author: William C. Bethea, Special Justice.

text:
    Robert C. NOONER v. Ruth C. NOONER
    82-97
    645 S.W.2d 671
    Supreme Court of Arkansas
    Opinion delivered February 7, 1983

      Henry J. Osterloh, for appellant.

      Hall, Tucker ¿r Lovell, by: O. Wendell Hall, Jr., for appellee.
   William C. Bethea, Special Justice.

Appellee, Ruth C. Nooner, was granted a divorce from appellant, Robert C. Nooner, on February 24, 1972, after seven years of marriage. The parties entered into a written agreement which provided that the husband, appellant, was to pay the wife, appellee, the sum of $100 per week for support of the wife and two children for the life of the husband. The divorce decree stipulated that the agreement was fair and just and was incorporated into the decree.

On March 24, 1982, appellee filed a petition stating appellant was $25,000 in arrears in support payments and requested that he be cited to show cause why he should not be held in contempt of court for failure to comply with court order. The Court on March 5, 1982, ordered appellant to appear and show cause why he should not be held in contempt. Appellant was personally served with a citation and a copy of the petition notifying him to appear on March 25, 1982. Appellant failed to appear on March 25, being out of the United States at that time. The Court issued a warrant for the arrest of the appellant, but appellant voluntarily appeared in court upon his return to Arkansas. Appellant responded, alleging that the parties orally agreed to vary the terms of the original agreement and that he was not in arrears pursuant to the substituted agreement.

At the close of testimony, the Court held appellant in contempt of court for failure to appear when so notified and fined him $100. Additionally, the Court found him in contempt for failure to comply with prior order of the Court to pay $100 per week support and that he was in arrears $24,750 for which judgment was entered, and the appellant was sentenced to jail for 30 days for contempt with said sentence to be suspended upon payment of $5,000 to apply on the judgment for arrears and payment of an additional $ 100 per week toward the arrears as well as the $ 100 per week child support.

The Court on May 6, 1982, modified the order to allow the appellant to return to work in Africa and pay an additional $50 per week toward the arrears.

We affirm in part and reverse in part the ruling of the Chancellor.

I. Appellant pleaded that the Court was without jurisdiction because the original agreement was not set out word for word in the divorce decree. The Chancery Court did not have jurisdiction to consider any alimony agreement between the parties. This was an independent agreement between the parties that was adopted and made part of the final decree. In Armstrong v. Armstrong, 248 Ark. 835, 454 S.W.2d 660 (1970), the Court held that one of the purposes of incorporating into a decree of divorce an independent agreement for alimony is to be able to enforce provisions of agreement through contempt proceedings.

Appellant relies on Henry v. Henry, 247 Ark. 771, 447 S.W.2d 657 (1969). In Henry, the settlement was neither noted or approved by the Chancellor. In fact, the decree only granted a final divorce and jurisdiction was terminated. Henry can be distinguished from this case in that here not only did the Chancellor state that the “agreement entered into by the parties is fair and just” but he also repeated the terms of the independent agreement.

In Thomas v. Thomas, 246 Ark. 1126, 443 S.W.2d 534 (1969), Chief Justice Harris stated that a chancery court can enforce by contempt proceedings a property and support agreement entered into between a husband and wife which was adopted and incorporated as part of the decree. This was based on Ark. Stat. Ann. § 34-1212 (Repl. 1962), which is in substantially the same form today.

The appellant, Mr. Nooner, was personally served a copy of the court order requiring him to appear. In Hilton Hilltop v. Riviere, Secretary of State, 268 Ark. 532, 597 S.W.2d 596 (1980), the defendant was only sent a copy of the complaint in the mail.

Thus, there is jurisdiction.

II. A modification of an independent agreement for alimony without the consent of both parties is not permissible under Arkansas law. This court held in Anders v. Anders, 249 Ark. 413, 459 S.W.2d 416 (1970), that where a portion of the decree was based on an independent property settlement, the Court was powerless to modify the decree on the basis of an alleged subsequent agreement which was disputed by one of the parties. An earlier court held in Pryor v. Pryor, 88 Ark. 302, 114 S.W. 700 (1908), that a court cannot modify a decree insofar as it is based on the contract of the parties, for a modification of the decree would be no less than a modification of the contract itself. The only case in which a modification has been allowed was Bethell v. Bethell, 268 Ark. 409, 597 S.W.2d 576 (1980). However, in Bethell the Court found that the agreement merely established an amount which the court should fix as alimony for the wife and did not confer an independent cause of action based on contract. In this case, there was also an intentional and voluntary surrender of a right (the reduction in alimony after the wife began teaching school) in consideration for the husband paying the full amount of alimony until the wife began teaching school and paying the expenses for the children to attend a private school.

This Court has not had the opportunity to rule on an independent contract case since Bethell. However, our Court of Appeals did this in Sterling v. Sterling, 2 Ark. App. 168, 621 S.W.2d 1 (1981). In Sterling, there was an alleged oral agreement to reduce alimony from $175 to $125 per week which the Court said was without consideration and thus provided no defense to the contempt motion. The Sterling court said that where an independent agreement was a complete contract and the decree incorporated the agreement, there is no standing to ask the Court for modification.

While this court does not adopt the Sterling case without actually hearing it, we do find the facts in the case are more akin to Sterling than Bethell. There was an independent agreement; no consideration was given by the appellant for the alleged contractual modification; he never made any type of consistent payment to the appellee; he showed no compelling evidence that the appellee had accepted any agreement; and if the circumstances of the appellant have changed, the change is that at the time of this action he had a substantially greater salary than previously.

The Court always retains jurisdiction over child support, as public policy. No matter what an independent contract states, either party has a right to ask for a change in child support. In this case where alimony and child support were not separately stated, the appellant can ask the Chan-eery Court to make a determination as to how much of the $100 is child support and how much is alimony.

III. In Armstrong, supra, this Court stated the purpose of incorporating an independent agreement in the decree is to be able to hold a person in contempt. The appellant had clearly violated the court order by willfully refusing to pay the $100 per week support while at the same time having significant increases in salary and purchasing other items such as a house. The Chancellor was fully within his authority in holding appellant in contempt and imprisoning him for failure to follow orders of the Court.

Appellant cites Griffith v. Griffith, 225 Ark. 487, 283 S.W.2d 340 (1955), as holding that imprisonment for failure to pay alimony can only be issued when the Defendant has the ability to pay but willfully and stubbornly refuses to do so. Here, the contempt was for not paying the $100 per week over a term of five years. The Chancellor’s contempt citation and imprisonment order were both warranted and proper under the circumstances.

However, once the Chancellor reduced the arrearages for child support to judgment, he lost control and could not use the judgment in any way to control past or future acts of the appellant, and that is exactly what he did. Nooner was sentenced to thirty (30) days in jail for contempt. The Chancellor then offered to suspend the sentence if Nooner would pay $5,000 toward the judgment. The judge did not have the authority to suspend the contempt sentence. Johnson v. Johnson, 243 Ark. 656, 421 S.W.2d 605 (1967). After Nooner stated he could not pay the $5,000 and would lose his job if he were not released from jail, the Chancellor said he would release Nooner for the balance of his sentence if he would pay additonal money toward the satisfaction of the judgment he had entered for back child support.

The appellant in an amended order was required to pay $150 per week to stay out of jail under a threat of some type of continuing contempt. The Court had no authority to use this judgment to encourage this agreement from Nooner. The Court had given Ruth Nooner a remedy for arrearage, and that was a judgment for which execution may issue.

The order to reduce the arrearage under such circumstances cannot be enforced by contempt proceedings. We hold that Nooner does not have to serve the balance of his jail sentence because it was improperly suspended and the order to reduce the judgment is unenforceable by contempt proceedings.

