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

text:
    Billy Gale HENRY v. STATE of Arkansas
    CR 82-52
    647 S.W.2d 419
    Supreme Court of Arkansas
    Opinion delivered February 28, 1983
    [Rehearing denied March 21, 1983.]

      Michael Dabney, Deputy Public Defender, for appellant.

      Steve Clark, Atty. Gen., by: Victra L. Fewell, Asst. Atty. Gen., for appellee.
   John I. Purtle, Justice.

Appellant was convicted as an accomplice to capital murder, hindering apprehension or prosecution and of being an habitual offender. He was sentenced to death for felony murder and to 40 years imprisonment for hindering apprehension or prosecution. On appeal appellant argues 14 points; they will be set out in the body of this opinion. We do not find any prejudicial error but by comparing we reduce appellant’s death sentence to life without parole.

The appellant and Rodney Britton were together on the date the West Fork Chief of Police was killed. Britton had spent a few days camped out on the farm where appellant lived with his mother near Mountainburg, Arkansas. On March 20, 1981, the appellant and Britton spent the day in and around the City of Fayetteville. Shortly after 9:00 o’clock p.m. on that date the Pizza Hut North in Fayetteville was robbed by an armed intruder. Subsequently Britton was identified as the man who robbed the Pizza Hut North. Appellant stated that he and Britton were at a cafe in Fayetteville at 9:00 p.m. on the date in question, but that Britton borrowed another car and was gone for about 20 minutes. Appellant contended that when Britton returned he obtained the keys to appellant’s car, opened the trunk, placed a jacket in the truck and took out one of another color and put it on. Shortly after 10:00 p.m. Britton and appellant headed south on U.S. Highway 71, toward Mountainburg, when they stopped at a service station in West Fork to obtain gas. The service station attendants were in the process of closing and refused to sell them any gas. At that time appellant, who had been driving, got out of his car, walked around to the passenger side and Britton moved over to the driver’s position. The facts indicate appellant had been drinking and also taking medicine for heart disease. He gave the appearance of being intoxicated because the attendants stated he staggered when he walked around the car. After the car pulled away an attendant notified Chief Paul Mueller that the occupants of the car appeared to be drinking. Chief Mueller then proceeded south on Highway 71 in an attempt to overtake the car. Mueller caught up with the suspects and using his bluelight pulled them over the side of the road. While making the stop he radioed that the parties in the vehicle were acting “squirrely.” That was his last message. After he stopped the car the appellant got out of the passenger side and started back toward the officer’s car when Chief Mueller told him to get back in the car, stating he wanted to talk with the driver. Britton then got out of the driver’s side and immediately four shots were fired. A nearby resident testified that the first two shots were louder than the second two shots. Britton was using a .44 caliber magnum pistol and Chief Mueller had a .38 caliber magnum pistol. Chief Mueller was shot twice by Britton and apparently the chief fired one round which struck the appellant in the back. The other bullet fired by the chief hit the trunk and passed into the passenger compartment of appellant’s vehicle. A witness arrived on the scene as Britton was driving appellant’s car away. The witness found Chief Mueller, with pistol in hand, dying on the shoulder of the road in front of his vehicle. At that time appellant was in the edge of a ditch. The wounds to appellant turned out not to be too serious.

Back-up officers arrived on the scene within a matter of minutes and one of them, armed with a shotgun, approached appellant who stated: “Don’t shoot, I surrender,” or “Don’t shoot, I give up” or “Don’t shoot, I’ve been shot.” Appellant stated to police officers at the hospital that he did not know the identity of Britton who he stated was a hitchhiker. Appellant’s vehicle was found a mile or so down the road, out of gas. It was towed to the police department and searched without either a warrant or asking the appellant for permission to search the vehicle. The search produced, among other things, a green money bag which was identified by the employees of the Pizza Hut as one which was used in the robbery of that establishment. Officer Doug Fogley, who conducted the search, knew that appellant was in the hospital in Fayetteville at the time of the search. Fogley also administered a trace metal detection test on appellant and determined that he had not handled a gun that evening. The following morning Fogley and four other officers interrogated appellant in the intensive care unit of the Veterans Administration Hospital in Fayetteville. The interrogation was conducted with the consent of the attending physician. During this interrogation appellant indicated that he had picked up Britton as a hitchhiker. (Britton was killed several days later in a shootout with the police not far from the scene of the death of Chief Mueller.)

During the trial it was established that Britton and appellant had become acquainted while serving time together at Leavenworth Federal Penitentiary. There was no dispute but that appellant knew the identity of Britton when he said he did not know him. Appellant was allowed to serve as co-counsel during his trial. After his conviction as an accomplice to capital murder and hindering apprehension and prosecution he was allowed to address the jury on the penalty phase. During this argument he requested that the jury give him the death penalty rather than life imprisonment. The jury obliged.

I.

THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING DEFENDANT’S MOTION FOR SEVERANCE OF THE OFFENSES OF HINDERING APPREHENSION AND ACCOMPLICE TO CAPITAL MURDER.

The evidence clearly indicated that it was Britton who fired the shots which killed Chief Mueller. There was no direct evidence that appellant actively assisted in the shooting of the officer. Our established law is that granting or refusing a severance is within the discretion of the trial court. Ruiz & Van Denton v. State, 273 Ark. 94, 617 S.W.2d6 (1981). A.R.Cr.P. Rule 22.2 (b) states:

(b) The court, on application of the prosecuting attorney, or on application of the defendant other than under subsection (a), shall grant a severance of offenses:
(i) if before trial, it is deemed appropriate to promote a fair determination of the defendant’s guilt or innocence of each offense . . .

Pursuant to the foregoing rule the trial court determined that it was not necessary to grant a severance in order to promote a fair determination of the defendant’s guilt or innocence. The facts necessary to prove the offenses would almost all be required in each trial if a severance were granted. Evidence of the Pizza Hut robbery was found in appellant’s car. This evidence would be used in both trials, as would other acts and evidence, to establish a plan, scheme, motive or state of mind. The conduct of appellant, both before and after the murder, would be admissible for the purpose of showing a plan or scheme. A.R.Cr.P. Rule 21.1 (b) provides that offenses may be joined for trial when they are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan. Owen v. State, 263 Ark. 493, 565 S.W.2d 607 (1978). The trial court did not abuse its discretion in refusing to sever the offenses in this case.

II.

THE TRIAL COURT ERRED IN FAILING TO DIRECT A VERDICT.

The appellant argues that the evidence was insufficient to support the conviction of capital murder. We realize that the evidence is primarily circumstantial but it was of such force that it would induce the mind of the average person to pass beyond suspicion and conjecture. It was of sufficient force and character to support a finding of reasonable and material certainty and to compel a conclusion one way or the other. Jones v. State, 269 Ark. 119, 698 S.W.2d 748 (1980).

The evidence revealed that appellant and Britton had been together most of the day and that both were present at the time of the shooting of Chief Mueller. They were in appellant’s automobile and evidence of the robbery of the Pizza Hut was found in the automobile which was owned by the appellant and driven by Britton. Several witnesses testified as to the association of appellant and Britton while they were at Leavenworth. Most of the witnesses indicated that appellant was not a friend of Britton’s. One inmate from Leavenworth testified that he had observed Britton and appellant discussing legal matters as they ate together at Leavenworth. Appellant was released from Leavenworth prior to Britton’s release. Britton arrived at appellant’s residence on March 15, 1981. He stayed in or around the appellant’s residence until the death of Chief Mueller on March 20,1981. Appellant falsely told the officers that he did not know Britton. There is considerable other evidence supporting the finding that appellant and Britton were acting together at the time of the death of Chief Mueller. It is the province of the jury to determine the credibility of the witnesses. Riddick v. State, 271 Ark. 203, 607 S.W.2d 671 (1980). The jury is free to disregard the testimony of the appellant if it so chooses. Core v. State, 265 Ark. 409, 578 S.W.2d 581 (1979). This court will not disturb the jury’s findings regarding credibility of the witnesses. Wright v. State, 177 Ark. 1039, 9 S.W.2d 233 (1928).

Ark. Stat. Ann. § 41-303 (Repl. 1977) defines accomplice as a person who solicits, advises, encourages or coerces the other person to commit the crime or who aids, agrees to aid, or attempts to aid the other person in planning or committing it. Also, if the person has a duty to prevent the commission of an offense and fails to make a proper effort to do so, he is an accomplice. Bowles v. State, 265 Ark. 457, 579 S.W.2d 596 (1979). A person need not take an active part in a murder to be convicted of such if the person accompanied the person or persons who actually committed the murder and assisted in such commission. Hallman & Martin v. State, 264 Ark. 901, 575 S.W.2d 688 (1979). Our capital murder law is codified as Ark. Stat. Ann. § 41-1501 (Repl. 1977) which states in part:

(1) A person commits capital murder if:
(b) with the premeditated and deliberated purpose of causing the death of any law enforcement officer, jailer, prison official, fireman, judge or other court official, probation officer, parole officer, or any military personnel, when such person is acting in line of duty, he causes the death of any person; or . . .

