author: Richard B. Adkisson, Chief Justice.

text:
    FIRST PENTECOSTAL CHURCH OF JESUS CHRIST v. KOPPERS COMPANY, INC.
    83-70
    655 S.W.2d 403
    Supreme Court of Arkansas
    Opinion delivered July 11, 1983
    [Rehearing denied September 12, 1983.]

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

      Wright, Lindsey & Jennings, for appellee.
   Richard B. Adkisson, Chief Justice.

After a trial, the Pulaski County Chancery Court found for the appellee, Koppers Company, Inc., and dismissed the complaint filed by appellant, First Pentecostal Church of Jesus Christ, in which the church alleged that an agent of Koppers had breached a contract to provide certain building materials to remodel the church. The church sought to recover $40,000 in compensatory damages for undelivered materials and expenses incurred and $125,000 in punitive damages for willful, wanton, and fraudulent conduct of Koppers and its agent. On appeal we affirm.

In the fall of 1980 officials of appellant church contacted a draftsman about remodeling their church. The draftsman drew up a profile of the proposed changes and additions and agreed to locate the necessary materials for the job. On November 26, 1980, he called Koppers at one of its principal offices in Magnolia, Arkansas, to see if it could provide decking material and a certain type of beam he wanted to use in the church. He had heard that Koppers was a reputable company and had a 15-page Koppers brochure which contained the Magnolia address and phone number of the company. The draftsman explained to Koppers what he wanted, and Koppers informed him that he should talk with their sales representative for the Little Rock area, Perry Reed, doing business as Construction Sales Company, and gave him his phone number.

Several days later Reed, the draftsman, and several church members met at the church to discuss the remodeling project, and Reed assured them that it could be done. Reed then submitted the draftsman’s profile to Koppers, and Koppers prepared shop drawings which the church later approved. In January of 1981 Reed presented church officials with a written proposal on a standard Koppers form. It listed the materials that Koppers was to furnish, gave the total price as $51,650.38, with a “Less 5% for cash in advance” price of $49,143.08. The bottom portion of the proposal contained the following paragraph:

This proposal, when accepted by buyer and when thereafter approved by an authorized official of seller at one of its principal offices, will become a contract. Until so approved, it is not a contract and is not binding on the seller in any way. If not accepted by buyer within _ days, this proposal is subject to possible price revision.

The proposal was signed by Perry Reed as Koppers’ sales representative and by Freddy L. Cross for the church. The space for Koppers’ authorized official to approve the proposal was blank and was never signed. On January 23,1981, the church gave Reed a check in the amount of $49,143.08 made payable to Construction Sales Company.

Delivery of the beams was initially scheduled for March but construction was delayed, and the materials were not needed as early as originally thought. When the church called Reed to advise him of the delay, Reed stated the materials could be delivered at any time on two weeks notice. In June church officials contacted Reed to inform him that they were ready for the beams. In July the beams still were not there, so one of the church members finally placed two calls to Koppers. He was told both times to check with Reed. In late July the church finally learned from Koppers that the beams were not coming from Koppers. When Reed was confronted with this information, he finally admitted that he had had to order the beams from another company, Southern Laminators. The beams finally arrived on September 14,1982. However, Reed was never able to furnish the decking material that was included in the proposal. The church finally obtained it from another company.

Employees of Koppers testified that Koppers never manufactured the beams nor supplied the decking material because Koppers never approved the proposal that the church and Reed had signed. According to them, Reed never submitted the signed proposal to Koppers but instead submitted a form for a “buy sell” arrangement; in other words, Reed himself would buy the materials from Koppers and resell them to the church. Koppers, however, refused to allow Reed to purchase the materials on credit because he already owed them a substantial amount of money and Reed, because of financial difficulties, was unable to pay cash. Koppers terminated Reed as a sales representative on April 15, 1982.

Appellant argues the trial court erred in finding for Koppers and dismissing its complaint because Koppers was liable for the acts of its agent, Reed. Appellant alleges that Reed had actual or apparent authority to solicit the order, submit the Koppers proposal form to the church for it to sign, and to collect the purchase price from the church. Under those circumstances, appellant reasons, Koppers should be held liable for Reed’s breach of contract.

The rule is well established that a principal is not responsible for acts of an agent unless the acts are within the actual or apparent authority of the agent. Forest Park Canning Co. v. Coler, 226 Ark. 64, 287 S.W.2d 899 (1956). We stated in Hill v. Delta Loan & Finance Co., 224 Ark. 785, 277 S.W.2d 63 (1955) that a person dealing with a known agent is not authorized under any circumstances to blindly trust the agent’s statements as to the extent of his power; such person must not act negligently, but must use reasonable prudence to ascertain whether the agent is acting within the scope of his powers. And the rule that the authority of an agent to sell goods imports authority to receive the proceeds is limited to cases where there are circumstances which give color to the belief by the purchaser that the authority exists. Velvet Ridge School Dist. No. 91 v. Bank of Searcy, 200 Ark. 85, 137 S.W.2d 907 (1940).

Here, Reed had the authority to solicit the order for the materials, but he did not have actual or apparent authority to bind Koppers to a contract which Koppers never saw and never accepted. The proposal which the church signed clearly states, in average size type, that it is not a contract until approved by an authorized official of Koppers. These words appeared on the front side of the proposal, immediately preceding the space designed for signatures. The church official who signed the proposal testified that he saw this language and read it. The proposal also provided a space for an authorized official of Koppers to sign, which was left blank, as well as a space for the signature of the sales representative. Furthermore, appellant’s check for the materials was made out not to Koppers but to Construction Sales Company. Under these circumstances we cannot say that the chancellor’s finding that Reed did not have authority to bind Koppers is clearly against the preponderance of the evidence.

Appellant also argues that Koppers is estopped from denying liability because Koppers retained at least $37,000 that Reed sent to Koppers in payment on his open account which, according to appellant, is directly traceable to Reed’s receipt of money from the church. We cannot agree with appellant’s argument because here, although Perry Reed did make out a check for approximately $37,000 to Koppers, he did so before obtaining the appellant’s check. Attached to this check were invoices from five projects other than appellant’s. It is undisputed that Reed owed Koppers over $100,000 on his open account and, therefore, Koppers had a right to receive payment for goods it had previously sold to Reed on this account.

Affirmed.


source: Caselaw Access Project

author: Richard B. Adkisson, Chief Justice. Richard F. Hatfield, Special Justice,

license: Public Domain

text:
    Richard B. BISHOP v. LINKWAY STORES, INC., ARKANSAS CREDIT COUNCIL, S. T. (Ros) SMITH, Bob WIMBERLY, and ARKANSAS RETAIL MERCHANTS ASSOCIATION
    83-119
    655 S.W.2d 426
    Supreme Court of Arkansas
    Opinion delivered July 11, 1983
    [Rehearing denied September 12, 1983.]

      /. H. Cottrell, for appellant.

      Jack Young of Laser, Sharp, Haley, Young & Huckabay, for appellee Linkway Stores, Inc.

      James M. McHaney and James M. McHaney, Jr. of Owens, McHaney ir Calhoun, for appellees Arkansas Credit Council et al.

      Jim Guy Tucker of Mitchell, Williams, Selig, Jackson ir Tucker, for appellee Arkansas Retail Merchants Association.

      Hickman, J., and Rhodes and Hatfield, Special JJ., would grant rehearing.

   Richard B. Adkisson, Chief Justice.

This case questions the amount of interest that can be charged on consumer loans and credit sales under Section 13, Article XIX of the Arkansas Constitution as recently amended by Amendment 60. Appellant, Richard B. Bishop, purchased from appellee, Linkway Stores, Inc., certain items of furniture for his home, executing in part payment a conditional sales contract providing for an interest rate of 15 percent per annum on the unpaid balance. Appellant later filed suit, alleging that the contract was usurious. Appellant contended that since the Federal Discount Rate was 8.5 percent on the date of the transaction, the maximum allowable rate of interest on the contract was 5 percent over the Federal Discount Rate, or 13.5 percent. Appellees, Arkansas Credit Council and Arkansas Retail Merchants Association, intervened and after a trial the Pulaski County Chancery Court held that the conditional sales contract was not usurious and that Section 13 (a) was not applicable to consumer loans and credit sales. On appeal we reverse.

As approved by the electorate, Amendment 60 provides:

BE IT RESOLVED BY THE HOUSE OF REPRESENTATIVES, AND BY THE SENATE, OF THE SEVENTY-THIRD GENERAL ASSEMBLY OF THE STATE OF ARKANSAS, A MAJORITY OF ALL MEMBERS ELECTED TO EACH HOUSE AGREEING THERETO:
THAT the following is hereby proposed as an amendment to the Constitution of the State of Arkansas, and upon being submitted to the electors of the State for approval or rejection at the next general election for Representatives and Senators, if a majority of the electors voting thereon at such election adopt such amendment, the same shall become a part of the Constitution of the State of Arkansas, to wit:
SECTION 1. Section 13, Article XIX, of the Arkansas Constitution of 1874, is hereby amended to read as follows:
‘Section 13. (a) General Loans:
(i) The maximum lawful rate of interest on any contract entered into after the effective date hereof shall not exceed five percent (5%) per annum above the Federal Reserve Discount Rate at the time of the contract.
(ii) All such contracts having a rate of interest in excess of the maximum lawful rate shall be void as to the unpaid interest. A person who has paid interest in excess of the maximum lawful rate may recover, within the time provided by law, twice the amount of interest paid. It is unlawful for any person to knowingly charge a rate of interest in excess of the maximum lawful rate in effect at the time of the contract, and any person.who does so shall be subject to such punishment as may be provided by law.
(b) Consumer Loans and Credit Sales: All contracts for consumer loans and credit sales having a greater rate of interest than seventeen percent (17%) per annum shall be void as to principal and interest and the GeneralAssembly shall prohibit the same by law.
(c) Definitions: As used herein, the term:
(i) ‘Consumer loans and credit sales’ means credit extended to a natural person in which the money, property, or service which is the subject of the transaction is primarily for personal, family, or household purposes.
(ii) ‘Federal Reserve Discount Rate’ means the Federal Reserve Discount Rate on ninety-day commercial paper in effect in the Federal Reserve Bank in the Federal Reserve District in which Arkansas is located.
(d) Miscellaneous:
(i) The rate of interest for contracts in which no rate of interest is agreed upon shall be six percent (6%) per annum.
(ii) The provisions hereof are not intended and shall not be deemed to supersede or otherwise invalidate any provisions of federal law applicable to loans or interest rates including loans secured by residential real property.
(iii) The provisions hereof shall revoke all provisions of State law which establish the maximum rate of interest chargeable in the State or which are otherwise inconsistent herewith.’
SECTION 2. The ballot title for this amendment shall be:
An Amendment to Section 13 of Article XIX of the Constitution of the State of Arkansas to Control Interest Rates and Set the Penalty for Violations Thereof.
SECTION 3. The popular name for this amendment shall be:
The 1982 Interest Rate Control Amendment.