IV. In the matter of determination of the amounts of arrears, we have already stated that the oral agreement to reduce the amount of payment was without consideration. This is true because the appellee received nothing more than that to which she was already entitled. There was no consideration in the appellant not going to court to ask for a modification since he did not have that right.

We cannot say that the Chancellor abused his discretion either in allowing the checks which had been given to the appellee to be subtracted from the computation of the amount of arrears or in not allowing the value of the car and the television. The Chancellor was not compelled to accept anything in value except that which had actually passed through the court registry.

V. Finally, in the matter of the contempt citation for failure to appear, the appellant was personally served with an order signed by the Chancellor stating he was to appear on a date certain. Appellant testified that his attorney informed him he would not have to appear. His attorney appeared for him. Despite his alleged reliance on his attorney, the meaning of a Court Order is clear and no person has a right to disobey an Order of the Court.

Affirmed in part.

Reversed in part.

Purtle, J., not participating.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Jerry ELLIS v. STATE of Arkansas
    645 S.W.2d 671
    Supreme Court of Arkansas
    Opinion delivered February 7, 1983

      Marion A. Humphrey, for appellant.

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

Jerry Ellis was convicted of kidnaping and sentenced to a term of 5 years and of aggravated robbery and sentenced to a term of 30 years. His attorney, Marion A. Humphrey, gave notice of appeal, but did not file the record within the period allowed. His attorney has admitted that the late filing of the record was a mistake on his part. The error is good cause to grant the motion for a rule on the Clerk. A copy of this opinion will be forwarded to the Committee on Professional Conduct.


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

text:
    Clarence PHILLIPS v. Richard GIDDINGS et al; JACKSONVILLE CHAMBER OF COMMERCE, Intervenor
    83-13
    646 S.W.2d 1
    Supreme Court of Arkansas
    Opinion delivered February 11, 1983
    [Rehearing denied March 21, 1983.]

      Henry J. Osterloh, for appellant.

      Wilbur C. Bentley, Pros. Atty., by: Orin Eddy Montgomery, Deputy Pros. Atty., for appellees.

      Mike Wilson, for intervenor.
   Richard B. Adkisson, Chief Justice.

The only issue in this case is whether Act 77 of 1979, Ark. Stat. Ann. § 80-502.10 (Repl. 1980), is unconstitutional as special or local legislation. The Pulaski County Chancery Court held that the act was constitutional, and on appeal we affirm.

The act provides:

Certain school boards to be elected by zone. — The County Board of Education of each county encompassing a school district which may now or hereafter having [have] an average daily attendance in excess of 24,000 shall divide such school district into zones for the purpose of electing members to such school district’s Board of Directors and such zones shall be of equal population to the extent possible. Beginning with the 1983 school board elections, members of the Board of Directors of school districts with an average daily attendance in excess of 24,000 shall be elected by zone; and shall be qualified electors of the zones from which elected; and shall have actually resided in such zone for at least six [6] months prior to their election.

Amendment 14 of the Arkansas Constitution provides that “The General Assembly shall not pass any local or special act.” In Webb v. Adams, 180 Ark. 713, 23 S.W.2d 617 (1929) we defined special and local:

A local law is one that applies to any subdivision or subdivisions of the State less than the whole. ... A law is special in a constitutional sense when, by force of an inherent limitation, it arbitrarily separates some person, place or thing from those upon which, but for such separation, it would operate.

Although the terms are sometimes used synonymously, “special” relates to persons or things and “local” relates to political or geographic units. Anderson, Special and Local Acts in Arkansas, 3 Ark. L. Rev. 113 (1949).

Acts of the legislature are accorded presumptive validity with all doubt concerning the constitutionality of an act resolved in favor of constitutionality. If it is possible for the courts to so construe an act that it will meet the test of constitutionality, they not only may, but should and will do so. Heber Springs Sch. Dist. v. West Side Sch. Dist., 269 Ark. 151, 599 S.W.2d 371 (1980). Therefore, the burden of proof is on appellant to prove the act is arbitrary, that is, that the classification does not bear a reasonable relation to the purpose of the act. Here, there was no evidence tending to show arbitrariness or unreasonableness except that the act currently applies only to one school district, a contention which we answered in Thomas v. Foust, 245 Ark. 948, 435 S.W.2d 793 (1969):

The fact that a law is limited in effect to only one or a few classifications does not necessarily condemn it as special or local legislation if the classification is not arbitrary and bears a reasonable relation to the purpose of the act.

We are unable to say that the chancellor was clearly erroneous in finding that the classification in Act 77 of 1979 bears a reasonable relation to the purpose of the act, that purpose being to ensure a broad based representation on the school board in school districts with a large daily attendance. The legislature may have concluded that zoning was necessary in order to achieve that purpose in a large and diverse district.

The case of Special Sch. Dist. of Fort Smith #100 v. Sebastian Co., Ark., 277 Ark. 326, 641 S.W.2d 702 (1982), upon which appellant relies, is distinguishable. In that case the challenged legislation applied only to counties with a population between 78,000 and 84,000. Although we found that there was a legitimate purpose for the legislation, the classification was so narrowly drawn that we concluded the act was special legislation. However, under Act 77 of 1979 the classification is open, with no upward limit on the daily attendance. Prospectively, a substantial number or all of the state’s districts could fall within this classification.

Affirmed.

Hickman, Purtle, and Hays, JJ., dissent.

John I. Purtle, Justice,

dissenting. I dissent because I think the majority simply refuses to face up to the fact that this act is local legislation and clearly violates Amendment 14 of the Arkansas Constitution which states:

The General Assembly shall not pass any local or special act.

The reason there was no further explanation of a local act in the constitution is that none was needed. We have in the past evaded this provision by finding that there was a reasonable relation to the purpose of the act. Act 77 of 1979 does not even suggest a purpose for its enactment, therefore, there can be no reasonable relation to its purpose. The very intent of Amendment 14 was to do away with just such acts as this one.

The majority correctly states we have determined local law to be one applicable to any subdivision(s) less than the whole of the state. Webb v. Adams, 180 Ark. 713, 23 S.W.2d 617 (1929). Certainly, the Pulaski County School District comes within this definition. Why is it better for this single district to elect its directors by zones than any other district in the state? No reasonable relation to the objective was contained in the act nor is one given in the majority opinion. Without this, the act is clearly local and special legislation.

This court stated in Special School Dist. of Fort Smith #100 v. Sebastian Co., 277 Ark. 326, 641 S.W.2d 702 (1982): “We have held on a number of occasions that legislation that will effectively apply to only one county, is local and special and therefore unconstitutional.” If that were the law on November 8, 1982, it should still be the law! Otherwise, we should announce Amendment 14 is hereby nullified through Supreme Court fiat and the General Assembly is again free to pass all the local and special laws it desires.

Hickman and Hays, JJ., join in this dissent.


author: Richard B. Adkisson, Chief Justice.

text:
    Bobby CANARD v. STATE of Arkansas
    CR 82-135
    646 S.W.2d 3
    Supreme Court of Arkansas
    Opinion delivered February 14, 1983
    [Rehearing denied March 21, 1983.]

      Thaxton é Hout, for appellant.

      Steve Clark, Atty. Gen., by: Alice Ann Burns, Asst. Atty. Gen., for appellee.
   Richard B. Adkisson, Chief Justice.

Appellant, Bobby Canard, was convicted by a jury of rape and was sentenced to forty years in the Arkansas Department of Correction. The only issue on appeal is whether there is sufficient evidence to sustain the conviction. We affirm.

