and traffic offenses. He fined Ward $50 on each of two charges of traffic law violations. The court recited that the Mayor of Monroeville had wide executive powers, was the chief conservator of the peace and president of the village council, voting in case of a tie; that he accounted annually to the council for village finances, filled vacancies in village offices and had general overall supervision of village affairs. There, as here, a major part of the village income was derived from fines, forfeitures, and costs and fees imposed in the mayor’s court. The percentage of total revenue from this source was much less in any year than that in this case. In Ward, the court held that the possible temptation to an average man to forget the burden of proof required for conviction of a defendant or lead him to fail to hold the balance, nice, clear and true between the state and the accused may exist whenever the mayor’s executive responsibilities for village finances may make him partisan to maintain the high level of contribution from the mayor’s court. The court found violation of due process of law in that situation, and distinguished it from another in which the mayor had no executive powers, the city commission of five members (the mayor was one of them) governed the city and had all its legislative powers, and a city manager, along with the commission, exercised virtually all executive powers. There the mayor’s interest in city finances and financial policies was held too remote to warrant a presumption of bias toward conviction in cases coming before him as a judge. See Dugan v. Ohio, 277 U.S. 61, 48 S. Ct. 439, 72 L. Ed. 784 (1928).

The court, in Ward, said that it intimated no view that it would be unconstitutional to permit a mayor to serve in essentially a ministerial capacity in a traffic or ordinance violation case to accept a free and voluntary plea of guilty or nolo contendere, a forfeiture of collateral or the like.

We must agree that the trial court erred in holding that the City Court of Palestine, with appellee presiding, did not violate appellants’ constitutional right to due process. The fact that the mayor does not receive any fee or additional compensation because of a conviction is of no real significance. His interest in city finances and the relationship of the fines and forfeitures received to total revenues certainly invokes the prohibitions of Turney and Ward against the mayor’s holding two inconsistent positions. We cannot say that the penalties that may be prescribed by the city in Arkansas are so minor that the fear of the subtle influence of city financial needs and policies upon judicial judgment can be classified as remote. The duties and responsibilities of the Mayor of Palestine are only slightly less comprehensive than those of the Mayor of Monroeville, Ohio were. The reliance upon revenue from fines, penalties and forfeitures by Palestine was somewhat greater than that by Monroeville. The City Court of Palestine, with its mayor presiding, clearly deprives a defendant, who stands trial on charges in that court, of due process of law guaranteed by the Fourteenth Amendment to the United States Constitution. That does not mean that the court itself and all others like it in Arkansas are unconstitutionally constituted. There seems to be no constitutional problem, even with the mayor presiding, in accepting pleas of guilty and nolo contendere and declaring forfeitures. We find no basis for a distinction, however, between trial of a case and imposing punishment of a defendant pleading guilty. The temptation to favor city finances would be no less when there is a permissible range of punishment lying solely within the judicial discretion of the presiding judge.

The situation is not remedied because of the practice of transferring cases to the Municipal Court of Forrest City, because exclusive jurisdiction of cases involving violations of city ordinances is vested in the City Court of Palestine and there is no provision for transfer of these cases to any other courts. McKnight v. Newkirk, 256 Ark. 342, 507 S.W. 2d 98. Cf. Russell v. Miller, 253 Ark. 583, 487 S.W. 2d 617. Appellees intimate that there was no violation of due process because, if found guilty in the City Court of Palestine, appellants could appeal and have a trial de novo in the Circuit Court of St. Francis County. This argument was specifically rejected in Ward.

We cannot agree with appellants that the power of the mayor to appoint a judge of the court also constitutes the same deprivation of due process of law, so long as the compensation of the judge is not dependent upon the conviction of any defendant. This appointing power is one usually associated with executive powers. The merging of executive and judicial powers was found unobjectionable in Turney. If appellants’ argument is carried to its ultimate, no one in office in Palestine could appoint a judge of its city court. There is not the slightest intimation in either Turney or Ward that the results would be the same if the judge of the court had been appointed by the mayor. The appointee would not have any executive or legislative powers and his interest in city finances would be remote. His position would be similar to that of the mayor in Dugan v. Ohio, supra. The holding that there was no violation of due process in that situation was not impaired by Ward.

We do not consider the question of standing of appellants as taxpayers in this matter, because the transfer of charges against them in the Municipal Court of Forrest City is adequate to give them standing in the matter.

The case of Lynn Reeves versus the Mayor as Judge of the City Court of Palestine is a separate case consolidated with the cases of the other appellants in the circuit court. He was arrested on charges of driving while intoxicated and carrying a concealed weapon. He entered pleas of guilty in the city court on these charges, but was found guilty of disorderly conduct and disturbing the peace and fined $100 and costs and his driver’s license was suspended. Mayor Emerson presided over the court. The charges against Reeves were reduced by the city court as was the punishment imposed on him, after the intercession of Reeves’ father. No objection to the court or to Mayor Emerson sitting as judge was ever made until this suit was filed. He is entitled to no relief in this proceeding.