It is well settled that when a constitutional amendment or a statute is plain and unambiguous, there is no room left for judicial construction, and neither the exigencies of a case, nor a resort to extrinsic facts will be permitted to alter the meaning of the language used in the statute. Cunningham v. Keeshan, 110 Ark. 99, 161 S.W. 170 (1913); Berry v. Sale, 184 Ark. 655, 43 S.W.2d 225 (1931). As here, where the meaning of an act or constitutional amendment is clear and unambiguous, this Court is primarily concerned with what the document says, rather than what its drafters may have intended. See City of Little Rock v. Arkansas Corp. Commission, 209 Ark. 18, 189 S.W.2d 382 (1945).

The language used in Amendment 60 is clear and unambiguous, and we have no authority to construe the amendment to mean anything other than what it says. Section 13 (a) (i) provides that the “maximum lawful rate of interest on any contract” (emphasis ours) shall not exceed 5 percent per annum above the Federal Reserve Discount Rate at the time of the contract. The word “any” means exactly what it says, and a consumer loan certainly falls within the category of “any contract.”

Section 13 (b), when read in conjunction with Section 13 (a), provides for a further limitation on interest rates but is applicable only to consumer loans and credit sales. Section 13 (b) specifically limits the maximum interest rate on such loans to 17 percent. These separate subsections are in no way conflicting and each has its own penalty for violations.

It is clear, therefore, that the provisions of Amendment 60 have a two-fold limitation on the maximum amount of interest a lender can charge on a consumer loan or credit sale — the lesser of 17 percent or 5 percent over the Federal Reserve Discount Rate. Here, since this contract has a rate of interest in excess of the lawful rate provided for under Section 13 (a), it is void as to the unpaid interest as provided by Section 13 (a) (ii).

Reversed.

Holt and Hays, JJ., not participating.

Richard F. Hatfield and James R. Rhodes, III, Special Justices.

Hickman, J., and Hatfield and Rhodes, Special JJ., dissent.

Richard F. Hatfield, Special Justice,

dissenting. I would affirm the Trial Court’s decision, since its interpretation is in keeping with the wording and intent of Article XIX, Section 13, of the Constitution of Arkansas as amended by Amendment 60.

Since the opinion of Judge Bullion, the Trial Judge, expresses so well the proper construction we should give to the Amendment, it is attached verbatim as an addendum to this opinion.

In summary, I feel that the majority errs in two respects:

1. It fails to properly consider the entire document and give meaning to each word by concentrating on the wording of Section 13 (a) (i), and,

2. It views Amendment 60 too strictly and, in a sense, in a vacuum. Since it finds no ambiguity in the document, it does not consider the history of the times and voters’ intent in passing Amendment 60. Furthermore, their construction does not, in my judgment, follow the plain meaning of Amendment 60 when this history is examined.

Confronted with the proffer of voluminous evidence, the Trial Court held:

“When the history of our times leading up to and during the formation and adoption of Amendment 60 is noticed and when the spirit of this law is given credence, the answer falls into place so solidly there can be no doubt of this answer. With this full consideration, it is plain that the resulting absurdities, conflicts and contradictions of the acceptance of Plaintiff’s argument would defeat the plain purpose of Amendment 60. And, to reach such an obviously required result, it is proper to modify, reject and/or substitute words and phrases in Amendment 60 to give it this intended meaning.”

Amendment 60 is susceptible of more than one interpretation and, thus, should not be interpreted in a vacuum. To properly construe it requires careful analysis of the relevant evidence of the problem it was meant to solve, the process by which it was drafted, the declaration of its meaning to the voters through the media when, as reflected by the record, only one interpretation was presented and the logical effects of the construction given. Amendment 60 was passed by voters who wanted a sound economic climate which had, due to economic conditions and the harsh penalties of our usury law, diminished greatly. They were clearly voting for better economic times. It is difficult to conceive that they voted for more uncertainty as to interest rates, more litigation as to this area of law and more complex credit arrangements. Extrinsic evidence revealed this clearly and was necessary for proper construction, which I feel the Trial Court made.

The proper interpretation of Amendment 60 should be determined by the following rules of statutory construction:

1. Viewing the document in its entirety;

2. Considering the history of the times, voter intent and the objective to be accomplished by it;

3. If Amendment 60 is ambiguous, admitting extrinsic evidence to assist in its construction;

4. Construing Amendment 60 to carry out its intent as revealed from all its words with consideration of the logical results of this construction.

I feel the Trial Court correctly applied these principles to the facts for the following reasons:

First, the majority has not given meaning to the entire Act as did the Trial Court in its opinion set forth herein. Chism v. Phelps, 228 Ark. 936, 311 S.W.2d 297, 77 ALR2d 329 (1958), Sargent v. Cole, 269 Ark. 121, 598 S.W.2d 749 (1980), Commercial Printing Co. v. Rush, 261 Ark. 468, 549 S.W.2d 790 (1977). The essence of the majority opinion is to ignore those types of contracts not within the definition of “General Loans,” but clearly treated separately in paragraphs (b) and (d). Focusing on one paragraph violates the rule requiring the entire document to be construed, and, in this regard, the Trial Court said:

“The first source the court must look to in the resolution of this problem is the total pertinent language of the instrument considered. This inquiry must go beyond isolated words, phrases or even paragraphs for an analysis of the result the various interpretations bring about to the entirety of the document. If the result of one interpretation brings about greater disharmony in the entirety, then that should not be accepted, for absurd, conflicting and contradictory results should not be imputed to be intentional.
“This interpretation of Amendment 60 gives the intended force and effect to each subsection heading, i.e.: 13 (a) text relates to General Loans; 13 (b) text relates to Small Loans; 13 (c) text relates to definitions of material in 13 (a) and 13 (b); and 13 (d) text relates to that which is Miscellaneous to 13 (a), 13 (b) and 13 (c), but thought needed to round out the total categories of lending transactions.
“If, as Plaintiff urges, the word “any” means “all”, the result is further conflict with the two types of lending categories identified in 13 (d). Actually, the word “conflict” is incorrectly used as the language of those two transactions makes it very clear that neither the floating nor the fixed rates of interest apply to them. But, they are lending transactions, and would be included within the meaning of the word “all”, as Plaintiff attempts to apply it. The fact that these miscellaneous types of lending transactions are excluded from the floating and fixed interest rates is proof positive that the word “any” does not mean “all”. That being so, how much less than “all” shall the interpreter tone down “any”? A half note, a quarter note, or what? The plain fact is that the argument of Plaintiff, when afforded a little more than a superficial look, is but straining at a gnat. If the interest rate provisions of 13 (a) and 13 (b) are commingled, the intent of Amendment 60 is frustrated.”

Second, the Trial Court considered the objective to be accomplished by Amendment 60, which the majority fails to do. May v. McCastlain, 244 Ark. 495, 426 S.W.2d 158 (1968). Cheney v. Georgia-Pacific Paper Corp., 237 Ark. 161, 371 S.W.2d 843 (1963). A proper analysis would reveal that consumer loans should be the same as under the old Amendment (10% interest limit) except that the interest rate limit is now 17%. This is simple and understandable to those obtaining consumer credit and continues time-tested credit procedures. The majority’s decision can only result in confusion and frustration on behalf of the consumer and, inevitably, more litigation.

Third, voter intent or the spirit of Amendment 60 must be kept paramount, in consideration of its construction, with a liberal view to carry out this intent. Henderson v. Russell, 267 Ark. 140, 589 S.W.2d 565 (1979). Bailey v. Abington, 201 Ark. 1072, 148 S.W.2d 176 (1941), Ragsdale v. Hargraves, 198 Ark. 614, 129 S.W.2d 967, Carter v. Cain, 179 Ark. 79, 14 S.W.2d 250 (1929). A study of the history of the time preceding voter approval is necessary to interpret Amendment 60. A cure for credit problems resulting from the harsh results of the old Amendment combined with existing economic conditions was desired. The analysis of this history shows the Trial Court’s decision was certainly in keeping with its stated and published purposes.

Fourth, extrinsic evidence should be considered, since the wording of Amendment 60 is susceptible to more than one meaning. May, supra. Furthermore, such evidence brings life to the words used. By finding no ambiguity in its language, the majority does not reach this issue. However, I feel that ambiguity does exist and extrinsic evidence is admissible to show voter intent.