Testimony at trial revealed that on December 12, 1980, appellant picked up his daughter at the home of his ex-wife and took her to Wal-Mart, where he purchased some boots for her. They ate supper at the Sonic Drive-In. Afterwards, while driving towards Grubbs, Arkansas, he turned off onto a gravel road and raped her. The daughter, who was eleven years old at the time, testified that her father stopped on the gravel road, telling her he had to let his headlights warm up. She stated that he then “unzipped my pants and took my leg out... He unzipped his pants and took his penis out and put it into me and started raping me.” She testified that she told him that she “didn’t want to, but he did anyway.”

Appellant contends that there is no showing of forcible compulsion and alleges that deviate sexual activity could have occurred rather than rape because the testimony is unclear as to exactly what body orifice of the daughter was penetrated. He also argues that there was no showing that appellant was the man who raped her. These contentions are without merit.

Forcible compulsion is defined in Ark. Stat. Ann. §. 41-1801 (2) (Repl. 1977): “‘Forcible compulsion’ means, physical force, or a threat, express or implied, of death or physical injury to or kidnapping of any person.” In Spencer v. State, 255 Ark. 258,499 S.W.2d 856 (1973) we stated that the quantum of force need not be considered as long as the act is committed against the will of the victim. Here, the daughter testified that she “didn’t want to, but he did anyway,” and that she was very much afraid of appellant. She also used the word “rape,” which, in the context of her testimony, not only denotes sexual intercourse but also that it was done against her will. This fact, when considered with the age of the victim and the fact that appellant is her father, leads us to conclude there was sufficient evidence from which the jury could conclude that forcible compulsion was present and that rape rather than deviate sexual activity occurred.

Furthermore, there was sufficient evidence for the jury to find that appellant was the man who raped her. It is undisputed that appellant is her father, and she clearly testified that it was her “daddy” who picked her up at her house and later raped her. We find no error.

Affirmed.


author: George Rose Smith, Justice.

text:
    Arthur DABNEY, Jr. v. STATE of Arkansas
    CR 83-5
    646 S.W.2d 4
    Supreme Court of Arkansas
    Opinion delivered February 14, 1983

      John H. Bradley, Deputy Public Defender, for appellant.

      Steve Clark, Atty. Gen., by: Theodore Holder, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

This appeal is from an order revoking the suspended sentence of Arthur Dabney, Jr., on the ground that his theft of a pistol was a breach of one condition of his probation, that he not commit any violation of state law punishable by imprisonment. For reversal Dabney argues that the evidence introduced at the revocation hearing was obtained as a result of an illegal arrest and therefore cannot constitutionally support the revocation. The Court of Appeals transferred the case to us under Rule 29 (4) (b).

There are two fatal flaws in Dabney’s argument. First, when the proof is viewed most favorably to the trial court’s decision, as is our practice, the arrest was not illegal. Dabney and Willie Washington were employed in the service department of the Osceola Motor Company. Before noon on January 7, 1982, they both saw the pistol in a car that Washington was cleaning. During the lunch hour the pistol disappeared. Dabney had spent that hour with Betty Nance, with whom he sometimes stayed. Upon Dabney’s return Washington asked him if he had seen the missing pistol. Dabney said he had not seen it. Washington then reported the theft to the service manager. The police were called. They made an investigation, concluded that only Dabney or Washington could have taken the pistol, and decided to believe Washington because he had reported the theft.

As a result of the investigation Dabney was arrested at about 5:00 p.m. the same day. Washington’s account of the incident constituted probable cause for Dabney’s arrest, even though the pistol had not yet been found. We attach little weight to Dabney’s having also been served with a warrant issued months earlier upon a revocation petition, for Officer Riney testified that Dabney was in custody because he was being investigated for the theft of the pistol. An hour or so after the arrest both Dabney and Betty Nance signed a consent to the search of her house, where the pistol was found hidden. Ms. Nance denied knowledge of its presence. At the revocation hearing Dabney sought to shift the blamé to Washington by testifying that he received the pistol from Washington, wrapped in towels, and left it at Betty Nance’s house when he found out what it was. The trial judge evidently did not credit that explanation.

Second, even if Dabney’s original statements and consent to the search were consequences of an illegal arrest, the exclusionary rule does not apply strictly in a proceeding to revoke probation or parole. Morrissey v. Brewer, 408 U.S. 471 (1972); Harris v. State, 270 Ark. 634, 606 S.W.2d 93 (Ark. App. 1980); and dicta in Schneider v. State, 269 Ark. 245, 254, 599 S.W.2d 730 (1980). As pointed out in Harris, that the officers act in good faith is sufficient at a revocation hearing to permit the introduction of evidence not admissible at a formal trial. See Ark. Stat. Ann. § 41-1209 (3) (b) (Repl. 1977); Lockett v. State, 271 Ark. 860, 611 S.W.2d 500 (1981). The reason, of course, is to provide the trial judge with complete bearing on the advisability of revoking probation. Here it does not appear that the officers were primarily seeking revocation; they were carrying out their routine duty to investigate a reported theft. It has been observed that in such a situation the exclusion of illegally obtained evidence from a prosecution of the new offense should ordinarily be a sufficient deterrent to unlawful police activity. State v. Davis, 375 So.2d 69 (La. 1979). Here we perceive no bad faith on the part of the police.

Affirmed.


author: Frank Holt, Justice.

text:
    James TOSH v. STATE of Arkansas
    CR 82-118
    646 S.W.2d 6
    Supreme Court of Arkansas
    Opinion delivered February 14, 1983

      F. W. Jeffcoat and Linda Faulkner Boone, by: Linda Faulkner Boone, for appellant.

      Steve Clark, Atty. Gen., by: Leslie M. Powell, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

The appellant was convicted by a jury of two counts of aggravated robbery and two counts of theft of property. Punishment was fixed at 35 years imprisonment on each robbery count and 15 years on each theft count, resulting in 50 year concurrent sentences as an habitual offender. He appeals from that judgment and denial of a motion for a new trial. We affirm.

Appellant first asserts that the jury’s verdict was not supported by sufficient evidence to establish the identity of the appellant. It is argued that the testimony of the witnesses, who identified the appellant, was so contradictory, implausible and unreliable as to be insufficient to support the verdict. On appeal we review the sufficiency of the evidence to ascertain whether the verdict is supported by substantial evidence; i.e., whether the evidence is sufficient to enable the jury to reach its verdict without resort to speculation and conjecture. Cassell v. State, 273 Ark. 69, 616 S.W.2d 485 (1981). On appellate review we look only at the evidence most favorable to the appellee. Rhodes v. State, 276 Ark. 203, 634 S.W.2d 107 (1982).

Here, two of the four victims, Mr. and Mrs. Hughes, identified the appellant from photographs and a show-up at jail three weeks after the alleged offenses as one of the persons who committed the robbery and theft upon them. At trial they were certain of appellant’s identification as the person who grabbed Mrs. Hughes by her hair and held a shotgun to her “throat,” threatening to shoot her. Both testified that the camper tent, where they were awakened and robbed about 2 a.m., was well lit after the robbery began. Although the appellant wore a light colored woman’s stocking over his face, it did not change his facial features. One of Mrs. Hughes’ hobbies was art and drawing. The first thing she was taught in art school was to focus on and recognize facial features. She testified that his face was very close to hers and at one time touched hers during the threats on her life. Appellant was “mean looking, his eyes were just like the pure devil himself... I’ll never forget his face.” Mr. Hughes testified that, although appellant wore a “real light colored hose,” you could “see his face good.” Mr. Hughes was escorted outside to his car by other participants to get his money and was returned to the tent where he observed the appellant holding a gun to his wife’s throat. Mr. Hughes was then taken to the nearby trailer of the Isbells, who were also robbed. There appellant stood guard over Mr. Hughes during which time he further observed appellant’s physical appearance. We hold there is substantial evidence to support the jury’s verdict.

