author: Steele Hays, Justice. John I. Purtle, Justice, P. A. Hollingsworth, Justice, Darrell Hickman, Justice,

text:
    Wayne BURROW v. STATE of Arkansas
    CR 83-162
    669 S.W.2d 441
    Supreme Court of Arkansas
    Opinion delivered May 21, 1984

      C. P. Christian, for appellant.

      John W. Whitehead; Ware, Parker, Johnson, Cook ir Dunlevie, by: Wendell R. Bird; and Richard W, Summers, for amicus curiae The Rutherford Institute, The Rutherford Institute of Georgia Legal Defense Foundation, and Christian Home Education Association.

      Steve Clark, Atty. Gen., by: Leslie M. Powell, Asst. Atty. Gen., for appellee.
   Steele Hays, Justice.

Appellant, Wayne Burrow, was charged with refusing to send a minor to school, in violation of Ark. Stat. Ann. § 80-1502 (Repl. 1980):

Every parent, guardian, or other person residing within the State of Arkansas and having in custody or charge any child or children between the ages of seven [7] and fifteen [15], (both inclusive) shall send such child or children to a public, private, or parochial school under such penalty for noncompliance with this section as hereinafter provided.

Appellant had notified authorities that he was educating his daughter at home using curriculum supplied by a correspondence school. Prior to being charged, he received notice of noncompliance and was given five days to comply. Appellant was found guilty in Pulaski Municipal Court and the case was then heard in Pulaski County Circuit Court where he was again convicted and fined $1,000. Appellant presents three points for reversal: 1) the statute is void for vagueness; 2) the statute violates the free exercise clause of the Constitution; 3) the trial court erred in finding that § 80-4302 gives the state the power to approve private schools.

Appellant urges us to find the statute unconstitutionally vague. He argues that our law requires attendance of children at a “public, private or parochial school” but fails to give any definition of what constitues school and, therefore, does not provide fair notice of the conduct that is prohibited. We recognize that compulsory school attendance laws similar to ours have been struck down on this ground in two recent cases: Roemhild v. State, 251 Ga. 569, 308 S.E.2d 154 (1983); State v. Popanz, 112 Wis.2d 166, 332 N.W.2d 750 (1983), however, we decline at this point to consider the question as we think the appellant lacks standing to raise that issue on the facts of this case.

It is an accepted principle that when challenging the constitutionality of a statute on the ground of vagueness, the individual challenging the statute must be one of the “entrapped innocent,” who has not received fair warning. If, by his action, that individual clearly falls within the conduct proscribed by the statute he cannot be heard to complain. See 16A Am. Jur. 2d, § 461; L. Tribe, American Constitutional Law § 12-28 (1978); and see Winters v. Beck, 281 F. Supp. 793 (E.D. Ark. 1968). We stated the traditional standard for determining vagueness in Jordan v. State, 274 Ark. 572, 626 S.W.2d 947 (1982): “Where a man of average intelligence would not have to speculate as to the meaning of the statute the constitutional requirement of specificity is met, since fair warning of the proscribed conduct is given.”

Our statute states that parents are to “send” their children to a “public, private or parochial school.” The common understanding of this phrase connotes an institution to which a child is sent and even the appellant’s expert witnesses testified that the common conception of these terms was consistent with schools in the institutional sense. We think someone of average intelligence would readily recognize that appellant’s educational methods do not constitute a school within the common understanding of the word. The program he devised consisted of a single student, his own child; instruction was held in his own home; there is no indication that appellant wanted to open a school, as that term is popularly understood, or that his purpose went beyond anything other than educating his own child at home. There were no certified teachers conducting classes, only appellant and his wife acting as instructors, neither of whom held a college degree; the instruction was done for the most part through a correspondence course, evidently unapproved by the State. Under these circumstances, the language of the statute was clear enough to appellant to put him on adequate notice that a course of home study would not constitute a school within the meaning of the statute.

Appellant’s second contention is also without merit. He submits the statute is in violation of his First Amendment right to the free exercise of his religion. He relies primarily on the balancing test laid out in Wisconsin v. Yoder, 406 U.S. 205 (1972). However, the circumstances of the case before us plainly lack the exceptional considerations that were present in Yoder. There, the defendants, who were Amish, demonstrated distinct religious beliefs and practices supported by three centuries of tradition as an identifiable religious sect with pronounced cultural overtones, and that compulsory attendance would have damaging consequences on those longstanding traditions. In balancing the interests, the court determined that the state objectives were not seriously impeded by the Amish educational system. In contrast, the appellant, while doubtless sincere, was able to make no showing of a religious or cultural tradition comparable to that in Yoder, nor that similarly serious harm would result to the practices of a distinct group. Of course, appellant is free to send his daughter to a parochial school for a religiously oriented education, as he had previously done.

Appellant’s third point was not raised in the trial court and will not be considered. Moss v. State, 280 Ark. 27, 655 S.W.2d 375 (1983).

Finding no error, we affirm the judgment.

Purtle and Hollingsworth, JJ., concur.

Adkisson, C.J., and Hickman, J., dissent.

John I. Purtle, Justice,

concurring. The appellant was found guilty of not sending his child to a “public, private, or parochial school.” The child was in fact being taught at home with materials from a correspondence school. The argument was that the appellant had the right to give his child a “religious education.” No member of this court is of the opinion that a parent does not have the right to give his child a religious education in the home. Nothing in the opinion even remotely suggests that parents are not free to educate their children in a religious manner. I think the opinion simply says that keeping a child out of any type of organized school is a violation of the statute requiring parents to send their children to a “public, private, or parochial school.”

P. A. Hollingsworth, Justice,

concurring. Appellant contends that he is exempt from the penalties of the state’s compulsory education laws because his child is instructed at home on the basis of sincerely held religious beliefs. The majority does not address this question precisely, but I think it should be addressed because this Court has not previously considered this issue.

The free exercise clause of the first amendment is an absolute prohibition against governmental regulation of religious beliefs and provides substantial protection for lawful conduct grounded in religious belief. Wisconsin v. Yoder, 406 U.S. 205 (1972); Sherbert v. Verner, 374 U.S. 398 (1963). “Not all burdens on religion are unconstitutional and there are instances where the state may justify a limitation on religious liberty by showing that it is essential to accomplish an overriding governmental interest. ” United States v. Lee, 455 U.S. 252, 257-258 (1982) (citation omitted). Enforcement of the statutes in this instance will prohibit the parents from educating their children only at home but will not prevent them from observing their religious tenets. They must send their children to school but can still teach them at home.

Darrell Hickman, Justice,

dissenting. The court has simply avoided the issues in this case by ignoring the guiding principles of law which we apply in criminal cases, passing over decisions in point from other states and, in my judgment, has put its power to ill use simply to punish noncomformity. If Burrow has no standing to raise the question of what a private school is in Arkansas, no one has. He has been convicted of a crime for not sending his child to a school — in this case a private school. He notified the department of education that he was going to educate his child at home and was given nothing but an opinion by the director that such a practice was not recognized as a private school. The reason for the opinion, of course, is there is no law, rule or regulation defining a private school in Arkansas. Private schools may operate without any regulation by the state whatsoever if they are not accredited, and there is no requirement that they be accredited. Burrow was asked at the trial if he had a license and he replied, no. There is no such license in Arkansas. There are statutes that any school must comply with, such as displaying the United States flag and teaching American history. Ark. Stat. Ann. §§ 80-1604, 80-1613 (Repl. 1980). The basic language of the school must be English; violation is a misdemeanor. Ark. Stat. Ann. § 80-1605 (Repl. 1980). None of these statutes are relevant because the only question is whether Burrow is guilty of a crime because he did not send his child to school in violation of Ark. Stat. Ann. § 80-1502 (Repl. 1980). Neither this statute, nor any other, defines private school. In Arkansas anyone can open or conduct a private school under, I suppose, any circumstances. There are dozens of such schools in Arkansas; perhaps the state should regulate this field, but it has not and that fact cannot be avoided.

In Wisconsin and Georgia, which have the same type of compulsory attendance statutes with equal voids in the definition of private schools, the highest courts have struck down the criminal statutes as void for vagueness. Roemhild v. State, 251 Ga. 569, 308 S.W.2d 154 (1983); State v. Popanz, 332 N.W.2d 750 (Wis. 1983). As in Popanz, the Arkansas statute is “singularly silent on the question of what constitutes a private school.” Just as those courts in Roemhild and Popanz asked, I ask how the Arkansas statute can be said to give sufficient notice to Burrow of what he needed to do to obey the law in sending his child to a “private school.” Neither do I agree with the majority that someone of average intelligence would recognize that the Burrows’ efforts do not constitute a “school” within the meaning of the statute. The court in Roemhild v. State, supra, answered this very question:

[T]he state argues that the phrase “private school” is one a person of ordinary intelligence would understand to mean an institution for the education of children which receives its funds from private sources. We, along with the Supreme Court of Wisconsin, are not convinced that this is the only definition which a person of ordinary intelligence could deduce. State v. Popanz, 332 N.W.2d at 755.
Although we agree that the word “school” clearly puts one on notice that an organized education must be provided to the child, there are many questions concerning the scope, nature, and place of the education which are left unanswered by the statute or applicable authorities. A sampling of these questions follows: Must the place of education be an ‘institution’ which many children attend and which has an influx of new students and outflux of graduating students every year, or may parents teach or have their children taught at home? Must the “school” provide for the yearly sequential advancement of students or may students proceed at their own pace? What facilities, such as libraries, classrooms, or playing fields must the “school” provide? What must be the educational background of the teachers — must they be state certified or may ‘qualified’ persons teach? What kind of curriculum and educational materials must be provided — must they rigidly compare to public schools or can a ‘private school’ vary their nature? And, finally, must the time schedule of a ‘private school’ be consistent with that of a public school?

