author: George Rose Smith, Justice. Conley Byrd, Justice, Darrell Hickman, Justice,

text:
    William D. GADDY, Director of Revenues v. HUMMELSTEIN IRON & METAL, INC.
    78-333
    585 S.W. 2d 1
    Opinion delivered June 18, 1979
    (In Banc)
    [Rehearing denied September 4, 1979.]

      Robert G. Brockmann, Jack East, 111, Joseph V. Svoboda, H. Thomas Clark, Timothy J. Leathers, and Barry E. Coplin, for appellant.

      McMath, Leatherman & Woods; and Barrett, Wheatley, Smith & Deacon, for appellee.
   George Rose Smith, Justice.

Our compensating (or use) tax law contains an exemption for machinery that is directly used in manufacturing. Ark. Stat. Ann. § 84-3106 (D) (2) (Supp. 1977). The appellee Hummelstein buys and sells scrap metal. The state revenue department ruled that Hummelstein’s machinery is subject to the tax, for the reason that Hummelstein is not engaged in manufacturing. The appellee paid the tax under protest and brought this suit for recovery. This appeal is from a decree holding that Hummelstein is a manufacturer and is therefore entitled to claim the exemption.

The appellee buys scrap metal in many forms, but in the testimony the clearest description of its operation relates to its handling of old cars, which it buys in great numbers. After the non-metallic materials, such as rubber and upholstery, have been removed from an old car, the engine block (for which there is a separate market) is pulled out. The remaining metal parts are then separated according to their nature, such as steel, iron, aluminum, brass, and copper. Dirt and other foreign matter must be removed. Large parts of a car, such as its steel body, are cut into pieces small enough to be separated by hand according to the grade of the particular metal. (Number two heavy melting steel is mentioned in the testimony as one grade.) The various metals and grades are then compressed into cubes or bales that may weigh as much as eight or nine hundred pounds. Steel, for example, is compressed into cubes small enough to go into the furnace doors at steel mills, where the scrap metal is to be made into new steel products. The bales or cubes of scrap metal are what the appellee sells to its customers.

Under the statute and our earlier cases the appellee cannot be classified as a manufacturer. The statute refers both to “manufacturing” and “processing,” § 84-3106 (D) (2) (e), but it is settled that “manufacturing and processing are not two distinct operations and that a taxpayer, in order to be entitled to the exemption, must first qualify as a manufacturer.” Heath v. Westark Poultry Processing Corp., 259 Ark. 141, 531 S.W. 2d 953 (1976). That holding is sound, for we have pointed out that “processing” is such a flexible term that it might be applied to such simple matters as washing potatoes preliminary to placing them in sacks or removing stems from strawberries. Scurlock v. Henderson, 223 Ark. 727, 268 S.W. 2d 619 (1954).

Thus the question is not whether the appellee is engaged in “processing” but whether it is engaged in “manufacturing,” which our statute declares is to be understood in its ordinary meaning. § 84-3106 (D) (2) (e), supra. Cases from other jurisdictions are of scant assistance, because their statutes differ from ours. Our own precedents, however, are controlling.

We are unable to distinguish the case at bar, in principle, from our decision in Scurlock v. Henderson, supra. There the question was whether cotton ginning machinery was exempt under the statute as it then read, which exempted “tangible personal property used by manufacturers or processors or distributors for further processing, compounding, or manufacturing ...” Act 487 of 1949, § 6. The parallel between that case and the present one is very close. There we noted that a ginner removes trash from the cotton. Here the appellee removes dirt from its scrap iron. We noted that a ginner separates the cotton fiber from the cotton seed. Here the appellee separates the various metals from one another. We alluded to the fact that a ginner compresses the cotton into bales. Here the appellee compresses the scrap metal into cubes that are salable. We concluded that cotton ginning machinery was not exempt from the tax, because “ginning is not processing or manufacturing. ” The controlling principle, as we see it, is simply that the cotton ginner begins and ends with the same commodity, cotton, in an unmanufactured form, just as the appellee begins and ends with scrap metal that is yet to be made into something else.

The appellee relies upon our holding in Ark. Ry. Equipment Co. v. Heath, 257 Ark. 651, 519 S.W. 2d 45 (1975), where we held that a company which bought old railway tank cars and converted them into highway culverts was engaged in manufacturing. We stressed the complexity of the steps that were required to convert the tank cars into culverts and the fact that a different product was being created. We concluded that the taxpayer was in fact “a manufacturer of culverts.” Here, by contrast, we cannot say that the appellee is a manufacturer of scrap metal, because that is what it begins, with and what it ends with. It changes the form of scrap metal, but it does not make a new product.

It must be remembered that the appellee is seeking an exemption from the tax. We have consistently followed the rule that “an exemption from taxation must be strictly construed and to doubt is to deny the exemption.” Morley v. E. E. Barber Constr. Co., 220 Ark. 485, 248 S.W. 2d 689 (1952). The appellee has failed to meet its burden of showing clearly that it is engaged in manufacturing and is therefore exempt from the tax.

Although not argued in the briefs, the suggestion has been made in our 'discussion of the case that the scope of the exemption has been broadened by amendment since our decision in the cotton ginning machinery case. Actually, the exemption has been narrowed. As mentioned above, the original exemption was of “tangible personal property used by manufacturers or processors or distributors for further processing, compounding, or manufacturing.” By Act 5 of the First Extraordinary Session of 1968, § 2, the exemption was rewritten to read essentially as it does today. What the amendment did was to limit the exemption to machinery and equipment used directly in the various stages of manufacturing “at manufacturing or processing plants or facilities in the State of Arkansas.” We quote the pertinent part of the exemption as rewritten in 1968:

(2) Machinery and equipment used directly in producing, manufacturing, fabricating, assembling, processing, finishing or packaging articles of commerce at manufacturing or processing plants or facilities in the Stale of Arkansas [italics supplied], but only to the extent that such machinery and equipment is purchased and used for the purposes set forth in this subsection.
* * * * *
(c) It is the intent of this subsection to exempt only such machinery and equipment as shall be utilized directly in the actual manufacturing or processing operation at any time from the initial stage where actual manufacturing or processing begins through the completion of the finished article of commerce and the packaging of the finished end product. The term “directly” as used in this Act is to limit the exemption to only the machinery and equipment used in actual production during processing, fabricating or assembling raw materials or semi-finished materials into the form in which such personal property is to be sold in the commercial market. Hand tools, buildings, transportation equipment, office machines and equipment, machinery and equipment used in adninistrative, accounting, sales and other such activities of the business involved and all other machinery and equipment not directly used in the manufacturing or processing operation are not included or classified as exempt.

The purpose of the 1968 amendment is perfectly clear. The original act, by exempting all tangible personal property used by manufacturers, could arguably have exempted office furniture, typewriters, automobiles, and various other personal property not used directly in the manufacturing process. The amendment limited the exemption to machinery and equipment used directly in manufacturing, but it still has to be used “at manufacturing or processing facilities.” Thus the basic question is precisely the same as it was in the cotton ginning machinery case: Is this taxpayer engaged in manufacturing? Upon the authority of that decision the answer must be No.

Reversed.

Conley Byrd, Justice,

dissenting. The majority’s reliance upon the cotton gin case, Scurlock v. Henderson, 223 Ark. 727, 268 S.W. 2d 619 (1954), to overturn the trial court does not appear to be well founded. At the time the cotton gin case was before us, the Compensating Use Tax Act, Acts 1949, No. 487, § 6 provided:

“There are hereby specifically exempted from the taxes levied in this Act:
(d) Tangible personal property used by manufacturers or processors or distributors for further processing, compounding, or manufacturing tangible personal property used for repair, replacement, or expansion of existing manufacturing or processing facilities or in creating new manufacturing or processing facilities; and tangible personal property used in the repair, replacement, or expansion of existing, or in the creation of new, facilities used for public transmission, communication, or transportation purposes.”

The General Assembly, following such cases as Scurlock v. Henderson, supra, amended the Compensating Use Tax Act so that the term manufacturers or processors or distributors would include cotton gins within its definition. Likewise, following the exemption of feedstuff in 1955, this Court took the illogical position in Hervey Comm’r v. Tyson’s Foods, Inc., 252 Ark. 703, 480 S.W. 2d 592 (1972), that items commonly added to chicken feed such as hormones and antibiotics did not constitute feedstuffs. The Court also there stated that “manufacturing and processing” were not two distinct operations — i.e. processing is carried out under the manufacturing process. Following the Tyson case, supra, the General Assembly passed with an emergency clause Acts 1973, No. 68 [Ark. Stat. Ann. §§ 84-1905.2 — 84-1905.5], specifically exempting medicinal preparations used in treating livestock and poultry. To avoid the construction that this Court has given to “manufacturing or processing” or “manufacturing and/or processing,” the General Assembly in 1975 rewrote the language of the exemption set out in subsection 2 of subsection D of Section 6 of Act 487 of 1949 and added an emergency clause critical of the interpretations given to the terms “manufacturing” and/or “processing.” See Acts 1975, No. 760, which became effective without the signature of the Governor and which, in so far as here pertinent, makes Ark. Stat. Ann. § 84-3106 (Supp. 1977) provide:

“There are hereby specifically exempted from the taxes levied in this Act:
(D) . . .
(2) Machinery and equipment used directly in producing, manufacturing, fabricating, assembling, processing, finishing, or packaging of articles of commerce and manufacturing or processing plants or facilities in the State of Arkansas, including facilities and plants for manufacturing feed, processing of poultry and/or eggs and livestock and the hatching of poultry, but only to the extent that such machinery and equipment is purchased and used for the purposes set forth in this subsection.

The emergency clause added to Acts 1975, No. 760, provides:

“SECTION 5. EMERGENCY CLAUSE. It is hereby found and determined by the General Assembly that uncertainty exists as to the intended meanings of the terms ‘manufacturing’ and/or ‘processing’ as the same are used in Section 4 of the Arkansas Gross Receipts Act, as amended, and Section 6 of the Arkansas Compensating Tax Act, as amended, as a result of which the legislative intent is not being carried out and implemented; that the failure to carry out the legislative intent expressed in the sections amended herein is highly detrimental to the public interest of the State and that this inequitable situation should be corrected immediately. Therefore, an emergency is hereby declared to exist and this Act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.”