A review of the record confirms that the jury could have properly found the appellant guilty as an accomplice in causing the death of Chief Mueller.

III.

THE TRIAL COURT ERRED IN ADMITTING THE STATEMENT, “DON’T SHOOT, I GIVE UP.”

During the trial Officer Price testified that when he first approached Henry at the scene where Chief Mueller was killed, Henry, who was lying on his back stated: “Don’t shoot, I give up.” The appellant argues that his statement was “Don’t shoot, I’ve been shot.” The jury had the right to decide which statement to believe. Appellant’s objection to the statement is that it was not provided in response to his motion for discovery. It is conceded by the state that it was not provided to the defense. The prosecutor contended the state itself did not know the statement had been made until revealed in the testimony at trial. The defense had timely entered its motion for discovery pursuant to A.R.Cr.P. Rule 17. We do not find any evidence that the state deliberately avoided obtaining this information in order to have it presented at trial. Under Rule 19.7, it is up to the trial court to decide whether such a statement should be admitted. Appellant knew that Officer Price would be a witness and his counsel had the right and duty, time permitting, to interview the officer and perhaps discover what the officer was going to say at the trial. Appellant relies on the case of Williams v. State, 267 Ark. 527, 593 S.W.2d 8 (1979), for the argument that the statement should be excluded. In Williams, the state found out about other statements, which had not been furnished the defense, the day before trial. The information was not furnished to the defense until after voir dire of the jury. We reversed and stated: “There is no doubt, then, that the police officer knew of the statement. That knowledge is imputed to the prosecuting attorney.” In the present case the state and the defense found out about the statement at the same time. We find that it was not prejudicial error for the trial to continue after Officer Price made his unexpected statement. Furthermore, we cannot say with any degree of certainty that the statement was either inculpatory or damaging to appellant’s defense.

IV.

THE DEATH PENALTY IS UNCONSTITUTIONAL IN THIS CASE.

Appellant argues that an accomplice who did not participate in the actual murder should not receive the death penalty. In Collins v. State, 261 Ark. 195, 548 S.W.2d 106, cert. den. 434 U.S. 878, rehearing denied 434 U.S. 977 (1977), we discussed this court’s responsibility in reviewing death cases as they relate to other death cases. In Sumlin v. State, 273 Ark. 185, 617 S.W.2d 372 (1981), we also made a comparison of the sentence which had been imposed since Collins. We reviewed Sumlin’s death sentence and compared it with that of life imprisonment without parole which had been given to his wife in the same case. We reduced Sumlin’s death sentence to life without parole. We cannot compare appellant’s sentence to that of Britton because he was killed by police officers soon after the murder. After comparing it with other death sentences and sentences of life without parole, we find that appellant’s sentence should be reduced from death to life without parole for two reasons: (1) the evidence is overwhelming that he was merely an accomplice and did not personally fire the fatal shots, and (2) the jury may have sentenced him to die out of passion and prejudice because the main actor in the murder could not be tried.

V.

THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION CHALLENGING THE DEATH QUALIFICATION OF PROSPECTIVE JURORS.

Appellant readily admits that we have previously rejected the argument that a death qualified jury is impermissible. Lasley v. State, 274 Ark. 352, 625 S.W.2d 466 (1981). We are at this time still of the opinion that such qualification is constitutional.

VI.

THE TRIAL COURT ERRED IN ITS RULING TO ALLOW IMPEACHMENT OF DEFENDANT BY USE OF A PRIOR ROBBERY CONVICTION.

Perhaps no other rule of evidence or law has given us so many problems as Rule 609. Appellant properly brought the matter of the prior robbery conviction to the attention of the court through a motion in limine. The court overruled the motion and allowed the state to question appellant about a prior robbery conviction. In Jones v. State, 274 Ark. 379, 625 S.W.2d 471 (1981), we stated:

The Uniform Rule [609] unquestionably changed the Arkansas law, which formerly permitted proof of a conviction of any felony to impeach a witness’s credibility ... [t]he Uniform Rule is specifically directed to the conviction’s probative value with respect only to credibility . . .

Evidence of prior criminal convictions is not admissible to bolster the prosecution’s case by showing that the accused is a bad person but is limited for the purpose of discrediting the witness’s testimony. We think the rule, as it presently stands, is as stated in Floyd v. State, 278 Ark. 342, 645 S.W.2d 690 (1983): “... the probative value must be weighed against the prejudicial effect when evidence of prior convictions is admitted.” We think that the court did not abuse its discretion in weighing the prejudicial effect against the probative value of allowing the prior conviction to be used for impeachment purposes. In the present case the appellant himself repeatedly mentioned his prior conviction during the course of the trial and this would constitute a waiver under the circumstances.

VII.

THE TRIAL COURT ERRED IN REQUIRING THE APPELLANT TO BE TRIED WHILE INCOMPETENT TO STAND TRIAL.

The appellant did not raise the defense of mental disease or defect in the trial court. After both sides had rested appellant submitted a medical record to the court which revealed he had been referred to a consulting psychiatrist at the Veteran’s Administration Hospital in Fayetteville. Appellant, who was acting as co-counsel, stated he did not think it was relevant but wanted it in the record anyway.

We think this evidence is insufficient to raise the question of the appellant’s mental capacity to stand trial. The burden of proving incompetence is on the defendant in a criminal trial. Westbrook v. State, 265 Ark. 736, 580 S.W.2d 702 (1979). Additionally, the appellant did not abstract the report or offer any discussion about it which would allow consideration. He did not contend below that he intended to raise mental disease or defect as a defense, and gave no notice as required by Ark. Stat. Ann. 41-604 (Repl. 1977). We cannot consider a matter raised for the first time on appeal. Kitchen v. State, 271 Ark. 1, 607 S.W.2d 345 (1980).

VIII.

IT WAS ERROR TO ADMIT CHIEF MUELLER’S RADIO TRANSMISSION.

The statement by the decedent over his police radio that the appellant and Britton were “acting squirrely” is hearsay pursuant to Arkansas Uniform Rules of Evidence, Rule 801. Even though the statement was inadmissible, we do not find it to have been prejudicial. We cannot imagine how this statement could have affected the jury one way or the other as to appellant’s guilt or innocence of the crime for which he was charged. There was no prejudicial error under this point, even though the transmission should not have been admitted into evidence.

IX.

IT WAS ERROR TO DENY APPELLANT’S REQUEST FOR CERTAIN SUBPOENAS.

Appellant sought to have summons issued for John Logan, an inmate at Leavenworth, and unnamed persons from the Cummins Unit of the Arkansas Department of Correction. He alleges that Logan would testify that Britton had a list of people which he intended to kill and that appellant was on the list. He also sought the unnamed Cummins inmates’ attendance for the purpose of testifying that if they had used dogs the officers would have been able to track Britton down immediately. He argues that the information he gave the officers would have enabled dog handlers to have located Britton immediately. The court ruled that Logan’s testimony was not material and that the testimony of the Cummins inmates was also irrelevant. Several witnesses from Leavenworth were subpoenaed and brought to the trial. Ark. Stat. Ann. § 43-2001 (Repl. 1977) provides that a defendant shall be entitled to have unlimited witnesses subpoenaed in a capital murder case. However, this right is not absolute when it pertains to out-of-state witnesses. Wright v. State, 267 Ark. 264, 590 S.W.2d 15 (1979). We find that there was not a manifest abuse of the court’s discretion in this case. The appellant did not furnish any information which indicated that these witnesses were material to the defense of accomplice to felony murder and the court specifically ruled on relevance. Therefore, we do not think the appellant was prejudiced by the action of the court.

X.

IT WAS ERROR TO ALLOW OFFICER PRICE TO TESTIFY THAT THE APPELLANT STATED “I GIVE UP” AT THE TRIAL.

Appellant insists that allowing this statement was a violation of the rule set down in Miranda v. Arizona, 384 U.S. 436 (1966). We treated this statement under the appellant’s Point III. However, we hold that the statement was not a result of questioning by the police but rather was in the nature of a spontaneous explanation. The appellant was neither in custody nor subjected to interrogation at the time of this utterance. Even if he were in custody, a spontaneous statement would be admissible. Rhode Island v. Innis, 446 U.S. 291 (1980). See also Murry v. State, 276 Ark. 372, 635 S.W.2d 237(1982).

XI.

IT WAS ERROR TO ADMIT EVIDENCE OF THE ROBBERY OF THE PIZZA HUT.

Appellant argues that the court erred in admitting evidence about the robbery of the Pizza Hut and insists that it violates Uniform Rules of Evidence, Rule 402 and Rule 403.

Rule 402 provides that all relevant evidence is admissible except as otherwise provided by statute or rule. Rule 403 provides that relevant evidence which is unfair, prejudicial, confuses the issue, misleads the jury, or is a waste of time may be excluded. However, the court admitted this evidence pursuant to Rule 404 (b). This rule provides that evidence may be admissible for the purpose of showing “proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Admittedly, there is no proof that appellant was at the scene of the robbery of the Pizza Hut. However, evidence found in his vehicle definitely tended to show that the person or persons who robbed the Pizza Hut were in appellant’s car shortly after the robbery. This evidence was ruled to be relevant in regard to appellant and Britton having a motive to kill Chief Mueller when he pulled them over; the motive being fear of discovery of the Pizza Hut robbery evidence. We have held many times that such evidence is properly admitted. Williams v. State, 276 Ark. 399, 635 S.W.2d 265 (1982); Ford v. State, 276 Ark. 98, 633 S.W.2d 3 (1982). Therefore, we find there was no prejudicial error in allowing evidence of the Pizza Hut robbery to be presented in this case.