In Popanz the Court was confronted with exactly the question before us:

The defendant argues that sec. 118-15(l)(a) is defective because neither the statute itself nor other statutes nor administrative regulations or rules define the phrase ‘private school.’ He asserts that anyone consulting the statute book, the regulations, rules, or other official writing of the Department of Public Instruction or the local school district to determine what constitutes a private school would be confounded.
* # # #
Like this defendant, we have searched the statutes, administrative rules and regulations and official Department of Public Instruction writings for a definition of ‘private school’ or criteria which an entity must meet to be classified as a ‘private school’ for purposes of sec. 118-15( 1 )(a). We have found neither a definition nor prescribed criteria. Nor does the phrase ‘private school’ have a well-settled meaning in common parlance or in decisions of this court which could be used for purposes of applying sec. 118.15(l)(a). We therefore decline to adopt the definition of ‘private school’ proposed by the court of appeals or by the State Superintendent of Public Instruction in a amicus brief.
# # # #
. . . In any event the legislature or its delegated agent should define the phrase ‘private school’; citizens or the courts should not have to guess at its meaning. Since there is no definition of ‘private school,’ as that term is used in sec. 118.15(l)(a), the determination of what constitutes a ‘private school’ apparently rests solely in the discretion of the school attendance officer of the district.
# * * *
The lack of definition of ‘private school’ delegates the basic policy matter, the determination of whether or not children are attending a private school, to local school officials whose decisions may rest on ad hoc and subjective standards. Sec. 118.15( 1 )(a) thus poses the danger of arbitrary and discriminatory enforcement, contrary to the basic values underlying the principles of due process. See Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 2298-99,33 L.Ed.2d 222 (1972).
The persons who must obey the law should not have to guess at what the phrase ‘private school’ means. They should have some objective standards to guide them in their attempts to ‘steer between lawful and unlawful conduct.’ Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 2298, 33 L.Ed.2d 222 (1972). Furthermore, standards cannot lie only in the minds of persons whose duty it is to enforce the laws. We must conclude that the statute fails to provide fair notice to those who would seek to obey it and also lacks sufficient standards for proper enforcement. (Italics supplied.)

The majority emphasizes that the statute says “send,” meaning, I presume, next door or across the street — not down the hall or out back. Why such a presumption? The majority also opines the statute means a school is an “institution.” What is an institution — one person or a dozen persons? Why don’t we require the legislature to define private school before we convict people of violating an undefined non-existent crime?

The United States constitution does not mention education. Arkansas’ constitution only mentions a free public education, which is a desirable endeavor of any society. But for years, all education was private. That was the rule not the exception. Unless the state can define and justify regulations for private schools by law, it should not convict its citizens of a crime for trying to provide the kind of education they deem fit and necessary for their child.

In State v. Bryant, 219 Ark. 313, 241 S.W.2d 473 (1951), we quoted with approval:

We cannot conceive how a crime can, on any sound principle, be defined in so vague a fashion. Criminality depends under it, upon the moral idiosyncrasies of the individuals who compose the court and jury. The standard of crime would be ever varying, and the courts would constantly be appealed to as the instruments of moral reform, changing with all fluctuations of moral sentiment. The law is simply null. The constitution, which forbids ex post facto laws, could not tolerate a law which would make an act a crime, or not, according to the moral sentiment which might happen to prevail with the judge and jury after the act had been committed.

In my j udgment Burrow loses because he refuses to conform, thereby threatening the power of the political establishment, and not because he committed a crime. The state has the power to punish this man, but it doesn’t have the right.


source: Caselaw Access Project

author: P. A. Hollingsworth, Justice.

license: Public Domain

text:
    Edward E. HUGHES v. Gary R. GIBBS et al
    84-47
    669 S.W.2d 451
    Supreme Court of Arkansas
    Opinion delivered May 21, 1984

      R. J. Brown, P.A., for appellant.

      Wright, Lindsey ér Jennings, for appellee Gary R. Gibbs.

      Callahan, Wright, Crow, Bachelor & Lax, by: Gary M. Lax, for appellee R. J. Horner.
   P. A. Hollingsworth, Justice.

Edward E. Hughes, appellant, was the owner and operator of the Lighthouse and the Fiesta Club, two nightclubs in Hot Springs. In May 1977, Hughes was having severe cash flow problems with the two operations and approached Gary R. Gibbs, an attorney and the appellee, about a $5,000 loan. Hughes and Gibbs had been friends for a number of years, and Gibbs had represented Hughes on legal matters. Gibbs refused to consider a loan and referred Hughes to a bank which also was not interested in making a loan.

Hughes returned to Gibbs and the decision was then made to form H 8c L Entertainment, Inc. to attract investors to contribute capital for a share of the ownership of the clubs. Gibbs was retained as the lawyer for the corporation. Richard Lewis and R. J. Horner were interested in investing in the business with Hughes owning 300 shares of voting stock and 400 shares of nonvoting stock and Lewis owning 300 shares of voting stock. Lewis agreed to contribute $20,000 and Hughes agreed to convey the assets he owned in the club to the corporation. Lewis paid $6,000 in cash for his stock and borrowed $7,000 each from Gibbs and Horner for the balance of his contribution. All of the parties wanted to sell the clubs at an opportune time which was projected to be at the beginning of the racing season in February 1978. On July 27, 1977, Lewis sold his shares of stock to Gibbs and Horner and withdrew from participation in the corporation. Billy Melton bought the fixtures of the Fiesta and operated the club until December 1977 when the corporation repossessed the property. The Lighthouse was closed and the fixtures sold to reduce the debt. Hughes attempted to run a portion of the business with very limited success.

Hughes disclosed to Gibbs and Horner that he had located a prospective buyer but more capital was needed to prevent foreclosure until the sale could be concluded. Hughes sold his 300 shares of voting stock and 100 shares of nonvoting stock to Gibbs for $15,000. A small percentage of this money went to Hughes and the balance went to satisfy delinquent corporate debts. Upon transfer of the stock, Gibbs became chairman of the board of directors on December 29, 1977.

In January 1978, Hughes sold his remaining 300 shares (30% nonvoting interest) to Tim O’Brien in exchange for a promissory note in the amount of $30,000. Gibbs drafted the papers for this transaction. Hughes was no longer a participant in the affairs of the business. O’Brien leased the Fiesta and borrowed $10,000 from the corporation which in turn had borrowed the money from Gibbs. O’Brien pledged his 300 shares of stock to the corporation as collateral for the loan and to secure the note to Hughes. The corporation had a prior right over Hughes to foreclose on the stock in the event O’Brien defaulted.

By March 13, 1978, O’Brien was delinquent and the corporation gave notice and foreclosed his stock and repossessed the fixtures and premises.

On June 15, 1978, the property was sold for $142,500 of which $15,000 was paid in cash and the balance by note in favor of the corporation. Subsequently, the corporation was dissolved and the note was assigned to Gibbs and Horner as the remaining stockholders.

Hughes filed suit against Gibbs and Horner for an accounting and additionally against Gibbs for damages for breach of duties as a fiduciary and attorney. The trial court ruled in favor of Gibbs and Horner, from which judgment comes this appeal. The appeal is before us pursuant to Rule 29 (1 )(c) involving the interpretation or construction of rules of the Supreme Court.

We affirm.

The trial court ruled that Gibbs was not acting as an attorney at any relevant time for Hughes and therefore was not guilty of legal malpractice. There is ample evidence in the record to support this conclusion. Hughes’ testimony was in fact supportive of this position:

Q.: Mr. Gibbs was not acting as your attorney when you first went to him in May of 1977 to borrow money, was he?
A.: I don’t think so, no.
Q.: He wasn’t representing you on any active legal matter, was he?
A.: At that time, no.
Q.: And you didn’t go to him to hire him as a lawyer, did you?
A.: No.
Q.: You went to him to borrow some money from him, did you not?
A.: Yes.

The record further reflects that Gibbs was acting only as attorney for the corporation and could not represent any of the individuals due to the potential conflict of interest.

At first blush it would appear that Gibbs was representing some party in the transfer of stock to Tim O’Brien. However, a review of the record reveals that the details of the sale were negotiated entirely by Hughes, and Gibbs did no more than reduce the agreement to writing at Hughes’ direction. Hughes offered no evidence as to the manner in which Gibbs breached any obligation to him other than asserting that the agreement prepared by Gibbs did not afford adequate security to Hughes.

The record further reveals that Hughes stated in testimony that he fully understood at the time he executed the agreement that O’Brien had already pledged the stock to the corporation as security. We have said previously that an attorney does not, as a matter of law, represent conflicting interests in this particular situation. Sikes v. Segers, 266 Ark. 654, 587 S.W.2d 554 (1979) citing American-Canadian Oil & Drilling Corp. v. Aldridge & Stroud, 237 Ark. 407, 373 S.W.2d 148 (1963) on this point.

The only way Hughes could have substantiated his claim was to have offered proof Gibbs contemporaneously performed services for him personally, which he failed to do. Thus no evidence of an attorney-client relationship existed. The relations which had previously existed were terminated prior to the time period in question. The chancellor’s findings will not be reversed unless they are clearly erroneous. Madison Bank & Trust v. First National Bank of Huntsville, 276 Ark. 405, 635 S.W.2d 268 (1982).

A review of the record reveals that Horner acted in good faith and performed no act in breach of his fiduciary duty as a director.

The judgment is affirmed.


text:
    Anthony REED v. STATE of Arkansas
    CR 84-2
    669 S.W.2d 192
    Supreme Court of Arkansas
    Opinion delivered May 21, 1984

      William R. Simpson, Jr., Public Defender, and Arthur L. Allen, Deputy Public Defender, by: Deborah R. Sailings, Deputy Public Defender, for appellant.

      Steve Clark, Atty. Gen., by: Patricia G. Cherry, Asst. Atty. Gen., for appellee.
   P. A. Hollingsworth, Justice.

Appellant’s sole contention on appeal is that the trial court erred during the penalty phase of the trial in permitting the State to introduce evidence of three previous felony convictions. We affirm.

The appellant, Anthony Reed, was charged by amended information with burglary, aggravated robbery, and attempted rape. In addition, the information alleged that the appellant had previously been convicted of more than two felonies, for which his sentence should be enhanced according to Ark. Stat. Ann. § 41-1001 (Supp. 1981). A jury found the appellant guilty of burglary and aggravated robbery and, having found him to be an habitual offender, assessed sentences for the crimes of thirty years and of life imprisonment, respectively. The jury also found the appellant guilty of the lesser offense of criminal attempt to commit sexual abuse in the first degree and sentenced him to one year in the county jail. The court ordered that the thirty years and the life sentence run consecutively to each other and to any other terms being served by the appellant. The misdemeanor conviction was merged into the felonies. This appeal is before us under Sup. Ct. Rule 29(1 )(b).