The majority’s citation of Heath v. Westark Poultry Processing Corp., 259 Ark. 141, 531 S.W. 2d 953 (1976); for the proposition that Hummelstein Iron & Metal Inc. does not qualify as a manufacturer under Acts 1975, No. 760 is likewise not well founded, for in that case we were construing the terms as they had been defined in Acts 1968, No. 5 (1st Ex. Sess.). It also involved a tax liability that had accrued in 1974 or prior years. The 1968 Act applied to machinery and equipment used directly in producing, manufacturing, fabricating, assembling, processing, finishing or packaging articles of commerce “at manufacutring or processing plants or facilities,” whereas the 1975 Act, supra, exempts “machinery and equipment used directly in producing, manufacturing, fabricating, assembling, processing, finishing or packaging of articles of commerce and manufacutring or processing plants ... .” [Emphasis mine].

The majority suggests in a footnote that the word “and” in the 1975 Act is a typographical error. This is an asserted omnipotence and clairvoyance that I have not been privileged to observe among the ordinary mortals that have been elected to serve on the Supreme Court of Arkansas. Furthermore, it flies in the face of the finding of the General Assembly in Acts 1975, No. 760 § 5, supra, that the 1975 amendment was necessary because “the intended meanings of the terms “manufacturing” and/or “processing” . . . is not being carried out and implemented.” [Emphasis mine].

Finally, the majority says that cases from other jurisdictions having to do with the exemption of commercial scrap dealers from the Compensating Use Tax are of scant assistance. With this statement I cannot agree because Acts 1975, No. 760 § 2 specifically provides:

“(e) For the purpose of this subsection, the terms ‘manufacturing’ and/or ‘processing’ as used herein, refers to and include those operations commonly understood within their ordinary meaning, and shall include mining, quarrying, refining ... .”

Since other jurisdictions recognize that commercial scrap operations are manufacturers within the meaning of their sales and use tax statutes — see Butts v. Phelps, 90 Mo. 670, 3 S.W. 218 (1887); Middletown Iron & Steel v. Evatt, 139 Ohio St. 113, 38 N.E. 2d 585 (1941); Commonwealth v. Sitkin’s Junk Co., 412 Pa. 132, 194 A. 2d 199 (1963); Mayor and City Council of Baltimore v. State Tax Commissioner, 161 Md. 234, 155 A. 739 (1931); and H. Samuels Co. v. W. Department of Revenue, 70 Wis. 2d 1076, 236 N.W. 2d 250 (1975) —, we likewise should give weight to such authorities on the issue of what is commonly understood to be “manufacturing” by those conversant with the commercial scrap metal trade. Otherwise, we will be in the position of the mother who pointed out that all of the marching soldiers, except her son Johnny, were out of step.

Last but not least, I wish to point out that the undisputed proof shows that the steel smelting mills cannot get scrap metal in the furnace doors until it has been baled. If the steel mills were baling the scrap in the same manner that Hummelstein is baling the scrap, I doubt that anyone would characterize the process as other than a part of the steel mill operation — i.e. manufacturing. Since Hummelstein performs the same process that the steel mill would have to perform to get the commercial scrap into the furnace doors why should Hummelstein’s operation not be considered part of the operation necessary for the production of steel from recycled scrap — i.e. a part of the manufacturing process.

For the reasons herein stated, I respectfully dissent.

Hurtle, J., joins in this dissent.

Darrell Hickman, Justice,

dissenting. The majority has consistently voided exemptions to our use tax. In doing so, however, it has resorted to rewriting legislation. For example, we have held in effect that manufacturing or processing really means manufacturing and processing. Heath v. Westark Poultry Processing Corp., 259 Ark. 141, 531 S.W. 2d 953 (1976).

Historically, after the majority has declared that a particular industry involved in manufacturing or processing does not qualify for an exemption, the General Assembly at its next session specifically names that industry.

I know that it must be difficult for attorneys and trial judges to find a thread of consistency in our opinions. I cannot logically or legally defend them. If there is a consistency, it is that the majority has made every effort to hold that a particular piece of property is not exempt from the tax.

Rather than rewrite legislation to suit ourselves we should meet the matter more head-on and either accept exemptions w'hich are clearly warranted as a function of the General Assembly or declare the legislation unconstitutional as a violation of the equal protection clause of the constitution. I would prefer the latter because I feel that most, if not all exemptions, could not withstand the scrutiny of the equal protection clause of the constitution. An industrial firm adds no more to the benefit of the State of Arkansas than a large merchandising firm and should not be granted any particular privilege. Moreover, the General Assembly is tempted at each session to exempt other industries or processing concerns. Invariably, it results in legislation which means that those individuals or concerns that do not seek special favors from the General Assembly have to bear an unfair share of the tax burden.

The chancellor in this case, in my judgment, was correct in finding that the appellee was exempt according to the legislation. It was the only logical decision. Since no constitutional issue was raised, I would affirm the decree of the chancellor.

       Bya typographical error the word “at” was written as “and” when the subsection was re-enacted in Act 760 of 1975, § 2, which added an exemption of poultry processing equipment, but the fact that “and” was a typographical error is apparent not only from the context but also from the correct use of “at” in the corresponding sentence in § 1 of the same act, dealing with the sales tax instead of the use tax.


source: Caselaw Access Project

author: George Rose Smith, Justice.

license: Public Domain

text:
    FIRST NATIONAL BANK IN BLYTHEVILLE v. ELLIS GIN COMPANY, INC.
    79-20
    582 S.W. 2d 271
    Opinion delivered June 18, 1979
    (In Banc)

      Parllow & Mayes, P.A., for appellant.

      Gardner & Steinsiek, for appellee.
   George Rose Smith, Justice.

On January 12, 1976, the appellee gin company issued a check for $6,453.57 to Charles Smallwood in payment for 46 bales of cotton. The next day Smallwood presented the check to his bank, the appellant, receiving most of the proceeds in cash and depositing the rest to his account. Before the check reached the drawee bank, another bank in Blytheville, the gin company stopped payment on the check, because a production credit association had a lien on the cotton and should have been made a joint payee of the check. The gin company issued a new check, payable jointly, which Smallwood apparently indorsed and turned over to the PCA.

Almost two years later the appellant brought this suit against the gin company to recover the appellant’s net loss on the check. The appellee pleaded a novation as a defense, in that the bank had accepted Smallwood’s promissory note in place of the check. This appeal is from a decree sustaining the gin company’s defense.

The parties agree that the appellant was a holder in due course, so that the appellee was required to establish a defense to the suit. One form of novation occurs when by mutual agreement a new obligation is substituted for an existing one. Elkins v. Henry Vogt Machine Co., 125 Ark. 6, 187 S.W. 663 (1916). Here the question is whether the chancellor’s finding that a novation occurred is clearly against the preponderance of the evidence.

For several months after the original transaction the appellant bank tried to collect the amount of its loss from Smallwood. The witness Tomlinson, an officer of the bank, talked almost daily to Smallwood, who was trying to get a Farm Administration loan to repay the bank. Finally, on April 30, 1976, the bank took a promissory note for the amount of its net loss, $6,098.05, plus interest of $119.08. Both Smallwood and his wife signed not only the note but also a companion real estate mortgage, which was actually only a third lien on the land. Tomlinson testified that the gin company’s check at first was carried on the bank’s books as a cash asset. When the Smallwood note was received the cash item was wiped out on the books, and the principal amount of the note was reflected on the books as a charge to loans and discounts. Smallwood testified that when the note and mortgage were signed Tomlinson offered to give him the gin company’s check, but when Smallwood said he didn’t know what he was going to do with it, Tomlinson said, “I will just keep it.” The bank still had the check when the suit was filed.

Perhaps the view could be taken that the bank’s acceptance of the Smallwoods’ note and mortgage was not intended as a substitution for the bank’s claim against the gin company. But when we consider that the note and mortgage were in an amount different from that of the check, that Mrs. Smallwood signed the note and mortgage, that the note replaced the gin company’s check on the bank’s books, and that the bank offered to return the check to Smallwood when the note was accepted, we cannot say that the chancellor’s finding of a novation is clearly against the weight of the proof.

Affirmed.


text:
    Roger Dale PARKER v. STATE of Arkansas
    CR 78-208
    582 S.W. 2d 34
    Opinion delivered June 18, 1979
    (Division I)

      Barrelt, Wheatley, Smith & Deacon, for appellant.

      Steve Clark, Atty. Gen., by: Joseph H. Purvis, Deputy Atty. Gen., for appellee.
   George Rose Smith, Justice.

Roger Dale Parker was convicted of having raped two young women who, according to the proof, were at the time college students living together in an apartment in Jonesboro. Parker received two 50-year sentences, to run consecutively. We find no merit in his six points for reversal.

I. It is first argued that the court erred in refusing to permit Parker to represent himself without the assistance of counsel. At a pretrial conference on March 30, 1978, the court denied Parker’s request, as the court did not feel that it would be in Parker’s best interest to represent himself. We need not decide whether that ruling was contrary to our holding in Barnes v. State, 258 Ark. 565, 528 S.W. 2d 370 (1975), because the court raised the point again immediately before the trial began on May 10. By that date Parker had consulted with his two attorneys for some time. After his rights had been explained Parker stated that he wanted the two attorneys to represent him. It is now argued that Parker was entitled to a reasonable time in which to make up his mind. There was no such request either by Parker or his counsel. Since Parker had been consulting with his attorneys, apparently for some weeks, and had had an opportunity to make up his mind about the desirability of their services, we find that in the circumstances he voluntarily and intelligently accepted the services of counsel in preference to attempting to represent himself.