We agree with the circuit judge that the City Court of Palestine is not an unconstitutional court, but do not agree that the “safeguards and practices” heretofore used by it do not violate the requirements of due process of law when the mayor presides as judge when pleas of not guilty are entered and when fines are to be imposed upon guilty or nolo contendere pleas. Ordinarily, we would specifically prescribe a definite judgment. In this case, however, there is some uncertainty about the proper application of our holding to the particular cases involved. One of the petitioners, Johnny Tedder, stated that he had no objection to being tried on the charges in the Municipal Court of Forrest City. The status of the charges of violation of the city ordinance is not clear to us. The trial court held that the cases of all appellants, except Lynn Reeves, should be returned to the City Court of Palestine if they object to the transfer of the cases to the Municipal Court of Forrest City. This holding was based upon the premise that the City Court of Palestine had no power to transfer the cases. Yet, the circuit court, in its findings, said that the testimony “would seem to indicate that all city charges have been dropped and that these appellants are now charged only with the offense of disorderly conduct or disturbing the peace.” Mayor Emerson testified that the charges of throwing objects had been “merged into” a charge of disorderly conduct, in open court, although he said that appellants’ counsel would not have heard the mayor when he said so. The charges were apparently still pending in the Municipal Court of Forrest City, when the judgment of the circuit court was entered. It appears, from the testimony of Mayor Emerson, that these transfers were made by his treating the objections raised by appellants as motions to transfer. This was not proper. Appellants never requested, or suggested that they sought, a change of venue. The circuit court’s direction that the cases be remanded to the City Court of Palestine seems appropriate.

The judgment of the circuit court is affirmed in the case of Reeves versus Emerson. In the other case, the holding that the City Court of Palestine is a constitutional court is affirmed, but the holding that the safeguards and practices used by the mayor as judge of the court fully meet the requirements of due process of law is reversed, as is the portion of the judgment prescribing arraignment procedures for the mayor, sitting as judge of the court. The cause is remanded for the entry of a judgment consistent with this opinion.

Byrd, J., not participating.

         See Ark. Stat. Ann. § 19-1102.1 (Supp. 1975); Russell v. Miller, 253 Ark. 583, 487 S.W. 2d 617.

       Ordinance 7.12.03 reads as follows: Throwing Objects. Any person found throwing stones, sticks, or missiles of any kind whatsoever at or upon any public or private building or at any person in the street, alley, place or unenclosed or enclosed ground within the city shall be deemed guilty of a misdemeanor.

      Emerson testified that he had never appointed anyone to hear a case, because no one had ever objected to his hearing any case.

       See, however, Deadrick v. Parker, 211 Ark. 394, 200 S.W. 2d 787, relating to chancery actions.

       The circuit judge noted that mandamus, rather than prohibition, would have been the appropriate remedy. In view of Copeland v. Huff, 222 Ark. 420, 261 S.W. 2d 2, we agree.


author: Frank Holt, Justice.

text:
    Herbert McGEE v. STATE of Arkansas
    CR 77-159
    557 S.W. 2d 885
    Opinion delivered November 28, 1977
    (Division II)

      Thomas R. Newman, for appellant.

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

The appellant, on pleas of guilty, received five year concurrent sentences on five charges of burglary, including one count of grand larceny. Additionally, the court assessed the maximum term of twenty years on a charge of criminal attempt to :ommit aggravated robbery in violation of Ark. Crim. Code §§ 41-701 (1) (a) and 41-2102 (1) (a) (1976). That sentence was ordered to be served consecutively to the concurrent five year sentences. A few days later appellant, by postconviction relief motions, sought resentencing to a five year concurrent term on his guilty plea to the criminal attempt charge or be permitted to withdraw his plea, raising, inter alia, the issue of the state’s failure to abide by a negotiated plea bargain which he understood would result in concurrent five year terms on all six charges. Following an evidentiary hearing, appellant’s motions were denied. At the hearing the appellant testified that he was advised by his counsel that upon a plea of guilty the extent of his punishment would be concurrent five year sentences on all charges. His testimony was corroborated by his trial counsel. According to the prosecutor’s recollection, there was no such agreement. Appellant argues that his plea of guilty to the attempted robbery was based upon a misunderstanding by him of the law and his rights. Therefore, his plea was unintelligently and involuntarily made. Before the trial court and here, appellant invokes Rules of Crim. Proc., Rule 24.5 (1976), which provides:

The court shall not accept a plea of guilty or nolo contendere without first determining that the plea is voluntary. The court shall determine whether the tendered plea is the result of a plea agreement. If it is, the court shall require that the agreement be stated. (Italics supplied)

Clearly, this rule is mandatory.

Here it appears that the court meticulously inquired of practically all of appellant’s rights; however, the record reflects that before acceptance of the pleas the court failed to determine whether the tendered pleas were the result of a plea agreement and, if so, order the agreement stated. Further, Rule 25.3 (c) provides that if a plea agreement exists in which the trial court has not concurred, then the court “shall advise the defendant in open court at the time the agreement is stated that:

(i) the agreement is not binding on the court;
(ii) if the defendant pleads guilty or nolo contendere the disposition may be different from that contemplated by the agreement.

Without the trial court’s advising the appellant as to these requirements upon his guilty pleas, there is no assurance that his guilty pleas were intelligently and voluntarily made. In these circumstances it might very well be that the accused pleaded guilty to the attempted robbery charge under a misunderstanding of the law and his rights. To remove any possibility of prejudice, we modify the sentence on the attempted robbery conviction by reducing it to five years to be served concurrently with his other sentences.

It becomes unnecessary to discuss appellant’s other contentions.

Affirmed as modified.

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


author: Elsijane T. Roy, Justice. Carleton Harris, Chief Justice,

text:
    Jeffery (Buddy) POPE v. STATE of Arkansas
    CR 77-122
    557 S.W. 2d 887
    Opinion delivered November 28, 1977
    (In Banc)

      John R. Henry, for appellant.

      Bill Clinton, Atty. Gen., by: Jackson Jones, Asst. Atty. Gen., for appellee.
   Elsijane T. Roy, Justice.