XII.

THE COURT ERRED IN FAILING TO SUPPRESS CERTAIN EVIDENCE.

Evidence connecting appellant to the robbery of the Pizza Hut was obtained when his automobile was searched about two hours after the death of Chief Mueller. The car had been driven from the scene of the killing by Britton. Appellant told the officers the car had been stolen. At the time of the search the vehicle was in possession of the officers and the appellant was in the emergency room or the intensive care unit of the hospital. Since appellant indicated that the automobile was no longer within his custody or control, he did not have a protected interest which would prevent seizure of articles found in the vehicle. We have held that it is permissible for police to search an abandoned vehicle, especially if it is one from which a suspect flees to avoid apprehension. Pickens v. State, 261 Ark. 756, 551 S.W.2d 212 (1977), cert. den. 435 U.S. 909 (1978). The police obviously had reason to suspect that the vehicle might contain evidence which would reveal the identity of the hitchhiker who had allegedly stolen the vehicle and who was still at large. The circumstances of this case further reveal that the officers might well have believed that appellant was unable to give information about the vehicle or consent to its search. We recognize that the state has the burden of justifying a warrantless search of a vehicle. An automobile does not enjoy the same constitutional prohibition that a home does in all situations. Vinston v. State, 274 Ark. 452, 625 S.W.2d 533 (1981). An automobile has become an exception to the Fourth Amendment’s protection in cases where exigent circumstances exist. Chimel v. California, 395 U.S. 752 (1969). The circumstances here were that an unknown murder suspect was still at large and probably in the vicinity of West Fork. We think the police did not act improperly in the search of the automobile under the circumstances present in this case.

XIII.

IT WAS ERROR TO ADMIT CERTAIN STATEMENTS INTO EVIDENCE.

It is argued that statements by a security guard at the Veteran’s Administration Hospital were improperly admitted. At the time appellant was admitted to the hospital he was not under arrest nor was it known by the personnel at the hospital that he was even a suspect to a crime. The guard was dressed in a uniform similar to that of a police officer. However, he did not investigate this incident at all.

The statements made to the guard were not the result of questions by the guard but were, rather, voluntary statements on the part of the appellant. Appellant did not deny that he made the statements but wanted to have them excluded as having been given in violation of his right to remain silent. The courts have never gone so far as to exclude statements given by an accused which were voluntarily made before he was considered a suspect in a criminal act. There simply is no precedent cited for this argument. We have been unable to find a case wherein a voluntary statement given prior to the time that the person is suspected of a crime is in violation of his constitutional rights. Therefore, there is no error in regard to this point.

XIV.

IT WAS ERROR TO ADMIT STATEMENTS MADE BY APPELLANT.

Appellant insists that he did not voluntarily, knowingly and intelligently waive his rights at the time he made statements to police officers investigating the killing of Chief Mueller. The voluntariness of a custodial statement must be proven by the state. Degler v. State, 257 Ark. 388, 517 S.W.2d 515 (1974). Appellant was given a Miranda warning about 7:15 a.m. on March 21, 1981. This was some eight or nine hours after the death of Mueller. The appellant primarily relies upon his physical condition and the medication he was receiving to refute the idea that he voluntarily and knowingly executed the rights form and gave the statement. It is true that he had been taking a variety of medications, including codeine and valium. Appellant was being administered fluids and antibiotics intravenously as well as by mouth. Also, he was connected with a heart monitor. We think the medication and devices which appellant was subject to were less than those in the case of Mincey v. Arizona, 437 U.S. 385 (1978). In Mincey, tubes were inserted into his throat to help him breathe and through his nose into his stomach to keep him from vomiting. He had a catheter inserted into his bladder, and was undergoing intravenous feeding in addition to being administered several drugs. The Arizona court refused to allow a statement given under these circumstances in the prosecution’s case in chief but did allow it for impeachment purposes. Dr. Brannon testified at the time the statement was taken the that the appellant was to some degree under the influence of medications but that he thought he was fully capable of understanding and giving a statement. The rights form was executed and the statement given while the appellant was in the intensive care unit. He had not been arrested and was not in custody. However, we find that the statement would be admissible even if appellant had been in custody. The officers first received the permission of the doctor to interview the appellant. It was the doctor’s testimony that appellant’s ability to think clearly was not significantly impaired; otherwise, he would not have allowed questioning by the officers. His testimony was that the medications might have affected appellant’s alertness but that it would not hinder his ability to clearly communicate or understand. It was the doctor’s opinion that there was nothing about appellant’s physical or mental condition which would prevent him from understanding the nature of the interrogation and his right to refuse to cooperate. We hold that the appellant’s statement and waiver were knowingly, voluntarily and intelligently given.

XV.

OTHER ADVERSE RULINGS.

We have reviewed the record for other rulings adverse to the appellant and find none which would constitute prejudicial error.

Therefore, the sentence of death as an accomplice to capital murder will be reduced to life without parole and the judgment is otherwise affirmed.

Affirmed as modified.

Hickman, J., concurs.

Adkisson, C.J., dissents.

Darrell Hickman, Justice,

concurring. This is the first capital case in which we have actually had to compare the propriety of the death sentence with the sentence in other cases. In none of those we have approved are there any candidates for legal mercy — they deserved the death penalty without question for their particular crimes.

That is not the case here, not if we abide by the majority’s decision in Collins v. State, 261 Ark. 195, 548 S.W.2d 106 (1977), cert. denied 434 U.S. 878 (1977). In Collins, we abandoned the notion there must be a legal mistake in order to reduce a sentence in a death case. We made a pact, so to speak, that we would, on our own, make certain the death penalty was not the result of passion, prejudice or excessive under the circumstances. We have to keep that pact as a matter of integrity. I concur only to point out that I disagree to that extent with the dissent. That the defendant did not pull the trigger is not always a determinative factor — it may be an appropriate reason or not to reduce the death penalty, depending on the circumstances.

Richard B. Adkisson, Chief Justice,

dissenting. I concur in the affirmance of this case but dissent from this court’s modification of the judgment by reducing the punishment to life imprisonment without parole.

The majority has found that the state sufficiently and fully proved that appellant did with premeditation and deliberation kill Chief Mueller. Under such circumstances it does not matter who actually pulled the trigger. More often than not the more culpable offender allows someone else to actually do the dirty work.


source: Caselaw Access Project

author: Per Curiam. John I. Purtle, Justice, dissenting.

license: Public Domain

text:
    Terry KELLEY v. STATE of Arkansas
    CR 83-21
    646 S.W.2d 703
    Supreme Court of Arkansas
    Opinion delivered February 28, 1983
    Guy H. “Mutt” Jones, Phil Stratton and Casey Jones, by: Phil Stratton, for petitioner.

      Steve Clark, Atty. Gen., by: Arnold M. Jochums, Asst. Atty. Gen., for respondent.
   Per Curiam.

Petition for Review is denied. Purtle, J., would grant.

John I. Purtle, Justice, dissenting.

I sincerely believe it is a denial of the rights granted to an accused by the Sixth Amendment to the Constitution of the United States and of Art. 2, Sec. 10 of the Constitution of Arkansas to limit defendant’s counsel to fifteen minutes to argue his case before a jury. The fact that the Arkansas Court of Appeals decided this case by a tie vote is evidence it should be reviewed by this court. Certainly the denial of a constitutional right, as I believe this to be, involves legal principles of major importance as envisioned by our Rule 29 (6) (b). I would grant the petition.


author: Richard B. Adkisson, Chief Justice.

text:
    POTLATCH CORPORATION v. Teresia RICHARDSON
    82-231
    647 S.W.2d 438
    Supreme Court of Arkansas
    Opinion delivered March 7, 1983

      Stark Ligón, for appellant.

      Roberts, Harrell, Lindsey &r Foster, P.A., by: Searcy W. Harrell, Jr., for appellee.
   Richard B. Adkisson, Chief Justice.

The Calhoun County Chancery Court quieted title to certain property in appellee, Teresia Richardson, holding that adverse possession had been established against appellant, Potlatch. On appeal we affirm.

Potlatch has had record title to and has paid taxes on the 4.65 acres in question since 1941, but Doyle Hollis, now deceased, had been in actual possession of the land since 1963. Apparently, Hollis considered it to be a part of an 80 acre tract which he bought in 1963, since the 80 acre tract and the 4.65 acres were fenced in together. He sold the 80 acres in 1976, but continued to possess the 4.65 acres. He died testate in 1981, and his will provided for the sale of this property by his executrix. Appellee purchased the property from the executrix.