II. Before the trial court granted a defense motion that the witnesses for the State not be permitted to testify to any facts indicating that Parker was engaged in an attempted burglary when he was arrested 47 days after the asserted offenses of rape. An officer was nevertheless allowed to testify that Parker was in a “crouching” position when he was arrested. The officer further testified, however, that a pair of gloves (which were later introduced in evidence) were on the ground right in front of Parker when he was arrested. We do not see how the jury could have drawn an unfavorable inference merely from Parker’s crouching position, and it was relevant to connect him with the gloves. There was no error.

III. One of the victims testified that she did not see Parker’s face during the rapes, but she identified him at a line-up by his voice. After she had pointed him out in the courtroom, defense counsel objected to this question (and inferentially to the answer) as being leading:

Q. Is there any question in your mind about it?

A. No, there is not.

We do not regard the question as objectionable, for we do not see how it could have been asked in any other way. It can hardly be classed as leading, because, even though it was answerable yes or no, it did not suggest the answer. Jim Fork Coal Co. v. Rhotenberry, 183 Ark. 319, 35 S.W. 2d 590 (1931).

IV. The asserted rapes occurred on a bed at the victims’ apartment. The investigating officers carefully folded the sheets and sealed them for delivery to the crime laboratory. When Parker was arrested 47 days later, the officers took possession of his outer clothing and the gloves that were in front of him. An expert witness for the State testified that the sheets and the clothing and gloves all contained microscopic metal flakes that were compared and found to be indistinguishable. It was argued below that the evidence should not be admitted, because it was not shown that Parker was wearing the same clothing both at the time of the rapes and at the time of his arrest. The expert testimony was relevant, however, as circumstantial evidence tending to show that the metal flakes on the sheets came from Parker’s clothing, even though it may not have been the saíne clothing that he was wearing when he was arrested. In fact, the State apparently expected to prove that similar metal flakes were obtained at the manufacturing plant in Paragould where Parker worked. No similarity was established, however, with regard to the particles found at the plant. The jury was later instructed to disregard the evidence about the particles at the plant. Even so, the similarity between the microscopic particles found on the sheets and those found on Parker’s clothing when he .was arrested had a tendency to make his identity as the rapist more probable than it would have been without that evidence. The evidence was therefore relevant. Rule 401, Uniform Rules of Evidence, Ark. Stat. Ann. § 28-1001 (Supp. 1977).

It is argued, however, that the State’s failure to introduce more complete proof, such as that similar particles were found where Parker worked, was so prejudicial as to deny him a fair trial. The trouble is, there was no proper objection below to support the argument now made. There was no motion to strike the expert’s testimony about the similarity between the particles, nor was there a motion for a mistrial after the court had instructed the jury to disregard the testimony about the finding of particles where Parker worked. Apparently the defense was satisfied with the court’s rulings and thus is not now in a position to argue a point not supported by an objection.

V. Before Officer Westmoreland testified about finding metal particles where Parker worked, defense counsel asked that such testimony be prohibited, on various grounds such as that a search warrant should have been obtained, that the evidence would be a surprise because it had not been indicated by discovery, and that the evidence would be irrelevant and prejudicial. The court merely ruled that the objections would be considered when the evidence was proffered by the State, as the court had no way of knowing in advance whether it would be admissible. It is now argued that the court should have prohibited the testimony in advance. The court’s ruling, in the circumstances, was entirely proper. True, the court did eventually instruct the jury to disregard the officer’s testimony, apparently because it was not sufficiently connected up, but that often happens in the course of a trial. Counsel apparently were satisfied with the court’s admonition to the jury. We find no reversible error.

VI. Finally, it is argued that the State should not have been allowed to show that a green towel taken from the victims’ bathroom also contained metal flakes, because it was not shown that Parker had used the towel. In the first place, there is some indication that Parker washed up in the bathroom, so that he might have used the towel. In the second place, the important point is that the flakes were found on the sheets. That they were also on the towel is either immaterial or slightly favorable to Parker, as tending to show that he and the flakes were not necessarily connected with one another. Thus at most the possible error was harmless.

Affirmed.

We agree. Harris, C.J., and Byrd and Hickman, JJ.


author: John A. Fogleman, Justice.

text:
    Arch PENDER III, Arch PENDER, Jr., Maxine PENDER and Brenda PENDER v. Eugene McKEE and Dorothy McKEE
    78-127
    582 S.W. 2d 929
    Opinion delivered June 18, 1979
    (In Banc)

      DeLoss McKnight and Giles Dearing, for appellants.

      B. Michael Easley of Kinney & Easley, for appellees.
   John A. Fogleman, Justice.

This appeal was taken by the father and paternal grandparents of Belinda Jean Pender from a decree of adoption entered March 6, 1978, in the Probate Court of St. Francis County for her adoption by appellees Eugene McKee and Dorothy McKee. The McKees have resided in St. Francis County for approximately 15 years. The child was born on October 16, 1975, to Arch Arthur Pender III, then 21 years of age and Brenda Kay Wyers Pender, then 19 years of age. Both the parents and all the grandparents of Belinda were then residents of Cross County. These parents were separated at the time of Belinda’s birth, or shortly thereafter. Belinda was born prematurely and survived only with considerable difficulty. She was born in the Cross County Hospital at Wynne and kept there in an incubator about 30 days. For three days after her mother and paternal grandmother took her from the hospital, the child was having trouble breathing and suffering seizures, so they took her to a physician, and, upon his recommendation, took her to a hospital, where she remained for some time. By agreement with the parents, the child, then three months old, was taken from the hospital by Arkansas Social Services and immediately placed in the home of appellees, on December 15, 1975, where she was kept for six to ten months.

Arkansas Social Services took Belinda from the McKees and returned her to her parents. In December, 1976, the parents were separated and Belinda’s mother Brenda, who is also an appellant, brought her, along with her two brothers, one older and one younger than she, to the home of Mr. and Mrs. Arch Pender, Jr., her paternal grandparents, where they remained until May, 1977. Arkansas Social Services filed a petition in the Juvenile Court of Cross County, alleging that neither the maternal grandmother’s home nor the paternal grandparents’ home was a suitable place in which to raise these children. As a result, the juvenile court ordered the children removed from the Pender home and put in the custody and under the control of Arkansas Social Services, where they remained for about four months. The juvenile court specifically found that the home of the paternal grandparents was crowded, unclean and unsanitary, and that the parents had separated on several occasions.

A petiton was later filed by the paternal grandparents for a return of the children to their custody. On September 27, 1977, the juvenile court granted this petition, subject to continued supervision, or “protective surveillance,” by Arkansas Social Services. Belinda remained with her paternal grandparents until removed by order of the Chancery and Probate Court of St. Francis County, entered March 30, 1978, in this proceeding, which had been commenced by the petition of the McKees for adoption of Belinda, filed December 28, 1977. This order was entered after the chancellor and probate judge had consolidated the adoption proceeding and a petition for habeas corpus filed by appellees in the Chancery Court of St. Francis County to obtain custody of Belinda after the order of adoption was granted.

Appellants argue that the order of adoption was granted without the consent required by statute. Neither the parents, nor the paternal grandparents, gave their consent. The probate court held that their consent was not necessary.

We have concluded that the consent of the Juvenile Court of Cross County was not necessary. The adoption proceedings were governed by the Revised Uniform Adoption Act [Ark. Stat. Ann. § 56-201 et seq (Supp. 1977)]. Consent of the juvenile court would have been necessary only if there was no person lawfully entitled to custody of Belinda or empowered to consent to her adoption. Ark. Stat. Ann. § 56-207 (a) (3) and (4). The paternal grandparents were lawfully entitled to custody of the child. The requirements of Ark. Stat. Ann. § 56-206 (a) (3) are alternatives. The use of the disjunctive “or” makes the legislative intent quite clear that consent can be given either by (1) any person lawfully entitled to custody of the minor or (2) any person lawfully empowered to consent to her adoption. That person clearly need not be both lawfully entitled to custody and lawfully empowered to consent. The purpose of the legislature to authorize one who has been empowered to consent to do so, without also being lawfully entitled to custody, is clear. Thus, it is clear that the paternal grandparents had the power to consent to this adoption, because they were lawfully entitled to her custody, so Ark. Stat. Ann. § 56-206 (a) (4) never came into play.

Appellants did not assert any point for reversal upon the failure of the juvenile court to consent to the adoption and they did not contend in the original hearing in the adoption proceding that it was necessary. In their brief, they did advance subsidiary arguments that the juvenile court order relied upon by the probate court was void because it was entered without notice to either the parents or the grandparents, and that the juvenile court was without power to consent to an adoption. The probate court did not base its order of adoption solely on the consent of the juvenile court. Its holding based upon that consent was more properly a “makeweight” or secondary reason for holding that the consent of the natural parents was unnecessary. The court’s order had, before reciting this holding, stated that the natural mother had abandoned the child, that the natural father had, within the meaning of Ark. Stat. Ann. § 56-207 (a) (1), effectively abandoned Belinda and, within § 56-207 (a) (2), “for a period of at least one year has failed significantly without justifiable cause ... to provide for the care and support of the child as required by law or judicial decree,” and that the consent of the grandparents was not necessary because the juvenile court did not give them that power and the grandparents were unreasonably withholding their consent. Thus, we need only consider appellants’ points for reversal, i.e.:

I
THE COURT ERRED IN GRANTING THE ADOPTION WITHOUT THE CONSENT OF THE FATHER.
II
THE COURT ERRED IN GRANTING THE ADOPTION WITHOUT THE CONSENT OF THE PATERNAL GRANDPARENTS WHO HAD CUSTODY OF BELINDA PENDER AND WHO WERE LAWFULLY ENTITLED TO CUSTODY.
III
THE COURT ERRED IN REFUSING THE MOTHER’S MOTION TO SET ASIDE THE ORDER OF ADOPTION FOR LACK OF JURISDICTION.
IV
THE COURT ERRED IN ITS FINDING THAT IT WOULD BE IN THE BEST INTEREST OF THE CHILD THAT THE PETITION FOR ADOPTION BE GRANTED.