Appellant next argues that the trial court erred by allowing the state, in its closing argument, to place the burden of proving innocence on the appellant and by calling attention to the appellant’s failure to testify. The appellant’s girl friend had testified as an alibi witness that the appellant had spent the night with her on the date of the robbery and that two other persons were present with her and the appellant on that evening. In the closing argument, the prosecutor attacked the credibility of this witness, the plausibility of her testimony, and, in the course of that portion of the argument, remarked that neither of the other two persons allegedly present with appellant had been called to testify. Defense counsel objected saying, “I think this is going a little too far.” His objection was overruled.

In order to preserve a point for appellate review, “[a]n objection must be sufficiently specific to apprise the trial court as to the particular error complained of in order to preserve the right to appellate review.” Crafton v. State, 274 Ark. 319, 624 S.W.2d 440 (1981). A.R.Crim.P., Rule 36.21. Here, that requirement was not met. Obviously, the trial court was not afforded an opportunity to rule on the arguments now presented on appeal.

Appellant next contends that the use of standard verdict forms in this bifurcated trial violated his Fifth Amendment right not to testify against himself. The argument is that experienced jurors know that punishment is fixed at the same time as guilt, except in habitual offender proceedings, where guilt alone is determined in the first phase of the jury’s deliberation and punishment is fixed in subsequent deliberations after considering the number of prior felony convictions. Ark. Stat. Ann. § 43-2330.1 (Repl. 1977). Therefore, experienced jurors, having this knowledge, will be able

to deduce that the defendant in a habitual offender proceeding has prior felony convictions, even though the prior convictions are not admissible to prove guilt. Appellant’s argument was rejected in Woods v. State, 260 Ark. 882, 545 S.W.2d 912 (1977). Furthermore, the issue was not properly before the trial court. No objection was made to the verdict forms and the bifurcated procedure until after the trial had been concluded at which time it was raised in a motion for a new trial. We have often held that objections to a jury instruction must be made before the jury retires and objections made after the jury retires to deliberate are not timely. Hickory Springs Mfg. Co. v. Emerson, 247 Ark. 987, 448 S.W.2d 955 (1970); Sunray Sanitation v. Pet, Inc., 249 Ark. 703, 461 S. W.2d 110 (1970); and Golden v. State, 265 Ark. 99, 576 S.W.2d 955 (1979).

Finally, appellant argues that the trial court erred by admonishing the entire jury panel, in an orientation procedure earlier in the day of the trial, to attempt to avoid a hung jury. This so-called “Allen” or “dynamite” charge, which parallels AMCI 6004, was not repeated to the trial jury. No objection was made to the orientation procedure until the trial had been concluded. It was then alleged as error in a motion for a new trial. An objection, to be timely, should be made when the trial court is afforded an opportunity to correct the asserted error. Crafton v. State, supra. A litigant may not await the outcome of the case before bringing alleged errors to the attention of the trial court.

At a posttrial hearing, one juror testified that the court’s “Allen” charge, upon impanelment of the entire jury, affected her vote during deliberations. This testimony was impermissible and clearly violated Ark. Stat. Ann. §28-1001, Rule 606 (b) (Repl. 1979). Veasey v. State, 276 Ark. 457, 637 S.W.2d 545 (1982); and Sanson v. Pullum, 273 Ark. 325, 619 S.W.2d 64 (1981).

Affirmed.


author: Frank Holt, Justice. John I. Purtle, Justice,

text:
    Cecil KNAPPENBERGER v. STATE of Arkansas
    CR 83-7
    647 S.W.2d 417
    Supreme Court of Arkansas
    Opinion delivered February 14, 1983
    [Opinion Amended on Denial of Rehearing March 28, 1983.]

      Howard ¿r Howard, by: William B. Howard, for appellant.

      Steve Clark, Atty. Gen., by: Theodore Holder, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

The appellant was charged with second degree murder in the shooting death of Wiley Johnson, Jr. A jury convicted him of manslaughter [Ark. Stat. Ann. § 41-1504 (Repl. 1977)] and fixed his punishment at ten years imprisonment. He was incarcerated and later released on bail pending this appeal. In a pretrial confession the appellant admitted shooting Johnson but contended that he had done so in self-defense and had only intended to injure Johnson sufficiently to stop Johnson’s alleged assault.

Appellant’s present counsel, who did not represent him at trial, acknowledges, after reviewing the record, that the only tenable ground for appeal is that the appellant did not have effective assistance of trial counsel in violation of his state and federal constitutional rights (Art. 2, § 10, Const, of Ark. [1874] and Sixth Amendment, U. S. Const.). He also argues we should overrule Hilliard v. State, 259 Ark. 81, 531 S.W.2d 643 (1976), which holds a defendant may not prosecute a direct appeal on the issue of ineffective assistance of counsel absent an objection in the trial court. Here, appellant’s argument of ineffective assistance of counsel was not presented to the trial court. We affirm.

In Hilliard, where the issue of ineffective assistance of counsel, as here, was not raised in the trial court, we pointed out that the proper procedure for assessing the quality of legal representation is either through a motion for a new trial or a motion for postconviction relief in the trial court, because an evidentiary hearing there on “many facets” of the case better equips us to review the sufficiency of representation at trial. This case perfectly illustrates the wisdom of our rule. Appellant argues that his retained trial counsel, by allowing and advising him to confess, supplied the state with inculpatory proof that the state very well might not have been able to otherwise obtain. Further, his counsel’s cross-examination of witnesses was totally irrelevant, resulting in the net effect of strengthening the state’s case. Also, his counsel’s failure to object to improper and irrelevant inquiries on cross-examination of defense witnesses by the state portrayed the appellant as an evil man. Appellant argues that the record here establishes by clear and convincing evidence that appellant’s trial counsel was so grossly inadequate that it resulted in a deprivation of his constitutional rights of effective assistance of counsel and, therefore, it is unnecessary for an evidentiary hearing in the trial court to determine the competency and efficiency of trial counsel.

An evidentiary hearing and finding as to the competency of appellant’s counsel by the trial court would, as Hilliard holds, “better equip us on review to examine in detail the sufficiency of the representation.” We decline to overrule or modify Hilliard. We are not alone in requiring such claims of ineffective assistance of counsel to be presented first to the trial court. See U.S. v. Mims, 440 F.2d 643 (8th Cir. 1971); U.S. v. Stephens, 609 F.2d 230 (5th Cir. 1980); U.S. v. Rodriguez, 582 F.2d 1015 (5th Cir. 1978); Grover v. State, 41 Md. App. 705, 398 A.2d 528 (1979); and Foster v. Commonwealth, 507 S.W.2d 443 (Ky. 1964).

As alternative relief, appellant asks, in the event his conviction is affirmed, that we now grant permission for him to proceed in the circuit court for postconviction relief pursuant to A.R.Cr.P., Rule 37, without being required to file a formal petition here for postconviction relief. Rule 37.1 requires that a motion for postconviction relief must be verified. We recognized this requirement in Carey v. State, 268 Ark. 332, 596 S.W.2d 688 (1980), where we said: “... Rule 37.1 requires that motions for postconviction relief be verified and be filed with the court, a requirement of substantive importance to prevent perjury.” Rule 37.2 provides: “If the conviction in the original case was appealed to the Supreme Court, then no proceedings under this rule shall be entertained by the circuit court without prior permission of the Supreme Court.” We adhere to the requirement that a formal verified petition for postconviction relief be filed in this court, following our affirmance, for permission to proceed in the trial court.