Appellant argues that the trial court erred in finding that Doyle Hollis had obtained title through adverse possession and, thereby, erred in quieting title in appellee. The law applicable to adverse possession is well settled. In order for adverse possession to ripen into ownership, the possession for seven years must be actual, open, notorious, continuous, hostile, exclusive, and accompanied with an intent to hold against the true owner. Strieker v. Britt, 203 Ark. 197, 157 S.W.2d 18 (1941). The party claiming by adverse possession has the burden of proof to establish all of the essential elements of adverse possession. Potlatch Corp. v. Hannegan, 266 Ark. 847, 586 S.W.2d 256 (1979). And, in Culver v. Gillian, 160 Ark. 397, 254 S.W. 681 (1923) we stated:

[T]o constitute an adverse possession, there need not be a fence or building, yet there must be such visible and notorious acts of ownership exercised over the premises continuously, for the time limited by the statute, that the owner of the paper title would have knowledge of the fact, or that his knowledge may be presumed as a fact. In other words, it has been well said that if the claimant ‘raises his flag and keeps it up,’ continuously for the statutory period of time, knowledge of his hostile claim of title may be inferred as a matter of fact.

Here, testimony revealed that Hollis used the property in question as his “camp.” Shortly after he bought the 80 acres, he moved a small building onto the 4.65 acres and gradually turned it into a house: he added two rooms, electricity, and a butane tank for fuel; he put down a well, built a barn, and a hog pen; he kept hogs and cows and a horse there. Sometime after 1976 he added another room and a bathroom with a septic tank. He and his wife had a garden there, and stayed on the property during gardening season to can and freeze vegetables more than they stayed at home. There was testimony indicating that the property has been enclosed by a fence for well over the seven year statutory period.

Based upon the above evidence the chancellor found that Hollis acquired title to the land by being in actual, open, notorious, adverse, hostile, continuous, exclusive possession for a time exceeding seven years, and we cannot say that this finding is against the preponderance of the evidence.

Appellant also argues that the trial court erred in finding that the executrix of the Hollis estate could sell the decedent’s property without complying with the Probate Code. However, we do not reach this argument because no defect in the conveyance from the estate of Hollis to appellee could have any effect on appellant’s claim to title. Nor does the fact that the property in question may overlap two feet onto an adjacent landowner’s property affect appellant’s claim to the title. We find no error.

Affirmed.


author: George Rose Smith, Justice. Frank Holt, Justice,

text:
    CITY OF FAYETTEVILLE v. McILROY BANK & TRUST COMPANY et al
    82-200
    647 S.W.2d 439
    Supreme Court of Arkansas
    Opinion delivered March 7, 1983
    [Rehearing denied April 11, 1983.]

      James N. McCord, City Atty., for appellant.

      Ball, Mourton & Adams, for appellees.

      Adkisson, C.J., and Holt and Purtle, JJ., would grant rehearing.

   George Rose Smith, Justice.

In 1973 the City of Fayetteville adopted a comprehensive ordinance regulating the size, height, and setback requirements of signs within the city. The preamble recited among other considerations that the city’s scenic resources had contributed greatly to its economic development, that the scattering of signs throughout the city was detrimental to the preservation of those scenic resources, and that a purpose of the ordinance was to preserve the city’s natural beauty. The ordinance was designed to regulate all signs erected after its effective date, January 19, 1973, and to eventually eliminate existing signs not conforming to the restrictions in the ordinance. To accomplish the latter purpose the ordinance directed that all on-site non-conforming signs either be altered to conform or be removed within seven years.

Several owners of non-conforming signs at once brought suit for a judgment! declaring the ordinance to be unconstitutional on its face and also in its application to them. The trial court held the ordinance to be unconstitutional as applied to the plaintiffs. We affirmed that decision except as to certain flashing signs that were hazardous to traffic. City of Fayetteville v. S & H, Inc., 261 Ark. 148, 547 S.W.2d 94 (1977), noted in 32 Ark. L. Rev. 797 (1979). Three opinions were written in the case, but no opinion was approved by a majority. The case at bar involves the same ordinance, the pertinent provisions of which are quoted in S & H.

After the seven-year grace period for non-conforming signs had expired, the present suit for a declaratory judgment and injunctive relief was filed on September 18, 1980, by the five appellees — a bank, a liquor dealer, two motel owners, and a sign company, who together own six nonconforming signs in a commercial zone in Fayetteville. The parties fully developed the case by stipulation as to facts and as to what various witnesses would testify. The chancellor, finding the case to be governed by the S & H decision, held the ordinance unconstitutional as a taking of the plaintiffs’ property without just compensation. The decree enjoined the enforcement of the ordinance against these plaintiffs. Our jurisdiction of the case is readily apparent. Rule 29 (1) (a) and (c).

The appellees’ six signs were lawfully erected between August, 1956, and May, 1969, with an average age today of more than 20 years. There is no proof of the actual value of any of the signs. Their salvage value is negligible. The president of a sign company would testify that the cost of constructing conforming replacements would range from $1,150 for a motel sign to $4,356 for a restaurant sign owned by the appellee sign company. All the signs have been fully depreciated for federal income tax purposes. If the seven-year amortization period is found to be reasonable, but if it is also found to be unreasonable to require the plaintiffs to remove the signs, the city will remove them without cost to the plaintiffs and preserve the salvage for them.

It is stipulated that the plaintiffs’ witnesses would testify that each of their signs has a remaining useful life of 15 years. The city’s witnesses would testify that in no instance is that remaining useful life more than 5 years. The plaintiffs do not contend that they would suffer businesses losses if they are required to replace their non-conforming signs with conforming ones. Neither do the plaintiffs contend that their real property would decrease in value if they are required to remove the non-conforming signs.

On the facts of this case we hold that the ordinance is valid as to these appellees, that the signs must be removed.

In view of the strong trend of the decisions in the various states during the past thirty years or more, it can hardly be doubted that an ordinance such as this one is valid as to signs to be erected in the future. At one time the courts held pretty generally that zoning ordinances could not be sustained if they rested primarily or solely upon aesthetic considerations, but that point of view is disappearing. See annotations, 21 A.L.R.3d 1222, 1235 (1968); 81 A.L.R.3d 486, 511 (1977). If the inhabitants of a city or town want to make the surroundings in which they live and work more beautiful or more attractive or more charming, there is nothing in the constitution forbidding the adoption of reasonable measures to attain that goal.

The difficulty, as in the case at bar, is created by the presence of existing unsightly structures. Billboards and junkyards are the most common examples. At first it was widely throught that the exemption of non-conforming structures would solve the problem on the assumption that time would repair the mistakes of the past. That, however, did not happen, as Chief Justice Kenison explained in detail in Lachapelle v. Town of Goffstown, 107 N.H. 485, 225 A.2d 624, 22 A.L.R.3d 1128 (1967). Rather to the contrary, nonconforming structures often increased in value, being monopolies protected by the zoning law itself from the intrusion of competitors.

Of course, zoning measures were unknown to the common law. It is thus not surprising that a zoning problem such as the elimination of non-conforming uses cannot be satisfactorily solved by the common law, either by the exercise of eminent domain or by resort to the law of nuisances. Ultimately the courts came to realize that the same principles that justify zoning laws themselves must also be invoked to eliminate non-conforming uses. A reasonable accommodation must be found between the public welfare and private ownership.

The most successful solution has been the enactment of amortization laws, such as the Fayetteville ordinance now at issue. The American Law Institute has summed up the prevailing view: “Amortization regulations were established on the principle that a property owner should be able to recoup his investment in an existing land use within a particular period of time, but that after that time he could reasonably be forced to discontinue the use without payment of compensation. By varying the time period in relation to the landowner’s investment the proponents of amortization sought to obtain judicial support by comparing the techñique to depreciation as used for accounting and tax purposes.” A.L.I., A Model Land Development Code, p. 146 (1976). After stating that for the most part the courts have been sympathetic to amortization, the text cites many decisions, including ten billboard or sign cases. In that category the approved amortization periods have ranged from one year to five years. A more complete discussion of the amortization cases is to be found in Williams, American Land Planning Law, § 116.06 (1975). See also, Wright, Zoning Law in Arkansas: A Comparative Analysis, 3 UALR L.J. 421,444 (1980). There can be no doubt that the principle of amortization is firmly embedded in the law.

We recognize that the amortization period must be fair to the property owners, but among the many cases approving the theory of amortization we find none suggesting that a period of seven years is unfair to sign owners. Moreover, this litigation has prolonged the life of the signs by another three years. As the concurring opinion in SirH stated: “The regulation of signs by cities is long overdue.” If an ordinance as moderate as the one before us cannot be sustained, the possibility of effective regulation becomes almost nonexistent.

Reversed and remanded for any necessary proceeding with respect to the removal of the signs.

Adkisson, C.J., and Holt and Purtle, JJ., dissent.

Frank Holt, Justice,

dissenting. Art. 2, § 22, Constitution of Arkansas (1874), states:

The right of property is before and higher than any constitutional sanction; and private property shall not be taken, appropriated or damaged for public use, without just compensation.