Appellant Jeffery (Buddy) Pope was charged with first degree murder. The charge arose from the fatal shooting of Shorty Luster. Appellant admitted shooting the deceased but alleged self-defense. A jury trial resulted in appellant’s conviction of second degree murder and a twenty-year sentence was imposed. The State’s petition to revoke suspended sentence was also granted by the court, and a five-year sentence was imposed to run concurrently with the sentence of second degree murder.

For reversal appellant first contends that the verdict was contrary to the law and the evidence.

Luster was the proprietor of the Silver Slipper Cafe which was frequented by appellant. On the afternoon of Sunday, Febraury 22, 1976, appellant and J. W. Townsend were in the back of the tavern engaged in a dice game. Townsend refused to call appellant’s money, heated words were exchanged by the two men and Townsend walked to the front of the tavern. Shortly thereafter appellant left the tavern and testified he went next door to borrow some money. When appellant returned to the cafe he was carrying his .22 caliber pistol at his side. He approached Townsend, and their argument was resumed. There was testimony to the effect that appellant ordered Townsend to give him the gun he was carrying. Townsend testified that he had a pistol in his front pocket but that he never drew it.

Luster walked over to the two and attempted to stop the altercation. Words were exchanged by Luster and appellant. Appellant’s own testimony reflects Luster told him that if he were going to start something to leave the tavern. Appellant refused to do so. Luster then walked to the back of the counter and got his pistol, a .38/.40 caliber handgun. Different accounts were given as to what happened next, but in the ensuing gunfire Luster was killed. The surgeon who examined his body testified that Luster had been shot five times.

Appellant denied he shot his gun five times and further stated he was not trying to shoot anyone. Only appellant and one defense witness testified that Luster fired his pistol.

Neal Johnson, the investigating police officer, arrived at the scene shortly after the shooting and received possession of Luster’s gun from the bartender. Upon inspection of it Johnson found that the cylinder contained three live rounds and three empty holes but no empty cartridges were removed from it. Townsend and two other witnesses testified that they did not see Luster fire his gun.

In determining the sufficiency of the evidence on appeal we view that evidence which is most favorable to the appellee, and if any substantial evidence exists then we affirm. Williams v. State, 257 Ark. 8, 513 S.W. 2d 793 (1974). Jury findings are not disturbed unless there is no substantial evidence to support the verdict. Inklebarger v. State, 252 Ark. 953, 481 S.W. 2d 750 (1972). We do not attempt to weigh the evidence or pass on the credibility of the witnesses where the testimony is in conflict. See Barnes v. State, 258 Ark. 565, 528 S.W. 2d 370 (1975).

In Erby v. State, 253 Ark. 601, 487 S.W. 2d 266 (1972), this Court affirmed appellant’s conviction of second degree murder and stated: “When the jury disbelieved the defendant’s plea of self-defense, as it had a right to do, the killing was without justification, and malice might well be implied.”

Here there is ample testimony in the record to show that appellant had a disagreement with one of the patrons of the Silver Slipper Cafe; that he left the establishment and returned with a gun; that he was asked by the owner of the tavern to leave, but refused; that he was the aggressor; and that he killed Luster, who was trying to restore order to his place of business.

The jury resolved any conflict in the testimony, and there was substantial evidence to support the jury’s verdict of guilty of second degree murder in this case.

Appellant next alleges that the trial court erred in excluding his testimony regarding his knowledge of “prior vicious acts” committed by the decedent. During the direct examination of appellant the record reflects:

Q. Buddy, has anybody ever told you that Mr. Shorty has ever killed anybody?
A. Yeah.
MR. BURNETT: Objection, Your Honor.

The objection was sustained, and the trial court excluded this testimony on the basis that it was self-serving. Appellant’s attorney made the following proffer:

MR. HENRY: The defendant at this time, or the attorney for the defendant asked the witness, Buddy Pope, a question, “has it been related to you that Shorty Luster had previously killed anyone?” And, of course, an objection was interposed at this time and was sustained by the Court. If allowed to testify, the defendant, Buddy Pope, would state that it was his knowledge or it had been told to him that Shorty Luster had killed three people while living in the State of Mississippi and that he had whipped several other people while operating a tavern there in Marked Tree. The statement is hearsay or it is not hearsay and it is not offered for the truth of the matter but is offered to show the state of mind of this defendant at the time that the shooting occurred.

The proffer was refused and the testimony excluded.

The evidence as to whether the deceased was the aggressor was conflicting and so it was important to know appellant’s state of mind at the time of the offense or “What did appellant reasonably believe?” Ark. Crim. Code §§ 41-506 and 41-507 (1976) and Commentary. It was relevant for appellant himself to testify as to his apprehension of imminent danger and his reasons therefor. 1 Wharton’s Criminal Evidence § 225, p. 481 (13th Ed. 1972).

Wigmore on Evidence (3rd Ed. 1940) states the following pertinent rules:

§ 198. Character of Deceased, in Homicide, from Particular Acts of Violence. When the turbulent character of the deceased, in a prosecution for homicide, is relevant (ante, § 63), there is no substantial reason against evidencing the character by particular instances of violent or quarrelsome conduct. * * * (1 Wigmore on Evidence § 198 [3d Ed. 1940].)
§ 248. Defendant in Homicide: (c) Violent Acts of the Deceased. * * * The fact that the circumstance creating apprehension is a single act or series of acts, instead of a general character, does not necessarily destroy its capacity to create apprehension. Nor does its distance in time from the moment of the affray necessarily have that effect. Such particular acts may or may not in a given case be calculated to create apprehension; but there is no reason for a fixed rule of exclusion, invariably forbidding their consideration: (Omitting cases.) The state of the law has come on the whole to favor the admissibility of such facts. (Omitting cases.) (2 Wigmore on Evidence § 248, p. 61 [3d Ed. 1940].)