The appellant argues that because the amended information alleged that he had “more than two” prior convictions, the State should have been limited to proving only two convictions, instead of the seven prior felony convictions that were offered into evidence. As authority for this proposition, the appellant cites our holding in Clink-scale v. State, 269 Ark. 324, 602 S.W.2d 618 (1980) where we limited the State to the use of two prior felonies when the information alleged that the defendant was guilty of “two or more” prior felonies. In Clinkscale we said:

There is nothing at all to the State’s argument that because an information alleges two or more convictions, more than two can be admitted against a criminal defendant. Allegations of prior convictions are just like essential elements of a crime, only those that are alleged can be used.

The phrase “two or more” clearly implies that the State intends to introduce a minimum number of two convictions. The phrase “more than two” on the other hand clearly mandates that the State offer at least three convictions. The phrases, therefore, are not identical and the rationale of Clinkscale does not apply. The trial court acknowleged the meaning of the phrase “more than two” when it instructed the jury that “a person is an habitual offender if he has been previously convicted of at least three other felonies.” Furthermore, at the time the information was filed, Ark. Stat. Ann. § 41-1001 (Supp. 1981), the enhancement statute, provided that “[A] defendant who is convicted of a felony and who has previously been convicted of more than two (2) felonies . . . may be sentenced to an extended term of imprisonment.” (emphasis added) The amended information therefore merely tracked the language of the statute. Although that language was subsequently changed by the 1983 amendment, the substantive law in effect on the date of the offense governed. Gilbert v. State, 277 Ark. 61, 639 S.W.2d 346 (1982). Therefore, we hold that the language “more than two” previous convictions does not limit the State to proving only two prior felonies.

The appellant also argues that the rationale of Clink-scale is applicable even under the 1981 habitual criminal statute because Clinkscale clearly holds that the number of prior convictions is an essential element which must be pleaded and proved with specificity. The appellant maintains that an allegation of “more than two” prior convictions is too vague to inform a defendant adequately of the charge against him. In addition, the appellant argues that there was no indication which of the felonies were the object of the burglary or breaking and entering charge they accompanied. As to the latter argument, Ark. Stat. Ann. § 41-1001(2) (Supp. 1981) provides:

(2) For the purpose of determining whether a defendant has previously been convicted or found guilty of two (2) or more felonies, a conviction or finding of guilt of burglary and of the felony that was the object of the burglary shall be considered a single felony conviction or finding of guilt.

The State introduced evidence in the penalty phase of the trial that the appellant had been convicted of robbery and burglary (82-1552); breaking and entering and aggravated robbery (82-1544); and burglary, aggravated robbery and rape (82-1549). In Ellis v. State, 270 Ark. 243, 603 S.W.2d 891 (1980) we held that the court erred in allowing the introduction of the defendant’s previous conviction of burglary and theft of property as evidence of two separate prior felonies. In that case we found that the burden is on the prosecution to offer proof that the attending felony is not the object of the burglary. In Ellis, if that defendant’s prior convictions were counted as one offense, he no longer fell within the ambit of the habitual offender’s act. That is not the case here. Looking at the situation in the light most favorable to the appellant, if each of the cases against him had constituted only one charge instead of seven, there was still evidence of three prior convictions which is all the State needed to prove based on an indictment alleging “more than two.”

The appellant’s allegation of vagueness is also without merit. Although the State must give a defendant notice that it intends to charge him as an habitual criminal and must then prove those charges, we have held that the habitual criminal act “simply authorizes a more severe punishment. It does not create a distinct additional offense or independent crime but simply affords evidence to increase the punishment and to furnish a guide for the court or jury in fixing the final punishment in event of conviction of the offense charged.” Finch v. State, 262 Ark. 313, 556 S.W.2d 434 (1977).

The purpose of the requirement that the State allege the previous offenses in the indictment is to afford the defendant notice and give him an opportunity to refute the charges. Here, the appellant was placed on notice by the amended information that he was being charged as an habitual offender with a minimum of three convictions. Furthermore, the appellant’s attorney represented him in the three previous trials, so there can be no showing of inadequate notice. In Jones v. State, 270 Ark. 328, 605 S.W.2d 7 (1980) we held:

The defense attorney in the trial of the present case was the attorney on all three of the prior convictions. He had knowledge of the three alleged felonies that the state intended to prove from the date of the amended information. He made no objection to their introduction, and he did not take advantage of the opportunity to challenge or rebut the state’s contention that all three were felony convictions. It is too late to raise the question on appeal, (cite omitted) Regardless, he was only found to have been convicted of two or more prior felonies; thus, no prej udice resul ted to appellant even if the disputed judgment had been a misdemeanor.

The same is true here. Although the appellant’s attorney did object to the introduction of the prior convictions, he objected to the introduction of any more than two; he did not object to the evidence of each conviction or to the State’s failure to prove that the attending felony was not the object of the burglary. We have held that an appellant may not change his grounds for an objection on appeal. Ulmer v. State, 253 Ark. 106, 484 S.W.2d 691 (1972). Because of the foregoing and because of the lack of prejudice to the appellant, we affirm the trial court. We have reviewed the entire record for prejudicial error as required by Sup. Ct. Rule 11(f) and Ark. Stat. Ann. § 43-2725 (Supp. 1973) and have found none. This Court has already affirmed some of the issues in this case in Reed v. State, 280 Ark. 316, 657 S.W.2d 557 (1983) and Reed v. State, 281 Ark. 201, 662 S.W.2d 821 (1984).

Affirmed.


author: Marvin D. Thaxton, Special Justice.

text:
    MERCHANTS NATIONAL BANK OF FORT SMITH v. Gus BLASS, III
    83-298
    669 S.W.2d 195
    Supreme Court of Arkansas
    Opinion delivered May 21, 1984

      Boswell if Smith, by: David E. Smith, for appellant.

      Friday, Eldredge if Clark, by: George Pike, Jr., for appellee.
   Marvin D. Thaxton, Special Justice.

This case involves a note which was executed by Kaleo, Inc., a corporation, to Appellant, Merchants National Bank of Fort Smith. Appellee Blass, a director, stockholder and President of Kaleo, Inc., signed the note for the corporation in 1978 on its face and also personally signed the note on the reverse side. The note was for $102,000.00, dated October 16, 1978, and payable in one year with interest at 10% per annum. This note contained a provision that the endorsers, sureties and guarantors consented that the time of payment could be extended or the note renewed from time to time without notice to them and without affecting their liability thereon. The reverse side of the note contained the express consent of Blass to such stipulations. The payments required by the Bank were not sufficient to pay the note by its due date.

On March 17, 1980, Blass executed a new note as President of Kaleo, Inc. to the Bank for the unpaid balance of $83,093.60 and again signed the note on the reverse side. The new note was due on March 7, 1981, with interest at 18% per annum. The new note was materially different in form from the 1978 note and did not contain the provisions of the earlier note regarding a waiver of the rights of guarantors or endorsers and only provided on the face and the reverse that endorsers waived demand, notice and protest. Shortly thereafter, Blass resigned as an officer and stockholder of Kaleo. The new President, McNulty, later executed a personal indemnity to Blass on the note. When the note came due, McNulty, as the new President, negotiated extensions of the note and executed extension agreements increasing the interest rate to 22% and extending the time for payment to September 7, 1981. Various alterations were made on the face of the note by the Bank. Thereafter, Kaleo disposed of its tangible assets and Kaleo and McNulty filed bankruptcy petitions. Blass did not receive any notice of the extension of the time of payment of the March 17,1980, note or otherwise. The Bank later demanded payment in December, 1981, from Blass of the past due note. Blass denied liability and the Bank filed this action.

The Circuit Court tried the case without a jury and entered judgment dismissing the Bank’s complaint, from which it takes this appeal.

For reversal, Appellant’s main arguments are that appellee was not an accommodation party, surety or guarantor of Kaleo, but was a co-maker and that the alterations on the face of the note were not fraudulent and Appellee was, therefore, not discharged.

We agree with the Appellant that the alterations on the face of the note in question, when taken alone, did not discharge Appellee from liability. Ark. Stat. Ann. § 85-3-407 (2)(a) (Add. 1961), expressly provides that to discharge a party to the contract an alteration must be both fraudulent and material. Here, there is no evidence of fraud. However, the Appellant’s position that the waiver of notice and agreement to extension and renewal provisions of the 1978 note carry forward into the renewal note executed by Kaleo and endorsed by Blass, and the extensions thereof, is without merit because the execution of the renewal note discharged Blass from all obligations under the terms of the earlier note as the new note was a novation made at a higher interest rate, due at a different time and the old note was returned to Blass. Brandon v. Worthen Bank & Trust Company, N.A., 6 Ark. App. 111, 639 S.W.2d 66 (1982).

We further disagree with the Appellant on the question of the status of Blass as a result of his personal signature on the reverse side of the 1980 note and would affirm the decision of the trial court.

Any liability Blass had must be founded in the March 17,1980, note to the Bank. Blass was an endorser of the note, not a co-malcer, as there was no clear indication that the note was signed in some other capacity as required by Ark. Stat. Ann. § 85-3-402 (Add. 1961). The proof is undisputed that no notice was given to Blass that the note he endorsed was not paid when due, nor was any notice given to him of any extension of the note or of any reservation of rights against him by the Bank. It further appears that after the 1980 note was due, the tangible assets of Kaleo were substantially reduced by sale and the financial condition of both Kaleo and McNulty became such that each filed a petition in bankruptcy.

The Appellant argues that even if Blass was a guarantor, and not a co-maker, he should still be held liable. For support, Appellant relies on Gentry v. First American National Bank, 264 Ark. 796, 575 S.W.2d 152 (1979). This case is distinguished from the case now before the Court, because in Gentry the separate guaranty agreement provided that the guarantor’s liability would not be affected by renewals or extensions. That is not the case here. Arkansas has adopted the well settled principle of law “that a material alteration in the obligation assumed, made without the assent of the guarantor, discharges him.” Moore v. First National Bank of Hot Springs, 3 Ark. App. 146, 150, 623 S.W.2d 530 (1982); Ark. Stat. Ann. § 85-3-606(1 )(a) (Add. 1961). Here there was such a material alteration and Blass was discharged from liability upon the March 17,1980, note by the Bank’s actions set out above.