I

The holding of the probate judge that Arch Pender III had abandoned Belinda is clearly against the preponderance of the evidence. Abandonment, in the sense of the adoption statutes, means conduct which evinces a settled purpose to forego all parental duties. Woodson v. Lee, 221 Ark. 517, 254 S.W. 2d 326. Permitting his child to remain for a time undisturbed in the care of others does not constitute such an abandonment. Woodson v. Lee, supra; Walthall v. Hime, 236 Ark. 689, 368 S.W. 2d 77. In Walthall, we followed this dictionary definition of abandonment:

To relinquish or give up with the intent of never again resuming or claiming one’s rights or interests in; to give up absolutely; to forsake entirely; to renounce utterly; to relinquish all connections with or concern in; to desert, as a person to whom one is bound by a special relation of allegiance or fidelity; to quit; to forsake.

While Belinda was with the McKees, her father did visit her and came, on occasion, to pick her up. There was testimony that he was, at the time of the trial, visiting his children at his parents’ home every day and buying food and milk for Belinda. Arch Pender III testified that when he was in Missouri, where he normally makes his home, he usually came down and visited Belinda every other weekend. He said that, when he was employed in Missouri, he had sent what money he could, after he paid his bills, to his father for Belinda’s support. He said that he paid a total of $615 for child support in 1976 in three equal installments, even though he admitted that Brenda had denied receipt of them. The recited testimony is otherwise uncontradicted, so we cannot say that appellees met their burden of proving by clear and convincing evidence that Arch Pender III had abandoned Belinda within the meaning of the adoption statutes.

We are not at all certain about the terms of any judicial decree requiring Arch Pender ¡II to support this child, and the record, as abstracted, does not disclose the identity of the court in which such a decree was entered, but he seems to have conceded that he was required, by a Missouri court, at one time to pay $205 per month to his wife, Brenda Pender, who has not had custody of Belinda for any significant period of time. It seems that these payments were required for the three children. It also appears that, on January 9, 1978, after the petition for adoption was filed, he made one payment of $25 upon an order for weekly payments in that amount obtained or issued by a Child Support Enforcement Unit. This also appears to have been for all three children. It is admitted that he was two weeks in arrears on those payments at the time of the trial.

We cannot say, however, that the probate judge erred in holding that Arch Pender III had failed significantly, without justifiable cause, to support Belinda, as required by law, even when the evidence is tested on the “clear and convincing standard,” now effective in such cases. Harper v. Caskin, 265 Ark. 558, 580 S.W. 2d 176 (1979).

The law requiring a father to support his minor child has been declared by statute. Ark. Stat. Ann. § 67-633 a (Repl. 1971). It is also his legal obligation, independent of statute. Brown v. Brown, 233 Ark. 422, 345 S.W. 2d 27; McCall v. McCall, 205 Ark. 1123, 172 S.W. 2d 677.

The question was whether the father has “failed significantly” for a period of one year to support his child “without justifiable cause.” “Failed significantly” certainly does not mean “failed totally.” It only means that the failure to support must be significant, as contrasted with an insignificant failure. It denotes a failure that is meaningful or important. Webster’s New International Dictionary, 2d Ed.

Appellants admit that while the McKees had Belinda, her father contributed nothing to her support. Although the chancellor found that this period was approximately six months, it seems to us that the evidence shows that it was at least ten months. The child was taken from the McKees and placed in her mother’s custody about November 1, 1976, but, according to Arch Pender, Jr., she took all three of her children and “dumped them out” at the home of the paternal grandparents in December, 1976. The father stated that while he was working at a full-time job in Kennett, Missouri, he sent four or five payments of child support as ordered by the court, but Brenda and “all of them” told him they didn’t get the money. He had worked at a cotton gin from October 14 to December 7, 1977. He was paid at the rate of $2.60 per hour. He had been regularly and steadily employed prior to that time on a farm by the same employer. It appears from the testimony of Arch Pender III that he sent whatever support payments he claimed to have made during 1976 to Brenda, and he admitted that neither Brenda nor anyone else acknowledged receipt of these payments. Jackie Peeler, a Social Service Specialist with the Cross County Social Service, to whom the Pender case has been referred for protective surveillance, testified that, assuming that Arch Pender III had made three payments of $205 each, she would not consider that they constituted a substantial amount to pay for the support of his three children for one year.

Thus, the record shows clearly that Arch Pender III made no substantial contribution to Belinda’s support between December 15, 1975, when she was taken to the McKees, and the time she was “dumped” at his parents’ home. The substantiality of his contribution thereafter is questionable to say the least. The testimony indicates that his payments to his parents, when made, have been $20 or $25 per month. Even his father would not say that he supported his children. Arch Pender, Jr., would only say that he helped.

Appellants also admit that Arch Pender III contributed nothing to the support of the children for a period of at least 4-1/2 months between the date in May, 1977, when the children were placed in the custody of Arkansas Social Services by order of the Juvenile Court of Cross County, and September 27, 1977, when that court vested custody in the paternal grandparents. The test of the statute was met, if Belinda’s father failed, in a meaningful or important respect, to support her, without justifiable cause, for any consecutive period constituting a total of one year between October 16, 1975 when she was born and December 28, 1977, when the petition for adoption was filed. The one year period specified by statute need not be the year immediately preceding the judgment of adoption, since “a period of at least one [1] year” in the statute means any one year period. Lout v. Whitehead, 415 S.W. 2d 403 (Tex., 1967); Garda v. Canales, 434 S.W. 2d 895 (Tex. Civ. App., 1968); Homfeld v. Pence, 487 S.W. 2d 224 (Tex. Civ. App., 1972); Curtan v. Gordon, 510 S.W. 2d 682 (Tex. Civ. App., 1974). In this connection, it is significant that prior statutes [Ark. Stat. Ann. § 56-106 (b) (Í) (Repl. 1971)] on abandonment required that the requisite period be “next preceding the filing of the petition,” as do statutes involved in cases holding to the contrary. No such language appears in Ark. Stat. Ann. § 56-207. The trial court’s findings were that Arch Pender III spends a great part of the year in Missouri, that, when he was in Missouri, his contributions to the care and support of the child were negligible, that his care and support during the time he was in Arkansas were also negligible and that the evidence conclusively showed that what little care and maintenance the child receives is provided by welfare payments.

Whatever appellant may have contributed since he returned to Arkansas from Missouri in December, 1977, does not constitute redemption from his failure which had already extended over a priod of more than one year. After the required period of one year has passed, resumption of payment of support for a brief period, particularly after the commencement of the adoption proceeding or just prior thereto, is not sufficient to bar an adoption without the consent of the delinquent father by starting a new one year period of nonsupport under the statute. Lout v. Whitehead, supra; Homfeld v. Pence, supra; Jones v. Bailey, 284 S.W. 2d 787 (Tex. Civ. App., 1955). In any event, delinquency in support is not an ambulatory thing which can be recalled, cancelled out or nullified merely by a change of the father’s mind or desire. DeGolyer v. Chesney, 527 P. 2d 844 (Okla., 1974).

Since the evidence clearly shows that Belinda’s father has “failed significantly” to support her, the question of his justifiable cause remains. The evidence of justifiable cause is even less substantial than his contributions to Belinda’s support. The asserted justifiable cause is that no one asked him to pay anything or to provide anything until the child was returned to her mother, and that he then paid her four or five payments of $205 through the court at Kennett, Missouri. He claims that Arkansas Social Services never asked him to pay anything for Belinda’s support, either during the period the child was with the McKees, or the period between May and September, 1977. He argues that the Juvenile Court of Cross County could have ordered him to make payments under Ark. Stat. Ann. § 45-431 (RepL 1977) but did not do so. He also seeks to justify his failure on the assertion that, when the child is not in his custody, he is not necessarily responsible for all its support. The fact that someone else had custody of the child did not relieve Arch Pender III of his obligation to support her. See Barnhard v. Barnhard, 252 Ark. 167, 477 S.W. 2d 845. The parent must furnish the support and maintenance himself and the duty is a personal one, and he may not rely upon assurance that someone else is properly supporting and maintaining the child to avoid the impact of the statute’s providing for adoption of his child without his consent because of his failure to support the child. In re Adoption of Sargent, 28 Ohio Misc. 261, 272 N.E. 2d 206 (1970). The father’s duty to support his minor child cannot be excused on the basis of the conduct of others, unless that conduct prevents him from performing his duty. Kirby v. Kirby, 184 Ark. 532, 42 S.W. 2d 995. See Aaron v. Aaron, 228 Ark. 27, 305 S.W. 2d 550; Jones v. Jones, 199 Ark. 1000, 137 S.W. 2d 238; Green v. Green, 232 Ark. 868, 341 S.W. 2d 41. See also, Moreau v. Buchholz, 124 Colo. 302, 236 P. 2d 540 (1951). A parent’s suffering a child to be supported as a pauper by welfare agencies when he has the ability to support it has been held to afford a proper basis for making his consent to adoption unnecessary. Purinton v. Jamrock, 195 Mass. 187, 80 N.E. 802 (1907).

This irresponsible attitude of this father dearly indicates that he had no justifiable cause for his failure. Most of the contributions he claims to have made appear to have been attributable to some form of compulsion or to the pendency of this proceeding. The natural father has the duty and obligation to support his minor child whether ordered to do so by a court or not. Laslie v. Cole, 465 S.W. 2d 811 (Tex. Civ. App., 1971); Homfeld v. Pence, supra; Curton v. Gordon, supra.

The probate judge correctly held that the consent of this father was not required.

III

The mother’s position is different. She now contends that the probate court was without jurisdiction, and the order of adoption denied her due process of law, because she was never served with notice of the proceeding. This was a belated plea, raised by her motion to vacate the order after it was entered. Unquestionably, natural parents are entitled to notice of the proceeding and an opportunity to resist the action. Hughes v. Cain, 210 Ark. 476, 196 S.W. 2d 758.