The admissibility of evidence pertaining to appellant’s knowledge of specific instances of violence by the deceased is discussed in Montague v. State, 213 Ark. 575, 211 S.W. 2d 879 (1948), quoting from Pope v. State, 172 Ark. 61, 287 S.W. 747 (1926):

“At § 222 of the chapter on ‘Homicide,’ in 13 R.C.L., p. 919, it is said: ‘Where character evidence is offered in support of the contention that the deceased was the aggressor or to characterize and explain his acts, the defense is restricted to proof of general reputation in the community where the deceased lived, and may not show particular acts or conduct at specified times. It may not be shown that the deceased had engaged in frequent fights in which he used deadly weapons, and therewith made deadly assaults on his antagonists. But, on the issue whether or not the accused had reasonable ground to believe himself in imminent danger, he may show his knowledge of specific instances of violence on the part of the deceased. But in no case may a witness state his opinion of the character of the deceased or how the latter would have acted under any particular set of circumstances’ ” (Italics supplied.)

In the replacement for Ruling Case Law, we find this passage on the subject at 40 Am. Jur. 2d Homicide, § 306, p. 574 (1968):

* * * Clearly, evidence of specific acts of violence by the deceased is inadmissible where the defendant had no knowledge or had not been informed of such acts prior to the homicide, since, naturally, his mind could not have been materially affected in the absence of such knowledge. Some courts have expressed the view that the fact that the defendant obtained knowledge, prior to the homicide, of the violent acts of the deceased, either through his own personal observation or through information transmitted to him directly by the deceased or third person, does not render evidence of other specific acts admissible. However, according to most courts, and the trend of modern authority, if, prior to the homicide, the defendant, either through his own observation or through information communicated to him by others, including the deceased himself, knew of other acts of violence of the deceased, he may, in support of his contention that he had reasonable grounds to believe himself in imminent danger from an assault by the deceased, introduce evidence of such prior unlawful acts of violence by the deceased. Such evidence bears on the question whether the defendant reasonably apprehended danger to his life or of great bodily injury. * * * (Italics supplied.)

This does not mean that whether the specific acts actually took place in Mississippi becomes an issue in the case on which evidence might be introduced. The proffer was made to show what appellant had heard.

We also note this testimony was not offered as bearing on the question as to who was the probable aggressor, nor was testimony of witnesses other than the defendant offered to show previous violent acts by the deceased. Such evidence may not have been admissible. But appellant was entitled to have the jury know his state of mind in determining his guilt or innocence.

Appellant’s final contention is that the trial court erred in granting the State’s petition to revoke appellant’s suspended sentence.

This is a matter within the sound discretion of the trial court, and this Court will not overturn the granting of such petition absent a showing of gross abuse of that discretion. Fant v. State, 255 Ark. 1, 498 S.W. 2d 332 (1973).

No argument in support of appellant’s contention was made other than a conclusory allegation that the trial court abused its discretion. Since appellant frequently carried a pistol, participated in illegal gambling games and was convicted of second degree murder, we cannot say the trial court’s action was an abuse of discretion.

Reversed for excluding proffered testimony on specific acts of violence for purposes indicated.

Reversed and remanded.

Harris, C.J., dissents.

Byrd, J., not participating.

Carleton Harris, Chief Justice,

dissenting. I disagree with the finding of the majority that this case should be reversed because of the failure to permit appellant to answer the question “Has it been related to you that Shorty Luster had previously killed anyone?” and I have more than one reason for feeling this way.

In the first place, we have said many times that a violent disposition toward others on the part of the victim of a homicide cannot be shown by specific acts of aggression and misconduct. Sanders v. State, 245 Ark. 321, 432 S.W. 2d 647. In that case, citing several prior cases, we stated that the law is clearly established that a violent disposition toward others on the part of a victim of homicide cannot be shown by specific acts of aggression and misconduct, and that such evidence is properly shown by proof of the general reputation of the deceased. I do not see the pertinence of Ark. Crim. Code §§ 41-506 and 41-507 (1976). The former section provides that one is not justified in using physical force upon another if “he provokes the use of unlawful physical force by the other person; or he is the initial aggressor; ***.” The latter section provides that:

“A person may not use deadly physical force in self defense if he knows that he can avoid the necessity of using that force with complete safety:
(a) by retreating, except that a person is not required to retreat if he is in his dwelling and was not the original aggressor, or if he is a law enforcement officer or a person assisting at the direction of a law enforcement officer; ***.”

The evidence clearly reflects that appellant had an argument with Townsend, one of the patrons of the cafe, then left the cafe and returned with a gun. Five witnesses testified that Luster, the proprietor, apparently as a matter of preserving the peace, asked Pope, when he was having the altercation with Townsend, to leave the cafe; for that matter, appellant himself admitted that Luster had asked him to leave Townsend alone. Now, all appellant had to do was stay away from the establishment; instead, he returned ready for combat. In my view (and apparently that of the jury), Pope was undoubtedly the aggressor.

Pope was the only witness who testified that he had been told that Luster had killed somebody. This brings me to my second reason for considering the testimony inadmissible.