The decision of the trial court is affirmed.

Dudley and Hays, JJ., not participating.

Special Justice Ralph E. Wilson joins in the opinion.


author: Per Curiam.

text:
    Connie LASCANO v. STATE of Arkansas
    CR 81-112
    669 S.W.2d 453
    Supreme Court of Arkansas
    Opinion delivered May 21, 1984

      Nilsson, Robbins, Dalgarn, Berliner, Carson ir Wurst, by: Harold E. Wurst; and Lessenberry & Carpenter, by: Jack Lessenberry, for petitioner.

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

Petitioner Connie Lascano was found guilty of first degree murder in the death of Jeanie Hunt, wife of Ben Hunt with whom petitioner was having an affair. A sentence of 35 years was imposed. We affirmed. Lascano v. State, 275 Ark. 346, 631 S.W.2d 258 (1982).

Petitioner did not testify at her trial. She now alleges that she would have done so except for threats made by two unnamed men who were friends of Ben Hunt to beat and rape her daughter if she testified as to the identity of Mrs. Hunt’s murderer. She also states that she was beaten by the men in an attempt to frighten her into remaining silent, but that the beatings without the treats to her daughter would not have kept her from taking the stand. Petitioner alleges that counsel’s assistance was ineffective in that he knew of the threats and beatings and did not inform the trial court of them. Petitioner’s trial counsel in an affidavit attached to the petition states that he advised petitioner to testify but she refused to do so. He avers that he was aware of petitioner’s claims of having been beaten and threatened and that he believed at trial that the threats against her daughter kept her from testifying. He attempted to withdraw from the case, stating to the Court that he did not want to be a part of petitioner’s “fraud” on the court. He explained the fraud as her being willing to go to prison for a homicide she did not commit. He did not mention petitioner’s allegations of threats and beatings, although he now says that her refusal to testify was the reason he sought to withdraw.

Before trial petitioner confessed that she shot Mrs. Hunt four times after an argument over her love affair with Ben Hunt. On appeal, the admissibility of that confession was upheld. She alleges in this petition that the confession was false and that she would have told the truth if she had not been too frightened to testify. She has affixed to this petition a lengthy statement in which she states that when she went to Mrs. Hunt’s home she found her already dead; and, assuming that Ben Hunt killed her, she tried to cover up his involvement in the crime.

It appears from counsel’s affidavit that he believed it was in petitioner’s best interest to testify. The fact that she chose not to do so is not in itself proof of ineffective assistance of counsel since an accused, not her attorney, must decide whether to take the stand. Watson v. State, 282 Ark. 246, 667 S.W.2d 953 (1984). Counsel concedes, however, that he believed petitioner’s refusal to testify was based directly on fear of harm to her child. He states that his attempt to withdraw as counsel was caused by her refusal to testify. He had observed bruises on her face and arm which he concluded came from a beating. A psychologist by affidavit avers that she also saw bruises on petitioner’s face. Petitioner told the psychologist that she was afraid to tell the court about the beatings and threats but agreed that the psychologist could tell her attorney which the psychologist did.

To prevail on an allegation of ineffective assistance of counsel a petitioner must “show there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’’ Strickland v. Washington, _U.S. _, 104 S.Ct. 2052 (1984). While we cannot say that the jury would have believed petitioner’s testimony in light of the evidence against her, it is clear that she had the right to testify if she so chose. As she has alleged that she was denied that basic right because of outside coercion, we grant permission for an evidentiary hearing in the trial court with respect to: (1) whether counsel was aware of the coercion; (2) whether counsel was under a duty to inform the court of more than simply his desire to withdraw; and (3) whether under the totality of the circumstances as developed at the hearing petitioner was adequately represented by counsel.

Petitioner has raised other grounds for relief but none has merit. Accordingly, in all other respects the petition is denied.

Granted in part and denied in part.


text:
    Timothy GILBERT v. STATE of Arkansas
    CR 82-66
    669 S.W.2d 454
    Supreme Court of Arkansas
    Opinion delivered May 21, 1984
    Petitioner, Pro Se.

      Steve Clark, Atty. Gen., by: Alice Ann Burns, Dep. Atty. Gen., for appellee. ,
   Per Curiam.

Petitioner Timothy Gilbert was found guilty by a jury of aggravated robbery and theft of property. He was sen tenced as an habi tual offender to terms of life and 20 years respectively. We affirmed. Gilbert v. State, 277 Ark. 61, 639 S.W.2d 346 (1982). Petitioner seeks permission to proceed in circuit court for post-conviction relief pursuant to A.R.Cr.P. Rule 37.

Petitioner alleges initially that the deputy public defender who represented him at trial gave him ineffective assistance. The public defender was appointed to represent petitioner in July, 1981, which was six months before the trial. When the deputy public defender requested a continuance on the day set for trial, the request was denied. The court did, however, allow counsel time to contact an alibi witness whom petitioner had told him about that morning. The witness appeared and testified in petitioner’s behalf. Petitioner now contends that counsel was unprepared for trial because there was not enough time for him and counsel to discuss the case. He also alleges that he did not intend to testify but did so “being compelled to be counsel for himself.’ ’ This is an apparent reference to his request which was granted to proceed pro se with counsel acting as an advisor.

Petitioner provides no factual support for the allegations. He does not say what evidence could have been developed if he and counsel had had more time to consult. He also fails to explain why he felt compelled to testify. Allegations without substantiation do not justify a hearing. Bosnick v. State, 275 Ark. 52, 627 S.W.2d 23 (1982).

Next, petitioner alleges that while he was waiting in the “lock-up” he saw the trial judge enter the jury room while the jury was deliberating. He gives the name of two other men, James Williams and Steve Brown, who were also in the lock-up and saw the judge. Petitioner states that he did not bring up the matter at trial himself or inform standby counsel because (1) he was acting pro se; (2) he did not think it would do any good to challenge the judge in his own court; and (3) he was not sure whether it was improper for a judge to enter the jury room.

An accused is entitled to conduct his own defense provided that he knowingly and intelligently foregoes his right to counsel and is able and willing to abide by rules of procedure and courtroom protocol. Faretta v. California, 422 U.S. 806 (1975). Allowing standby counsel to assist him does not violate the right to proceed pro se so long as the defendant’s right to present his own case is not interfered with. McKaskle v. Wiggins, _U.S. -, 104 S.Ct. 944 (1984). Petitioner here does not contend that he did not have the opportunity to present his own case or that standby counsel was not available to assist him. He argues instead that he had no choice but to rely on himself and he did not know enough to enter a timely objection to the judge’s conduct. The right of self-representation, however, carries the responsibility for one’s own mistakes. A defendant who elects to represent himself cannot thereafter complain that the quality of his own defense amounted to a denial of effective assistance of counsel. McKaskle v. Wiggins; Faretta v. California. As petitioner elected to represent himself, and could have informed standby counsel who was present of what he professed to have seen from the lockup, he has waived the right to raise the question now since it could have been raised at trial and on appeal. Even questions of constitutional dimension may be waived if not raised in accordance with the controlling rules of procedure. Hill v. State, 278 Ark. 194, 644 S.W.2d 282 (1983).

Petition denied.

Hollingsworth, J., dissents.


text:
    Lloyd A. JONES v. STATE of Arkansas
    CR 84-62
    669 S.W.2d 456
    Supreme Court of Arkansas
    Opinion delivered May 21, 1984

      Kincaid, Horne <lr Trumbo, by: Bass Trumbo, for appellant.

      Steve Clark, Atty. Gen., by: MarciL. Talbot, Asst. Atty. Gen., for appellee.
   Per Curiam.

From a first-degree murder conviction Jones appealed to the Court of Appeals. After oral argument before a three-judge division the case was transferred to the court en bnac. The trial court’s decision was affirmed on April 20, 1984, with a dissent by two of the judges who had heard the oral argument. On the merits of the case the petition for review must be denied, because under Rule 29 (6) there was no reason for the case to be transferred to this court.

In the petition for review, however, the petitioner makes the following assertions: (1) An affirmance of a first-degree murder conviction by a 4-2 vote en banc, after two members of a division had apparently voted to reduce the conviction to second-degree murder, had the effect of placing the appellant in double jeopardy. (2) A statute that calls for an en-banc decision when the vote of a division is not unanimous is arbitrary and denies equal protection of the law. (3) A decision by an en-banc majority, three of whom did not hear the oral argument, denies due process and equal protection. (The arguments are in fact taped and available to all the judges of both appellate courts.)

All these assertions are contrary to the routine procedure followed by both federal and state courts sitting in divisions throughout the nation. We need not consider such assertions, which are made without convincing argument or authority, for it is apparent without research that they are not well taken. Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977).

Petition denied.


author: George Rose Smith, Justice. John I. Purtle, Justice,

text:
    LOWE’S OF ARKANSAS, INC., d/b/a LOWE’S OF JONESBORO v. Robert BUSH, Trustee for FIRST NATIONAL BANK OF LAWRENCE COUNTY
    84-69
    669 S.W.2d 198
    Supreme Court of Arkansas
    Opinion delivered May 29, 1984

      Jim Lyons, for appellant.

      Ponder if Jarboe, by: Dick Jarboe, for appellee.
   George Rose Smith, Justice.

In September, 1982, the real appellee, First National Bank of Lawrence County, brought this suit in the name of its trustee to foreclose the lien of a deed of trust executed on June 5, 1980, by which Johnny Ridenhower and his wife conveyed two lots to secure a loan from the bank. The appellant, Lowe’s of Arkansas, was joined as a defendant because it was asserting a materialman’s lien on the same property. The chancellor decided the vital issue — priority of lien — in favor of the bank. The appeal was transferred to us as presenting an issue of statutory construction. Rule 29 (1) (c).

The case is so strikingly similar to Wiggins v. Searcy Fed. S. & L. Assn., 253 Ark. 407, 486 S.W.2d 900 (1972), upon which the chancellor relied that we need not state the facts in great detail. The bank’s borrower, Ridenhower, was a contractor who built three or four houses a year. In May, 1980, Ridenhower was building a house on the land in question, which he owned. From May 9 to June 14 Ridenhower bought materials for the house from Lowe’s, the appellant, on credit. On June 5 the bank made its loan to Ridenhower with knowledge that Ridenhower was building a house on the property securing the loan.