The trial court held the application of the ordinance in question violated this constitutional provision, following City of Fayetteville v. S. & H., Inc., 261 Ark. 148, 547 S.W.2d 94 (1977). No argument is made that the signs do not constitute “private property” or that their forced removal does not involve taking, appropriating or damaging them.

Essentially, I understand the majority holds not only that an ordinance, as to signs erected in the future, can be sustained when based primarily or solely on aesthetic considerations, but also that pre-existing, non-conforming uses can be eliminated without payment of just compensation by an amortization ordinance primarily or solely for aesthetic purposes.

Although the majority is correct in stating the trend is toward upholding the amortization method of eliminating non-conforming uses, the cases are in conflict on this issue as they are on whether aesthetic improvement is a proper goal for which the police power may be invoked. For example see Board of Supervisors of James City County v. Rowe, 216 Va. 128, 216 S.E.2d 199 (1975); and Hoffman v. Kinealy, 389 S.W.2d 745 (Mo. 1965).

Art. 2, § 22 states that the right of property exists before and is higher than the sanction given it in the constitution itself, and it is in light of that view that we should interpret the further provision therein that private property shall not be taken, appropriated or damaged for public use without just compensation. As Professor Wright observes, the courts which have set the modern trend in this area would regard that view of property rights as obsolete. Wright, Zoning Laws in Arkansas: A Comparative Analysis, 3 U.A.L.R. L.J. 421, 435 (1980). However, it is the theory of property rights found in our constitution and not the theory of property rights adopted by courts of other states that binds us.

In Blundell v. City of West Helena, 258 Ark. 123, 522 S.W.2d 661 (1975), we held that a property owner has vested rights in a pre-existing and non-conforming use of his property. Contrary to the suggestion of the majority, an affirmance here would not render almost non-existent the possibility of effective regulation. All we need to decide today is that the vested rights of an owner of private property cannot be taken without just compensation where its use is not inimical to the public health, safety and morals and the sole or primary justification for the taking is for aesthetic improvement. We recognized in City of Fayetteville v. S. & H., Inc., supra, that non-conforming uses can be eliminated by this very amortization ordinance when it is done in furtherance of the public health, safety or morals. Furthermore, where the purpose is not to promote the public health, safety or morals, the city can achieve its regulatory goals by exercising its power of eminent domain and paying just compensation.

I would affirm the chancellor.

Adkisson, C.J., and Holt, J., join in this dissent.


author: George Rose Smith, Justice.

text:
    Blanche CLUCK et al v. Michael Allen MACK, Administrator, et al
    82-247
    647 S.W.2d 442
    Supreme Court of Arkansas
    Opinion delivered March 7, 1983
    [Rehearing denied April 4, 1983.]

      Gus R. Camp, for appellants.

      Cathey, Goodwin, Hamilton & Moore, by: Harry Truman Moore, for appellees.
   George Rose Smith, Justice.

W. A. Cluck died intestate in 1960, survived by his widow, Blanche Cluck, and by four daughters and two sons. The decedent’s property has been the subject of at least four family lawsuits, two of which have previously reached this court. Mack v. Cluck, 262 Ark. 12, 554 S.W.2d 325 (1977); Cluck v. Mack, 264 Ark. 842, 576 S.W.2d 930 (1979). There was also litigation about an insurance policy. Cluck v. Mack, 253 Ark. 769, 489 S.W.2d 8 (1973).

The present suit was brought in 1981 by the widow and three of the daughters to cancel four 1970 deeds by which they had conveyed certain property to the fourth daughter, Margaret Ann Mack, in return for the grantee’s promise to take care of the widow for the rest of her life. The grantee was killed in 1980. The four plaintiffs then brought this suit against the estate of the deceased daughter, Margaret Ann Mack, asserting principally that Margaret Ann had been guilty of fraud and forgery in obtaining the deeds, that she had never performed her promise to support her mother, and that she had failed to account for the rents collected upon the farm property conveyed by the four deeds. The chancellor refused to cancel the deeds, but did award the widow a judgment for $44,177.95 for rentals due the widow during the five years preceding the institution of the suit. An appeal and cross appeal bring certain aspects of the case up for review. The Court of Appeals transferred the case under Rule 29(1) (p).

The issues hinge essentially upon questions of fact, most of which turn upon the credibility of the witnesses. A prolonged discussion would be of no real value as a precedent. Consequently we comment only very briefly upon the various contentions urged by the parties to the appeal.

The chancellor’s finding that Margaret Ann did not forge the signature of her sister Doris Swang to one of the deeds is amply supported by the convincing testimony of a handwriting expert, Linton Godown, who testified that the signature was genuine. Blanche Cluck testified that she did not sign a comparatively unimportant deed apparently executed by her in 1975, conveying 1.05 acres to Margaret Ann, but the chancellor evidently did not accept her unsupported testimony, given years later. Moreover, the chancellor had signatures available to him for comparison, but those exhibits have not been reproduced for our examination, as might have been done under Rule 9 (d).

We are not persuaded by the appellants’ argument that Margaret Ann defrauded her mother and sister by procuring their signatures with no intention of supporting Mrs. Cluck. Shortly before the sisters’ deeds were executed in 1970, Margaret Ann’s attorney wrote a letter to them saying that if any of the other three daughters would take over the farm and the personal day-to-day care of Mrs. Cluck for the rest of her life, Margaret Ann would gladly deed her interest in the property to the daughter assuming the responsibility. That offer was not accepted by any of the others, who instead executed deeds to Margaret Ann. She did assume the responsibility for looking after her mother and did so until her own death about ten years later. The chancellor evidently did not give credence to Mrs. Cluck’s complaints, after Margaret Ann’s death, about her mistreatment. We think it significant that in 1976, while Margaret Ann was living, Mrs. Cluck testified in an earlier case that Margaret Ann had looked after her continuously and that she herself could think of nothing Margaret Ann should be doing that she had not done since the deeds were executed. Quite obviously the chancellor did not accept Mrs. Cluck’s testimony that for ten years she was so afraid of Margaret Ann that she dared not complain of mistreatment.

In the circumstances of this case Margaret Ann’s death is not in itself a basis for canceling the four deeds. In the first place, in 1971 the chancellor found in an earlier case that Blanche Cluck was in effect a life tenant of the property, entitling her to possession and to the exclusive authority to rent the land. See the 1979 Cluck v. Mack opinion, supra. Margaret Ann’s death did not affect that situation. And second, although Mrs. Cluck might argue that she conveyed her interest to Margaret Ann because she relied upon that particular daughter’s personal ability to look after her, it is evident that the other three sisters were not similarly motivated. The dedication of the rentals to their mother’s support satisfied their expectations, even though someone else must take care of Mrs. Cluck after Margaret Ann’s death. Margaret Ann’s son and his wife, appellees, have offered to do that.

We have considered the appellants’ various arguments for reversal and are unanimously of the opinion that the chancellor’s decision was not clearly erroneous.

On cross appeal the administrator of Margaret Ann’s estate does not question the accounting by which the chancellor awarded Mrs. Cluck $44,177.95 for past rentals, but he argues that Mrs. Cluck accepted Margaret Ann’s performance of her promise for ten years and should now be barred by waiver, estoppel, and laches from seeking an accounting. There was no conscious waiver of Mrs. Cluck’s rights, and both laches and estoppel rest upon some change of position detrimental to the person asserting those defenses. We perceive no injustice in requiring Margaret Ann’s estate to account for the profits she accumulated in looking after her mother’s property. The administrator also argues, without citation of any authority except the three-year statute of limitations, Ark. Stat. Ann. § 37-206 (Repl. 1962), that the accounting should have gone back only three years instead of five. Margaret Ann’s obligation arose from the written deeds, not from an oral or implied promise; so the chancellor was right in applying the five-year statute. Section 37-209; Parker v. Carter, 91 Ark. 162, 120 S.W. 836, 134 Am. St. Rep. 60(1909).

Affirmed on direct and cross appeal.


author: Frank Holt, Justice.

text:
    George F. SCHAFFER et ux v. TENNECO OIL COMPANY
    82-215
    647 S.W.2d 446
    Supreme Court of Arkansas
    Opinion delivered March 7, 1983

      Turner, Mainard & Whitehead, for appellants.

      Warner ir Smith, by; G. Alan Wooten and Joel D. Johnson, for appellee.
   Frank Holt, Justice.

The chancellor held that the appellee, Tenneco Oil Company, breached its agreement with the appellants, the Schaffers, to pay royalties pursuant to an oil and gas lease entered into in 1973. He ordered the appellee to pay the royalties, past and future, pursuant to the terms of the lease, plus accrued interest. The appellants contend, however, that the chancellor also should have sustained their plea for cancellation of the lease.