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. I strongly disagree with the majority opinion. I believe it necessary to overrule our prior cases holding that ineffective assistance of counsel cannot be raised on direct appeal. Article 2 § 10 of the Constitution of Arkansas and Amendment 6 to the Constitution of the United States provide that an accused shall have the right to counsel. In cases too numerous to mention, both state and federal, we have held that these provisions mean effective assistance of counsel. If an accused is denied effective assistance of counsel, he has been denied a constitutional right. He is therefore entitled to a remedy on direct appeal just the same as if he were denied counsel entirely. There is no question but that a direct appeal should be a proper method of challenging a right to counsel at the trial court level when ineffectiveness of counsel is obvious in time to include it on direct appeal.

The holding in the majority opinion is to the effect that though a person may have been denied constitutional rights, they must suffer imprisonment before such miscarriage of justice can be corrected.

A.R.Cr.P. Rule 37 was adopted specifically to allow persons in custody whose cases had not been appealed to the Arkansas Supreme Court to move that their sentence be vacated or corrected. So far as I am able to determine, there is nothing in any Arkansas statute or rule which would prevent a person from seeking relief from ineffective assistance of counsel on direct appeal. It is by case law only that we have held that such could not be done. In the great majority of criminal cases such relief would not be asked for on direct appeal simply because the appellant would not realize he had received ineffective assistance of counsel. It is logical and reasonable that in rare circumstances an appellant could argue ineffective assistance of counsel on direct appeal. To prohibit such argument would, as appellant rightfully contends, force a person to serve time before being able to argue ineffective assistance of counsel. This is unjust and contrary to the principles of criminal justice. There might be cases in which the attorney was absolutely and obviously ineffective resulting in the conviction of an innocent defendant. To require a person to be incarcerated under such circumstances would be nothing short of false imprisonment. No person should be required to serve time in prison because he was denied effective assistance of counsel.

In Blackmon v. State, 274 Ark. 202, 623 S.W.2d 184 (1981), we stated:

We have held that there is a presumption of effective assistance of counsel and that the appellant must overcome this presumption and show he was prejudiced by the conduct of his counsel. We now hold that in addition to showing prejudice the appellant must show by clear and convincing evidence that the prejudice resulting from the representation of trial counsel was such that he did not receive a fair trial.

If counsel were so ineffective as to deny the appellant a fair trial, it is patently unjust to require him to serve time in prison before he can bring this to the attention of the trial court or this court.

The maj ority opinion would deny the appellant a right to a hearing in this court on ineffective assistance of counsel even if the matter had been presented to the trial court in the form of a motion for a new trial. It seems to me that at the very least this court should hold that if the alleged ineffective assistance of counsel were presented to the lower court in the form of a motion for a new trial, it could be reviewed in this court on direct appeal.

I do not express an opinion as to whether counsel in the present case was effective or not; that is not the issue here. The point I make is that we are, in effect, denying justice when we refuse to allow an appellant to present such a matter on direct appeal. The cases will be few and far between where such a matter can be presented on direct appeal but in those few cases I think it should be allowed. I would not allow a petitioner in such a rare instance to have two opportunities to challenge the effectiveness of counsel. I would instead limit him to questions passed upon on direct appeal, Neal v. State, 270 Ark. 442, 605 S.W.2d 421 (1980); including a claim of ineffective assistance of counsel. To do anything less would be to render impotent the provisions of two constitutions and the sacred rights given the people thereunder. I would consider the matter and decide it on the merits of the arguments presented.


author:
Robert H. Dudley, Justice.
      Robert H. Dudley, Justice.

text:
    INDEPENDENCE FEDERAL SAVINGS AND LOAN ASSOCIATION v. Roy C. DAVIS et al
    82-202
    646 S.W.2d 336
    Supreme Court of Arkansas
    Opinion delivered February 14, 1983
    [Supplemental Opinion on Denial of Rehearing March 21, 1983.]

      Hoover, Jacobs ir Storey, by: Victor A. Fleming, for appellant.

      David H. White and Lambert ir Brown, for appellees.
   Robert H. Dudley, Justice.

In 1970 we held that a federal savings and loan association must demonstrate that its security is impaired before it will be permitted to accelerate the maturity date of a loan and declare the entire debt due if the property securing the loan is sold or otherwise transferred. Tucker v. Pulaski Federal Savings & Loan Ass’n, 252 Ark. 849, 481 S.W.2d 725 (1972). Four years later the Federal Home Loan Bank Board issued a regulation which, in part, provides:

[A federal savings and loan] association continues to have the power to include, as a matter of contract between it and the borrower, a provision in its loan instrument whereby the association may, at its option, declare immediately due and payable sums secured by the association’s security instrument if all or any part of the real property securing the loan is sold or transferred by the borrower without the association’s prior written consent. Except as [otherwise] provided in . . . this section . . . , exercise by the asociation of such option (hereafter called a due-on-sale clause) shall be exclusively governed by the terms of the loan contract, and all rights and remedies of the association and borrower shall be fixed and governed by that contract.

12 C.F.R. § 545.8-3(f) (1982).

The issues in this case are whether our holding is incompatible with the federal regulation and, if so, does the preemption doctrine apply? We answer both questions in the affirmative and, accordingly, reverse the decision of the trial court. The Court of Appeals certified the case to this Court siflce it involves an issue of significant public interest and a legal principle of major importance. Rule 29 (4) (b).

Appellees, Roy and Katherine Davis, borrowed $34,800 from appellant, Independence Federal Savings and Loan Association, a federally chartered savings and loan association. As evidence of the debt and security for its payment the Davises executed a promissory note and a real estate mortgage which contained the following due-on-sale clause:

17. Transfer of the Property; Assumption. If all or any part of the Property or an interest therein is sold or transferred by Borrower without Lender’s prior written consent, excluding (a) the creation of a lien or encumbrance subordinate to this Mortgage, (b) the creation of a purchase money security interest for household appliances, (c) a transfer by devise, descent or by operation of law upon the death of a joint tenant or (d) the grant of any leasehold interest of three years or less not containing an option to purchase, Lender may, at Lender’s option, declare all the sums secured by this Mortgage to be immediately due and payable. Lender shall have waived such option to accelerate if, prior to the sale or transfer, Lender and the person to whom the Property is to be sold or transferred reach agreement in writing that the credit of such person is satisfactory to Lender and that the interest payable on the sums secured by this Mortgage shall be at such rate as Lender shall request. If Lender has waived the option to accelerate provided in this paragraph 17, and if Borrower’s successor in interest has executed a written assumption agreement accepted in writing by Lender, Lender shall release Borrower from all obligations under this Mortgage and the Note. ,

On November 11, 1979, the Davises by contract sold the real estate to Richard and Adelia Swink. On January 11, 1980, the Swinks by contract, in turn, sold the real estate to Johnny and June Wildman. The contracts of sale provided for delivery of a warranty deed upon the payment of all indebtedness. The appellant was not notified and did not consent to the contracts of sale.

Appellant learned of the sales and treated the due-on-sale clause as violated. It notified the Davises of the acceleration of the date of maturity of the debt and that the entire debt was due. When the Davises refused to pay, appellant filed suit for acceleration of the maturity of the debt, for judgment principal and accrued interest on the note plus attorney’s fees and costs and for foreclosure on the mortgage securing the debt. The trial court held that the sales contracts violated the due-on-sale clause but, citing Tucker, refused to accelerate the maturity of the debt as there was no proof that appellant’s security had been impaired.

The only restrictions specified in the Federal Home Loan Bank Board’s regulation are contained in 12 C.F.R. § 545.8-3(g) (1982) as follows:

(g) Limitations on the exercise of due-on-sale clauses. With respect to any loan made after July 31, 1976, on the security of a home occupied or to be occupied by the borrower, a federal association:.. .(3) waives its ojation to exercise a due-on-sale clause as to a specific transfer if, before the transfer, the association and the person to whom the property is to be sold or transferred... agree in writing that the person’s credit is satisfactory to the association and that interest on sums secured by the association’s security interest will be payable at a rate the association shall request. Upon such agreement and resultant waiver the association shall release the existing borrower from all obligations under the loan instruments, and the association is deemed to have made a new loan to the existing borrower’s successor in interest.