Ridenhower did not pay Lowe’s for the materials. Lowe’s failed to perfect its materialman’s lien by first giving ten days’ notice to Ridenhower pursuant to Ark. Stat. Ann. § 51-608 (Repl. 1971) and then filing the account in the circuit clerk’s office within 120 days after the last material was furnished. § 51-613. Instead, Lowe’s followed the alternative procedure of filing suit against Ridenhower and his wife on October 10, 1980 — the 118th day after the last material had allegedly been furnished on June 14. The bank was not made a party to that.suit, in which a default judgment was taken againt the Ridenhowers in 1981. Lowe’s, however, did file with its complaint a notice of lis pendens, which is the only significant difference between the facts in this case and those in Wiggins, supra.

On its face, except for the lis pendens, this case is governed by Wiggins. The appellant argues, however, that we should overrule Wiggins, because in that case the court apparently overlooked Section 51-618, which provides that in suits under the materialmen’s lien law, persons interested in the property charged with the lien may be made parties. Hence, it is argued, the joinder of a mortgagee as a defendant is optional, and the court was wrong in Wiggins in holding otherwise.

We do not think Section 51-618 was overlooked in Wiggins. It simply was not applicable. That section specifically applies to “all suits under this act.” A suit under the act must be based upon an account properly filed in the circuit clerk’s office and be brought to enforce the lien established by that filing. Such a suit relates back to the furnishing of the material. This suit, however, like that in Wiggins, was not brought under the act. It is permisible by reason of a judicial innovation going back as far as Murray v. Rapley, 30 Ark. 568 (1875), where the court held that as between the materialman and the landowner who had contracted for the improvements, the filing of suit within 90 days (later extended to 120 days) was in itself sufficient to preserve the lien. Such a suit, however, is not “under the act.” In the Murray opinion, and again in Wiggins, we explained why third parties such as a mortgagee should be joined as defendants and be given an opportunity to contest a claim not established by the filing of an account in the circuit clerk’s office. To that explanation we add only the observation that there are practical reasons for giving third parties a chance to contest the accuracy of the materialman’s account at an early date. This case is a good example. It was not tried until more than three years after the materials had been furnished by Lowe’s. The proof that material was actually furnished as late as June 14, 1980, is questionable, because the last invoice was signed only by Mrs. Ridenhower and did not show that the material had been delivered to the particular job in question. Such uncertainties would be minimized if the issues of fact were tried while memories are fresh.

We stand by our decision in Wiggins. That leaves for discussion only the appellant’s argument that the filing of the lis pendens distinguishes this case from Wiggins. Not at all. A lis pendens is prospective in operation, giving notice to persons who may thereafter acquire an interest in the property. Here the bank had taken its mortgage about four months before the lis pendens notice was filed and had no reason to search for such a notice at that late date.

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. I dissent because I think this opinion allows a financial institution to take unfair advantage of laborers and materialmen. As I understand the facts, construction had already commenced before the loan was made. Furthermore the mortgagor had actual knowledge that materials had been supplied to the site and labor had been performed. Foreclosure commenced against the owner within 120 days. Arkansas Stat. Ann. § 51-618 (Repl. 1971) states other interested parties may be joined but it does not require them to be made parties to the action. The appellant did not choose to make them parties. The result of the opinion is to disallow the priority given appellant under - the law and move a financial institution into priority even though it had knowledge of commencement of construction on the property prior to making the loan. At the very least we should send the case back for trial on the merits as though appellee had been joined from the beginning.


author: John I. Purtle, Justice.

text:
    Lloyd J. LAWRENCE, as Guardian and Next Friend of Joseph Scott LAWRENCE, A Minor v. Edward MEUX
    84-68
    669 S.W.2d 464
    Opinion delivered May 29, 1984

      Robert R. Cortniez, for appellant.

      Bailey, Trimble, Pence ir Sellars, by: Rick Sellars, for appellee.
   John I. Purtle, Justice.

The trial court dismissed appellant’s claim for compensatory and punitive damages resulting from the alleged willful and wanton conduct of appellee. For his appeal appellant argues the court erred in granting a directed verdict on the issue of willful and wanton negligence. We agree with the trial court.

Appellant, a 16 year old male, was one of several passengers in a vehicle owned and driven by appellee when it was involved in a collision with another automobile. Appellant received serious injuries. The undisputed evidence was that appellee was driving between 55 and 70 mph in a 45 mph zone on a damp paved street immediately before the occurrence. A passenger may have asked appellee to slow down but there is no proof that appellee heard the request. The collision occurred about 190 feet east of the crest of a hill at an intersection with a connecting street. Appellee was familiar with the geographical area as he had traveled it many times before. The appellant took no action directed at getting appellee to reduce his speed or otherwise change his conduct.

Appellant sued both drivers but at the first trial he dismissed as to appellee. The jury returned a defendant’s verdict. By agreement of the parties the testimony from the first trial was submitted to the court as the record in the trial. The only witness called at the second trial was the appellee.

Appellant argues the court erred in failing to submit the issue as a jury question. When this contested hearing commenced the court stated: “It’s been set down for trial this afternoon.” At the conclusion of the proceeding the court asked: “Is there anything else you want to put in the record before we close this out?” The only request by appellant’s counsel was that the court make specific findings of fact in regard to this particular case. Also, he requested a specific finding on speed. In rendering the opinion from the bench the court said: “But I don’t think when all the facts when taken together constitute the degree of negligence required to impose liability on Mr. Meux.’’ The judgment recited that “all parties [were] prepared for trial.” The court further stated in the judgment that after hearing the evidence introduced by the plaintiff, the defendant’s motion to dismiss the complaint was granted. The judgment recited that: “a jury was waived by all parties, and it was stipulated that the case be submitted to the Judge sitting as a jury.”

The judgment on its face is valid. It reveals the court made a determination after hearing all the evidence presented by the plaintiff. The parties stipulated that the case would be heard by the court without a jury. The appellant’s argument that the hearing was in the nature of a pretrial hearing is without foundation in the record. Furthermore, appellant did not ask to reopen the case or ask for a new trial. Under the circumstances we cannot go behind the record of judgment. The issue presented to the court was a factual one and we will not set aside the judgment if there is substantial evidence to support it.

This case was tried under the now repealed “guest statute” (Ark. Stat. Ann. § 75-913) which required a guest to prove the vehicle “was wilfully and wantonly operated in disregard of the rights of others.” This is a matter to be determined by the trier of facts.

This court has consistently held that the fact issue of whether an automobile is being operated in such a manner as to amount to wanton or willful conduct in disregard of the rights of others should be determined by the facts and circumstances in each individual case. Ellis v. Ferguson, 238 Ark. 776, 385 S.W.2d 154 (1964). The Ellis court held that the law requires a showing that a person charged with such conduct, notwithstanding his conscious and timely knowledge of an approach to an unusual danger and the probability of injury to others, proceeds into the presence of such danger with indifference to the consequences and with absence of care. It is not necessary to prove that the defendant deliberately intended to cause injury to others. It is sufficient to show that he was indifferent to the consequences and intentionally acted in such a way that the probable result of his act was injury to the complaining party. The rule of this court is that in order to sustain a recovery under the guest statute the negligence must be greater than gross negligence. We have defined the difference between gross negligence and wanton and willful negligence. “Willful negligence means a failure to perform a manifest duty in reckless disregard of the consequences as affecting the life and property of another . . . Gross negligence falls short of being such reckless disregard of probable consequences as is equivalent to a willful and intentional wrong . . .” Splawn, Adm’x. v. Wright, 198 Ark. 197, 128 S.W.2d 248 (1939). Negligence alone, however gross, is not sufficient to justify an award under our guest statute. Before an award of punitive damages will be upheld there must be an element of willfulness or reckless disregard of the rights of the guest. St. L. S. W. Ry. Co. v. Owings, Adm’x., 135 Ark. 56, 204 S.W. 1146(1918).

Under the circumstances and facts of this case we are of the opinion that there was substantial evidence supporting the judgment of the trial court in rejecting the appellant’s claim. Therefore, the case will be affirmed.

Affirmed.


author: Robert H. Dudley, Justice. John I. Purtle, Justice,

text:
    IN THE MATTER OF THE PROPOSED ANNEXATION TO THE TOWN OF BEAVER, ARKANSAS (Purl Fuss Boillot - Complainant) v. John R. RATLIFF et al
    84-70
    669 S.W.2d 467
    Supreme Court of Arkansas
    Opinion delivered May 29, 1984
    [Rehearing denied July 2, 1984.]

      Davis ir Bracey, P.A., by: W.H. Taylor, for appellant.

      John O. Maberry, for appellee.

      Purtle and Hollingsworth, JJ., would grant rehearing.

   Robert H. Dudley, Justice.

The issue is whether the appellant gave the notice required in order to contest the annexation of property to the Town of Beaver. The circuit court held that notice was not given. We affirm. Jurisdiction is in this court under Rule 29 (1 )(c) as the case requires construction of acts of the General Assembly.

Arkansas statutes provide for two principal methods of annexation. One method provides that a majority of the residents and property owners may initiate an annexation proceeding. See Ark. Stat. Ann. §§ 19-301 through 19-306 (Repl. 1980); Call v. Wharton, 204 Ark. 544, 162 S.W.2d 916 (1942). The other method is initiated by the municipal corporation. See Ark. Stat. Ann. §§ 19-307 through 19-307.4 (Repl. 1980).

The record on appeal in this case does not contain a report of the hearing below and the trial judge was not asked to settle and approve a proposed record. See Rule 6 (d), Rules of Appellate Procedure. The circuit court order, which supplies the only record of facts, refers to Ark. Stat. Ann. §§ 19-303, 19-304 and 19-305. From that, we conclude that the proceeding was originally commenced in county court by residents and property owners pursuant to Ark. Stat. Ann. § 19-301. Next, notice containing the substance of the petition and the date of the hearing was required to be published by the county clerk. Ark. Stat. Ann. § 19-302. Any person with an interest in the city or the area proposed to be annexed could have contested the annexation. Ark. Stat. Ann. § 19-102. A remonstrant in county court must have responded to the published notice by the date of the hearing. Such a response is in the nature of an answer. Any remonstrant who signed a petition would have been a party in county court. Barnwell v. Town of Gravette, 87 Ark. 430, 112 S.W. 973 (1908).