The appellants leased 2% acres to Brenda Oil Company by an oil and gas lease dated July 3, 1973. Brenda Oil Company assigned the lease to Tenneco on July 13,1973. In 1974 Tenneco drilled a well on the leased premises. In 1975 production began from the well. It is undisputed that no royalties have been paid by the appellee to the appellants pursuant to the lease. It also is undisputed that the appellants never contacted the appellee seeking payment of the royalties due them before filing this action on September 24,1981, nor did they seek cancellation or forfeiture for failure to pay royalties prior to that date. The appellee customarily requires its lessors to sign a “division order” prior to payment of any royalties. A division order, inter alia, states the terms according to which payment of royalties is to be made, and in this case those terms varied somewhat from the terms of the lease. It appears that the appellee attempted to send a division order to the appellants as a prelude to payment of royalties in 1977, but the zip code on the address was incorrect and the appellants deny receiving the division order. The appellee made no other effort to contact the appellants concerning payment of royalties; however, it did set aside, in a suspense account, the funds due the appellants. At the hearing in chancery court the appellants admitted they live within sight of the well on their premises and were aware that it was producing gas. They knew, at the time of the hearing, they could sign a division order and receive payment of royalties, but they refused on the basis that the terms of the division order varied from the terms of the lease. An agent of the appellee testified, howeyer, that the appellants could receive their royalties without signing a division order merely by stipulating to the acreage amount covered by the royalty payments. The purpose of the division order is to insure that the proper party receives payment, thereby avoiding possible double payment.

The appellants concede that Louisiana is the only jurisdiction that has consistently been willing to decree cancellation for a lessee’s unexcused failure to pay pursuant to an oil and gas lease. The majority view was expressed by the Supreme Court of Oklahoma in Wagoner Oil & Gas Co. v. Marlow, 137 Okla. 116, 278 P. 294 (1929): “Failure to pay royalty or for injury to the land as provided by the lease will not give the lessors sufficient grounds to declare a forfeiture, unless by the express terms of the lease they are given that right and power. ” To the same effect is Cannon v. Cassidy, 542 P.2d 514 (Okla. 1975). Summers, THE LAW OF OIL AND GAS, Vol. 3A (1958), § 616, states:

Oil and gas leases ordinarily do not contain an express provision empowering the lessor or royalty owner to declare a forfeiture thereof for the nonpayment of gas well rentals or oil and gas royalties from production. In the absence of such a provision the courts in most jurisdictions refuse to enforce a forfeiture for the nonpayment of royalties by decreeing a cancellation of the lease.

Where there is no cessation of marketing of oil and gas for a substantial period but only the nonpayment of royalties, the lessors generally have a plain, speedy, and adequate remedy at law for damages. Cannon v. Cassidy, supra. Here, there was a nonpayment of royalties. The chancellor held there was a breach of contract by appellee and awarded appellant damages, which included payment of all royalties owed pursuant to the terms of the lease plus accrued interest. The lease does not contain an express provision allowing forfeiture for nonpayment of royalties and neither has the appellee refused to pay the royalties, although payment has been delayed, as indicated. On the facts here, we cannot say the chancellor’s refusal to decree a cancellation of the lease is clearly erroneous.

The appellants also argue the chancellor erred by allowing the appellee’s witnesses to testify concerning customs and usage in the oil and gas industry without a showing that the appellants knew of the custom and usage or that the terms of the lease were vague. The witnesses testified that it is customary in the oil and gas industry to withhold royalty payments until a division order is signed by the lessors. This testimony went to the issue whether withholding payment until a division order is signed constituted a breach of the lease agreement. The testimony was to the effect that the appellee did not breach the lease by requiring division orders to be signed, because the division orders accord with the custom and usage of the industry. This issue was decided in favor of the appellants since the chancellor held the appellee breached the lease by not paying the royalties. Since this testimony was relevant to an issue decided in favor of the appellants, its admission into evidence, even if erroneous, was harmless. We do not reverse for harmless errors. Ark. Stat. Ann. § 28-1001, Rule 103 (a) (Repl. 1979); ARCP, Rule 61; and Haseman v. Union Bank of Mena, 268 Ark. 318, 597 S.W.2d 67 (1980).

Affirmed.


text:
    Brenda COBURN v. ARKANSAS STATE ALCOHOLIC BEVERAGE CONTROL BOARD
    82-243
    647 S.W.2d 445
    Supreme Court of Arkansas
    Opinion delivered March 7, 1983

      James P. Clouette, for appellant.

      Treeca J. Dyer, Alcoholic Beverage Control, for appellee.
   Frank Holt, Justice.

This appeal comes from a ruling by the circuit court that there was substantial evidence to support the Alcoholic Beverage Control Board’s decision to suspend the appellant’s retail beer permit for 30 days and to impose a probationary period of 90 days following suspension. We affirm.

There was evidence that when a taxicab driver delivered his passenger to the “Playpen”, the premises of the appellant permitee, there was an unprovoked attack upon the cab driver. He was severely beaten by the manager, appellant’s husband, and another individual who was a part-time employee. The police were notified. The manager and the employee left the premises before the police arrived.

The Commission found that the appellant allowed the premises to become disorderly in violation of Ark. Stat. Ann. § 48-524 (b) (Repl. 1977). The appellant argues that this conduct constituted a violation of the Arkansas Criminal Code; and since the power to convict for crimes is not within the authority of the ABC Board, the Board may not suspend a permit for this conduct. For authority she cites State v. Lawrence, 246 Ark. 644, 439 S.W.2d 819 (1969). There, we held a circuit court in a criminal proceeding lacks authority to revoke a beer permit, but we did not hold the ABC Board may not revoke a beer permit for conduct that amounts of a criminal violation. The authority of the ABC Board to suspend a permit is found in Ark. Stat. Ann. §§ 48-1311 and 48-1312. Appellant admits that the state legislature has delegated the power to the Director of the ABC Board to suspend and revoke licenses granted to retailers for alcoholic beverages. Appellant also agrees that the ABC Board has the statutory right to hear appeals from the Director’s orders involving suspension or revocation of a license. § 41-1314. The grant of authority contained in these statutes clearly is broad. It would be illogical to hold that the ABC Board may revoke or suspend a beer permit for conduct that does not rise to the level of a criminal violation but may not revoke or suspend a permit for more serious conduct. That obviously was not what the legislature intended.

Affirmed.


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

text:
    Samuel ROBINSON v. STATE of Arkansas
    CR 82-138
    648 S.W.2d 444
    Supreme Court of Arkansas
    Opinion delivered March 7, 1983

      Lessenberry 4r Carpenter, by: Thomas M. Carpenter, for appellant.

      Steve Clark, Atty. Gen., by: Victra L. Fewell, Asst. Atty. Gen., for appellee.
   Darrell Hickman, Justice.

At his trial Samuel Robinson conceded that he was guilty of participating in an armed robbery of the High Street Liquor Store in September of 1981, but he sought a lenient sentence. He was found guilty of aggravated robbery and first degree battery and sentenced to twenty-five years imprisonment for the former and twelve for the latter, to be served consecutively.

His first argument for reversal is that he was denied the right to ask Robinson’s partner in the robbery, on direct examination, what sentence he had received for the robbery. It was ten years on a negotiated plea. We cannot say the trial court’s discretionary ruling preventing this information from being considered by the jury was wrong. What sentence another defendant has received is not relevant evidence as to guilt, innocence, or punishment. See Roleson v. State, 277 Ark. 148, 640 S.W.2d 113 (1982). A sentence or lack of one may be offered to show bias or prejudice of the witness because evidence of bias is always admissible. Simpson v. State, 274 Ark. 188, 623 S.W.2d 200 (1981); Klimas v. State, 259 Ark. 301, 534 S.W.2d 202 (1976). But that was not the end sought in this case.

The other argument hinges on whether a proper objection was made to the trial court. On appeal it is argued Robinson could not be sentenced for both aggravated robbery and first degree battery because one offense includes the other. Swaite v. State, 272 Ark. 128, 612 S.W.2d 307 (1981) and Akins v. State, 278 Ark. 180, 644 S.W.2d 273 (1983) are cited as authority.

We have held it is possible to be convicted of both aggravated robbery and battery and be sentenced for each separately. Foster v. State, 275 Ark. 427, 613 S.W.2d 7 (1982). In Akins v. State, supra, the jury was instructed that one offense was included in the other and a proper objection was made to the court’s improper sentence for both crimes.

The entire thrust of the defendant’s argument below was that the court should impose concurrent sentences. Four times this was mentioned:

DEFENSE ATTORNEY:

Your Honor, we would make a notation that we would move now that the punishment be concurrent on the battery and the robbery charges.

THE COURT:

It’s premature unless you’re going to tell them to go out and fill out both of them. They may find him not guilty on one.

DEFENSE ATTORNEY:

Okay.

THE COURT:

But, for the purposes of the record, I’ll let you note that you want them both to run concurrently. And I guess it’s on the basis of the single transaction theory.

DEFENSE ATTORNEY:

Yes, your Honor.
Your Honor, I’ve got two things for the Court. One is to move that the sentences be concurrent and would be interested in the Court’s feelings on that. And, secondly, the matter we discussed earlier about two or three days to get the family situation taken care of.
Your Honor, we would move concurrent. We would cite 41-105 and all of its subsections as a basis. We would also note the co-defendant’s doing ten years, and that there’s concurrent sentencing in that and ten years is the minimum. It is his first offense. He is looking at — as I understand the law, he’s looking at probably ten to twelve years anyway because it’s an aggravated robbery after the new statute has passed and it’s half his time, which is a substantial sentence anyway.
No, your Honor. We renew our motion for concurrence based upon statute. We know the concurrent or consecutive sentence is a matter usually left to the discretion of the trial court. We point to the trial court the fact that the co-defendant in this case got ten years. The co-defendant admits that he is the one that fired the shots. [Emphasis added.]