Under the Board’s regulations, a federal association’s right to accelerate a loan is not limited to cases where the lender’s security is impaired. The regulations, therefore, are incompatible with our decision in Tucker, supra.

In June, 1982, the Supreme Court of the United States, in a well reasoned opinion by Justice Blackmun, ruled on this precise issue. Fidelity Federal Savings & Loan Ass’n. v. De La Cuesta,_U.S__, 50 U.S.L.W. 4916 (U.S. June 23, 1982). In that case, De La Cuesta and others purchased real estate in California from a person who had borrowed money from Fidelity Federal Savings and Loan Association. As security for the loan, the original borrower had given Fidelity a deed of trust on the property containing a due-on-sale clause. Fidelity was not notified prior to the purchases from the original borrower and when it learned of the transfers it exercised its option to accelerate the date of maturity of the loan. When the loans were not paid, Fidelity instituted nonjudicial foreclosure proceedings as authorized by California statutes. De La Cuesta and the other purchasers then filed suit against Fidelity in California State Court, asserting that the due-on-sale clause could not be enforced “unless the lender can demonstrate that enforcement is reasonably necessary to protect against impairment to its security or the risk of default.” Id. at_, 50 U.S.L.W. at 4918. De La Cuesta’s suit was based upon a doctrine enunciated in Wellenkamp v. Bank of America, 21 Cal.3d 943, 582 P.2d 970 (1978), a case in which California reached the same result that we had reached in Tucker, supra.

In De La Cuesta the California trial court held that the federal government had preempted the subject of regulation of federal savings and loans precluding the extension of their Wellenkamp doctrine to federal savings and loans. The Court of Appeal reversed, however, concluding that Wellenkamp was controlling. According to the Court of Appeal, Congress had not expressly or impliedly preempted state due-on-sale law nor fully occupied the field of federal savings and loan regulation__U.S. at_, 50 U.S.L.W. at 4918.

The Supreme Court of the United States then reversed the Court of Appeal, holding that the Federal Home Loan Bank Board’s due-on-sale regulation bars application of the Wellenkamp rule to federal savings and loan associations. Id. at_, 50 U.S.L.W. at 4924.

According to the Supreme Court in De La Cuesta, the Federal Home Loan Bank Board was vested with plenary authority in 1933 to administer the Home Owners’ Loan Act of 1933. The Board, which has the authority to promulgate regulations governing the powers and operations of federal savings and loan associations, promulgated the due-on-sale regulations in 1976 in an attempt to preserve “the financial security and stability of federal associations . . . [which] would be endangered if . . . the security property is transferred to a person whose ability to repay the loan and properly maintain the property is inadequate”. Id. at-, 50 U.S.L.W. at 4917. Additionally, the Court pointed out that in the preamble to the final publication of the regulation, the Board emphasized that “[f]ederal associations shall not be bound by or subject to any conflicting State law which imposes different. . . due-on-sale requirements”. Id.

The Court discussed the language and history of the Home Owners’ Loan Act and found that both indicate that the Board was authorized to regulate a system of federal savings and loan associations. Id. at_, 50 U.S.L.W. at 4917. In addition, Congress had delegated power to the Board expressly for the purpose of creating and regulating those associations in order to ensure that the complete federal system would remain financially sound and able to supply financing nationwide for home construction. Id. at _, 50 U.S.L.W. at 4921. The Court held that, consistent with that purpose, the Board reasonably exercised its authority in promulgating the due-on-sale regulation. Id. at _, 50 U.S.L.W. at 4923-24.

The Court found Wellenkamp and the regulation to be in direct conflict and applied the preemption doctrine which is found in the Supremacy Clause, U.S. Const., Art. VI, Cl. 2. Similarly, our case of Tucker and the regulation are incompatible. Thus, it is clear that our rule in Tucker can no longer apply to federal savings and loan associations in Arkansas. Therefore, we reverse on direct appeal.

Appellees contend that they are entitled to affirmative relief in this Court. However, since there was no notice of cross-appeal we do not consider the argument for affirmative relief. Elcare, Inc. v. Gocio, 267 Ark. 605, 593 S.W.2d 159 (1980).

Supplemental Opinion on Denial of Rehearing delivered March 21, 1983

Robert H. Dudley, Justice.

The appellees’ petition for rehearing is denied, but in their petition the appellees have called attention to an error of appellate procedure in the original opinion.

The trial court held for the appellees and the appellant gave notice of appeal. The appellees gave no notice of cross-appeal but in their Point III argue: “The Chancellor Erred In Determining That The Contracts For Deed Entered Into By Appellees Violate Paragraph 17 Of The Mortgage.” Our original opinion erroneously states that appellees were seeking affirmative relief but gave no notice of cross-appeal. However, a notice of cross-appeal is necessary only when an appellee is seeking something more than he received in the lower court. Moose v. Gregory, 267 Ark. 86, 590 S.W.2d 662 (1979). Here appellees’ point is that the chancellor erred in his reasoning but reached the right result. Appellees were asking only that the chancellor be affirmed and therefore no notice of cross-appeal was necessary. Thus, we were in error in refusing to consider the issue.

We now consider the point but find it to be without merit. The due-on-sale clause was triggered “[i]f all or any part of the Property or an interest therein is sold or transferred by Borrower without Lender’s prior written consent ...” The appellees Davis sold their equity by contract to the appellees Swink for $ 1,719.00 and transferred the right of possession to them. Under the terms of the executory contract steps remained to be taken in the future, but the sellers were nevertheless bound to perform their agreement. The buyers acquired a substantial interest in the property. See Pulaski Federal Savings & Loan Ass’n. v. Carrigan, 243 Ark. 317, 419 S.W.2d 813 (1967). Under the terms of the mortgage the transfer of a substantial interest in the property was sufficient to accelerate the maturity date of the loan and declare the entire debt due.

The petition for rehearing is denied.


author: Robert H. Dudley, Justice.

text:
    Bennie COOPER v. STATE of Arkansas
    CR 83-8
    645 S.W.2d 950
    Supreme Court of Arkansas
    Opinion delivered February 14, 1983

      David J. Potter, for appellant.

      Steve Clark, Atty. Gen., by: Michael E. Wheeler, Asst. Atty. Gen., for appellee.
   Robert H. Dudley, Justice.

This case, which involves criminal sentencing procedures, was certified to this Court by the Court of Appeals as it involves the interpretation of an act of the General Assembly, Rule 29 (1) (c).