Notice of the hearing was issued. The return of Deputy Sheriff Robert Futrell shows that it was served on Brenda Pender on December 30, 1977. The response to the petition was filed on January 18, 1978, on behalf of Arch Pender, Jr., and Maxine Pender, paternal grandparents of Belinda Pend-er and Arch Pender III and Brenda Pender, parents of Belinda Pender, by DeLoss McKnight, who still represents the father and paternal grandparents on this appeal.

In her motion to vacate the order, Brenda alleged, not only that she had not been served with any summons or notice, but that she had not entered her appearance or authorized anyone to do so. After hearing the testimony of Brenda Pender, Robert Futrell, Jerry Jackson and Virginia Owens, the probate judge made the following findings:

1. That from the testimony of Brenda Pender it appears that she voluntarily entered her appearance and did in fact have knowledge of these proceedings. The Court is of the opinion that Mr. McKnight, having filed an Answer on her behalf, she is in Court, and subject to the findings hereof.
2. The Court finds that Brenda Pender does not consent to the adoption but is bound by its issuance and the Motion to Vacate is denied.

These findings are supported by a clear preponderance of the evidence. Brenda Pender carried the burden of overcoming the officer’s return and of showing that she had no notice of the proceeding. Rose v. Ford, 2 Ark. 26; Broadway v. Sidway, 84 Ark. 527, 107 S.W. 163; Nix v. Dunavent, 249 Ark. 641, 460 S.W. 2d 762. See also, Williams v. Edmondson, 257 Ark. 837, 520 S.W. 2d 260; Massachusetts Benefit Life Ass’n. v. Lohmiller, 74 F. 23 (7 Cir., 1896). She testified that she had been living in Parkin for about four years; that she had seen no papers telling her about the hearing in the cause for adoption; that she was in the hospital at West Memphis when the papers were supposed to have been served; and that no one served any papers on her or told her to come to court. Her credibility was certainly suspect. She admitted that she had heard of the hearing but didn’t come to court because she didn’t get any papers. On cross-examination, she admitted that it was her grandmother, not she, who had been in the hospital, that she had come back to Parkin on December 29 and had gone to the police station, that she had known Jerry Jackson, Chief of Police in Parkin, all her life, and that he “hollered at me something about being in Court, but I didn’t hear him. ” She did remember his telling her to be in court on the adoption matter.

On examination by the probate judge, Brenda said that on one occasion she had talked with her husband about the effort of the McKees to adopt Belinda and that they reached a decision that the McKees were not going to get her. She said that she knew that her husband and his father were going to see McKnight and admitted she told them to do whatever they wanted to do about it. She admitted that she told her husband to “sort of act” for her and that when McKnight put her name on the pleading, he really had her authority to do so. She also admitted that she knew about the hearing and that her father-in-law had come to her and told her the date the hearing would be held.

She said that she had not employed McKnight, but during examination by her attorney, the following question was propounded and answer given with reference to her previous answer that she had not been in McKnight’s office:

Q. Did you go by yourself, or with your husband when you went there?
A. I never did go. I never did go to sign any adoption papers, but I went there once before, went with my father-in-law. I never did talk to Mr. McKnight.

More importantly, on recross-examination by appellees’ attorney, Brenda admitted that she had known that McKnight had filed an answer in her behalf. This recross-examination also included this question and rather strange answer:

Q. You knew Mr. Jackson told you to be in Forrest City concerning this adoption on a certain day when you were at the police station?
A. Yes, but I did not hear him.

Robert Futrell testified that he had appointed Jackson to serve the notice. Jackson testified that Brenda had come to the police station on December 30,1977, to pick up some pills and that he advised her of the proceeding and told her to be in court, but did not give her the notice. He recalled telling her the time, place and nature of the proceedings. The notice was given to Jackson by Futrell. Futrell authorized Jackson to serve the notice, and was the only one who gave Jackson instructions about the service. Jackson did not give her the papers, but left them in a tray on his desk and ran outside the building to tell her about them. He made no return on the notice.

The probate judge held that Brenda had actual notice of the hearing, that the other Penders went to McKnight’s office and told this attorney that she joined them in resisting the adoption and that he filed a pleading listing all of them as respondent. The judge found that Brenda had told her husband and his parents to go ahead and do whatever they wanted to, because she also objected to the adoption. McKnight did not testify, but stated, and offered to testify, that Brenda had not authorized him to file the response, but that he had asked Arch Pender, Jr., if she wanted him to represent her and Pender said that she did. McKnight said that he asked Pender to have her come to his office, but that she never came.

After the probate court denied the motion to vacate the order of adoption on the basis of the lack of service of notice, Brenda was permitted to testify further. She then stated that the only time she had discussed adoption with anyone was the time of a juvenile court hearing when she discussed it with the paternal grandparents. She expressed no desire to have the custody of any of her three children, but did want them to stay with the paternal grandparents where she could visit them. She said that she was unemployed and living with her mother. She stated that the McKees had Belinda for 10-1/2 months and had visited her since that time. After hearing this testimony, the probate judge denied the motion to vacate.

Appellants contend that the adoption order is void for lack of service of notice on Brenda Pender. That there were such irregularities in the service of notice to render that service defective is beyond question.

It is a well-settled general rule, however, that any objection to irregularities or defects in the service of process is waived unless made promptly and diligently and that defective service of process may be sufficient to constitute legal notice of a suit and support a judgment therein, so long as the service actually gives the party served notice of the proceedings. Hunter v. May, 161 Tenn. 155, 25 S.W. 2d 580 (1930); Voorhies v. Barnsley, 116 Fla. 191, 156 So. 234 (1934); State v. Chillingworlh, 126 Fla. 645, 171 So. 649 (1937). See also, Walker v. Carver, 93 Fla. 337, 112 So. 45 (1927); Gray v. Lawlor, 151 Cal. 352, 90 P. 691 (1907); Smith v. Collins, 42 Mont. 350, 112 P. 1070 (1910). As pointed out in Ely v. United States Coal & Coke Co., 243 Ky. 725, 49 S.W. 2d 1021 (1932), there is practical unanimity of authority that irregularities in giving notice will not void a judgment. Irregularities in service of process may make a judgment voidable, but not void. Walker v. Carver, supra.

Any defect in the process, the return thereon or the service thereof is cured or waived by the appearance of the defendant without raising an objection, and he is precluded from thereafter taking advantage of the defect. Rose v. Ford, supra; Gay v. Hanger, 3 Ark. 436; Boyer v. Robinson, 6 Ark. 552; Mutual Benefit Health & Accident Ass'n. v. Moore, 196 Ark. 667, 119 S.W. 2d 499. Filing an answer without objecting to the service is a sufficient appearance to constitute waiver when the service is either irregular or void. Mercer v. Motor Wheel Corp., 178 Ark. 383, 10 S.W. 2d 852; Fletcher v. Johnson, 231 Ark. 132, 328 S.W. 2d 373; Auto Sales Co., Inc. v. Mays, 191 Ark. 884, 88 S.W. 2d 330; Hibbard v. Kirby, 38 Ark. 102; Boyer v. Robinson, supra. See also, Storey v. Brewer, 232 Ark. 552, 339 S.W. 2d 112; Chapman & Dewey Lumber Co. v. Bryan, 183 Ark. 119, 35 S.W. 2d 80; Farmers Union Mut. Ins. Co. v. Jordan, 200 Ark. 711, 140 S.W. 2d 430. The filing of an answer on behalf of a party by an attorney has the effect of entering a general appearance, even when there has been no process or service. Purnell v. Nichol, 173 Ark. 496, 292 S.W. 686.

An attorney who appears in court is presumed to be authorized to represent the client. Broadway v. Sidway, supra; United Equitable Ins. Co. v. Karber, 243 Ark. 631, 421 S.W. 2d 338. The burden was on Brenda to show that McKnight had no authority to appear and respond to the petition for her. Jackson v. Jackson, 199 Ga. 716, 35 S.E. 2d 258 (1945). Where court records show an entry of a defendant’s appearance by a regular practicing attorney, evidence of his want of authority must be clear and satisfactory to warrant relief from a judgment against the defendant. Jones v. Burgett, 221 Ark. 866, 256 S.W. 2d 325. One having actual knowledge of the appearance of an attorney in his behalf cannot, after judgment, deny his authority on a motion to set aside the judgment. Shoal v. Bailey, 139 Mont. 198, 362 P. 2d 234 (1961).

Brenda Pender argues that she has been deprive d of due process of law because of lack of notice of the hearing, relying upon Armstrong v. Manzo, 380 U.S. 545, 85 S. Ct. 1187, 14 L. Ed. 2d 62 (1965). The requirements of due process of law under that decision were that she have notice reasonably calculated to apprise her of the pendency of the action and to afford her an opportunity to present her objections. These requirements of due process were met.

We have heretofore recognized that one who was apprised of the pendency of an action and aware of the nature of the relief sought before a judgment was rendered, was not entitled to have the judgment vacated, whether process was served on him or not. Taylor v. Harris, 186 Ark. 580, 54 S.W. 2d 701. We have also held that one, who was apprised of the pendency of a suit for partition in which he was named as a plaintiff and who took no steps to repudiate or discontinue the action he knew was being prosecuted in his behalf, was estopped to claim that the decree was void because he had not authorized the institution of the suit. Adams v. Woods, 128 Ark. 441, 194 S.W. 849. In view of the fact that Brenda Pend-er had actual notice of the time, place and nature of the hearing and knew that McKnight had filed an answer for her and failed to show that he was not authorized to do so, the trial judge did not err in failing to vacate the order of adoption on her motion.