The question then arises as to the type of such evidence which is admissible.

The record of legislative history in the form of minutes of meetings of the Joint State Agencies and Governmental Affairs Committee of the General Assembly should certainly be considered. Hartford Fire Ins. Co. v. State, 76 Ark. 303, 89 S.W. 42 (1905). So also are the acts of the General Assembly as Amendment 60 was drafted and referred to the voters. Cheney, supra. U.S. v. Missouri Pacific Railroad Co., 278 U.S. 269, 49 S. Ct. 133, 73 L.Ed.2d 322, affirming 21 F.2d 351 (1927). Callahan v. L.R. Distributing Co., 220 Ark. 443, 248 S.W.2d 97 (1957). The evidence reveals in detail the compromise among representatives of interested parties such as labor, retail businesses and banking, which brought about a change in wording of the Amendment to its final form.

While the opinions of a legislator as to his understanding of the meaning of proposed legislation is not admissible, testimony of legislators recorded in the minutes of the committee meetings and other legislative sessions are entitled to consideration, as they are statements of public events. Wiseman v. Madison Cadillac, 191 Ark. 1021, 88 S.W.2d 1007 (1935). The problems that gave rise to Amendment 60, possible consequences of various considered proposals and discussion as to the effects of the final wording of Amendment 60 as finally approved are also admissible. Hartford Fire Insurance Co., supra.

Furthermore, judicial notice is permitted by Rule 201, Rules of Evidence, of “facts capable of accurate and ready determination by resort to resources whose accuracy cannot be questioned.” In any event, these statements were subject to examination by opposing counsel’s proffer of evidence to the contrary. But they remain facts discussed in formulation of Amendment 60, and are thus relevant in determining its intent. Here the testimony of views of legislators as to the possible effect of various proposals and of the probable effect of the final wording in Amendment 60 should be considered. This testimony made clear that the intent of Amendment 60 was to create a class of consumer credit exactly like Article 19, Section 13, as it was then worded, except to raise the interest rate from 10% to 17%. There was discussion of the opposition to a floating rate and the reasons for such opposition. These are opinions, but are also predictions of the effect of proposed wording and the reasons for positions taken which contribute to an understanding of the final wording of Amendment 60. It clearly reveals that the meaning was clear in the matters covered in the record of the hearings. Certainly, evidence as to the fallacies of such arguments to show their weakness could have been presented. Also in this regard, the explanation by Rep. Stewart to the House of Representatives was relevant as to the intended meaning given to those voting on the wording of Amendment 60.

Although we have, up to now, denied admission of evidence of the draftsmen of an Amendment, such evidence has support elsewhere where the reasons for the act are communicated to the legislature. 2A Sutherland, Statutes and Statutory Construction § 48.12 (Sands 4th Ed.). Other states have also adopted this view. Railroad Roofing & Building Supply Co. v. Financial Fire & Casualty, 171 N.J. Super 375, 409 A.2d 300 (1979); American Waterways Operation, Inc. v. U.S., 386 F.Supp. 799 (D.D.C. 1979).

Liberal views of evidence should be taken in statutory construction. Henderson, supra; Bailey, supra; Ragsdale, supra; Carter, supra. Relevant evidence should be considered as it relates to communication to those preparing legislation in adopting the wording. Such was the case here, since it gives meaning to the words used and should be considered by this Court. In this case, an abundance of evidence corroborates the testimony of the legislators, and an ironclad rule forever banning such evidence can only result in a warped interpretation of the legislators’ intent.

The trends in the Rules of Evidence coincide with proper rules in the area of statutory construction. All relevant evidence should be admitted within the limits set forth in the Rules of Evidence and be subjected to the test of validity by cross-examination and the introduction of evidence favoring an opposing view. Is relevant evidence any more important than when it shows a concept such as the “history of the times” or the “spirit of the Act”?

Newspaper articles and media broadcasts, considered hearsay under Rule 801, Rules of Evidence, can be admitted as an exception under Rule 803 (24), Rules of Evidence, since they are relevant and can be tested by other evidencing and opposing counsel’s examination. Such articles are vitally important here to show the “history of the times” and what was communicated to the voters concerning Amendment 60. Important in this regard and a further reason for admission is that the record reflects that only one interpretation was placed on the effect of Amendment 60 as to consumer rates, i.e., that they would be no more than 17%. No contrary evidence appeared in the record. Surely this is relevant in interpreting voter intent in approving Amendment 60.

The majority should view Hodges v. Dawdy, 104 Ark. 583, 149 S.W.2d 656 (1912), in light of the changes in the approach to Rules of Evidence and the means of dissemination of information through the media occurring since 1912, when it was decided, and either reverse it or restrict its application. Such an approach would allow for a realistic presentation of the meaning to “history of the times” surrounding a proposed Act, and the information furnished to the voters on a proposal.

The result of the majority’s decision will be to frustrate the intent of Amendment 60 as expressed by the voters. Obtaining consumer credit in a relatively simple transaction at a rate of up to 17% will not be widespread. Thus, many of the problems of obtaining consumer credit will be as pronounced as before the passage of Amendment 60.

An in-depth consideration of all relevant evidence in determining the purpose of Amendment 60 as read in its entirety leads to the conclusion that the Trial Court correctly construed it.

I would affirm the Trial Court.

I am authorized to state that Special Justice James Rhodes and Hickman, J., join in this dissent.

ADDENDUM

“This case involves a question that requires an interpretation of Amendment 60 to our Constitution (60), adopted by the people at the General Election in November, 1982. It amended Article 19, Section 13, (19/13), the usury provision that limited the maximum lawful interest rate in Arkansas to 10% per annum, absent federal law override. The interpretative question presented is whether, under the language of 60 that relates to “Consumer Loans and Credit Sales" (Small Loans), they are to be limited to the lesser of two interestrates set out therein, to-wit: (1). Section 13 (a) (i), “5% per annum above the Federal Reserve Discount Rate (FRDR) at the time the contract is made;” and (2). Section 13 (b), “17% per annum”.

“Thus is presented to the court the typical problem that requires a written instrument to be interpreted as to its intent, where its language may possibly be susceptible to more than one meaning. Into such a task as this is the problem of trying to determine the intent of those who framed it and those who adopted it into the body of our law (in this instance the voters are the lawgivers), and to resolve this purpose the courts inquire into several sources of possible information.

“At the outset of this discussion, I am faced with an almost impossible evidentiary task, due to a lack of sufficient time to devote to the problem, except by way of compromise with myself, which I conclude is a satisfactory result. Ds, at trial, attempted to introduce into the evidence an inordinate amount of printed material, asserting that it has great bearing upon the issue of intent of those who framed 60, and of those who voted upon 60. This material, in a general way, consists of: affidavits of Legislators who were present in Committee hearings, and later when the measure was voted upon by the 73rd General Assembly; affidavits of attorneys involved in the actual drafting of 60 into its final form, and who presented it to the Joint Legislative Committee; a TV videotape and a transcript of another broadcast of the presentations, pro and con, to the Joint Committee hearing when 60 was approved for Legislative vote (it was then designated HJR 7); news clippings and articles (one by Dr. R. A. Leflar) published, and otherwise disseminated to the public prior to the General Election of 1982, which report and observe on the content of 60, pro and con; samples of campaign literature by the proponents and opponents of 60, that relate to its content; etc.

“P objected to the receipt in evidence of all of this material upon two grounds; (1). that some of it contains hearsay statements (Rule 801, et seq., Uniform Rules of Evidence); and (2). that this material is not relevant (Rule 401, etseq. URE). This latter objection is based upon, saysP, pronouncements of our Supreme Court in the cases of Hodges v. Dawdy, 104 Ark. 583 (1912); Wiseman v. Madison Cadillac Co., 191 Ark. 1021 (1935); and Atkinson v. Board, 1977, 262 Ark. 552.”

“It is the argument of Ds, in urging that this material is relevant to the issues of this case, that: (1). the advent of modern communication devices make Hodges and VViseman out ot date, citing: Client Follow-Up Co. v. Hynes, 390 N.E.2d 847 (Ill. 1979); 2A Sutherland, Statutes and Statutory Construction, Sec. 48.19 (Sands 4th Ed.); In re Quinn, 35 Cal.App.3d 483, 110 Cal. Rptr. 881 (1973); Amalg. Assn. v. Las Vegas, 202 F.Supp. 726 (DC-Nev., 1962); and Chamberlain, Inc. v. Andrews, 286 N.Y.S. 242, 159 Misc. 124 (1936), in support of this observation; and (2). that neither Hodges, Wiseman nor Atkinson have application to the case at bar. Ds point out that those cases are concerned with the problem of debates, or expressed opinions, as to the meaning of document language, that arose prior to the election or vote; whereas in this instance, there never was a debate, or question, even beyond the General Election of 1982, that arose on the problem presented in this suit; that the floating rate and the fixed rate were, at all times, presented as separate and distinct, one from the other, and without interrelation, and that this mass of material will establish this as an unquestioned fact by both the proponents and the opponents of 60. P does not deny this argument of Ds.

“Assuming that this is the content of this material, for purposes of my compromise (and I have no reason to doubt that Ds assert correctly), I must agree that this material should be received in evidence for the purposes explained, and given some consideration in this search for the intended meaning of the language of 60. Most assuredly it is not conclusive of the problem, only some weight in its final resolution. Therefore, and over the objection of P, this material will be received into the evidence subject only to the hearsay objection of P, which is sustained.