In thecase at bar the county court obviously granted the petition and ordered annexation. There is no evidence before us to show that the appellant entered an appearance in county court. The only evidence is that appellant filed a complaint in circuit court.

After the county court grants annexation, “no further action shall be taken for a period of thirty (30) days, and within that time any person interested may institute a proceeding to have the annexation prevented, in circuit court . . .” Ark. Stat. Ann. § 19-303. Appellant sought to prevent the annexation by filing a complaint in circuit court on July 7, which was within the thirty day period. The proceeding in circuit court was not an appeal. It was an independent attack on the annexation which is authorized by Ark. Stat. Ann. § 19-303. Appellant styled his pleading in circuit court a complaint and labeled himself a complainant. The applicable statutes, Ark. Stat. Ann. §§ 19-304 and 19-305 provide:

Notice of objection. — When any complaint shall be made in accordance with the preceding section to prevent an annexation of territory, notice thereof shall be given to the city or town authorities and the agent or agents of the petitioners.
Confirmation of annexation. — Acceptance of territory — Plants. — If no such notice shall be given within thirty (30) days from the making of the order of annexation by the County Court, the proceeding before said Court shall in all things be confirmed . . .

The only purported notice which appellant gave to the municipality during the thirty day period following the county court order was the mailing of a copy of the complaint to the municipal attorney. Since appellant was not serving notice of an appeal, but was commencing an independent attack on the annexation, the mailing of a copy of the complaint to the municipal attorney did not constitute notice. We construe notice in an independent action to mean service of process. ARCP Rule 4, and see A. O. Smith Harvestore v. Burnside, 282 Ark. 27, 665 S.W.2d 288 (1984). Courts cannot function without the use of formal process. Process is a writ or summons issued in the course of judicial proceedings. Ark. Stat. Ann. § 27-128 (Repl. 1979). Not only does issuance of a summons insure that defendant has been notified of the necessity to defend or be subject to a default judgment, but evidence of service apprises the court of its jurisdiction or lack of jurisdiction of the person served. Southern Kansas Stage Lines Co. v. Holt, 192 Ark. 165, 90 S.W.2d 473 (1936). For a discussion of what constitutes valid process, see Tucker v. Johnson, 275 Ark. 61, 628 S.W.2d 281 (1982).

Affirmed.

Purtle and Hollingsworth, JJ., dissent.

John I. Purtle, Justice,

dissenting. The town of Beaver, Arkansas, through the city attorney, allowed the county court of Carroll County to issue an order annexing certain adjacent land to the town pursuant to the petition of certain landowners. This action was taken pursuant to Ark. Stat. Ann. §§ 19-301 and 19-302 (Repl. 1980). Certain remonstrants who owned land which was annexed over their objection instituted a proceeding in circuit court pursuant to Ark. Stat. Ann. § 19-303. Notice of the proceeding was given to the city attorney who also represented the respondent land owners seeking the annexation. The proceeding was timely filed in the circuit court.

Title 19, Chapter 3 (Ark. Stat. Ann. § 19-301 et. seq.) provides for annexation to existing cities and towns. The statute involved in this proceeding is Ark. Stat. Ann. § 19-303, which relates to the method of preventing annexation when the procedure for annexation is that used by the town of Beaver in this case. Section 303 allows 30 days from the date of the order of annexation by the county court for any interested person to institute a proceeding in the circuit court. This section provides in part: “If the court or judge shall determine that the order of the county court was proper, then the order of the county court shall be affirmed, and the proceedings to prevent the annexation shall be dismissed.” It is obvious that this proceeding is an appeal from the county court. Section 304 states that when a complaint is made in accordance with section 303 to prevent annexation of the territory, “notice thereof shall be given to the city or town authorities and the agent or agents of the petitioners.” It would have been impossible for the legislature to have stated more clearly that notice to the town and the agent of the petitioners is all the service required to appeal to the circuit court from the county order on annexation.

It was stipulated between the parties that the respondents and the town of Beaver were represented by the same attorney, John O. Mayberry, and that he received timely notice of the proceedings. He was the regular city attorney and assisted the respondents in preparing the annexation petition and represented them, as well as the town, in the county court and in the circuit court. It is unfortunate that the majority has chosen to require the issuance and service of a summons in order to uphold the annexation to the city of Beaver. Without citation of authority everyone who reads opinions knows that we should give the acts of the General Assembly their plain and ordinary meaning. There is no precedent for the position taken by the majority and it flies directly in the face of the language chosen by the General Assembly. Therefore, I would continue to require this type annexation proceeding to be treated as an appeal from the order of the county court as we have done over the years.

Hollingsworth, J., joins in this dissent.


author: Robert H. Dudley, Justice.

text:
    CALTON PROPERTIES, INC. et al v. KEN’S DISCOUNT BUILDING MATERIALS, INC.
    84-85
    669 S.W.2d 469
    Supreme Court of Arkansas
    Opinion delivered May 29, 1984
    [Rehearing denied July 2, 1984.]

      David W. Kirk, for appellant.

      Guthrie, Burbank, Dodson & McDonal, by: David F. Guthrie, for appellee.
   Robert H. Dudley, Justice.

The materialmen’s lien statutes contain a fifteen month limitation for the commencement of an action either to foreclose a lien or to proceed against a bond discharging a lien. Service of process was not had in this case until more than forty-seven months after the filing of the complaint and no order was obtained extending the time for service. The trial court granted a default judgment againt the bond. We reverse and dismiss. This case was certified to us by the Court of Appeals under Rule 29 (l)(c).

From June 12, 1978, the appellee, Ken’s Discount Building Materials, Inc., supplied building matrials to the contractor, who was constructing a home for the landowners. On October 19, 1978, which was within 120 days after delivery of the last materials, the appellee filed a verified statement of account and a claim of lien against the real estate. See Ark. Stat. Ann. § 51-613 (Repl. 1971). On March 6, 1980, which was within fifteen months after the filing of the lien, the appellee filed a complaint which sought both a judgment against the contractor and the landowners and a foreclosure of the lien. See Ark. Stat. Ann. §§ 51-615,51-616and51-617. No summons or warning order was issued when the complaint was filed. On March 20, 1980, the appellant, Calton Properties, Inc., as surety, and the contractor, as principal, filed a bond to discharge the lien pursuant to Ark. Stat. Ann. § 51-641. If this type of bond is approved by the clerk, and the materialman, after notice, does not question its sufficiency or form, the lien is discharged and the materialman must seek recourse solely against the bond. Ark. Stat. Ann. § 51-641 and see Stewart-McGehee Construction Co. v. Brewster and Riley Feed Mfg. Co., 171 Ark. 197, 284 S.W. 53 (1926).

The bond statute, Ark. Stat. Ann. § 51-641, provides that actions against the bond must be filed within the same period of limitations as an action to enforce a lien or else the bond is void. The applicable materialmen’s lien statute, Ark. Stat. Ann. § 51-616, provides that an action to enforce a lien must be commenced within fifteen months after filing the lien.

On September 24, 1982, which was more than forty-seven months after the filing of the lien, a summons was issued against the contractor and service was had three days later.

At the time the complaint was filed ARCP Rule 3 provided that the filing of a complaint commenced an action only if service was completed within 60 days, unless the time for service was extended by the trial court. Simpson v. Bailey, 279 Ark. 27, 648 S.W.2d 464 (1983). The time for service was not extended. Consequently, the action was not commenced within fifteen months after filing the lien and the bond was void.

In an attempt to justify the default judgment, the appellee argued below and now argues on appeal that appellant not only waived service but should be estopped from asserting that the action was not commenced within fifteen months. However, there was no testimony below. There was only argument. Accordingly, there is no evidence which will allow us to affirm on the basis of the doctrine of estoppel. The attorney for appellee filed an affidavit in the trial court setting out facts which, he submits, should be considered. The affidavit is nothing less than an attempt by the attorney to disguise testimony while that attorney is still serving as an advocate. We have repeatedly held that an attorney must decide whether he should serve as a witness or as an advocate. An attorney who desires to testify must withdraw from the litigation. An attorney who desires to serve as an advocate may not testify. See Boling, Sp. Adm’r. v. Gibson, 266 Ark. 310, 322, 584 S.W.2d 14, 21 (1979), citing Milburn v. State, 262 Ark. 267, 555 S.W.2d 946 (1977). The filing of the affidavit is a flagrant violation of our clear directive.

The affidavit is not evidence and we do not consider it. There is no evidence to justify invoking the doctrine of estoppel. The complaint was never amended to allege waiver or estoppel. Pursuant to Ark. Stat. Ann. § 51-641 (Repl. 1971), the bond was void as a matter of law long before the default judgment was granted. The judgment on the bond is reversed and the case is dismissed.


author: Steele Hays, Justice.

text:
    Reed THOMPSON, Mayor of the City of North Little Rock, Arkansas, et al v. William D. YOUNTS and James GREEN
    84-59
    669 S.W.2d 471
    Supreme Court of Arkansas
    Opinion delivered May 29, 1984

      Jim Hamilton, City Atty., for appellant.

      Howell, Price Trice, P.A., by: William H. Trice, III, for appellee.
   Steele Hays, Justice.

This case concerns a salary dispute requiring the interpretation of a North Little Rock city ordinance and the determination of the validity of the repeal of that ordinance.

An initiated Ordinance, No. 5203, was adopted by popular vote in the general election of November, 1980, providing that North Little Rock firemen and policemen were to receive salaries and benefits “commensurate with or greater than Little Rock firemen and policemen — rank, seniority, time in grade, and service considered.” Pursuant to this ordinance, all uniformed North Little Rock firemen and policemen were given salaries equal to their Little Rock counterparts while Police Chief William Younts and Assistant Police Chief James Green, the appellees, were offered salaries less than their Little Rock counterparts. It was determined that in arriving at the salaries of Younts and Green other factors were considered besides those stated in the ordinance.