The alleged person, or persons, who purportedly told Pope that Luster “had killed three people while living in the State of Mississippi and that he had whipped several other people while operating a tavern there in Marked Tree,” were never identified, and I contend that one raising such a defense, should be required to do more than make a general hearsay statement without being specific as to the source of his information, without being specific as to the identity of the three persons who were killed in Mississippi, and without being specific as to the “several” people who had been “whipped” in Marked Tree. I daresay that hereafter there will be many defendants charged with murder who, on trial, will testify that they heard the deceased was violent!

However, if my reasoning is faulty in all that has been said, there is still a potent reason why this case should not be reversed, for the proffer of evidence was, in my opinion, totally defective. I refer to the fact that the proffer does not include when Pope received his information, i.e., before or after the killing. The question was simply, “Has it been related to you that Shorty Luster had previously killed anyone?” Of course, this purported information could have been related to appellant after the killing but before the trial, and certainly under no circumstances would the evidence have been admissible if such knowledge was acquired after the shooting.

I would affirm the judgment of the Poinsett Circuit Court.

        Citing Pope v. State, supra, among others.

       Let it be remembered that the proffered testimony did not consist of threats purportedly made in the past toward appellant; actually, Pope stated that he and Luster- had always been good friends.


author: Elsijane T. Roy, Justice.

text:
    Howard GATLIN, Jr. v. STATE of Arkansas
    CR 77-155
    559 S.W. 2d 12
    Opinion delivered November 28, 1977
    (Division I)
    [Rehearing denied January 9, 1978.]

      Murphy & Carlisle, for appellant.

      Bill Clinton, Atty. Gen., by: Jackson Jones, Asst. Atty. Gen., for appellee.
   Elsijane T. Roy, Justice.

Appellant, Howard “Butch” Gatlin, Jr., was charged on October 26, 1976, with possession of a controlled substance with intent to deliver. On October 29, 1976, appellant was charged with two counts of theft by receiving. On January 14, 1977, the trial court, after a hearing on the matter, denied appellant’s motion to suppress evidence seized from his mobile home pursuant to a search warrant.

On January 17, 1977, a jury found appellant guilty of possession of a controlled substance with intent to deliver and punishment was fixed at five years’ imprisonment. On January 31, 1977, after trial to the court appellant was found guilty of theft by receiving. A five-year sentence was imposed and set to run concurrently with the previously imposed sentence.

For reversal appellant alleges it was error for the trial-court to deny his motion to suppress.

Appellant first contends it was unnecessary for the search warrant issued here to permit execution at night. The search warrant was issued at 11:25 p.m. on October 19, 1976, and was executed at 11:50 p.m. that same night.

Our review of the record indicates appellant has waived his right to argue this point. At the hearing on the motion to suppress in Case No. CR 76-407 the following transpired between appellant’s counsel and the trial court:

The Court: Let the record show, now — you are not questioning the form of the affidavit or the form of the search warrant? This goes only to the reliability of the informant; is that right?
Mr. Murphy: And to the improper designation of the premises to be searched.
The Court: All right.
Mr. Murphy: Those two questions.
The Court: In other words, the warrant as issued, you are not questioning the authority of the Court to do it?
Mr. Murphy: No, no.
The Court: Those two (2) things?
Mr. Murphy: Two (2) things.
The Court: All right.

This testimony indicates that appellant’s counsel did not request a ruling on the propriety of the nighttime search; thus that issue has been waived and cannot be raised on appeal.

Appellant’s second allegation is that the search warrant contained insufficient descriptions of the premises to be searched and the property to be seized. The search warrant stated, inter alia:

* * * The Butch Gatlin residence and curtlege [curtilage] and appurtenances and a 1965 or 1966 Ford Fairlane 4 door hard-top automobile, Arkansas license § DTY-110 and 1975 Chevrolet Monza automobile, Arkansas license § ESA-625, located at the premises to be searched. The mobile home is described as a brown and white located just off Arkansas Highway 68B east, Springdale, Arkansas immediately behind a red brick home occupied by Mrs. Eugene Dryer, said brick home and mobile home being on the south side of said highway almost directly opposite the Becker Machine Shop Rd. in Springdale, County of Washington, ....

Appellant’s argument under this issue is largely confined to a discussion of the descriptive errors in the warrant, and it is not denied by appellee that there were several errors in it.

Rules of Crim. Proc., Rule 13.2 (b)(iii) (1976) require that a search warrant state or describe with particularity the identity of the person to be searched and the location and designation of the places to be searched.

In Easley v. State, 249 Ark. 405, 459 S.W. 2d 410 (1970), this Court upheld as sufficient a description in a search warrant designating premises as “. . . the house occupied by Bud Easley in or near Hiwasse in the County of Benton; .... ” In that case the following language from 56 C.J. 1233 and 1237 quoted in a Tennessee opinion was cited with approval:

Moreover, it is held that the word “particularly” in the constitution requiring such a description means that the description must be such that any person familiar with the locality can by inquiring identify the premises described.
* i» *
* * * Thus since houses in rural communities are commonly known by the name of the owner rather than by any technical legal description, a description of rural property as the premises occupied by a named person may be held sufficient, even though the property is incorrectly described as to section and range. Likewise the description may be sufficient if the farm is named and the particular district disregarded.

In Perez v. State, 249 Ark. 1111, 463 S.W. 2d 394 (1971), relied upon by appellant, we held invalid a search warrant which described a multi-unit apartment house but failed to identify the specific apartment to be searched other than by the incorrect name of the occupant. However, in Perez we stated the following which is pertinent to the case before us:

We do not mean to say that an officer unfamiliar with the premises or their location is strictly limited to information given on the face of the warrant to locate the place to be searched. If by reasonable effort or inquiry on the part of the searching officer the property described in the warrant can be located with certainty, the warrant meets constitutional requirements. (Citations omitted.) * * *

Despite descriptive errors the information in the warrant was sufficient to guide the officer executing the warrant to the correct premises. The description in the warrant began with the words “The Butch Gatlin residence,” and Sheriff Marshall testified he was specifically looking for that residence. Homes in rural areas are commonly known by the names of the owners rather than by more detailed descriptions. Appellant’s mobile home was located on rural property outside the city limits of Springdale, Arkánsas. Viewing these facts and circumstances in their totality we find no error on this point.