“However, I have concluded that this problem can be resolved by an analysis of 60, without outside interpretative aids such as the evidentiary matter just discussed. And, when the history of our times leading up to, and during the formation and adoption of 60, is noticed, and when the spirit of this law is given credence, the answer falls into place so solidly there can be no doubt of this answer. With this full consideration, it is plain that the resulting absurdities, conflicts and contradictions of the acceptance of P’s argument would defeat the plain purpose of 60. And, to reach such an obviously required result, it is proper to modify, reject and/or substitute words and phrases in 60 to give it this intended meaning. (R. 65)

“The first source the court must look to in the resolution of this problem is the total pertinent language of the instrument considered. This inquiry must go beyond isolated words, phrases, or even paragraphs, for an analysis of the result the various interpretations bring about to the entirety of the document. If the result of one interpretation brings about greater disharmony in the entirety, then that should not be accepted, for absurd, conflicting and contradictory results should not be imputed to be intentional.

“When one studies 60 in such a way, it is readily ascertainable that its purpose is to accomplish six separate functions: (1) it classifies all lending transactions into four categories, to-wit: (a) General Loans; (b) Small Loans; (c) loans upon which no rate of interest has been agreed upon; and (d) loans controlled by federal law, including those secured by residential real property; (2) it establishes two rates of interest applicable to the lending transactions described in 13 (a) and 13 (b); (3) it establishes two separate penalties for the act of usury, divided into separate sections and accompanying the texts of the two distinct interest provisions; (4) it specifically defines Small Loans; (5) by the process of elimination, it defines General Loans; and (6) it defines FRDR.

“Keeping these principles in mind, the argument of P is examined in the light of the syllogism set out above. It is observed that P seeks to impose, or transpose, the text of 13 (a), which bears the topic heading “General Loans”, upon the text of 13 (b), which bears the topic heading “Small Loans”, or vice versa, and the argument actually merges the two sections into one. In effect it destroys all need for the two categories of lending transactions, or for the two sections 13 (a) and 13 (b). The format of 60 is then out of harmony with its obvious intent. Not only is that so, but it creates conflicts, confusion, ambiguities and absurdities that no court, in good conscience, should conclude was the intent of its framers, the Legislature, or the voters. For instance, and using the false conclusion of P, arguendo:

“l.It results in two distinct penalties for an usurious act in the case of Small Loans, of such wide degree of impact, it is absurd. That is, if the usurious act exceeds the floating rate, but is less than the fixed rate (as here), the penalty is loss of unpaid interest, plus twice the amount of interest paid (here, a total amount of $92.26). The debt remains due and owing. Whereas, and using this case as the example, had the interest charge been 4% per annum higher, making the total charge 17.5% per annum (a few dollars more than the 13.5%), the total debt of $750.72, plus all unpaid interest, is the penalty. The unpaid balance and the interest is cancelled. Such a frivolous result could not have been the intent of 60.

“The phrase “maximum lawful rate”, appearing in 13 (a) (i), is written twice more in 13 (a) (ii), a clear indication that the two paragraphs are interwoven in meaning; whereas, that phrase does not appear at all in 13 (b), a good indication to say the least, that the subject matter of 13 (a) and 13 (b) are separate and distinct one from the other.

“2. The acceptance of the interpretation urged by P results in the requirement that the 13 (a) topic heading “General Loans” either be ignored or revised. If Small Loans are merged into the provision of 13 (a) (i), so as to make it read:

“The maximum lawful rate of interest on General and Small Loans shall not exceed 5% above the FRDR... ”; or,
“The maximum lawful rate of interest on all contracts . . . shall not exceed 5% . . . above the FRDR . . . ”;

the topic heading “General Loans” is no longer truly descriptive of the text material of 13 (a). This topic heading was, and is, included in the format of 60 for some purpose, and to make sense of the format of 60, as written, General Loans must be said to describe “any contract”, or vice versa. If “Any contract” is converted to mean “all contract”, “General Loans” thereupon becomes descriptive of “General and Small Loan contract”, which is actually a confusing, contradictory and ambiguous result. And so it is, that one is forced into the position of either ignoring the topic heading, or revising it to read “General and Small Loans”. Either course would take unwarranted liberties with the language of 60, and violates well-known rules of interpretation that every word, phrase, sentence used in an instrument must be afforded some meaning, if at all possible.

“3. The manner in which a written instrument is structured, and punctuated, is often of valuable assistance in an interpretation of its intent. The separation of written instruments into separate paragraphs, or sections, has already been discussed and will not be repeated except to point out once again that each of the four lettered subsections of Section 13 begin with a topic heading with ensuring text material that relates to each specific topic heading.

“The argument of P requires the court to ignore the value and meaning of the punctuation of 60. Each topic heading in the four sections is followed by the punctuation mark “colon”, a mark, or symbol, invented for use in writing to denote a pause in the thought being expressed. Using 13 (a) as the illustration, it is written and punctuated as follows:

“Section 13. (a) General Loans:
“(i) The maximum lawful rate of interest. . .
“(ii) All such contracts ...”

After the colon pause of the topic heading, the text material that ensues relates to the permissible interest rate and penalty for overcharges. Proper interpretation requires that the interest rate and penalty texts must relate to the topic heading. So, and in the final analysis, the addition of the word “such” in the phrase “any contract” is nothing more than a clarification of the clearly written intent of 60.

“This interpretation of 60 gives the intended force and effect to each subsection heading, i.e.: 13 (a) text relates to General Loans; (13) (b) text relates to Small Loans; (c) text relates to definitions of material in 13 (a) and 13 (b); and 13 (d) text relates to that which is Miscellaneous to 13 (a), 13 (b) and 13 (c), but thought needed to round out the total categories of lending transactions.

“4. If, as Purges, the word “any” means “all”, the result is further conflict with the two types of lending categories identified in 13 (d). Actually, the word “conflict” is incorrectly used as the language of those two transactions makes it very clear that neither the floating nor the fixed rates of interest apply to them. But, they are lending transactions, and would be included within the meaning of the word “all”, as P attempts to apply it. The fact that these miscellaneous types of lending transactions are excluded from the floating and fixed interest rates is proof positive that the word “any” does not mean “all”. That being so, how much less than “all” shall the interpreter tone down “any’ ’? A half note, a quarter note, or what? The plain fact is that the argument of P, when afforded a little more than a superficial look, is but straining at a gnat. If the interest rate provisions of 13 (a) and 13 (b) are commingled, the intent of 60 is frustrated.

Supplemental Opinion delivered July 18, 1983

“The wording and structure of the whole of 60 leaves no doubt but that its intent is to create a separate and distinct lending category, entitled “General Loans” in Section 13 (a) thereof, and that the text material of this subsection is intended to apply and relate only to that topic heading, and to none other; and to create a separate and distinct lending category, entitled “Small Loans” in Section 13 (b) thereof, and that the text material of this subsection is intended to apply and relate only to that topic heading, and to none other.

“And thus it is that an examination of the entirety of 60, and a superficial look at the history of our times and the events leading up to 60, results in a finding that the conclusion of P, in the syllogism suggested above, is a non sequitur. Except for its superficial appearance, it is clear that the interest rate and penalty provision for excessive charges in 13 (a) relate only to General Loans, and to none other,-' and that the interest rate and penalty for excessive charges set forth in 13 (b) relate only to Small Loans, and to none other.”

Per Curiam. In this case we must once again express our disapproval of the conduct of an attorney who testifies in a case while also acting as an attorney in the case. Rushton v. First Nat. Bank of Magnolia, 244 Ark. 503, 426 S.W.2d 378 (1968); Old American Life Ins. Co. v. Taylor, 244 Ark. 709, 427 S.W.2d 23 (1968); Montgomery v. First Nat. Bank of Newport, 246 Ark. 502, 439 S.W.2d 299 (1969); Watson v. Alford, 255 Ark. 911, 503 S.W.2d 897 (1974); McWilliams v. Tinder, 256 Ark. 994, 511 S.W.2d 480 (1974); Dingledine v. Dingledine, 258 Ark. 204, 523 S.W.2d 189 (1975); Canal Ins. Co. v. Hall, 259 Ark. 797, 536 S.W.2d 702 (1976); Jones v. Hardesty, 261 Ark. 716, 551 S.W.2d 543 (1977); Enzor v. State, 262 Ark. 545, 559 S.W.2d 148 (1977); Boling v. Gibson, 266 Ark. 310, 584 S.W.2d 14 (1979).

In this case interventions defending the validity of the interest rate charged to the plaintiff were filed by Arkansas Credit Council, represented by its own attorney, and by Arkansas Retail Merchants Association, represented by Jim Guy Tucker. Four days before filing the intervention Mr. Tucker had executed a 4-page affidavit detailing his personal knowledge of negotiations that had preceded the final drafting of Amendment 60. That affidavit was introduced by the Council at the trial and was relied upon in its brief in this court.

When the trial began, Mr. Tucker appeared and stated to the chancellor:

Rather than running the risk regarding the admissibility of that affidavit, I ask the Court for permission to withdraw as counsel at this time and that Mr. Glenn Black be permitted to represent the Retail Merchants Association pro se in this proceeding.

The chancellor replied:

Again, Mr. Tucker, certainly the Court will permit the withdrawal. I have a concern as to whether or not a corporation is capable of being pro se represented. If the gentleman is an attorney, in fact, as far as I am concerned he may go forward.

A trial brief was filed for Arkansas Retail Merchants Association, signed by its president, Glenn A. Black, who is not an attorney. Since most of that brief is repeated verbatim in Mr. Tucker’s brief in this court, it appears that he or some member of his firm wrote both briefs.