Defense counsel only argued to the trial judge that Robinson should be sentenced concurrently. He made no argument that one offense was included in the other. It was never argued, as it was in Akins v. State, supra, that the court could not sentence Robinson for both offenses.

Ark. Stat. Ann. § 41-105 (Repl. 1977) cites five different situations where conviction for more than one offense is barred. An allusion to all subsections of that statute and the court’s reference to Swaite v. State, 272 Ark. 128, 612 S.W.2d 307 (1981), cannot be the basis for finding a clear objection made in view of counsel’s repeated request that the sentences be made concurrent.A fair reading of the record reflects that counsel sought leniency in the sentence, not to prevent any conviction or sentence at all for one of the offenses charged. A timely and appropriate objection must be made to preserve an objection on appeal. Swaite v. State, 274 Ark. 154, 623 S.W.2d 176 (1981); Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980). We have never adopted the doctrine of plain error and in order to rule for the appellant we would have to apply that principle in this case. Wicks v. State, supra.

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. I cannot agree with the majority in this case. I feel that counsel for appellant made a specific enough objection in citing Ark. Stat. Ann. § 41-105 (Repl. 1977) and all its subsections to the trial court for the argument that the offenses charged contained the lesser included elements embodied in the provisions of this statute. In Akins v. State, 278 Ark. 180, 644 S.W.2d 273 (1983) we interpreted Ark. Stat. Ann. § 41-105 to “prohibit multiple sentences when the same conduct results in more than one offense.” Ark. Stat. Ann. § 41-105 reads in pertinent part:

(1) When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense. He may not, however, be convicted of more than one offense if:
(a) one offense is included in the other, as defined in subsection (2). . .
(2) A defendant may be convicted of one offense included in another offense with which he is charged. An offense is so included if:
(a) it is established by proof of the same of less than all the elements required to establish the commission of the offense charged; or
(b) . . .

In the present case the jury was instructed that it would have to find appellant guilty of aggravated robbery in order to find him guilty of first degree battery. The plain language of the statute and our cases interpreting it show that we should set aside the lesser penalty. See Wilson v. State, 277 Ark. 219, 640 S.W.2d 440 (1982). In light of the foregoing, I would set aside the 12 year sentence for first degree battery leaving the appellant to serve a 25 year sentence for armed robbery.

       We note that the trial judge said that Swaite v. State was decided on the single transaction theory [Ark. Stat. Ann. § 41-105 (1) (e)] and he was wrong. In Swaite we held that the appellants could not be convicted of both attempted capital murder and aggravated robbery because in order to find attempted capital murder, the jury was compelled to find that the appellants committed aggravated robbery. Therefore, in that situation, aggravated robbery was a lesser included offense of attempted capital' murder and the appellants could not be convicted and sentenced for both under Ark. Stat. Ann. § 41-105 (1) (a).


author: John I. Purtle, Justice.

text:
    CITY OF FORT SMITH, Arkansas and the CITY OF VAN BUREN, Arkansas v. ARKANSAS PUBLIC SERVICE COMMISSION
    82-238
    648 S.W.2d 40
    Supreme Court of Arkansas
    Opinion delivered March 7, 1983
    [Rehearing denied April 25, 1983.]

      Daily, West, Core, Coffman ir Canfield and Conrad Pugh, for appellants.

      Lee McCulloch, Asst. Counsel, Arkansas Public Service Commission, for appellee.

      Gill, Skokos, Simpson, Buford ir Owen, P.A., for amicus curiae Arkansas Municipal League.
   John I. Purtle, Justice.

The Pulaski County Circuit Court affirmed the Public Service Commission’s order no. 4, as amended by order no. 9, which directed public utilities in Arkansas to eliminate from their base rates municipal utility or franchise taxes. The orders required the utilities to collect such taxes solely from the utilities’ customers located within the levying municipality. On appeal appellants unsuccessfully argue that such levies are not taxes, that the order is discriminatory, in violation of the equal protection clause of the Constitution, and the order is arbitrary and capricious.

On February 7,1980 the PSC issued order no. 4 and later amended it by order no. 9 dated July 16, 1981. The order, as amended, prohibited utility companies from including municipal taxes in their base rates. The utilities had previously included such charges in the base rate applied to customers thoughout the territory served by the utility. Public hearings were held prior to the issuance of the PSC orders. Appellants filed a petition for review on May 5, 1980 which was prior in time to order no. 9. The later order was essentially to change the date of implementation of the order. The PSC gave timely notice of its intention to consider the elimination of municipal taxes from the base rates of utilities in future rate cases.

The hearing was set for May 30, 1979 in the hearing room of the commission, Justice Building, Little Rock, Arkansas. Written comments concerning the proposed amendments were invited from interested parties. Many utilities and municipalities submitted written statements or had a representative appear at the public hearing. Most of the comments by the utilities felt it was a good idea to collect these levys from the residents of the levying authority and to reflect on the utility bills the amount which was collected for taxes on behalf of the taxing authorities. The appellants protested strongly at the hearing. The matter was appealed to the Pulaski County Circuit Court where the order was affirmed in its entirety. There is no need to discuss the testimony presented to the PSC because the issue in this case does not turn on the weight of the evidence or credibility of the witnesses. Therefore, no further factual background will be set out.

The issue involved in this case is whether the PSC has authority to issue the order appealed from and whether such authority was used in an arbitrary or capricious manner or in violation of the equal protection or due process clauses of the Constitution of the United States. The appellants argue that the “franchise fee” charged is in the nature of a contract and is not a tax. Such contractual charges, it is alleged, are in exchange for rights of way and franchises furnished by the municipalities. Appellants rely primarily on Ark. Stat. Ann. § 19-2319 (Repl. 1980). This statute authorized municipalities to contract, on behalf of their inhabitants, with a utility to construct and operate such utilities within municipal boundaries. El Dorado v. Coats, 175 Ark. 289, 299 S.W. 355 (1927). Act no. 164 of 1977 (Ark. Stat. Ann. §§ 73-202 a and b (Repl. 1979) divested cities and towns of all rate making authority and vested it in the PSC. The present change is not in the nature of a contract but is a rate charge to customers of the utility.

Appellants rely upon the case of Natural Gas & Fuel Corp. v. Norphlet Gas & Water Co., 173 Ark. 174, 294 S.W. 52 (1927) to sustain their argument that a franchise fee is a contractual charge. The last cited case dealt with a franchise to furnish utilities to a city. There is no mention in the case of the fees imposed after a utility receives a franchise. Appellants also argue that municipalities have the right to establish terms and conditions upon which public utilities may be permitted to operate within the borders of said municipalities. It is true that Ark. Stat. Ann. § 73-208 (Repl. 1979) grants this power to municipalities. However, Ark. Stat. Ann. §§ 73-202a and 73-202b clearly divest the cities and towns from having any jurisdiction to fix or determine rates, and grant exclusive jurisdiction to the PSC in rate making matters. Therefore, neither the case cited nor the statute relied upon support the argument of the appellants. We are not here considering a franchise fee but rather an assessment in the nature of a tax imposed upon the residents by way of what is sometimes referred to as a “franchise tax.”

Appellants insist that it is proper for a utility to include these fees or taxes in the rate base for all of the utility subscribers. Appellants argue that requiring all utility subscribers to pay the same amount or rate for services constitutes equal treatment under the law. On the other hand, they insist that if only municipal residents pay for the increased costs (imposed by the municipalities) such treatment is discriminatory to residents. We agree that an essential requirement of equal protection is that there must be a rationally related or legitimate state interest. However, this does not mean that a utility serving adjoining cities must require residents of both cities to pay the same rate or tax on utilities. If there is any basis for argument that order no. 4 is discriminatory it is on the side of those living outside the municipality levying the assessment. We agree with the PSC that municipal fees or taxes, assessed upon resident utility users, should be paid by the residents of the assessing municipality.

Finally, appellants argue that order no. 4, as amended by order no. 9, was made arbitrarily and capriciously and without any factual basis. The General Assembly of the State of Arkansas has delegated investigation and rate making authority to the PSC. Ark. Stat. Ann. §§ 73-202a & b and 73-215 (Repl. 1979). There is no dispute but that the PSC is the fact finder in such cases and that in performing its legislatively delegated function of rate making the PSC has broad discretion. In Arkansas Power & Light Co. v. Arkansas PSC, 226 Ark. 225, 289 S.W.2d 668 (1956) it was stated:

Once a fair hearing has been given, proper findings made and other statutory requirements satisfied, the courts cannot intervene in the absence of a clear showing that the limits of due process have been overstepped. If the Commission’s order, as applied to the facts before it and viewed in its entirety, produces no arbitrary result, our inquiry is at an end.