We do, however, agree with appellant’s third ground of error wherein he alleges that property not listed in the search warrant was illegally seized. The warrant listed three items of property, namely “marijuana, T.H.C., and amphetamines” as being possessed illegally and commanded a search to be conducted and such property, if found, seized. Pursuant to Rules of Crim. Proc., Rule 13.4(b)(1976) a return of the warrant was made after its execution.

In addition to the drugs which were seized the inventory of property taken during the search included a 19” color TV, a plastic bag containing $807, silver tableware in a red velvet lined walnut case, triple beam balance scales and Several firearms.

At appellant’s second trial on the charges of theft by receiving, appellant’s counsel stated that the objection to the search warrant for the controlled substances also covered the enumerated additional items. Appellant contends there was no justification for the seizure of property other than the illegal drugs since they were not listed in the search warrant.

Rules of Crim. Proc., Rule 13.2(b)(iv) (1976), reads as follows:

(b) The warrant shall state, or describe with particularity:
(iv) the persons or things constituting the object of the search and authorized to be seized; ....

The State contends that under Rules of Crim. Proc., Rule 14.4 (1976), it was legally permissible to seize these additional items since they were in plain view and the officers reasonably believed they were subject to seizure.

The “plain view doctrine” is discussed in Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971). It permits police officers to seize objects in plain view pursuant to a constitutional search, but there are certain limitations to the plain view rule.

In U.S. v. Johnson, 541 F. 2d 1311 (8th Cir. 1976), a drug related search was conducted pursuant to a warrant but while on the premises officers seized a shotgun which was not specified in the warrant. Citing Coolidge, supra, the court stated:

* * * The plain view rule applies if 1) the initial intrusion resulting in the “plain view” was lawful, 2) discovery of the object was inadvertent, and 3) the incriminating nature of the object was “immediately apparent.”

Although we have found the initial intrusion into appellant’s home was lawful, we must conclude that the other requirements enunciated in Coolidge, supra, and Johnson, supra, were not met. Sheriff Marshall testified that he had been told there could be stolen items at the Gatlin residence and that such information had been given him by another officer in the sheriff’s department.

However, it is undisputed that five of the articles seized were returned to appellant. No showing was made that the officers making the search had knowledge of any particular stolen items at appellant’s residence so the “incriminating nature” of the articles seized could not have been “immediately apparent.” Furthermore, there was no testimony that the discovery of stolen goods was inadvertent.

We find no merit in appellant’s last allegation of error that there was insufficient evidence of the informant’s reliability.

In Shackleford v. State, 261 Ark. 721, 551 S.W. 2d 205 (1977), we held that when an affiant relies on the observations of an informant the affidavit must indicate to the issuing officer:

* * * (1) the underlying circumstances from which the informant concluded that the object of the proposed search is where he said it was and (2) some of the circumstances from which the officer concludes that the informant is credible or his information reliable. * * *

The affidavit in this case stated that the informant had been in appellant’s residence within the past 96 hours and had observed a large quantity of marijuana and a small quantity of T.H.C. The informant was also able to describe exactly where the illegal substances were located in appellant’s mobile home. As to his credibility, the affidavit reveals that the informant stated he had twice purchased marijuana within two weeks prior to his statement, the most recent purchase totaling one-half (1/2) kilo of marijuana. This statement placed the informant in criminal jeopardy, and the record actually reflected that the informant was facing a similar charge of possession with intent to deliver.

In Maxwell v. State, 259 Ark. 86, 531 S.W. 2d 468 (1976), we held the informant’s self-incriminating statement was an adequate basis for according reliability to the informant’s statement.

Accordingly the judgment of the trial court is affirmed as to appellant’s conviction on the drug count but reversed on the two counts of theft by receiving stolen property.

Affirmed in part and reversed in part.

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

         Webb v. State, 173 Tenn. 518, 121 S.W. 2d 550 (1938).

       Tetrahydrocannabinol is a Schedule IV controlled substance. See Ark. Stat. Ann. § 82-2614.2 (Repl. 1976).

       There was no showing that this point was waived by appellant in the second trial.


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

text:
    Gordon SUTTON v. STATE of Arkansas
    CR 77-154
    559 S.W. 2d 16
    Opinion delivered November 28, 1977
    (In Banc)
    [Rehearing denied January 9, 1978.]

      Ray A. Goodwin, for appellant.

      Bill Clinton, Atty. Gen., by: Joseph H. Purvis, Asst. Atty. Gen., for appellee.
   Darrell Hickman, Justice.

Gordon Sutton was charged in Greene County, Arkansas, with burglary of and breaking and entering two car washes. He was convicted of charges involving one of the car washes and found not guilty of charges as to the other. On appeal he alleges two errors: he says the lower court erred when it allowed a police officer to testify, regarding an oral confession; and, he states that he was denied due process of law, and the right to effect counsel for about thirty days after his arrest.

We feel that Sutton should be granted a new trial.