Mr. Tucker also took part in the oral argument in this court. In response to a question about his being both a witness and an attorney in the case, Mr. Tucker expressed his awareness of the problem and defended his position by saying in part (as tape recorded at the time):

Number one. I did not testify in this case. I did not even participate at the trial level.
Number two. The affidavit of Jim Guy Tucker offered in evidence was not offered by my client.

We perceive no substantial difference between the situation of one who gives testimony in person and one who gives it by an affidavit. Both forms of sworn testimony fall within the reason for the prohibitory rule: “The roles of an advocate and of a witness are inconsistent; the function of an advocate is to advance or argue the cause of another, while that of a witness is to state facts objectively.’’ Code of Professional Responsibility, EC 5-9, 33 Ark. L. Rev. 677 (1980).

At least three excerpts from our earlier decisions are directly pertinent:

An attorney who is to testify in an action should .withdraw from the litigation. On the other hand, if an attorney is going to serve as an advocate for his client, he should refrain from testifying in the action. [Enzor v. State, supra.]
Any doubts about the application of these canons should be resolved by a declination of employment by any member of a law firm when a partner or associate may become a witness or by withdrawal of the firm from the representation when it becomes apparent that the testimony of a member or associate on behalf of a client will become necessary. [Montgomery v. First Nat. Bank of Newport, supra.]
Serving as appellate counsel after testifying is not even permissible. [Boling v. Gibson, supra.]

Justices Holt and Hays did not participate in the preparation of this per curiam opinion, nor did the two special justices who sat in the consideration of the case on its merits.


author: George Rose Smith, Justice.

text:
    JOHNSON COUNTY BOARD OF ELECTION COMMISSIONERS v. J. Marvin HOLMAN
    83-89
    655 S.W.2d 408
    Supreme Court of Arkansas
    Opinion delivered July 11, 1983
    [Rehearing denied September 12, 1983.]

      Steve Clark, Atty. Gen., by: E. Jeffrey Story, Asst. Atty. Gen., for appellant.

      Jeff Mobley, for appellee.
   George Rose Smith, Justice.

When a vacancy occurs in the office of municipal judge more than nine months before the next general election, and the governor fills the vacancy by appointment, is the appointee’s successor to be chosen at a special election called by the governor or at the next general election? The trial judge took the latter view and accordingly held that the governor’s proclamation calling a special eléction was void. We must disagree.

The case concerns the Clarksville Municipal Court, which the trial court correctly found to be a municipal office even though the judge is elected by a county-wide vote, exercises county-wide jurisdiction, and is paid partly by the city and partly by the county. The appellee does not question that conclusion, which we need not examine in further detail.

As of January 1, 1983, a vacancy arose in the office of municipal judge by reason of the incumbent’s resignation. On January 3 Governor White appointed the appellee, J. Marvin Holman, to the office and on January 8 issued a proclamation calling for a special election on March 8 to fill the vacancy. Holman then brought this action for a declaratory judgment, from which the County Board of Election Commissioners appeals. Our jurisdiction is under Rule 29(1) (a).

The decisive question is whether Section 1 of Amendment 29 to the Arkansas Constitution, relating to the filling of vacancies in public offices in general, repealed with respect to municipal courts Section 50 of Article 7, relating to the filling of vacancies in offices authorized by Article 7, which created the judicial department of the state government.

Here are the two constitutional provisions in question:

Article 7, § 50: All vacancies occurring in any office provided for in this article shall be filled by special election, save that in case of vacancies occurring in county and township offices six months and in other offices nine months, before the next general election, such vacancies shall be filled by appointment of the Governor.
Amendment 29, § 1: Vacancies in the office of United States Senator, and in all elective state, district, circuit, county, and township offices except those of Lieutenant Governor, Member of the General Assembly and Representative in the Congress of the United States, shall be filled by appointment by the Governor. [Section 4 of Amendment 29 specified the term of the appointee.]

Since we must give effect to all the language in the Constitution, we find no difficulty in reconciling the two quoted provisions. Section 50, before the amendment, governed the filling of vacancies “in any office provided for in this article,” which by its first section had already authorized the General Assembly to create municipal courts. Such courts were not covered by Amendment 29, which refers specifically and only to “elective state, district, circuit, county, and township offices.” Thus the language of Amendment 29 is not all-inclusive — a fact we have recognized by holding that it does not include the elective office of school director. Glover v. Henry, 231 Ark. 111, 328 S.W.2d 382 (1959). This possible interpretation of the two sections is noted by the compiler of the Arkansas Statutes Annotated in the Notes to Section 1, Article 29, of the Constitution: “Since this section does not cover municipal officers, it would not have the effect of superseding Const., Art. 7, § 50 with respect to the municipal corporation courts provided for in Art. 7, § 1.” Ark. Stat. Ann., Vol. 1, Supp. 1981. That compiler’s note anticipated the precise question presented by this case.

In the case at bar the circuit judge based his decision on our sweeping statement that “Amendment 29 completely eliminated and superseded section 50 of Art. 7.” McCraw v. Pate, 254 Ark. 357, 494 S.W.2d 94 (1973), cited in Pulaski County Municipal Court v. Scott, 272 Ark. 115, 612 S.W.2d 297 (1981). Our statement, however, must be considered in the context of its accompanying facts, which concerned the office of sheriff — unquestionably a county office falling within the language of Amendment 29, Section 1. The statement cannot be taken literally in a case involving a municipal judge. The appellee also argues that there is no statute under which a special election may be called, but that implementation of the Constitution is to be found in Ark. Stat. Ann. § 3-602 (Repl. 1976).

Reversed, the mandate to issue immediately.


text:
    Tad Anthony ISOM v. STATE of Arkansas
    CR 83-84
    655 S.W.2d 405
    Supreme Court of Arkansas
    Opinion delivered July 11, 1983
    [Rehearing denied September 12, 1983.]

      Garrett ir Harbour, by: Richard A. Garrett, for appellant.

      Steve Clark, Atty. Gen., by: Matthew Wood Fleming, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

Isom appeals from a verdict and judgment finding him guilty of rape and sentencing him to a 20-year prison term and a $5,000 fine. His six arguments for reversal present no prejudicial error.

The prosecutrix, who was 18 at the time, testified that on the night of March 10, 1982, the defendant Isom, whom she recognized, picked her up on the street with a promise to take her home. When she realized he did not mean to take her home she became frightened, begged him to let her out, and finally jumped from the moving car, suffering painful injuries. She got to her feet and ran toward a house (occupied by the witness Morgan), screaming for help. Isom caught up with her, tied her hands with a belt, and took her to a field behind the Morgan house, where he raped her. After another attempted rape in a cemetery Isom did take the prosecutrix home, but he fled when she at once stated to her stepfather that Isom had raped her. The police were called, and the girl was taken to a hospital for examination and for treatment of her injuries.

It is first argued that a juror should have been excused for implied bias because he said, in response to a question by defense counsel, that if he were on trial for rape he would want to take the witness stand. That juror was seated as the twelfth member of the jury, with the next venireman being accepted by both sides as the only alternate juror. Without implying that defense counsel’s question to the twelfth juror was proper, it is enough for us to say that no error is shown, because the defense used only five of its eight peremptory challenges and was not compelled to take any undesirable juror. Conley v. State, 270 Ark. 886, 607 S.W.2d 328 (1980).

Second, a few days before trial defense counsel filed an untimely motion which, without asserting any mental incapacity on Isom’s part, asked that he be sent to the State Hospital for examination. The trial judge ordered that Isom be examined at a Monticello guidance center. Separate evaluations were submitted by a psychiatrist and a psychologist, both of whom were unusually positive in stating that Isom, age 22, was a normal adult, showed no evidence of any mental disorder, knew the difference between right and wrong, and was very well capable of assisting in his defense. Defense counsel received the reports on the morning of trial and asked for a continuance on the ground that she had not had time to thoroughly review the reports or to question the doctors. Since there was nothing whatever in either evaluation to indicate any mental disease or defect, the trial court did not abuse its discretion in refusing to grant a continuance.

Third, in response to a motion for discovery the prosecutor submitted his entire file to defense counsel. It contained a brief reference to Larry Daniels, without more. On the day of trial the police supplied the prosecutor with a statement taken from Daniels three months earlier. The prosecutor gave a copy to defense counsel, who objected to the State’s calling Daniels as a witness. After a brief hearing and after defense counsel had refused the court’s offer to allow her a few minutes to interview Daniels, the trial judge ruled that although the knowledge of the police was imputed to the prosecutor, Daniels would be allowed to testify.

The ruling was right. Daniels’s written statement is not in the record, but his testimony was not critical to the State’s case. Daniels was a passerby who saw Isom’s car parked near the Morgan house, apparently as the rape was about to take place in the field. Daniels testified that he examined the car, because its lights were on and a door was open. He saw a scarf and some rollers in the street and blood stains on the car. He heard a scream from behind the Morgan house. The police, who had received a call reporting a disturbance, arrived and talked to Daniels. They testified to essentially the same facts, except for the scream.

We have held that even when a prosecutor failed to supply information to the defense, the failure was cured by a recess during which defense counsel interviewed the witness. Hughes v. State, 264 Ark. 723, 574 S.W.2d 888 (1978). Here defense counsel declined the offer of an interview with Daniels and apparently made no effort to interview him when the court in a short time recessed the case from Monday evening until Wednesday morning. Moreover, Daniels’s testimony was corroborated by other witnesses and related to facts that were actually undisputed. We do not reverse a case for an irregularity when no substantial possibility of prejudice is shown.

Fourth, Officer Cater was among the witnesses who testified about the chain of custody of a “rape kit,” which appears to be a standard package containing envelopes for hair specimens, fingernail scrapings, and other material commonly used in sex crime investigations. Defense counsel asked that the officer’s testimony be stricken, because his name had not been supplied in response to a request for discovery. The motion to strike was properly overruled, for it was not made until after the jury had heard the officer’s entire testimony on direct, cross, redirect, and recross examination.