II and IV

Appellants also contend that the probate court erred in holding that the consent of the paternal grandparents, as persons lawfully entitled to custody, was not required. The court found the paternal grandparents unreasonably withheld consent to the adoption. Appellants point out that Ark. Stat. Ann. § 56-207 (a) (8) provides that consent is not required of a lawful custodian, other than a parent, who has failed to respond in writing to a request for consent for a period of 60 days, or who, after examination of his written reasons for withholding consent, is found to be withholding his consent unreasonably. Appellants contend that, since no written request was made, there could be no basis for the court’s finding that consent was unreasonably withheld. The law does not require a written request for consent, or a vain and useless act. Neither does it put form above substance. These parties were served with notice. They had full opportunity to, and did, raise their objections by their response and the evidence presented. In their response, they simply stated that they did not consent. In his opening statement, appellants’ attorney stated the position of appellants that blood kin was entitled to preference over strangers, that the grandparents loved their grandchild and wanted to take care of and raise her, but never mentioned the somewhat inconsistent objection that they had hope that Belinda’s father might remarry and take his children to raise, or that their mother might remarry and raise them. Furthermore, the fact that Eugene McKee was 57 years or age and Dorothy McKee, 52, was not mentioned, even though their ages were stated in the petition and established by their testimony. Appellants now speculate in their brief on appeal that, if they had been served with a written request, they might have raised these objections, but state no reason why they did not, or could not have, in their response to the petition or at sometime during the proceedings.

Appellants concede that if appellees were young people and it was a certainty that Belinda’s parents were not ever, or even within the near future, going to establish a home and raise their children and, if the grandparents had previously been appointed guardians with power to consent, their refusal to consent might understandably be deemed to be unreasonable, but assert that, under the circumstances existing, it would be unreasonable for them to consent. Appellants had a full and fair opportunity to develop all these issues.

The McKees testified that they were qualified as foster parents in California as well as in Arkansas. The evidence supporting the court’s finding that Belinda might well have died had it not been for the tender loving care of the McKees is clearly supported by the evidence. The McKees live in St. Francis County, in the country, 6-1/2 miles west of Colt, in a two-bedroom frame house, described by Brenda Pender as a nice home. The husband has take home-pay of $143 per week. The wife had surrendered her license as a foster parent in California, when the McKees lived there, in order to take a course in nursing for 2-1/2 years, in order that she might be better qualified to take care of children. Arkansas Social Services placed Belinda in the McKee home. They have raised three sons of their own to adulthood and Mrs. McKee testified that they have cared for 34 foster children.

Appellees maintained their interest in Belinda after she was removed from their home. The evidence showed that they visited the Pender home in order to see her and that, when they did, she displayed genuine affection and a decided preference for them. The McKees had, on occasion, taken Belinda home with them, had taken clothing to her and had even taken the Penders a load of wood for heating their house trailer. They stated that they took the child to Sunday school and church. At their house, where only appellees live, Belinda has her own bed and her own room. Mrs. McKee testified that they keep a box of toys under the bed for her. She said that they have a real need for children in their home and that she needs children in her home for her life to be full and meaningful. Two adult sons of the McKees assured the court that, if Belinda were adopted by their parents, they would see that she had a home when their parents died. One of them said that they had always treated Belinda as a sister. The pastor of the Pinetree Baptist Church testified that the McKees were among the most faithful members of that church, that their home was clean and the environment there, good. This testimony was corroborated by this pastor’s predecessor, who was then pastor of Highway Baptist Church in North Little Rock.

Arch Pender, Jr., has been unemployed for well over three years, is 50 years of age and is admittedly in very poor health. He is receiving payments from the Veteran’s Administration and Social Security for disability. The total monthly income in the household is $526.95, which is derived from those disability payments and aid (AFDC) to the dependent grandchildren. Food is provided by $432 per month in food stamps, for which the Penders pay $153.

The home of Arch Pender, Jr. and Maxine Pender is a house trailer which is 10 feet wide and 65 feet long. There are three bedrooms, a bathroom, a kitchen and a living room. Arch Pender, Jr., testified that in 1977, he had been compelled by the health department to install a new sewer system and a well. At all times when Belinda has been with them, there have been not less than nine people living there. Arch Pender, Jr., and his wife have 12 living children and 6 of them live at their trailer. Their oldest daughter, who was pregnant at the time of the hearing, spends the day there and brings her two children. The place is heated by burning wood in a stove made from a 30-gallon metal oil drum. When the grandchildren were returned to this place, Arch Pender, Jr., converted some closets into a place for the grandchildren to sleep, thus providing the third bedroom.

Pat Edwards, a registered nurse with the Cross County Health Unit of the Arkansas Health Department, had visited in the Pender household twice. The occasion for her going the first time was a doctor’s request that she teach the family to rid the children there of head lice. On her first visit, which was in the spring of 1977, she saw a child sitting on a bed eating an egg in a bedroom where something that appeared to be human feces was on the floor. She said that she made a lot of home visits, but had seen no home worse than that of the Penders in reference to availability of food and child care. Although she observed that there had been some improvement between her two visits, she said that when she first visited the Pender home, it was one of the worst homes she had ever seen.

Edgar Borden, the St. Francis County Juvenile Probation Officer, had made two visits to the Pender house trailer. The first was on December 13, 1977. He said that the floors were dirty and all the children’s faces were dirty. On January 23, 1978, he went there with Mrs. Riley, Health Implementation Supervisor for the State Health Department in Cross and St. Francis Counties. He described the house as filthy. A girl was sweeping the floor and had accumulated a pile of dirt which included a few cans. The electrical switch or fuse box was in a bedroom and was exposed. In the bathroom, he found a pile of dirty clothes overflowing the bathtub. The closet in one bedroom was piled full of dirty clothes about as high as his head. There was a hole in the floor approximately three inches wide through which he could see snow. The only food he saw about about 75 pounds of potatoes. None of the beds had any bed clothing and one of them had no bedding.

Mrs. Riley, who went to the place in compliance with an order of the probate court to inspect the home, corroborated the testimony of Borden. The only storage space she found was one chest of drawers in a bedroom. She said that the heater was located at the opposite end of the trailer from that where it appeared that the children slept. She said that many of the window panes were missing and in spite of efforts that had been made to cover the openings, one could feel air coming in. In no way would she say that the living conditions there were satisfactory for any child.

Belinda and her brother Clifford sleep with Joanne Pender, a 17-year-old aunt, according to Arch Pender, Jr. Two uncles of Belinda and Belinda’s other brother sleep in the same bedroom, but in another bed.

In his testimony, Arch Pender, Jr., attributed the piles of dirty clothes to his wife’s inability to get to a laundromat. He said that all the children had respiratory infections all winter. He admitted that the three grandchildren had been returned to his home on condition that he and his wife provide a good home. But he and his wife said the specialist with the Cross County Social Services, who was supervising the matter, had recently told them that they were not living up to the bargain.

Arch Pender, Jr., testified that he had made arrangements to sell his home and was trying to buy a larger one in Missouri. There was no objective evidence of any effort on his part to carry this plan into effect. There is nothing in the record to suggest any real possibility that Arch Pender III or Brenda Pender have any intention to provide a decent home for this child or either of their boys.

Arch Pender III testified that Brenda paid little attention to the children and that she isn’t much of a mother. He also testified that at the time of the hearing, he was earning $20 per day for two or three days each week at a job he had obtained after Christmas, 1977, but was paying rent of $20 per week to his sister, with whom he was living in a house trailer along with her husband and their children, and was helping buy the groceries in that household. It was admitted that he was already delinquent for two weeks in making $25 payments ordered for the support of his three children. The probability of any of appellants giving Belinda a suitable home seems slight, indeed.

Several witnesses, whose arrival at the Pender house trailer could not have been anticipated, described it as filthy. Mrs. Peeler said that there had been an improvement since she had been visiting the place, but said that the timing of her visits was usually known to the Penders. Shortly before she had notice of this hearing, she had told the paternal grandparents that, if things did not improve, she would have to make a report to the juvenile court. There was testimony from witnesses other than the McKees about finding Belinda dirty and in wet “Pampers,” with an odor of stale urine, and of seeing burns on her arms, hands and feet. Mrs. Peeler had seen mosquito bites all over Belinda’s body. Belinda has been subject to seizures all her life and regular dosages of phenobarbital are necessary. She seems to be particularly susceptible to diaper rash. Arch Pender, Jr., says that she has a nervous disposition and cries more than his babies did. He admitted that he had neglected the open switch box and the exposed electrical wires. He testified that he covered it the night after testimony had been given about it.

When all the evidence is considered, it overwhelmingly supports the probate court’s finding that the paternal grandparents had unreasonably withheld their consent to the adoption and that the granting of the adoption was in the best interest of the child.

The rights of parents are not proprietary and those of grandparents are even less so. Parental rights are in the nature of a trust reposed in them, subject to their correlative duty to care for and protect the child and the law secures their rights only so long as they shall discharge their obligations. Emmons v. Dinelli, 235 Ind. 249, 133 N.E. 2d 56 (1956); Purinton v. Jamrock, 195 Mass. 187, 80 N.E. 802 (1907). Parental rights are not to be enforced to the detriment or destruction of the happiness and well-being of the child. Purinton v. Jamrock, supra.

The judgment is affirmed.

Byrd, J., dissents.

Purtee, J., not participating.


text:
    DANIEL CONSTRUCTION COMPANY v. Johnnie HOLDEN
    79-17
    585 S.W. 2d 6
    Opinion delivered June 18, 1979
    (Division II)
    [Rehearing denied September 4, 1979.]

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

      Sluarl Vess and Bob Dawson, for appellee.
   John A. Fogleman, Justice.

Appellant Daniel Construction Company seeks a reversal of a judgment for damages in the amount of $38,500 in favor of appellee Johnnie Holden, based on accidental injuries suffered by Holden on the job site during construction of the Forest Heights Apartments. Appellant was the general contractor for the construction. Holden was regularly employed as a plasterer’s helper by John Purnell, a plastering contractor, who, in a joint venture with Carr Plastering Company, had subcontracted the plastering work in the apartment complex. Appellant contends that the trial court erred in refusing to grant its motion for a directed verdict. We agree and reverse the judgment.