We have repeatedly held that if the commission’s order is supported by substantial evidence in the record, and there is neither fraud nor arbitrariness, then this court must confirm the findings of the commission. Arkansas Power & Light Co. v. Arkansas PSC, supra. See also, S.W. Bell Tel. Co. v. Arkansas PSC, 267 Ark. 550, 593 S.W.2d 434 (1980); Arkansas Power & Light v. Arkansas PSC, 261 Ark. 184, 546 S.W.2d 720 (1977); Inc. Town of Emerson v. Arkansas PSC, 227 Ark. 20, 295 S.W.2d 778 (1956). The judicial branch of the government must defer to the expertise of the commission. Fisher v. Branscum, 243 Ark. 516, 420 S.W.2d 882 (1967). The PSC is a creature of the legislature and in rate making it is performing a legislative function, by delegation. It was created by the General Assembly and possesses the same power as the General Assembly while acting within the powers conferred upon it. S.W. Bell Tel. Co. v. Arkansas PSC, supra.

There is no question that the charges here under consideration are in the form of taxes no matter whether called by another name or not. Pursuant to order no. 4 these taxes will be divided and apportioned to the residents and taxpayers residing (or owning property) within the corporate limits of the taxing authority. There has been no showing that the orders of the PSC are arbitrary and capricious and the orders are supported by substantial evidence. We must, under the law, affirm the order of the PSC requiring public utilities to eliminate from their base rate structure assessments made by municipalities in the nature of local taxes or franchise fees.


text:
    Eugene J. POST and Peggy J. POST v. TENNECO OIL COMPANY and TENNECO OIL EXPLORATION AND PRODUCTION and ARKANSAS WESTERN GAS COMPANY
    82-244
    648 S.W.2d 42
    Supreme Court of Arkansas
    Opinion delivered March 7, 1983
    [Rehearing denied April 25, 1983.]

      Pryor, Robinson & Barry, by: Ben T. Barry, for appellants.

      Warner & Smith, by: G. Alan Wooten and Joel D. Johnson, for appellees.
   John I. Purtle, Justice.

The Franklin County Chancery Court held that appellants were not entitled to free gas from a gas well which was drilled in a unit which included appellants’ property. The well was not located on appellants’ property. It is argued on appeal that it was not necessary for the wellhead to be physically located upon appellants’ lands in order for appellants to be entitled to free gas in accordance with the express terms of the lease between the parties. We agree with this contention and reverse the trial court in this respect.

In 1959 appellants leased the lands in question to Arkansas Western Gas Company. The lease was subsequently assigned to appellees, Tenneco. The lease contains a provision which reads:

SECOND. To pay Lessor for gas from each well where gas only is found, the equal one-eighth (1/8) of the gross proceeds at the prevailing market-rate, for all gas used off the premises, said payments to be made monthly if $10.00 or more and Lessor to have gas free of cost from any such well for all stoves and inside lights in the principal dwelling house on said land during the same time by making his own connections with the well at his own risk and expense.

The foregoing clause will be referred to as the “free gas” clause. Appellants’ lands, about one hundred thirty acres, were grouped with about forty other lessors’ lands to form a pool for a unitized drilling operation which became known as the C. Allen unit. The wellhead itself was not located on appellants’ land. Royalties are being paid to all lessors, including the appellants. Sometime in 1979 the appellants notified Tenneco Oil Company that they desired to receive “free gas” in accordance with the second clause of the lease. Appellees refused to allow appellants to have free gas for the reason that the wellhead was not on appellants’ property and therefore the “free gas” clause was inoperative. Appellants filed suit to obtain free gas and for the costs of obtaining gas elsewhere since the date of their demand. The suit named Arkansas Western Gas and Tenneco. Arkansas Western Gas filed a cross-complaint seeking contribution from Tenneco which in turn admitted it would be liable to appellants if they were to win the lawsuit. The chancellor decreed that appellants were not entitled to free gas because the well was located on property not owned by appellants.

The sole question on appeal is whether the “free gas” clause entitles appellants to gas for the principal dwelling on their property. We think appellants are entitled to have free gas for their principal dwelling provided they make the connections at their own expense and risk.

The “free gas” clause is neither defined nor qualified in the original lease. The gas produced by the well in question is gathered from under all lands within the C. Allen unit. If there is any ambiguity it is to be construed against the appellees because it was they who wrote the lease containing the “free gas” clause. In Bodcaw Oil Co., Inc. v. The Atlantic Refining Co., 217 Ark. 50, 228 S.W.2d 626 (1950) we stated:

Bodcaw thus invokes the familiar rules that a contract should be construed most strongly against the party preparing it and that oil and gas leases are to be construed in favor of the lessor and against the lessee. We agree with the trial court’s finding that these rules are to be applied where the contract is susceptible to different interpretations, but should not be used to overturn the plain and unambiguous terms of the contract.

Both parties believe they are supported by the cases of Bodcaw Oil Co., Inc. v. The Atlantic Refining Co., supra; and Cranston v. Miller, 208 Ark. 156, 185 S.W.2d 920 (1945). Bodcaw supports the appellants’ theory on construction of the lease, in that it shall be construed most strongly against the party who prepared it. Cranston is readily distinguishable from the case before us because, although there was the same “free gas” clause, the lessee in Cranston produced only oil for the market. However the lease contained two other provisions which caused this court to deny the lessor free gas. First, the free gas must have been produced by a well where gas only was found and, second, the gas must have been used off the premises. Neither condition existed in the Cranston case. Both conditions are present in the case before us. Therefore, Cranston is neither persuasive nor dispositive as to the issues of the present case.

In order to reach the results desired by appellees we would have to construe the “free gas” clause to apply when the well is located only on appellants’ land and conversely, hold the payment of royalties clause, the first clause, to apply when the well is on lands not owned by appellants but which are in the C. Allen drilling unit. Such a strained and forced interpretation would run counter to the language of the lease. We think the contract is clear and unambiguous and appellants are entitled to a proper enforcement of the “free gas” clause because gas is being taken from under their land. We recognize that other jurisdictions have decided the matter both in accordance with our reasoning in this opinion and in an opposing manner. It is our opinion that the results reached here are sound and correct.

The case is reversed and remanded to the trial court with directions to proceed in a manner consistent with this opinion.


author: Robert H. Dudley, Justice.

text:
    SD LEASING, INC. v. RNF CORPORATION d/b/a ROBERT’S and Robert FOSTER
    82-218
    647 S.W.2d 447
    Supreme Court of Arkansas
    Opinion delivered March 7, 1983

      Rose Law Firm, P.A., by: Allen W. Bird, II, for appellant.
    No brief for appellees.
   Robert H. Dudley, Justice.

This appeal is from an order setting aside a default judgment. The sole point designated on appeal involves the validity and interpretation of our long arm statute, Ark. Stat. Ann. § 27-2502 (Repl. 1979) and the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Jurisdiction is in this Court pursuant to Rule 29 (1) (c). The trial court is not shown to be in error. Therefore, we affirm.

Appellant, SD Leasing, through a dealer in Tennessee, leased a copier machine to appellee, RNF Corporation. All lease payments due pursuant to the non-cancellable agreement were to be made to appellant’s address in Little Rock. Appellee Robert Foster, the president and chief executive officer of RNF Corporation, guaranteed all lease payments. The appellant filed suit against appellees for the balance due under the terms of the lease when RNF Corporation ceased making the monthly lease payments. The appellees failed to answer and a default judgment was entered against them. The appellees then filed a motion to set aside the default judgment, alleging two separate grounds: (1) There was a lack of personal jurisdiction in Arkansas, and (2) they had not resisted the application for default judgment due to a misunderstanding between counsel. The order setting aside the default judgment provides that the matter was presented on “Affidavits of the parties, Briefs of the parties and argument of counsel ...” The order does not specify whether the default judgment was set aside because of (1) lack of jurisdiction or (2) misunderstanding between counsel, or both. Appellant has not brought up a transcript of the hearing so we do not know the pronouncement by the trial court at the hearing. The record before us consists only of briefs, pleadings and appellant’s (not appellees’) exhibits.

Appellant’s sole point for reversal is that the court in Arkansas had personal jurisdiction over appellees. See SD Leasing, Inc. v. Spain and Associates, 277 Ark. 178, 640 S.W.2d 451 (1982). However, there is no indication from the limited record before us that the decision of the trial court was based solely on the jurisdictional issue. The second ground, misunderstanding of counsel, may well have been a valid one. Our rule on this ground was articulately set out in Martin v. State, 241 Ark. 9, 405 S.W.2d 934(1966) as follows:

Where an attorney’s failure to resist an application for a default judgment is attributable not to any fault on his part but to a misunderstanding between counsel, there is such an unavoidable casualty that the judgment should be vacated, even after the expiration of the term.

See ARCP Rule 60 (c) (7).

We do not know whether the trial court relied upon the second ground to set aside the default judgment. The burden was upon the appellant to bring up a record sufficient to demonstrate that the trial court was in error. King v. Younts, 278 Ark. 91, 643 S.W.2d 542 (1982); A.R.A.P. 6 (b). The appellant has failed to meet its burden. Therefore, we have no choice but to affirm the trial court.

Affirmed.