A fifth point questions the sufficiency of the chain of custody of the rape kit. There was no real possibility of a substitution, however, for only one kit came from the hospital in Jefferson County during the interval in question. Nor was there any indication of tampering. The trial judge was justified in admitting the kit into evidence. See Davis v. State, 275 Ark. 264, 630 S.W.2d 1 (1982).

Lastly, because sperm were found in the body of the prosecutrix, defense counsel sought to cross-examine her about how long it had been before the rape when she had last had intercourse with someone else. The court properly refused to allow such cross examination. Proof of that kind is broadly forbidden by the rape-shield statute. Ark. Stat. Ann. § 41-1810.1 (Repl. 1977). No written motion to permit such proof was filed before the trial, nor was there a showing of good cause for the matter having been delayed until the trial was in progress. § 41-1810.2. Complaint is made about the trial court’s denial of counsel’s request for an interlocutory appeal, but once the jury has been sworn a trial cannot be interrupted to permit such a review. State v. Glenn and Hamilton, 267 Ark. 501, 592 S.W.2d 116 (1980).

Affirmed.


author: Frank Holt, Justice.

text:
    Jerry RHODE et ux v. William KREMER et ux, d/b/a MILLER ENTERPRISES MOBILE HOMES and KAUFMAN AND BROAD HOME SYSTEMS, INC.
    83-37
    655 S.W.2d 410
    Supreme Court of Arkansas
    Opinion delivered July 11, 1983

      Henry ¿r Duckett, for appellants.

      Davidson Law Firm, P.A., for appellees and cross-appellants, Kremer.

      Rose Law Firm, P.A., for appellee, Kaufman and Board Home Systems, Inc.
   Frank Holt, Justice.

This litigation arises from the sale of a mobile home. On February 10, 1981, the appellants signed an agreement to purchase a mobile home from appellee Miller Enterprises Mobile Homes, owned by the Kremers. The mobile home was manufactured by appellee Kaufman and Broad Home Systems, Inc. Two documents of sale were executed at the same time. One document is on a form titled “Purchase Agreement UCC § 2-201.” This document was signed by the appellants and Susan Rae Purdom, on behalf of Miller Enterprises Mobile Homes. The charges are itemized, 17% interest is specified, and the number and amount of the installment payments are stated. This document states that the seller’s approval is “Subject to acceptance of financing by bank or finance company.” The second document is titled “Sale, Security Agreement and Disclosure Statement” and is apparently a First National Mortgage Company form, the proposed financing agency. The terms of payment are identical to those of the first document except that the monthly payments are to be made to FNMCo. This document also states that the appellee seller has arranged an extension of credit to the buyers from First National Mortgage Company. The appellants and Susan Rae Purdom also signed this document. However, the name of the seller typed on this document is “Miller Enterprises, Inc.,” rather than Miller Enterprises Mobile Homes, the actual seller.

The mobile home was delivered on February 12,1981, to the appellant buyers, who moved in at that time and have since occupied the mobile home. On March 5, or three weeks later, the appellants made complaint to appellee seller concerning a number of alleged defects in the mobile home. Until the defects were corrected, the appellants refused to sign a “Borrower’s Authorization Certificate” directing FNMCo to pay the seller. This certificate contained a sentence stating, “DO NOT SIGN THIS FORM UNTIL THE MOBILE HOME HAS BEEN INSTALLED AND SET UP TO YOUR SATISFACTION.” Notice of the defects was transmitted by the appellee seller to the manufacturer, Kaufman and Broad, which had warranted the mobile home. On Saturday, March 21a repair crew from Kaufman and Broad’s factory in Texas arrived at the mobile home. Part of the defects were cured that day. However, the crew was unable to complete the requested repairs. The appellants wrote a note to the Kaufman and Broad service manager stating they were pleased with the corrective work being done and requested that the same crew be returned to complete the repairs.

However, on April 3 the appellants’ attorney sent a letter to Miller Enterprises Mobile Homes revoking acceptance of the mobile home because of the existence of various defects. On April 4 a repair crew from Kaufman and Broad appeared at the mobile home to complete the repairs. The appellants refused to permit the crew to do so.

Thereafter, Miller Enterprises Mobile Homes instituted this action in chancery court against the appellants, asking the chancellor to order the appellants to specifically perform by executing the Borrower’s Authorization Certificate. The complaint further asked for an award of $500 per month for each month the appellants used the mobile home without paying the seller. At trial the pleadings were orally amended asking for a judgment for the purchase price, less the original down payment of the mobile home. Damages also were sought from Kaufman and Broad on the theory that Kaufman and Broad had breached its warranty agreement and the seller had suffered damages thereby. In response the appellants asserted the contract was usurious and also counterclaimed for the return of their down payment, plus incidental and consequential damages. By the time the trial occurred on September 23,1982, FNMCo had ceased making loans on mobile homes, so the contemplated method of financing was no longer available.

The chancellor found that the mobile home was defective, but that the revocation of acceptance by the appellants was ineffective because the appellants should have given Kaufman and Broad more time to cure the defects. He also found that since the contract was to be assigned to FNMCo, which all parties agree is an institution subject to the Federal preemption of state usury laws, the agreement was not usurious. The chancellor held that the appellants are liable to the seller (Miller Enterprises Mobile Homes) for the unpaid balance of the cash price of the mobile home to be paid in monthly installments over 15 years. Since financing was no longer available through FNMCo, he set the interest rate at 10% rather than 17%. He ordered that the needed repair work be arranged at the seller’s expense through and to the satisfaction of a third party contractor.

The appellants first contend that the chancellor erred in not finding the purchase agreement usurious and void under Article 19, Section 13 of the Constitution of Arkansas (1874). They argue that the second document of sale, which indicated that the credit was being extended by FNMCo should not have been admitted into evidence because the seller listed thereon was “Miller Enterprise, Inc.,” which was not a party to the suit, rather than Miller Enterprises Mobile Homes, the actual seller and party to the suit. The appellants’ theory is that the only admissible document of the sale transaction was the purchase agreement on the UCC § 2-201 form, which listed Miller Enterprises Mobile Homes as the seller. Since the stated interest rate thereon is 17% and Miller Enterprises Mobile Homes is not eligible for the federal preemption of the state usury laws, they contend the transaction is usurious on its face and therefore void. The chancellor found that the statement of the seller’s name on the FNMCo form was a mere typographical error and that Miller Enterprises Mobile Homes was intended to be the listed seller. We cannot say that finding is clearly erroneous (clearly against the preponderance of the evidence), so we cannot set it aside. ARCP Rule 52 (a). The only evidence as to how the wrong name appeared on the FNMCo form was the testimony of appellee William Kremer, who testified that the misstatement was a typographical error and that Miller Enterprises Mobile Homes was intended to be the seller listed on the FNMCo form. His testimony is unrebutted by any evidence in the record.

Appellants’ counsel also advances a theory that the name was intentionally misstated as a part of a scheme to avoid the state usury limit. However, there is no evidence in the record to support this argument. A party who pleads usury has the burden of proving it by clear and convincing evidence. Pulpwood Suppliers v. Owens, 268 Ark. 324, 597 S.W.2d 65 (1980). An intention to charge a usurious rate of interest will never be presumed, imputed or inferred where the opposite result can fairly and reasonably be reached. Hutcherson v. Wood, 279 Ark. 190, 650 S.W.2d 229 (1983). Here, the evidence supports the chancellor’s finding that the agreement was for credit to be extended by FNMCo, an institution eligible for the federal preemption of state usury laws. Since the parties agreed for a sale with the financing extended through FNMCo, their agreement was not usurious.

The appellants next argue that the chancellor erred in refusing to confirm their revocation of acceptance under Ark. Stat. Ann. § 85-2-608 (Add. 1961) andrefusing to award them judgment for their down payment plus incidental and consequential damages. In Marine Mart v. Pearce, 252 Ark. 601, 480 S.W.2d 133 (1972), we stated:

Our Uniform Commercial Code provides that goods delivered must conform to the sales contract. Ark. Stat. Ann. § 85-2-106 (Add. 1961). The seller, however, has a right to ‘cure’ a non-conforming delivery, § 85-2-508, and the seller as a ‘reasonable time’ to effect corrective measures.

The chancellor held that the appellants had not afforded appellee Kaufman and Broad, the manufacturer, a reasonable time to cure the defects in the mobile home. Based on the facts previously recited as to Kaufman and Broad’s efforts to repair the mobile home, we cannot say this finding is against the preponderance of the evidence. Therefore, we affirm the chancellor.

On cross-appeal Miller Enterprises Mobile Homes contends that the chancellor erred in forcing it to finance the sale of the mobile home and to correct any defects in it. With respect to the financing, the cross-appellants argue that the order of the chancellor constitutes a reformation of the contract inasmuch as the order requires Miller Enterprises Mobile Homes to finance the sale, which it had not agreed to do. It is further argued that reformation of the contract was not proper because there was no showing of mutual mistake or fraud. Lyle v. Latourette, 209 Ark. 721, 192 S.W.2d 521 (1946); Morrilton Ice & Fuel Co. v. Montgomery, 181 Ark. 180, 25 S.W.2d 15 (1930). We agree that the parties intended that financing would be extended by FNMCo and not by Miller Enterprises Mobile Homes. We also agree that there has been no showing of fraud or mistake to justify reformation. In our view, no contract for financing was ever finalized as contemplated by the parties. The chancellor’s decision, however, which required payment over 15 years at 10% interest, in effect, made a new contract or financing arrangement for the parties to which neither had agreed. Therefore, we modify the chancellor’s decree to the extent it dictates terms of financing for the sale of the mobile home. In the absence of the contemplated contract arranging for the financing of the sale, we hold that the transaction constitutes a mere sale with the appellant purchasers being liable for the balance of the unpaid purchase price. As abstracted, appellees expressed to the court that “[w]e are not asking for seventeen percent (17%) interest. We are asking for the purchase price.”