Sentencing procedures are controlled by statute. Holden v. State, 156 Ark. 521, 247 S.W. 768 (1923). The statute in effect on the date of the commission of the crime is the governing statute. Ark. Const. Art. II, § 17; Easley v. State, 274 Ark. 215, 623 S.W.2d 189 (1981). Here, the appellant pleaded gulity to committing the crime of theft by receiving on January 23, 1978. At that time the sentencing provisions of the then new Criminal Code of 1976 had not been amended, and a trial court could not pronounce sentence and suspend the execution of that sentence. Culpepper v. State, 268 Ark. 263, 595 S.W.2d 220 (1980). Suspending imposition of sentence is a procedure by which a defendant who pleads or is found guilty of an offense is released by the court without pronouncement of sentence and without supervision. Ark. Stat. Ann. § 41-803 (4) (Repl. 1977). If a defendant violates the terms of his suspension he may be sentenced to imprisonment for any period up to the maximum time which might have been originally imposed. Ark. Stat. Ann. § 41-1208 (Repl. 1977). In the case before us, at the time of the commission of the crime, a court could either suspend imposition of sentence or place the defendant on probation but it could not do both at the same time. Jefferson v. State, 270 Ark. 909, 606 S.W.2d 592 (1980); Ark. Stat. Ann. § 41-801 (1), (2) (Repl. 1977). No one could be sentenced other than in accordance with the Criminal Code. Ark. Stat. Ann. § 41-803 (Repl. 1977). Here, the trial judge entered two orders on the day of sentencing, May 31, 1978. The first is styled “Judgment and Order of Suspended Sentence” and provides that “the Court fixes his punishment at a General Sentence of Five Years in the Arkansas Department of Correction, said sentence to be suspended during good behavior . ” The second is styled “Order” and provides that “Bennie Cooper be and is hereby placed on probation for a period of five (5) years commencing May 31, 1978 . . . . ” Since the trial court at that time could only suspend imposition of sentence and, upon suspension, could not place the defendant on probation, we construe the j udgment as a suspension of the imposition of sentence for a period of five years. We note that the end result of this case would be the same even if we construed the two orders as placing the defendant on probation.

On January 18, 1980, in a different case, a suspended sentence in federal district court was revoked and the appellant was sentenced to serve one year in the Federal Correctional Institution in Bastrop, Texas. At that time, the prosecuting attorney filed a petition in circuit court to revoke appellant’s suspended sentence. A hearing was held, a judgment of sentence was pronounced and a docket sheet entry reflecting sentencing was made, but no order was entered. However, the record before us contains a transcription of the hearing and the docket sheet entries. The record, set out below, reflects pronouncement of a sentence. It is not in conformity with our sentencing rule or statute, A.R.Cr.P. Rule 36.4 or Ark. Stat. Ann. § 43-2301 (Repl. 1977), and did not clearly set forth the sentence as required, Ark. Stat. Ann. §§ 43-2305, 43-2602 and 43-2608 (Repl. 1977), but there was no objection by either party and no appeal from the sentence. Thus, the irregularities are waived.

The transcription of the hearing is as follows:

APPEARANCES:

MR. JIM GUNTER, Prosecuting Attorney, and MR. KIRK JOHNSON, Deputy Prosecuting Attorney, for the State of Arkansas.
MR. KARLTON KEMP, Attorney for the Defendant.

Thereupon, the following proceedings were had and done before the HONORABLE JOHN W. GOOD-SON, Regular Judge of the 8th Judicial Circuit of Arkansas:

BY THE COURT:

What happened in Federal Court, Mr. Cooper?
What happened in Federal Court?

BY MR. KEMP:

Judge, I was appointed —

BY THE COURT:

Oh, excuse me.

BY MR. KEMP:

— and the judge sent him over here to talk to you, because he knew you had him scheduled for today.

BY THE COURT:

I was going to let him have him.

BY MR. KEMP:

He says that they will take him. And they are recommending some time over there, and it was —

BY THE COURT:

How much?

BY MR. KEMP:

Three years, and possibly some of it to be suspended. I don’t know — he was sentenced to five here, wasn’t he?

BY THE COURT:

Right.

BY MR. KEMP:

The judge said if you were going to sentence him over here, that he would probably make his concurrent with your finding.

BY THE COURT:

I was going to be as good to them as they are to me. I was going to let them pay for it. But it suits me, but we are going to have to have a hearing on this one, I imagine, unless —

BY THE DEFENDANT:

Well, if it’s going to be cc, I don’t see any question what the Federal Judge do.

BY THE COURT:

Mr. Cooper, is it all right if I make the docket notation that the revocation of this sentence will run concurrent with the revocation of the sentence in Federal Court? Is that. . . (Emphasis added.)

BY THE DEFENDANT:

Yes, sir.

BY MR. KEMP:

I think this petition in the same form was filed after the Federal one was, your Honor, anyway.

BY THE COURT:

All right, sir.

END OF PROCEEDINGS

The docket sheet entries for the hearing reflect:

1/14/80 Defendant admits violation. Revocation to run concurrent with sentence in Ark. Fed. Ct. (Emphasis added.)

Only one conclusion can be drawn and that is the trial court revoked the suspension. The court could only suspend imposition of sentence so obviously the imposition of sentence was revoked. When that occurred an appropriate sentence could be imposed. Ark. Stat. Ann. § 41-1208 (6) (Repl. 1977); See also Commentary thereto. While the term imposed is not precisely set out, we interpret the proceedings as imposing a sentence concurrent with the federal sentence which was for one year commencing January 23, 1980. Then, on February 24, 1981, more than one year later and after appellant had been released from federal custody, the prosecuting attorney filed a pleading styled “Petition to Revoke Probated Sentence” and an “Amended Petition to Revoke Probated Sentence.” Both petitions refer to the original judgment for theft by receiving. The petitions were heard on February 25, 1982, and the trial court entered a judgment and order of commitment which provides:

That on a former day to-wit: May 31, 1978 Defendant entered his plea of Guilty to the crime of Theft by Receiving and his punishment was fixed at a General Sentence of Five (5) Years in the Arkansas Department of Correction, said sentence to be suspended during good behavior, fine of $500.00 and cost,
Now on this 25th day of February, 1982 it is found by the Court that said Defendant has violated the conditions of his Suspended Sentence and is hereby ordered committed to the Arkansas Department of Correction for a period of Five (5) Years. Defendant has been incarcerated in Miller County since January 27, 1982.

Appellant contends the sentence is void. The contention is meritorious. This was the second sentence for the crime of theft by receiving committed January 23, 1978. A second sentence cannot be imposed at a subsequent revocation hearing. Easley v. State, 274 Ark. 215, 623 S.W.2d 189 (1981). In addition, the trial court did not have jurisdiction by the time it pronounced.the second sentence for, by then, the first sentence had already been put into execution. Once a valid sentence is put into execution the trial court is without jurisdiction to modify, amend or revise it. Shipman v. State, 261 Ark. 559, 550 S.W.2d 424 (1977). The increased punishment at a second sentencing is void for yet another reason. As Justice Douglas stated in discussing double jeopardy, “A person need run the gauntlet only once.” North Carolina v. Pearce, 395 U.S. 711 (1969).

Reversed.


author: Steele Hays, Justice. Steele Hays, Justice.

text:
    CARGO CARRIERS, INC. v. Charles D. RAGLAND, Director for Revenues, State Department of Finance and Administration
    82-205
    646 S.W.2d 681
    Supreme Court of Arkansas
    Opinion delivered February 14, 1983
    [Supplemental Opinion on Denial of Rehearing March 28, 1983.]

      Coleman, Gantt, Ramsay ¿r Cox, by: James W. Hyden, for appellant.

      Timothy J. Leathers, Wayne Zakrzewski, Kelly S. Jennings, John H. Theis, Ann Fuchs and Joseph V. Svoboda, for appellee.
   Steele Hays, Justice.

Cargo Carriers, Inc., manufactures barges at Pine Bluff. Some are sold to third parties, some are retained and delivered to Inland Waterways Division, a separate division of Cargo Carriers, Inc. In 1978 the Arkansas Department of Revenues assessed a deficiency of $204,948.22 in Gross Receipts Tax (Sales Tax) claimed by the State on the delivery of sixty-six barges to Inland Waterways. The State took the position that when the sixty-six barges were “withdrawn from inventory” a taxable event occurred within the meaning of Ark. Stat. Ann. § 84-1902 (d) (Repl. 1980) which reads in part:

“The term ‘gross proceeds’ or ‘gross receipts’ shall include the value of any goods, wares, merchandise, or property withdrawn or used from the established business or from the stock and trade of the established reserves for consumption or use in such business or by any other person.”