In December 1981, the North Little Rock City Council . passed Ordinance No. 5363 which directed the Mayor to negotiate with each department head and assistant department head of the city and establish a salary for each uniformed and nonuniformed department head and assistant department head. This ordinance also contained a general repealer clause, repealing all ordinances or parts of ordinances in conflict, specifically Ordinance No. 5203. Younts and Green then filed suit against the Mayor, the Aldermen, the Director of Finance, the City Clerk and the City, appellants, alleging that the defendants had failed to comply with the requirements of the initiated act. The trial court found that the City Council had not complied with the provisions of the initiated ordinance when it considered things that were not among the four factors listed in Ordinance No. 5203 and also found that Ordinance No. 5363, purportedly repealing the initiated ordinance was void.

The appellants argue two points for reversal, first contending that the court erred in ruling that the appellants can only consider the factors of rank, seniority, time in grade and service in determining salaries that are commensurate with or greater than Little Rock police and firemen. There were other factors used in determining Younts’ and Green’s salaries that the trial court found did not conform to the ordinance: the size of the department, educational background and the skipping of ranks. Appellants argue that these three items would all fall under “service” and the skipping rank would fall under seniority as well. On the issue of skipping rank, we agree with the trial court that that point is irrelevant. In essence appellants argue these items should fall under “service” as they are helpful in evaluating the quality of the work performed to determine commensurate pay. The trial court was correct in finding these factors were not within the ambit of the ordinance.

When construing statutes, the primary object is to carry out the legislative intent which is determined primarily from the language of the statute considered in its entirety. Henderson v. Russell, 267 Ark. 140, 589 S.W.2d 565 (1979); Ark. State Highway Comm. v. Mabry, 229 Ark. 261, 315 S.W.2d 900 (1958). In the absence of any indication of a different legislative intent, we give words their ordinary and commonly accepted meaning. The meaning of a statute must be determined from the natural and obvious import of the words without resorting to subtle and forced construction for the purpose of limiting or extending the meaning. City of North Little Rock v. Montgomery, 261 Ark. 16, 546 S.W.2d 154 (1977); Hicks v. Ark. State Medical Board, 260 Ark. 31, 537 S.W.2d 794 (1976).

In the present case there are two primary reasons why we disagree with the interpretation urged by appellants. First, the obvious intent of the ordinance, from its plain language, is to put the North Little Rock policemen and firemen on a parity with their Little Rock counterparts, taking into consideration, reasonable factors to determine to whom each individual in the North Little Rock departments should be compared in the Little Rock departments to find the commensurate pay. The pertinent parts of the title and section of the ordinance read:

AN ORDINANCE TO PROVIDE THE NORTH LITTLE ROCK POLICEMEN AND FIREMEN WITH SALARIES AND BENEFITS COMMENSURATE WITH THOSE OF THE LITTLE ROCK POLICEMEN AND FIREMEN . . .
Section 1. That the North Little Rock police and firemen are to be provided with salaries and benefits commensurate with or greater than those of the Little Rock police and fire department, rank, seniority, time in grade and service considered.

Employing the traditional rules of construction we find the intent is clearly stated, as are the factors to be used in making that determination. As the trial court pointed out, “There may be other factors which in the judgment of some and in keeping with good personnel management should be considered, but no such liberty is granted to the City Council by the plain language of the act.” The intent of the act is not to set out detailed evaluation standards for individual employees of North Little Rock, but to put those employees on a parity pay scale with Little Rock in a reasonable manner. In addition to the limitation to the four factors by the plain language of the act, if we were to follow the appellants’ interpretation of “service” it would bring about an unreasonable result, contrary to the purpose of the act. As pointed out above, although educational background under traditional personnel practices is a reasonable factor to consider in determining salary, it is not listed as a criterion in the ordinance, nor is length of time in the city, personal appearance or any number of things that might have bearing on someone’s job performance and conceivably come under the heading of “service.” Similarly, if the size of the department is included, it could then extend to number of crimes reported and responded to, types of crimes, calls per day, number of vehicles and so on. The population of a city, which directly affects the size of the departments, is invariably pervasive in its effect on the function of all employees. If such a factor is considered, there would seldom be a North Little Rock job that could be found to be the equivalent of any Little Rock job and the act’s purpose of granting commensurate pay would never be accomplished. Appellants’ interpretation would lead to innumerable criteria for evaluation and could truly impede if not defeat the goal of the act. A workable and logical interpretation of that term must be utilized to carry out the intended purpose of the act. The trial court, quoting several dictionaries found that the plain meaning of “service” as used in the act was “function” and that the only question to be asked under that heading was: Are the functions of the North Little Rock employees any different from that of their Little Rock counterparts? Although education may or may not have some bearing on the quality of the service (or function), and department size may or may not have a bearing on the quantity of the service, the function of the chief of police is the same. He is the individual in charge of the police department. Applying the traditional rules of construction, we find no error in the holding of the trial court.

The appellants’ second argument challenges the validity of the trial court’s finding that Ordinance No. 5363 is void. Ordinance No. 5363 was passed by five of the nine elected aldermen of the City Council, with the Mayor’s vote making a total of six votes to pass. This was treated as a two-thirds majority, which Amendment Seven to the Arkansas Constitution requires for a repeal of any measure approved by a vote of the people. The pertinent section of Amendment Seven reads as follows:

Amendment and Repeal — No measure approved by a vote of the people shall be amended or repealed by the General Assembly or by any City Council, except upon a yea and nay vote on roll call of two-thirds of all the members elected to each house of the General Assembly, or of the City Council, as the case may be.

Appellants rely on Ark. Stat. Ann. § 19-1010 which they contend confers upon the mayor the power to cast such a vote. That section provides:

§ 19-1010 Meeting of aldermen — Organization of City Council — Quorum — Vote of the mayor. The aldermen elected for each city shall annually, at the first council meeting in January, assemble and organize the City Council; a majority of the whole number of aldermen shall be necessary to constitute a quorum for the transaction of business. They shall be judges of the election returns and qualifications of their own members. They shall determine the rules of their proceedings and keep a journal thereof, which shall be open to the inspection and examination of any citizen and may compel the attendance of absent members in such manner and under such penalties as they shall think fit to prescribe. The Mayor shall be ex officio President of the Council and shall preside at its meetings, and shall have a vote when the Mayor’s vote is needed to pass any ordinance, by-law, resolution, order or motion. In the absence of the Mayor the Council shall elect a President pro tempore.

The trial court held Ordinance 5363 failed to receive the necessary two-thirds vote required by Amendment Seven. The court found that the mayor was not an elected member of the City Council but only an ex officio member by virtue of his executive position and therefore his vote could not be used in amending or repealing any part of an initiated act, and we concur. First, he is not an elected alderman, but the mayor. Although the mayor may arguably be considered a member of the Council for certain purposes, there is nothing in the reading of that statute to indicate that he is an elected member of the Council. To the contrary, the elected aldermen are dealt with as a distinct entity and their duties delineated, while the mayor and his duties in relation to the council are listed separately. We find nothing to suggest otherwise and the appellants cite no authority for their position.

Appellants contend the wording of the Amendment could be construed so that the “elected member” requirement refers only to the General Assembly and not to the City Council — that such a vote by a city council be simply from members of the council, which would include the mayor. This conclusion requires a strained interpretation of that section and is contrary to the spirit and purpose of the Amendment. We have said more than once that Amendment Seven should be liberally construed to effectuate its purpose. Leigh & Thomas v. Hall, 232 Ark. 559, 339 S.W.2d 104 (1960). In Leigh, citing Ferrell v. Keel, 105 Ark. 380, 151 S.W. 269 (1912), we stated:

In construing this amendment, it is our duty to keep constantly in mind the purpose of its adoption and the object it sought to accomplish. That object and purpose was to increase the sense of responsibility that the lawmaking power should feel to the people by establishing a power to initiate proper, and to reject improper legislation.

In Tindall v. Searan, 192 Ark. 173, 90 S.W.2d 476 (1936), involving an initiated act fixing salaries of county officers, we said:

No one doubts that the people, in adopting the Initiative and Referendum Amendment, intended to reserve to themselves the power to control their local affairs, and there is nothing more important to the taxpayers of a county than the regulation of its officers, their compensation, and the expenses of the county.

Taking into consideration our past interpretations of the construction and purpose of the Amendment, any doubtful interpretation must be resolved in favor of the popular will, by upholding the initiated act. Were we to accept the appellants’ interpretation, the result would be the repeal of an act adopted by the citizens of North Little Rock. We believe that would be contrary to the purpose of the amendment.

Affirmed.

      We also note that if Amendment Seven were construed as appellants propose, and the mayor were treated as a member of the City Council, the council membership would be ten, and six votes would still not constitute the required two-thirds majority to repeal under Amendment Seven.


text:
    Christine AMOS v. Larry L. AMOS
    84-64
    669 S.W.2d 200
    Supreme Court of Arkansas
    Opinion delivered May 29, 1984

      Thurman Ragan, Jr., for appellant.

      Sharon M. Fortenberry, for appellee.
   P. A. Hollingsworth, Justice.

The appellant, Christine Amos, filed for divorce on May 5,1983, alleging general indignities. On September 1,1983, the divorce was dismissed for failure of the appellant to prove her grounds. Eight days later, the appellant filed a second complaint, seeking a divorce from bed and board and again alleging general indignities. The appellee, Larry Amos, filed a motion to dismiss the second complaint on the theory that the first judgment was res judicata. After a hearing, the Chancellor dismissed the complaint. We affirm his decision.

On appeal, the appellant first raises a narrow procedural issue. She argues that the chancellor erred in holding that the defense of res judicata could be raised in a motion to dismiss under ARCP 12(b) instead of in an answer filed pursuant to ARCP 8. The gist of the appellant’s argument is as follows: Rule 12(b) states that every defense to a pleading must be asserted in the responsive pleading, except for certain listed defense; res judicata is not included in that list. Res judicata is however included in Rule 8 as an affirmative defense which must be set forth when responding to a complaint. Therefore, the appellant argues that the defense must be raised in a responsive pleading — an answer — and not in a motion to dismiss.