Holden’s primary duties consisted of operating a mortar mixer. His work day began at 7:30 a.m. and ended at 4:00 p.m. All the plastering work was outside the building. There was testimony that some of the subcontractor’s equipment was stored inside the building at the end of the day’s work and that the employees of the subcontractor would sometimes go inside the building to get blocks of wood or scrap lumber to support or repair the scaffolding used in connection with the plastering. On occasion, Holden would take a change of clothing when he went to work and, at the end of the work day, change his clothes. He estimated that he did this about three times per month. He was the only one of the subcontractor’s employees who changed clothes at the job-site. The work he did caused him to get unusually dirty.

On the morning of November 6, 1973, Holden drove his wife’s car to the jobsite. He was to pick up his daughter after his work day was over. He brought a change of clothing with him to the jobsite, so he could avoid getting plaster from his work clothes on the nylon automobile seat covers. When Holden’s work day ended, he placed the water hose he had been using in the plaster work, inside the building in a nearby vacant room, so it would not be run over by machines on the premises, as he customarily did. He then went to his wife’s car, obtained the clean clothing he had left there and then returned to the building. He intended to go into the same room where he had placed the hose, but he heard some people talking in the building and, although he did not know whether some of them were women or not, he thought they might have been, and went into another room, which was unlighted, and began changing his clothes. As he did so, something fell from his pocket and he took a step backward. Thinking that it was his pocket knife that had dropped to the floor, he began to feel for it and fell through an open, unguarded stairwell to the concrete floor of the garage, one story below the room in which Holden was changing his clothes. As a result, Holden sustained a fracture of the clavicle and other injuries for which he underwent orthopedic surgery.

Holden brought suit against appellant, alleging that the failure of the general contractor to place barricades around the open stairwell was the proximate cause of his injury. Appellant contended that Holden was a bare licensee on the property and that it was not liable because any negligence on its part was not wilful and wanton conduct. Appellant also pleaded that Holden’s own negligence was a proximate cause of his injuries and that he had assumed any risk involved. Appellant’s motion for a directed verdict was denied. The principal ground for reversal urged by appellant is its contention that the evidence established that Holden was a bare licensee and that there was no substantial evidence of wilful and wanton misconduct and the denial of its motion for a directed verdict was error. We agree.

The apartment building involved consisted of four levels, the lowest of which was the garage. The stairwell was located in the northern part of the building. The dimensions of the stairwell opening were 10 feet 4-1/2 inches by 7 feet 11 inches. The distance between the door from the hallway to the stairwell and the stairwell opening itself was about 4 feet. This intervening area was floored. The only entrance to the stairwell was the door from the hall. There was no window in the stairwell.

Viewing the evidence in the light most favorable to appellee, we find no substantial evidence that appellee was a business invitee or that appellant was guilty of wilful and wanton misconduct.

This incident occurred on November 6, 1973. It was the practice of the subcontractor to let its employees quit work 15 minutes before the quitting time of 4:00 p.m. to clean up, and change clothes if they liked, by agreement with the union representing them. On the day he was injured the appellee worked until 3:50 p.m. All the other employees of the subcontractor had left. Holden testified that the room was completely dark, but that if there had been a scaffold around the opening, he wouldn’t have fallen. The stairwell was on th? north end of the building. The plasterers had commence^ their work at the extreme north end of the building and worked toward the south. None of their work was in the stairwell.

John Purnell, who was one of the joint venturers for whom Holden was working, testified that it was customary for his employees to change clothes inside a building on which they were working on every job he had been on. He said that Holden always put the hose in a room near his work.

It was shown that OSHA regulations require that all floor openings be guarded by a toe board or cover or by railing on all exposed sides, except at entrances to stairwells. A safety consultant said that, as an alternative, the door at the entrance to the stairwell from the hall might have been barricaded.

If Holden had fallen into the stairwell in the room into which he had gone to store the hose used by him daily in the performance of his duties, there probably would have been a question for the jury to determine whether he was a bare licensee or a business invitee. There is evidence from which a jury might find that leaving the open stairwell unguarded, without taking any precautions to warn anyone who might be on the premises of the danger, constituted negligence on the part of the general contractor. Appellant concedes that employees of subcontractors are business invitees of the general contractor while performing their work on the site of the work of the subcontractor, pursuant to the terms of the contract. But it contends, and we agree, that the employees of a subcontractor do not enjoy that status when they use a portion of the premises, or engage in activities, which are not related to the performance of their duties of their employment under the subcontract agreement.

We have said that when one crosses the boundaries of the invitation, he ceases to be an invitee and becomes either a licensee or a trespasser. Husted v. Richards, 245 Ark. 987, 436 S.W. 2d 103. This is in keeping with the general rule recognized by the authorities. It is said that one who enters a building as an invitee for a business purpose is an invitee only while he remains in a portion of the building in which he had a legitimate errand, but if he leaves a place of safety and goes to a place where his business does not require him to be, deliberately placing himself in a position where he is injured by a defective appurtenance, he acquires a less favored status. 62 Am. Jur. 2d 286, Premises Liability, § 47. It is necessary that an employee of a subcontractor, in order to recover as a business invitee of the general contractor, show that, when he was injured, he was using a part of the premises reasonably within the contemplation of the employer’s contract or accepted by defendant as being so. Annot., 20 ALR 2d 868, 914. Appellee argues that appellant did receive benefits from his presence on the premises and that it was customary for him to change his clothes there during working hours.

No doubt appellant benefitted from Holden’s being on the premises, generally, at or near the site of his work or in places that it might reasonably be contemplated he would go in connection with the performance of his work. Assuming that the evidence is sufficient to permit a finding, based upon Holden’s infrequent use of a room for changing his clothes, that there was consent or acquiescence by appellant in that use of the premises, it is difficult to see how appellant benefitted from that practice, particularly when the change was made for Holden’s own personal reasons, totally unconnected with the performance of any duty. What is more important, however, Holden was completely outside the boundaries of any invitation. He did not go into the room where he stored the hose, but deliberately entered a room that was totally dark for the purpose of changing his clothes, it would certainly not be reasonable for appellant to contemplate that an employee of a subcontractor whose work was entirely outside the building would enter1 a room that was dark, not just unlighted, and not adjacent to the place the employee was working, to change his clothes. This room was not a part of the premises reasonably within the contemplation of the employer’s contract or accepted by appellant as being so. Holden was no more than a licensee on the premises.

To constitute wilful or wanton conduct, there must be a course of action which shows a deliberate intention to harm or which shows utter indifference to, or conscious disregard of, the safety of others. The approved jury instruction so defines wilful or wanton conduct. See AMI, Civil, 1102. In considering the question of the duty owed to an invitee, the Arkansas Supreme Court Committee on Jury Instructions pointed out an apparent conflict in our holdings in St. Louis-San Francisco Ry. Co. v. Bley, 168 Ark. 814, 271 S.W. 455 and Missouri Pac. R. Co. v. Thomas, 197 Ark. 565, 124 S.W. 2d 820. In the former, it appears that an owner or occupier could not wilfully or wantonly injure a person whose presence was not known, even if it should have been known. In Thomas, it was indicated that an owner or occupier might be guilty of such conduct if he should have known that licensees were often to be found at a certain place upon the premises. The committee regarded this as the better view, and we do, too. If there had been any evidence that the general contractor knew that appellee, or the other employees of the subcontractor, were frequently about the stairwell after their work had been discontinued, there might be some basis for further inquiry. Generally speaking, however, a licensee takes the premises as he finds them, or as otherwise stated, he “takes his license with its concomitant perils.” Knight v. Farmers' & Merchants' Gin Co., 159 Ark. 423, 252 S.W. 30; Garrett v. Arkansas Power & Light Co., 218 Ark. 575, 237 S.W. 2d 895; Chicago, R. I. & P. Ry. Co. v. Russell, 136 Ark. 365, 206 S.W. 666. In the last case cited, it was said that an open stairway in a place of darkness was a danger which the licensee must have avoided at his peril and that the owner owed no duty to a licensee to keep the stairwell lighted or to give him warning of its condition.

The only duty appellant owed Holden as a licensee was not to cause injury to him by reason of its wilful and wanton misconduct, after it knew, or should have known, of his presence in the room he entered. The evidence clearly shows that appellant was guilty of violation of certain OSHA regulations. But simply violating such regulations by failure to use the safeguards required by them is not evidence of wilful or wanton misconduct on the part of the general contractor. Since the case has been fully developed, the judgment is reversed and the cause dismissed.

We agree. Harris, C.J., and Byrd and Hoi.t, JJ.

Hickman, J., dissents.


text:
    Edward L. PROKOS v. STATE of Arkansas
    CR 79-3
    282 S.W. 2d 36
    Opinion delivered June 18, 1979
    (Division II)

      John W. Achor, Public Defender, by: Howard W. Koopman, Deputy Public Defender, for appellant.

      Steve Clark, Atty. Gen., by: Alice Ann Burns, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

The appellant, Edward L. Prokos, was charged with theft of property in violation of Ark. Stat. Ann. § 41-2203 (Repl. 1977). The charges arose out of a transaction in which the appellant allegedly sold the rights to an exclusive Arkansas distributorship of chemical products to Harold Parks for SI5,000.00. The information alleged that the appellant “did unlawfully, feloniously, take unauthorized control over property having a value in excess of $10,-000.00. ...”

A jury trial was held on June 14, 1978. After the prosecution rested its case, the appellant and his attorney, the prosecuting attorney and the judge retired to the judge’s chambers, where the appellant immediately moved for a directed verdict, claiming that there had been no evidence presented which showed that any property had been “taken, stolen, carried away, rolled away” or “driven away” by the appellant. The prosecuting attorney responded to this motion by stating that it was the position of the state that the appellant had taken unauthorized control over the money paid by Parks when the appellant failed to deliver the chemicals and other materials and supplies he was required to deliver by the distributorship agreement. The trial judge stated that the evidence did not demonstrate an unauthorized taking, but that it did establish a case of theft by deception. The appellant objected to any amendment of the charges, stating that he had not come to trial prepared to defend against a charge of theft by deception. The court, after consideration of Ark. Stat. Ann. § 41-2202 (1) (Repl. 1977), which details the consolidation of theft offenses under the Criminal Code, overruled the appellant’s objection and allowed the charge to be amended to allege theft by deception, thereby conforming to the proof. The court then denied the appellant’s motion for a continuance, the trial continued and the appellant presented his defense. He was found guilty of theft of property and sentenced to fifteen years’ imprisonment in the Department of Correction and a fine of $15,-000.00.