Judgment should be entered for the cross-appellants for the unpaid portion of the sale price. With respect to the repair work, Kaufman and Broad expressed a willingness to be responsible for any needed repairs.

Affirmed on direct appeal and reversed on cross-appeal.


author: Darrell Hickman, Justice. John I. Purtle, Justice,

text:
    SUPERIOR SEEDS, INC. v. John E. CRAIN
    83-151
    655 S.W.2d 415
    Supreme Court of Arkansas
    Opinion delivered July 11, 1983

      Henry J. Swift, for appellant.

      Oscar Fendler, and Gibson & Bearden, by: Michael L. Gibson and Stephen P. Hale, for appellee.
   Darrell Hickman, Justice.

In 1979 the appellant, Superior Seeds, Inc., sued one of its suppliers, a local farmer, for $16,831.51 that it claimed the farmer wrongfully kept or converted, and for $5,500 in punitive damages.

At a pretrial conference of this case on September 7, 1982, the trial judge told the appellant’s attorney that he would hold another conference a week later in another city because the lawyers were not properly prepared for trial. He specifically told the appellant’s attorney to prepare instructions. When the second pretrial conference was held, the appellant’s attorney still did not have an instruction which would explain the facts that the appellant would have to prove to receive compensatory damages. Because of this failure the trial court dismissed the appellant’s lawsuit.

On appeal we only consider whether the trial court’s dismissal was arbitrary and excessive since that was the only argument made below.

The pretrial conference on September 7, 1982, was one of standard practice in the circuit and by local Rule 4 of that circuit, both counsel were required to present a set of instructions that they intended to offer. Those rules are filed with this court.

The appellant’s attorney conceded that he did not have all the instructions on September 7th. At that conference the judge said that the instructions tendered by appellant did not include one covering compensatory damages and were, therefore, inadequate. He told the appellant’s attorney he would give him until September 14th to prepare additional instructions so “that justice [will] be done.”

Then on the 14th, the judge said:

When I was in Osceola on September 7, I discovered that the lawyers hadn’t really shown each other their exhibits. Each side — rather, the defendant had several exhibits to offer. The plaintiff didn’t have any there and hadn’t shown any there, and I specifically inquired of plaintiff’s attorneys whether they had certain things that I thought were necessary in connection with the pretrial, and specifically I pointed out to them that there was no instruction offered which described and set forth what the plaintiff — What the jury should be told about what the plaintiff had to prove in order to recover compensatory damages. There was an instruction offered by the plaintiff at that time defining what the plaintiff had to prove in order to recover for punitive damages, but, since the plaintiff wasn’t ready for a thorough pretrial conference at that time, I reset it for today, September 14, and I specifically told the plaintiff’s attorneys on the 7th that we needed a proper instruction telling the jury what the law was as it related to compensatory damages; and since the plaintiffs still have no instruction on that, I am going to rule at this time that the plaintiff — that this case should be dismissed.

The trial court was well within its authority to take the action it did, since courts have inherent authority to promulgate rules and enter orders for their administration. Letaw v. Smith, 223 Ark. 638, 268 S.W.2d 3 (1954). We treat the dismissal as one without prejudice. See ARCP, Rule 41 (b). Several arguments are made about the legality of the local rules of the circuit and the constitutional duty of the trial court to prepare the instructions itself. But we reach none of these for the reasons stated.

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. I dissent because it is my opinion that a trial court does not possess the power to dismiss a cause of action because the court is aggravated at the attorney for one side. The local rules require the parties to submit jury instructions which they desire the court to read to the jury. It is my guess that plaintiff’s attorney in the case before us felt like he had prepared all the instructions he wanted the court to read. In fact, he was mistaken in thinking that the law allowed recovery for punitive damages without making an award for compensatory damages. In any event plaintiff’s attorney stated that the trial was expected to last three days and that he could present the missing jury instructions before it was time to read them to the jury. It is obvious that the court and all the attorneys involved knew exactly what that instruction would contain. Therefore, nobody would have suffered injury and the trial court could have dealt with the offending attorney on a different day or at the conclusion of the trial.

I would also reverse the order of the trial court which directed plaintiff’s attorney to personally pay the defendant’s attorney the sum of $250 for expenses in going from Osceola to Paragould for a pretrial on this case. It should be noted that neither attorney had complied with the local rules on September 7, 1982. The court stated:

When I was in Osceola on September 7, I discovered that the lawyers hadn’t really shown each other their exhibits... specifically I pointed out to them that there was no instruction offered which ... set forth . .. what the jury should be told about what the plaintiff had to prove in order to recover compensatory damages.

Local Rule 4 of the circuit court of Mississippi County, insofar as it is abstracted, does not provide for dismissal of a cause of action because one of the attorneys fails to submit instructions. Neither does the rule allow the trial court to impose a fine or penalty inuring to the benefit of the opposing counsel.

Article 7, sec. 23 of the Arkansas Constitution requires the trial court to declare the law and further provides that the court shall reduce it to writing on the request of either party. I realize that our cases and rules have long differed with the provisions of Article 7, sec. 23. Nevertheless, in my opinion, the trial court is still charged with this responsibility. Most likely the trial court in the present case had available to him or in his possession on the pretrial dates an instruction with the exact words he desired to present to the jury. ARCP, Rule 51, provides that any party may submit jury instructions to the court at any time up until the close of the evidence unless the court reasonably directs an earlier filing. Local Rule 4 does not specify any instruction other than a “complete set” commencing with AMI 101. Certainly this rule does not give proper notice and an opportunity for a hearing prior to unenumerated sanctions by the local court.

I cannot think of any rational reason why the trial court could not have continued with the trial and allowed the appellant’s attorney to submit the missing instructions prior to the close of the evidence as provided by our rules. On September 7, 1982, the court found the instruction missing. At the September 7, 1982 hearing, the court, speaking of the missing instructions, stated, “There is no justification for him to have this other than justice be done and, of course, we have to be more concerned with that than we have anything else.” The court was absolutely correct in that statement; nonetheless in my opinion the dismissal of the plaintiff’s suit, which had been pending for several years, was unjustified. The result of the courts’ action will be to prolong this cause of action unnecessarily, perhaps even for an additional several years. The speedy administration of justice has been thwarted through a needless and wasteful exercise of judicial authority. Therefore, I strenuously object to this court putting its stamp of approval on such an action by the trial court.


author: Darrell Hickman, Justice.

text:
    Karleene ROWDEAN & Huey P. ROWDEAN v. STATE of Arkansas
    CR 83-33
    655 S.W.2d 413
    Supreme Court of Arkansas
    Opinion delivered July 11, 1983

      Edwin A. Keaton, for appellants.

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

Karleene Rowdean was convicted of first degree murder and sentenced to 35 years imprisonment for shooting Billy Pat Mullens outside a nightclub near Camden, Arkansas, in the early morning hours of June 13, 1982. Her husband, Huey Rowdean, in a joint trial, was convicted of hindering, harboring, and concealing her in violation of Ark. Stat. Ann. § 41-2805 (Repl. 1977) and sentenced to one year imprisonment.

We reverse her conviction because the trial court received evidence of two prior acts of misconduct which were not relevant to the murder charge.

The first instance concerned an incident earlier the same evening at Graham’s Drive-In near Camden. While her husband was shooting dice in the rear of the establishment, Karleene Rowdean was observed by the owner of Graham’s Drive-In, pulling a gun on another female patron of the establishment.

This incident, totally unrelated to the charge in question, was clearly inadmissible, in Alford v. State, 223 Ark. 330, 266 S.W.2d 804 (1980), we explained why other wrongs were not admissible to prove a separate charge. That principle is embodied in Ark. Stat. Ann. § 28-1001, Rule 404 (b), which reads:

Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

The evidence of the incident at Graham’s was not relevant to the motive, opportunity, intent, preparation or plan of the murder charge in question. It is an instance of the State using a separate prior act to prove another charge and, consequently, it was highly prejudicial. Nor was the Graham’s Drive-In incident a part of an ongoing, uninterrupted course of conduct. Cf. Hobbs v. State, 277 Ark. 271, 641 S.W.2d 9 (1982) and Sumlin v. State, 273 Ark. 185, 617 S.W.2d 372 (1981).

The other incident occurred a month or so before the killing of Mullens at another nightclub near Camden, The Godfather. Karleene Rowdean was asked by the State on cross-examination if she ever carried a knife and she said no. The State then called Clifton Earl Brown to testify that she had pulled a knife on him at The Godfather. The court refused to allow the evidence for impeachment purposes, and was correct in that regard. See Rhodes v. State, 276 Ark. 203, 634 S.W.2d 107 (1982). But the court permitted the evidence as probative of who the aggressor was in Mullens’ death. That, of course, is evidence of a character trait. Karleene Rowdean had not placed her general character in evidence. Nor had she offered any evidence of her character for peacefulness, or the victim’s for violence. See Halfacre v. State, 277 Ark. 168, 639 S.W.2d 734 (1982). If the State could offer the evidence as it did, then, in effect, it could offer such evidence in its case in chief. The only possible justification for such a proposition is a statement in Weinstein that reads:

Evidence of specific acts is permissible to prove character pursuant to Rule 405 (b) in cases in which the character of a person is an essential element of a charge, claim or defense. 2 WEINSTEIN’S EVIDENCE par. 405 [4] (1982).