Sutton is a 25 year old resident of St. Louis, Missouri, who has a ninth grade education and stated that he could not read or write very well. He had been a student in a special school. Undoubtedly he was an indigent. Sutton was arrested on September 18, 1976 in Paragould and placed in jail. He appeared at his request before the Paragould Municipal Court on the 20th of September. The only record we have of this appearance is minutes signed by the municipal judge which state:

The Defendant requested a preliminary hearing and the Court found enough evidence to bind over to the next term of Greene Court to answer the charge.

There is nothing in the record to indicate an inquiry was made of Sutton’s need or desire for legal counsel. He remained in jail without counsel until October the 12th when counsel was appointed for him. On the 7th of October before counsel was appointed a postal inspector came to the jail to talk to Sutton about his possible involvement in violation of the postal laws. A lieutenant with the Paragould Police Department accompanied the postal inspector. Sutton was informed of his rights by the postal inspector and signed a form waiving all his rights; the inspector used a standard form used by all United States postal inspectors. It is headed in bold letters:

UNITED STATES POSTAL INSPECTION SERVICE WARNING AND WAIVER OF RIGHTS

It is not disputed that when the postal inspector read to Sutton his rights regarding a lawyer the postal inspector told Sutton that he could not provide him a lawyer. As to whether anybody else, the police lieutenant or Sutton, said anything else the record is silent or inconclusive. According to Sutton, after he had talked to the postal inspector, he indicated to the police lieutenant that he could clear up some burglaries, including the burglaries with which he was charged. However, the police lieutenant, who was allowed to testify by the court, stated that actually Sutton confessed that he was guilty of the charges related to the car washes.

We feel the court should not have permitted the police lieutenant to testify. First of all, Sutton should have had an attorney appointed at his preliminary hearing, or the state should have shown that he specifically waived that right. Rule 8.2 of the Rules of Criminal Procedure provides:

(a) An accused’s desire for, and ability to retain, counsel should be determined by a judicial officer before the first appearance, whenever practicable.
(b) Whenever an indigent accused is charged with a criminal offense and, upon being brought before any court, does not knowingly and intelligently waive the appointment of counsel to represent him, the court shall appoint counsel to represent him unless he is charged with a misdemeanor and the court has determined thát under no circumstances will imprisonment be imposed as a part of the punishment if he is found guilty.

Rule 8.3 provides that upon the first appearance of the defendant before the judicial officer, and after the defendant has been advised of his rights:

No further steps in the proceedings other than pretrial release inquiry may be taken until the defendant and his counsel have had an adequate opportunity to confer, unless the defendant has intelligently waived his right to counsel or has refused the assistance of counsel.

The burden is clearly on the state to establish that Sutton waived his rights. All doubts must be resolved in favor of the individual rights and constitutional safeguards. Smith v. State, 240 Ark. 726, 410 S.W. 2d 749 (1966).

We cannot say in this case that the state met the burden of proving that it complied with the Rules of Criminal Procedure.

Second, apparently Sutton was improperly informed as to his rights. The warning he was given was for matters regarding the United States Postal Service. He was not warned of his rights about the burglaries. Furthermore, there was a disclaimer which would negate the warning that he had a right to a lawyer. He was specifically told one could not be provided for him by the postal inspector. The warning would not be in accordance with Miranda v. Arizona, 384 U.S. 436 (1966). In a similar case where there was a defective warning form we held that it did not comply with Miranda. Moore v. State, 251 Ark. 436, 472 S.W. 2d 940 (1971).

The question of voluntariness must be determined by looking to the whole situation and surroundings of the accused. Watson v. State, 255 Ark. 631, 501 S.W. 2d 609 (1973). Sutton had been charged and placed in jail. He had been taken before a judge but there is no evidence that he had been informed of his rights, including the right to have counsel appointed. He was a man with a limited education; he was questioned while in jail after receiving a defective warning. Considering these circumstances in total, we find that any statement Sutton may have made in the presence of the police officer could not be considered voluntary and it is, therefore, inadmissible.

Reversed and remanded.

Harris, C.J., George Rose Smith and Fogleman, JJ., dissent.

John A. Fogleman, Justice,

dissenting. I must disagree with the majority in this case. From reading the opinion, I am uncertain whether the failure to appoint counsel at appellant’s “first appearance” is an independent basis for reversal. If it is, I most assuredly disagree. In spite of the fact that the record indicates that there was a preliminary hearing, rather than a “probable cause” or pretrial release hearing, this case is different from Graves v. State, 256 Ark. 117, 505 S.W. 2d 748. In this case, it seems clear to me that appellant suffered no prejudice because of the holding of the preliminary hearing without appointing counsel. The appointment of counsel for a pretrial release hearing is not required. See Gerstein v. Pugh, 420 U.S. 103, 95 S. Ct. 854, 43 L. Ed. 2d 54 (1974). No evidence of any statement by appellant at the preliminary hearing was introduced in evidence. If appellant’s prejudice is related to the statement made to Officer Spurlock, then it is difficult to see how prejudice resulted, because appellant’s testimony at the trial is substantially the same as the statement about which the officer testified.

The question about failure to appoint counsel was raised only by a motion for a directed verdict. It is unclear to me how a directed verdict could possibly have been granted on that ground. I find no error on that point.

Perhaps the majority considers this failure to appoint counsel as one of the circumstances making up the totality to be considered by the trial court in determining the voluntariness of the incriminating statement made to Officer Spurlock. I do not see how the trial judge’s finding that the spontaneous desire of appellant to clear up the “car wash” matter can be held to be clearly against the preponderance of the evidence.