We cannot agree with the appellant’s contention that the trial judge erred in allowing the information to be amended to conform to the proof, but do agree that a continuance should have been granted, and therefore reverse the judgment and remand the cause.

Ark. Stat. Ann. § 43-1024 (Repl. 1977) is a codification of the Arkansas case law dealing with the amendment of a criminal indictment as expressed in Dolphus v. State, 256 Ark. 248, 506 S.W. 2d 538; Silas v. State, 232 Ark. 248, 337 S.W. 2d 644, cert. den. 365 U.S. 821, 81 S. Ct. 705, 5 L. Ed. 2d 698 (1961) and Murray v. State, 249 Ark. 887, 462 S.W. 2d 438. The statute reads as follows:.

The prosecuting attorney or other attorney representing the State, with leave of the court, may amend an indictment, as to matters of form, or may file a bill of particulars. But no indictment shall be amended, nor bill of particulars filed, so as to change the nature of the crime charged or the degree of the crime charged. All amendments and bills or particulars shall be noted of record.

Ark. Stat. Ann. § 41-2202 (1), the section considered by the trial judge before he allowed the information to be amended, provides:

Consolidation of Theft Offenses. Conduct denominated theft in this Chapter [§§ 41-2201 — 41-2208] constitutes a single offense embracing the separate offenses heretofore known as larceny, embezzlement, false pretense, extortion, blackmail, fraudulent conversion, receiving stolen property, and other similar offenses. A criminal charge of theft may be supported by evidence that it was committed in any manner that would be theft under this Chapter, notwithstanding the specification of a different manner in the indictment or information, subject only to the power of the court to ensure a fair trial by granting a continuance or other appropriate relief where the conduct of the defense would be prejudiced by lack of fair notice or by surprise.

It is clear that this case presents the exact situation for which § 41-2202 (1) was designed. Both “theft by taking unauthorized control” [§ 41-2203 (1) (a)] and “theft by deception” [§ 41-2203 (1) (b)] are contained within the chapter setting out the theft offenses [§§ 41-2201 — 41-2208], Amending the charge to theft by deception changed neither the nature nor the degree of the crime charged. Both prior to and after the amendment, the appellant was charged with the theft of property having a value of $2,500.00 or more, a Class B felony. The only variation between the initial charge and the charge as amended was the alleged manner of the commission of the theft. Under the provisions of § 41-2202 (1), it is not necessary that the evidence establish the theft was committed in the manner alleged in the indictment or information, but rather that the evidence establish the act was committed in any manner which would constitute theft of property under §§ 41-2201 through 41-2208. Since a conviction for theft of property having a value of $2,500.00 or more would have been proper even if the charges had not been amended, it was not error for the trial court to allow the charges to be amended to conform to the proof.

A motion for continuance shall be granted only upon a showing of good cause and the trial judge shall take into account not only the request or consent of the prosecuting attorney or defense counsel, but also the public interest in prompt disposition of the case, Rule 27.3, Rules of Criminal Procedure. The granting or denial of a motion for continuance is within the discretion of the trial judge and this court will not reverse the trial judge unless there has been an abuse of that discretion. Golden v. State, 265 Ark. 99, 576 S.W. 2d 955; Cotton v. State, 265 Ark. 375, 578 S.W. 2d 235; Holland v. State, 260 Ark. 617, 542 S.W. 2d 761. An appellant bears the burden of demonstrating an abuse of discretion in the denial of a motion for a continuance. Freeman v. State, 258 Ark. 496, 527 S.W. 2d 623; Perez v. State, 236 Ark. 921, 370 S.W. 2d 613. We find that the appellant in this case has met this burden.

The following is the in-chambers colloquy among the judge, the prosecuting attorney and the appellant’s attorney on the matter:

THE COURT:
* * *
Of course, I offered to continue it for you and nobody seemed too anxious to do that, but that is neither here nor there. 1 think I can let the information be amended to conform to the proof and be safe.
MR. GIBSON [Appellant’s attorney]:
We did ask for a continuance.
THE COURT:
You did ask for a continuance, and I was ready to grant it for you and thought you should have it.
MR. GIBSON:
We need witnesses now that we don’t have.
THE COURT:
Well, they may reverse me, but I’ll let it go on.
MR. WILLIAMS [Prosecuting attorney]:
Could we go on the record, and — Mr. Gibson, have I complied completely and fully with your motion for discovery in this case?
MR. GIBSON:
Oh, you have; you did.
THE COURT:
I think that is enough to put you on notice of what the charge is. You’re too smart of a lawyer not to know it.
MR. GIBSON:
I thought he was going to stick with his information.
THE COURT:
I think you should have had a continuance, but I am going to overrule you and let it be amended to conform to the proof, which will be theft by deception, over the defendant’s strenuous objection and exceptions.

The appellant’s attorney indicated to the trial judge that additional witnesses, not essential to the defense against the anticipated charge of theft by taking unauthorized control over the property of another, would be required in a defense against the amended charge of theft by deception. Although § 41-2202 (1) establishes liberal rules in regard to conforming an information or indictment to the proof presented in a prosecution for a theft offense, the same subsection also limits the application of these rules in cases where a defendant’s right to a fair trial is possibly endangered by a lack of fair notice or by surprise, the remedy being the trial judge’s power to grant a continuance or other relief. It should be noted that the statement that there was full compliance with a motion for discovery does not show that its nature and extent were sufficient to apprise appellant that he was being charged with theft by deception rather than by taking unauthorized control of property of Parks.

We are not unaware of prior decisions of this court in which it was held that it was not an abuse of discretion to deny a motion for a continuance which was made after the prosecution had amended the information or indictment. See Scoggins v. State, 258 Ark. 749, 528 S.W. 2d 641 and Payne v. State, 224 Ark. 309, 272 S.W. 2d 829. However, in both of those cases, the amendment only entailed substituting a different date of the alleged commission of the offense charged. We find that the amendment of the information in this case, although it did not change the nature or the degree of the offense charged, was of great enough significance that the conduct of appellant’s defense was prejudiced by lack of fair notice and the denial of the appellant’s motion for a continuance was an abuse of the trial court’s discretion, requiring that the judgment be reversed and the case remanded for a new trial.

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


author: Conley Byrd, Justice.

text:
    Danny Ray McDONALD v. STATE of Arkansas
    CR 79-52
    582 S.W. 2d 272
    Opinion delivered June 18, 1979
    (In Banc)

      Appellant, pro se.

      Steve Clark, Atty. Gen., by: Ray Hartenstein, Asst. Atty. Gen., for appellee.
   Conley Byrd, Justice.

Appellant Danny Ray McDonald was charged with aggravated robbery in violation of Ark. Stat. Ann. § 41-2102 (Repl. 1977) and with being a habitual offender, Ark. Stat. Ann. § 41-1001 (Repl. 1977). The jury found him guilty as charged and fixed his punishment at imprisonment for 16 years and 2 months and a fine of $6,080. For reversal he raises the issues hereinafter discussed.

The proof on the part of the State, stated in the light most favorable to the jury’s verdict, shows that appellant took $80 from the office area of Gene’s Family Market. Eddie Caraway, an employee in the store, gave chase until appellant pulled a knife from his back pocket. Other witnesses, including a friend and an accomplice, furnished direct and circumstantial evidence identifying appellant as the person who fled from the pursuit of Caraway.

With respect to the offense of aggravated robbery, Ark. Stat. Ann. § 41-2102 (Repl. 1977) provides:

“(1) A person commits aggravated robbery if he commits robbery as defined in section 2103 [Ark. Stat. Ann. § 41-2103 (Repl. 1977)] and he:
(a) is armed with a deadly weapon, or represents by word or conduct that he is so armed, . . .
Ark. Stat. Ann. § 41-2103 (Repl. 1977) provides:
(1) A person commits robbery if with the purpose of committing a theft or resisting apprehension immediately thereafter, he employs or threatenss to employ physical force upon another.”

Under the proof presented, we must hold that the evidence is sufficient to sustain the jury’s finding that appellant was guilty of aggravated robbery.

We can find no merit in his contention that he was entitled to have the jury instructed on theft pursuant to Ark. Stat. Ann. § 41-2203 (Repl. 1977). Under Ark. Stat. Ann. § 41-2203, supra, “a person commits theft of property if he knowingly takes or exercises unauthorized control over . . . the property of another.” However, to prove robbery the State only has to show that there was an intent to commit a theft. Consequently, the offense of theft of property is not a lesser included offense in a charge of the crime of burglary. See Ark. Stat. Ann. § 41-105(2) (Repl. 1977).

Appellant is correct in his contention that the trial court erred in submitting the issue of a habitual offender, Ark. Stat. Ann. § 41-1001 (Repl. 1977), to the jury. That statute comes into play only upon a showing of “more than one” previous conviction of a felony. The State’s proof here only showed one prior felony conviction. The State, in its brief here, acknowledges the error but contends that the error only goes to the years of imprisonment and not to the fine. With the contention as to the fine, we cannot agree because without the habitual offender charge, the State would not have been in position to show a previous conviction for purposes of enhancing either the punishment or the fine.

Accordingly, the error can be cured by reducing appellant’s punishment to the minimum of 5 years imprisonment pursuant to Ark. Stat. Arm. § 41-901 (l)(a) (Repi. 1977). The judgment will be so modified and affirmed unless the State before the issuance of the mandate files an election to retry appellant.

Modified and affirmed.