While Karleene Rowdean did plead self-defense, or justification, we do not find that permits the State to offer evidence of specific instances of prior misconduct to show she may have been the aggressor. It was error to do so because her character is not an essential element of her claim of self-defense. (AMCI4105 was given to the jury: Justification — Use of deadly physical force in defense of a person.)

There are other issues raised which should not arise on retrial. The State did not notify the defense it intended to call Clifton Earl Brown, and, undoubtedly, it made plans to do so. This was also error according to Williams v. State, 267 Ark. 527, 593 S.W.2d 8 (1980), and that error will not arise on retrial.

It is argued that the deceased had a “habit” of carrying a knife and an instruction was requested to that effect. The trial court apparently found the evidence short of establishing a “habit” and we cannot say he abused his discretion. See Ritchey v. Murray, 274 Ark. 388, 625 S.W.2d 476 (1981).

No argument at all is made that any error was committed as to Huey Rowdean’s conviction; therefore, his conviction is affirmed.

Affirmed as to Huey P. Rowdean.

Reversed and remanded as to Karleene Rowdean.


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

text:
    OAKLAWN JOCKEY CLUB, INC. v. Paul JAMESON, Judge
    82-281
    655 S.W.2d 417
    Supreme Court of Arkansas
    Opinion delivered July 11, 1983

      Friday, Eldred'ge ér Clark, for appellant.

      Steve Clark, Atty. Gen., by: Jeffrey A. Bell, Asst. Atty. Gen., for appellee.
   John I. Purtle, Justice.

Petitioners filed for a writ of prohibition in this court, seeking to prevent the Washington County Circuit Court from hearing the case of Maupin Cummings, et al. against the Oaklawn Jockey Club, Inc., wherein the plaintiffs sought recovery on account of conversion. We do not reach the merits of the case since there is a failure by appellant to comply with the requirements of Rule 9 (d) of this Court.

The 261 page abstract consists almost entirely of word for word reproductions of the pleadings, orders by the court and minutes of meetings of the Arkansas State Racing Commission. An abstract cannot be said to be a condensation or abridgment of the record as required if it consists of a copy in full or is a mere reproduction of the entire transcript. Gray v. Ouachita Creek Watershed Dist., 239 Ark. 141, 387 S.W.2d 605 (1965). Most of the material reproduced is not necessary to our understanding of the facts and law of the case nor is it material thereto. We must, therefore, dismiss the petition.

Smith and Hickman, JJ., concur.

George Rose Smith, Justice,

concurring. This application for a writ of prohibition presents two simple questions: Was the class action filed by the two plaintiffs, residents of Washington County, properly brought in that county? If so, is the court’s jurisdiction affected by the absence of indispensable parties who cannot be brought into the case in Washington County? To answer those questions we need to know only the nature of the plaintiffs’ cause of action and the identity, status, and residence of the parties that must be brought into the case for a decision. The merits of the dispute are not before us.

I write this concurrence only to emphasize the necessity for our enforcement of Rule 9 in this case. Petitions for prohibition fall within our Rule 16, which provides that abstracts and briefs are required as in other cases. Rule 9, governing abstracts of the record, provides: “The appellant’s abstract . . . should consist of an impartial condensation ... of only [emphasis in the Rule itself] such material parts of the pleadings .. . and other matters in the record as are necessary to an understanding of all questions presented to this court for decision.” Thus the Rule contemplates that appellate counsel will prepare an abstract fairly condensing the record to matters essential to the court’s consideration. A correlative implication, not to be lost sight of, is that the members of the court are expected to read the abstract submitted by counsel.

No discernible effort has been made to condense, by paraphrasing, any part of this bulky record. The abstract consists essentially of a verbatim reprinting of much of the record, most of which has no bearing on the questions argued. Some matters, it is true, have been omitted from the abstract entirely, but there was no reasonable basis for the inclusion of such matters in the record in the first place.

The abstract runs to 261 printed pages, the equivalent of a fair-sized book taking several hours to read. Rather more than 80% of it is not pertinent to the questions now presented. Only a few examples of surplus matter need be mentioned. The plaintiffs filed four successive complaints in the case, each new one superseding its predecessor. The abstractor has copied all four of them verbatim, taking over 20 printed pages, although only the last one is relevant. All the trial court’s orders appear to have been copied, including at least six merely setting a date for a hearing. On March 11, 1980, the Oaklawn Jockey Club wrote a long letter to five addresses, explaining its position with respect to the distribution of breakage. That letter is copied in the abstract, taking five printed pages. Five additional copies of the letter appear later in the record; so the abstractor reproduced them as well, at pages 135 to 161. Presumably all members of the court are expected to read this letter six times. Thirteen successive pages are devoted to listing the names of the recipients of breeders’ awards in 1980 and 1981. About fifty pages reproduce the minutes of the breeders’ association, having no apparent connection with the court’s jurisdiction in Washington County.

My own conclusion, after reading most of the abstract and the brief, is that the abstract should have been confined to the final complaint, an abridgment of the verbose answer (which was copied twice), the stipulation of facts, the motion to dismiss, and the order denying that motion. In flagrant cases of this kind, when the abstractor has made no effort to comply with Rule 9 by condensing the record, it has been our longstanding practice to affirm or dismiss without considering the merits. We have no other way to enforce compliance with the Rule. Finally, I may perhaps appropriately express my firm conviction that the courts do a disservice both to the public in general and to the members of the bar when we fail to hold practicing lawyers to a reasonably high standard of professional competence.

Hickman, J., joins in this concurrence.


author: Robert H. Dudley, Justice.

text:
    James FIELDS, Jr. v. STATE of Arkansas
    CR 83-49
    655 S.W.2d 419
    Supreme Court of Arkansas
    Opinion delivered July 11, 1983

      Jeff Rosenzweig, for appellant.

      Steve Clark, Atty. Gen., by: Leslie M. Powell, Asst. Atty. Gen., for appellee.
   Robert H. Dudley, Justice.

Appellant was convicted of murder in the first degree for the killing of Lester Davis on a parking lot adjacent to Giggles Rollercade in Little Rock on April 18,1982. The sentence was fixed at life imprisonment. We affirm. Jurisdiction is in this Court pursuant to Rule 29 (1) (b).

Appellant contends that the trial court committed reversible error both at the Denno hearing and at the trial. He first contends that his admission that he shot the victim should have been suppressed at the Denno hearing. He argues that the trial court failed to consider relevant evidence on the authenticity of the statement. Obviously, an instrument offered as a statement by the defendant must be authenticated. Here, the Safe’s testimony on authenticity was given by Officer Larry Dunnington, who took appellant’s statement, and Officer J. D. Martin, who advised appellant of his rights in accordance with Miranda. Appellant did not testify and no other parties were present at the taking of the statement. Both officers testified they were aware that appellant had eight years of education and yet, could neither read nor write. Officer Martin testified that he read the rights form to appellant who indicated that he understood each right before he signed it. Officer Dunning-ton testified that he wrote out appellant’s statement, slowly read it to him, and appellant did not sign the statement until he stated that it was true and accurate. Thus, the uncontroverted evidence presented by the State was that the statement was indeed authentic.

At the hearing the appellant attempted to elicit testimony concerning the availability to the police of recording devices, secretaries or stenographers. The relevance of the purported testimony was to demonstrate a method of obtaining greater accuracy in reproducing the statement. The trial court, at first, refused to allow the questions and then erroneously refused to allow appellant to make a proffer of the evidence. However, the error was rendered harmless when, later in the proceeding, the trial court took notice that recording devices and stenographers were available but the police did not use them.

The appellant contends that the trial court erred in stating that “it is totally irrelevant the manner in which a statement is taken.” While the statement is erroneous, it amounts to harmless error, since the trial court’s finding that the statement was authentic is clearly in accordance with the preponderance of the evidence.

Appellant contends that the trial court erred at the trial by the giving of a jury instruction, AMCI 1507. Appellant was charged with murder in the first degree requiring proof of the “premeditated and deliberated purpose” of causing the death of another person. Ark. Stat. Ann. § 41-1502 (1) (b) (Repl. 1977). The model instruction defines the terms as “[T]he conscious object to cause death... a weighing in the mind of the consequences of a course of conduct as distinguished from acting upon sudden impulse without the exercise of reasoning powers.” The instruction continues with the following sentence which is argued to be objectionable by appellant: “It is not necessary that this state of mind existed for any particular length of time, but it is necessary that it was formed before the homicide act was committed.” According to appellant, this portion of the instruction is misleading because it countenances a finding of premeditation and deliberation which is contradictory in itself.

The Comment to AMCI 1507 refers to the Commentary to Ark. Stat. Ann. § 41-1501 which it states “makes it clear that prior law as to the meaning of these terms remains in force.” In several cases prior to the 1976 Criminal Code we held that the requisite state of mind of premeditation and deliberation need not exist for any particular length of time. Davis v. State, 251 Ark. 771, 475 S.W.2d 155 (1972); Ferguson v. State, 92 Ark. 120, 122 S.W. 236 (1909); Green v. State, 51 Ark. 189, 10 S.W. 266 (1889). This is still our law and the trial court correctly gave the standard AMCI instruction which accurately stated the law in this case. See Per Curiam Re: Arkansas Model Criminal Instructions, 264 Ark. 967 (1979).

Under A.R.Cr.P. Rule 36.24 and our Rule 11 (f), we have reviewed the other rulings adverse to appellant and find no prejudicial erroneous rulings.

Affirmed.