Spurlock did not conduct the investigations regarding the burglaries and thefts with which appellant was charged. He had talked with appellant prior to the October 7th occasion. He had “read his rights” to Sutton. He went to the jail with Postal Inspector Leachmen as an accommodation to that officer. Sutton was brought from the jail to the sheriff’s office. Leachman advised Sutton as to his rights, and read them to Sutton very slowly. Sutton indicated that he understood. Sutton was specifically told that he had the right to remain silent. He asked no questions and seemed to Spurlock to be communicating all right. He was told that what he said could be used in court against him. He was admonished that he had a right to talk to a lawyer for advice before answering any question and to have the lawyer with him during questioning. He was told that a lawyer would be appointed for him before any questions, if he could not afford one. Leachman told Sutton that he could not furnish Sutton a lawyer. Sutton was told that if he decided to answer questions without a lawyer, he would have the right to stop questioning at any time and to stop answering until he did talk to a lawyer. He signed a statement that he did understand what his rights were, in which he expressed his willingness to discuss the subjects presented, and stated “I do not want a lawyer at this time.” At the request of Leachman, Spurlock read this whole statement, including the statements of rights, to Sutton, very slowly. It had been explained to Sutton that the things Leachman wanted to talk to him about related to occurrences in St. Louis, Missouri. After Sutton signed this waiver, Leachman asked if he had any questions. He asked none. Sutton did not say at any time during this interview that he wanted a lawyer.

At the outset of the interrogation by Leachman about the matters alleged to have occurred in St. Louis, and without any mention by anyone of any crime in Greene County, Sutton told Spurlock that he could clear up the burglaries for Spurlock. Spurlock had not participated in any interrogation up to that point or mentioned the car wash burglaries. Leachman had related the information he had gathered about postal matters to Sutton, when Sutton said that he wanted to get the “whole thing” straight, including the burglaries. Spurlock testified that he may have asked some questions when Sutton made his statement about things that Sutton might have omitted or asked whether there was something else Sutton wanted to tell him about. Sutton did tell Spurlock of a third burglary.

Spurlock was then aware that Darrell Simpson, an alleged accomplice, had confessed and was aware of the content of that confession. Sutton never indicated to Spurlock at any time that he wanted to talk to a lawyer.

Sutton testified that he was going to give Leachman a voluntary statement on what happened in Missouri, so he went on and told Spurlock that he would like to make a “copout” to him, and Spurlock said that he would come back and talk to him later, but started asking him some questions about a stolen car and “some stuff” Sutton was supposed to be in. Sutton first said he told Spurlock that he knew about nothing except the burglaries in St. Louis. He then denied confessing his guilt to Spurlock, but said that he was thinking about pleading guilty. He admitted that he did not ask either Spurlock or Leachman any questions about a lawyer. On cross-examination, Sutton admitted that, after the postal inspector went over the matter with him, he turned to Spurlock and said, “I can straighten out the car wash burglaries,” but denied that he ever made any explanation of them to Spurlock. He also admitted that his rights had been explained to him “as described.” He stated that the officers told him that they could not furnish him a lawyer.

This is not the sort of police conduct which was intended to be inhibited by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1970), and its progeny. See Ouletta v. Sarver, 307 F. S. 1099 (E. D. Ark.) aff’d, 428 F. 2d 804 (8th Cir. 1970). Police officers are not required to gag an accused who wants to confess or make incriminating statements. Statements which do not result from in-custody interrogation are not barred. Johnson v. State, 252 Ark. 1113, 482 S.W. 2d 600. Spontaneous, voluntary and unsolicited statements made when accused, although in custody, is not being interrogated are clearly admissible. Steel v. State, 246 Ark. 75, 436 S.W. 2d 800; Crawford v. State, 254 Ark. 253, 492 S.W. 2d 900; Reynolds v. State, 254 Ark. 1007, 497 S.W. 2d 275; Upton v. State, 257 Ark. 424, 516 S.W. 2d 904; Sanders v. State, 259 Ark. 329, 532 S.W. 2d 752; Little v. State, 261 Ark. 859, 554 S.W. 2d 312.

The fact that Leachman told Sutton that he could not give him a lawyer is insignificant. In Steel v. State, supra, we sustained a finding that statements of the accused in custody were voluntary, when the waiver of rights contained this statement: “We have no way of giving you a lawyer, but one will be appointed for you, if and when you go to court.” This waiver was upheld because, as here, the accused were advised of their right to remain silent, that anything they said might be used against them in court, that they had the right to talk to a lawyer before being asked any questions and to have that lawyer with them during any questioning. We s^id: “They could not have been more clearly told that they had the right to refuse to make any statements whatsoever.” See also, Barton v. State, 256 Ark. 486, 508 S.W. 2d 554, distinguishing Moore v. State, 251 Ark. 436, 472 S.W. 2d 940, as it should be distinguished here. The fact that appellant signed the waiver, admittedly without any coercion, carries great weight. See Holmes v. State, 257 Ark. 871, 520 S.W. 2d 715. So do Sutton’s admissions about the explanation of his rights. See Charleston v. State, 257 Ark. 26, 514 S.W. 2d 209. The fact that warnings were given by an officer other than the one to whom the statement was made is not of any real significance. See Kennedy v. State, 255 Ark. 163, 499 S.W. 2d 842.

Surely the court does not intend to say that, because Sutton asked the jail cook about getting a lawyer, he could not thereafter waive his right to counsel or make a wholly voluntary or spontaneous confession. If so, I protest. There is no sound reason for so holding.

I simply am unable to see how the court can overturn the trial judge’s finding that Sutton’s statements were voluntary. I would affirm the judgment.

I am authorized to state that the Chief Justice and Mr. Justice George Rose Smith join in this opinion.