Although the preferred method to assert an affirmative defense such as res judicata is in an answer and not in a motion to dismiss, see Hurst v. Hurst, 255 Ark. 936, 504 S.W.2d 360 (1974); and May v. Edwards, 258 Ark. 871, 529 S.W.2d 647 (1975), we have, in a similr situation, treated such motion as if it were properly raised and decided it on the merits. Narisi v. Narisi, 233 Ark. 525, 345 S.W.2d 620 (1961); See also Hurst v. Hurst, supra; Smith v. Smith, 241 Ark. 465, 409 S.W.2d 317 (1966). Here, the parties are not requesting j udicial review of the applicability of res j udicata to this case. Instead they are merely contesting this procedural point. At the hearing, before the chancellor granted the motion to dismiss, he informed the appellant that she could file affidavits supporting her position in response to the motion. She declined to do so. Although the appellant argued that new events had occurred during the eight days that transpired between the resolution of the first and the filing of the second complaint which gave rise to the second cause of action, both complaints stated the same dates as to the marriage and separation and thus set the perimeters within which the cause of action accrued. Res judicata was therefore a proper defense and the appellant was not prejudiced by the granting of the motion to dismiss on those grounds. We held recently that when an appellant had notice and an opportunity to be heard and presented no evidence to show that he was prejudiced by the action taken, his argument is one of form and not of substance. Harrill et al v. Bd. of Comm’rs of Clinton Road Water Pipe Line Improvement Dist. #328 of Pulaski County, 282 Ark. 348, 668 S.W.2d 538 (1984). The same is true here. Accordingly we affirm the chancellor as to this point.

The appellant’s second argument is also without merit. She argues that the chancellor erred in holding that Ark. Stat. Ann. § 34-2703 (Supp. 1983), a portion of the Uniform Child Custody Jurisdiction Act, does not confer jurisdiction on the chancery court to enter an order for support of minor children absent a divorce proceeding. The chancellor found that the statute is solely for custody battles between residents of different states. We agree. After the appellant’s second divorce complaint was dismissed, she attempted to obtain a support order from the chancellor. When he dismissed the case under the theory of res judicata without hearing it on the merits, he lost jurisdiction of the case. We have stated that suits between spouses for custody are derivative of divorce actions and are not independent causes of action. Robins v. Ark. Social Services, 273 Ark. 241, 617 S.W.2d 857 (1981). The chancellor in the first divorce suit, after denying the divorce, had the authority to award custody and/or support of the children to the parties. Adams v. Adams, 224 Ark. 550, 274 S.W.2d 771 (1955). The second chancellor had no such authority. This opinion in no way prohibits the appellant from seeking relief for any new cause of action that may have occurred between the filing of the first and second complaints.

Affirmed.


text:
    Virginia M. SMITH v. STATE of Arkansas
    CR 83-135
    669 S.W.2d 201
    Supreme Court of Arkansas
    Opinion delivered May 29, 1984

      Daniel D. Becker, for appellant.

      Steve Clark, Atty. Gen., by: Patricia G. Cherry, Asst. Atty. Gen., for appellee.
   Per Curiam.

Appellant Virginia M. Smith was convicted by a jury in March, 1983, of first degree murder, Ark. Stat. Ann. § 41-1502 (Repl. 1977). She was sentenced to life imprisonment in the Arkansas Department of Correction. It is from that conviction that appellant brings this appeal.

Pursuant to Anders v. California, 386 U.S. 738 (1967), appellant’s counsel has filed a motion to be relieved and a brief stating there is no merit to the appeal. Appellant was notified of her right to file a pro se brief within 30 days. See Rules of the Supreme Court and Court of Appeals, Rule 11 (h), Ark. Stat. Ann Vol. 3A (Supp. 1983). She did not file a brief. The State concurs that the appeal has no merit.

There was conflicting testimony in pretrial hearings from medical experts regarding appellant’s mental condition. After all the testimony was taken, the trial court found that appellant was competent to stand trial. It left the question of whether appellant was legally responsible for her conduct at the time of the crime to the jury. An instruction was given on intoxication as a defense. When confronted with conflicting testimony from expert as well as other witnesses on the issues of fitness to proceed and legal responsibility for a criminal act, the finder of fact is the sole judge of the credibility of the witnesses. Curry v. State, 272 Ark. 291, 613 S.W.2d 829 (1981); Gruzen v. State, 267 Ark. 380, 591 S.W.2d 342 (1979). On appeal, we uphold the findings if there is substantial evidence to support them when the evidence is viewed in the light most favorable to the appellee. Curry v. State. Substantial evidence is evidence of sufficient force and character to compel a conclusion of reasonable and material certainty. Fountain v. State, 273 Ark. 457, 620 S.W.2d 936 (1981). Here, we find that the psychiatric examination of the appellant which indicated that she was probably sane was substantial evidence that appellant understood the charges against her and could assist her counsel in defending her. We also find substantial evidence to support the jury’s finding that appellant was legally responsible for her conduct at the time the crime was committed.

There was also evidence to support the jury’s finding that appellant committed the crime despite the fact that there were no eyewitnesses to the bludgeoning of the victim. The evidence indicated that appellant was at the scene of the murder immediately before and after the victim was killed. Tape recordings of telephone calls made by the appellant to the police on the day of the murder were introduced in which appellant threatened to kill the victim. Appellant was seen spattered with blood and the victim’s wallet was found in her purse. She gave false statements as to the ownership of the wallet and said the blood on her was only red dye. False and improbable statements explaining suspicious circumstances such as the ones made by appellant are admissible as proof of guilt. Jones v. State, 61 Ark. 88, 32 S.W. 81 (1895). Guilt may also be proved even in the absence of an eyewitness by circumstantial evidence. Evidence of guilt is no less substantial because it is circumstantial. Surridge v. State, 279 Ark. 183, 650 S.W.2d 561 (1983). The jury was correctly instructed that circumstantial evidence must be consistent with the defendant’s guilt and inconsistent with any other reasonable conclusion. The evidence against appellant was clearly consistent with her guilt.

In an inventory of the contents of appellant’s purse at the police station, the victim’s wallet and driver’s license were found. The contents of the purse were found admissible over appellant’s objection as the product of the inventory search. Criminal Procedure Rule 12.2 provides that police officials may conduct a search of the accused’s personal effects which are “ready to hand.” As appellant’s purse was in her possession at the police station, it was not improper to search it.

When a police officer arrived at the house where the victim was murdered, he asked appellant how she had gotten blood all over her. She answered that she had gotten blood on herself at work. Appellant moved to suppress the statement and two others made after she was arrested. At the time appellant made the pre-arrest statement she was not in custody and not a suspect. There is no requirement that a person be advised of her constitutional rights before a noncustodial statement is admissible. See Davis v. State, 275 Ark. 264, 630 S.W.2d 1 (1982). The remaining statements were made at the police station after appellant’s arrest and after she had been advised of her rights. In response to an inquiry about the owner of the wallet in her purse, appellant said it belonged to the victim. She explained that she had cashed a check for him to pay some bills. After being advised of her rights a second time, an officer told appellant that her photograph would be taken to record the bloodstains on her. She said that the stains were red dye. Her attorney was present when both statements were made. Neither appellant’s explanation of her possession of the wallet nor the reason for the stains was given in response to a direct question. The voluntary spontaneous statements made by suspect after being advised of her rights may be used against her. See Little v. State, 261 Ark. 859, 554 S.W.2d 312 (1977), cert. denied, 435 U.S. 957 (1978), reh. denied, 436 U.S. 923 (1978). On appeal, this Court makes an independent determination of the voluntariness of statements based on the totality of the circumstances. The decision of the trial court as to voluntariness will be upheld unless it is clearly against the preponderance of the evidence. Degler v. State, 257 Ark. 388, 517 S.W.2d 515 (1974). An examination of the circumstances surrounding the three statements made by appellant indicates that the trial court’s findings were not clearly against the preponderance of the evidence.

Appellant placed several telephone calls to the police before the victim’s death. She objected to the introduction of tape recordings of the calls into evidence. The officer who took the call testified that the tape was an accurate recording and that the caller was the appellant. As the evidence was clearly relevant to the question of appellant’s guilt or innocence, there was no error in the admission of the tapes. See Moore v. State, 270 Ark. 592, 605 S.W.2d 445 (1980).

Appellant asked for the court to declare a mistrial when a policeman testified about the photographs of blood in the room where the victim was found on the ground that the officer was not an expert and could not identify which substances were blood. The request was denied. The photographs of the murder scene show spatterings of some substance in the area around the body. The policeman who was present when the pictures were taken may have inferred that the substance was blood but a non-expert witness may testify to inferences from his personal knowledge. See Gruzen v. State, 276 Ark. 149, 634 S.W.2d 92 (1982). Moreover, the officer said that the photographs depicted what “appeared to be” blood.

The appellant also sought to suppress photographs of the victim’s body on the basis that the pictures were cumulative and unduly inflammatory. The court excluded some photographs but admitted others, finding that their probative value outweighed any prejudicial effect. Photographs are admissible if they tend to shed light on an issue, aid a witness in describing the scene depicted or provide the jury with a better understanding of the testimony. Sumlin v. State, 266 Ark. 709, 587 S.W.2d 571 (1979). The fact that the photographs are gruesome is not reason in itself to exclude them. See Walton v. State, 279 Ark. 193, 650 S.W.2d 231 (1983). Here, one side of the victim’s face had been crushed by the force and number of the blows. The photographs accurately portrayed the nature of the wounds, and we cannot say that the trial court abused its discretion in admitting them.

Appellant sought to introduce photographs of herself which were taken while she was hospitalized in 1969. She also proffered pharmacy bills from 1969 to prove that she had suffered from drug abuse since her hospitalization. The court denied entry of the 1969 photos and bills because they were too remote in time from the 1983 charge against appellant. A ruling on the relevancy of evidence is discretionary with the trial court. Its decision will not be reversed unless an abuse of discretion is found. Kellensworth v. State, 278 Ark. 261, 644 S.W.2d 933 (1983). Appellant did not clearly establish by evidence at trial that there was a link between her hospitalization and the medication prescribed for her in 1969 and her conduct in 1983. We find no abuse of discretion in denying admission of the photographs and pharmacy bills.

From a review of the entire record and the briefs, we find no reversible error. Accordingly, the appeal is without merit and the judgment is affirmed. Counsel’s motion to be relieved is granted.

Affirmed.