Cargo protested and when administrative remedies provided no relief, it filed suit in chancery to enjoin collection of the tax, claiming the assessment of taxes amounted to an illegal exaction and, hence, was prohibited by Article 16 § 13 of the Constitution of Arkansas. Cargo contended that § 84-1902 (d) was not applicable because the barges were only partially completed in Arkansas. It said the unfinished hulls were then ferried to Paducah, Kentucky, for final completion and so the barges did not become a part of Cargo’s fleet until they had entered interstate commerce outside the State of Arkansas. Cargo’s petition asked for a refund of $61,180.89 in Use Taxes it had paid on the value of materials used in constructing the barges.

After testimony and proof the Chancellor found that the barges were completed at Pine Bluff and became subject to the Sales Tax under § 84-1902 (d) at that time. A deficiency of $204,948.22, based on the value of the completed barges at the time of delivery, was assessed and Cargo’s claim of refund was denied, as the proof showed that Cargo had been credited with the amount of Use Tax paid.

On appeal, no issue is raised that the Chancellor’s findings are against the preponderance of the evidence. Instead, we are asked to hold the Arkansas Gross Receipts Tax, as applied in this case, unconstitutional under the commerce, due process and equal protection clauses of the Constitution of the United States.

The State counters Cargo’s assignment of error with the familiar rule that constitutional questions cannot be raised for the first time on appeal. T. H. Epperson & Son, Inc. v. Robinson, 274 Ark. 142, 622 S.W.2d 668 (1982), Gross v. Gross, 266 Ark. 186, 585 S.W.2d 14 (1979). The point is well taken, as we find no basis in the record to support the argument on appeal.

Cargo cites only an amendment to its petition asserting that the assessment against it constitutes “an illegal exaction prohibited by the Constitution of the State of Arkansas”, as evidence that the issue was first presented to the trial court. But that attempt must fail. Art. 16 § 13 of the Arkansas Constitution provides that any citizen may institute suit in behalf of himself and others to protect against the enforcement of any illegal exactions. There is nothing about that provision of the Arkansas Constitution that bears any resemblance to those provisions of the United States Constitution which Cargo claims are violated, i.e. the commerce, due process or equal protection clauses. We readily reject the premise that a litigant can argue a violation of the illegal exaction provision of the Arkansas Constitution before the trial court and contend on appeal his argument includes the commerce, due process and equal protection clauses of the United States Constitution as well. Such a holding would be hostile to the principle that arguments must be presented to the trial court with clarity and particularity in order to be noticed on appeal. Abernathy v. State, 278 Ark. 250, 644 S.W.2d 590 (1983), Klobnock v. Abbott, 303 N.W.2d 149 (Iowa S. Ct., 1981), Foster v. Lamphere, 368 A.2d 1238 (R.I. S.Ct. 1977), City of St. Louis v. Butler Co., 219 S.W.2d 372 (Mo. S.Ct. 1949); Sewer and Waterworks Improvement District No. 1 v. McClendon, 187 Ark. 510, 60 S.W.2d 920 (1933).

The decree is affirmed.

Supplemental Opinion on Denial of Rehearing delivered March 28, 1983

Steele Hays, Justice.

In our opinion in Cargo Carriers, Inc. v. Charles D. Ragland, Director, 278 Ark. 401, 646 5. W.2d 681 (1983), we declined to consider arguments by appellant that the commerce, due process and equal protection clauses of the United States Constitution were violated by the imposition of a sales tax by the State of Arkansas on barges manufactured by appellant, as we found the record confirmed appellee’s claim that the arguments were newly raised on appeal.

By Petition for Rehearing, appellant has satisfied us that these arguments, though not pleaded, were sufficiently raised in the trial court to be preserved on appeal. Appended to the Petition for Rehearing is a copy of appellant’s

Memorandum Brief submitted to the Chancellor after trial, but before the decision, which cites the commerce and equal protection clauses. Whether the Chancellor considered the arguments to be belated, or merely unpersuasive, we have no way of knowing, as the decree makes no mention of them. However that may be, we agree appellant is entitled to have these assignments of error decided on their merits and we have accordingly reviewed the arguments in appellant’s brief.

Appellant concedes we have often held that a manufacturer who withdraws stock from its own inventory for its own use becomes liable for sales tax on such goods. Georgia Pacific Corp. v. Larey, 242 Ark. 428, 413 S.W.2d 868 (1967), Republic Steel Corp. v. McCastlain, 240 Ark. 979, 403 S.W.2d 90 (1966), Cook v. Southwest Hotels, Inc., 213 Ark. 140, 209 S.W.2d 469 (1948). However, appellant argues the sixty-six barges manufactured at its facility in Pine Bluff were unfinished hulls when they left Arkansas, and were not completed until after their arrival at Paducah, Kentucky, where pre-fabricated fiberglass hatch covers were installed. The proof was that appellant’s barges are fit for some cargoes, but not others, when they leave Pine Bluff. Appellant submits that if the barges are not completed until they reach Paducah then they have entered the stream of interstate commerce and are not subject to sales tax in Arkansas under the commerce clause, which limits taxation by the states on goods in interstate commerce. Gibbons v. Ogden, 9 Wheat 1, 6 L. Ed. 23 (1824), J. D. Adams Manufacturing Co. v. Storen, 304 U.S. 307 (1938), Northwestern Cement Co. v. Minnesota, 358 U.S. 450 (1959), American Bridge Co. v. Smith, 179 S.W.2d 12 (Mo. 1944). But whether the barges were completed or not was a disputed factual issue which the Chancellor specifically decided adversely to the appellant. Appellant has not asked us to consider whether that finding is clearly against the preponderance of the evidence and we will not look beyond the express findings in the decree that these barges were completed in Arkansas. Indeed, that is the crucial issue of this litigation and, once that is settled, the constitutional arguments tend to resolve themselves.

Appellant leans heavily on Complete Auto Transit Inc. v. Brady, 430 U.S. 274 (1977). There, the Supreme Court reexamined the taxing power of the states under the commerce clause and upheld a tax on a Michigan taxpayer by the State of Mississippi. The Court tersely overruled Spector Motor Service v. O’Connor, 340 U.S. 602 (1951) which, on similar facts, had held that Connecticut could not impose a tax on a Missouri taxpayer engaged in interstate trucking (some of which either originated or terminated in Connecticut) reasoning that state taxation of interstate commerce was a per se violation of the commerce clause. Described as a derelict and an aberration, Spector could not survive its own shaky beginnings (i.e. dissenting opinions by Justices Clark, Black and Douglas) and ensuing criticisms. “State Taxation of Interstate Business and the Supreme Court”, Hellerstein, 62 Va. L. Rev. 149 (1976), “Comment, Pipelines, Privileges and Labels”: Colonial Pipeline Co. v. Triagle, 70 Nw. L. Rev. 835 (1975).

In Auto Transit the Court extracted what might be seen as the essence of a number of relevant decisions, before and after Spector, as sustaining a tax against commerce clause challenge when: The tax is applied to an activity with a substantial nexus with the taxing state, is fairly apportioned, does not discriminate against interstate commerce, and is fairly related to the services provided by the taxing state.

Appellant concedes, as it must, that it has a nexus to Arkansas, in that it owns and operates a substantial manufacturing plant in Arkansas. But its argument then by-passes that reality and suggests that the taxed activity which must meet the test oiAuto Transit is the operation of the barges, that is, the carriage of goods for hire, which is admittedly done out-of-state by Inland Waterways Division. We find no language in the Auto Transit opinion which modifies the substantial nexus requirement as appellant would have us do, nor anything there or elsewhere to suggest it is the use to which its product is put that determines whether a manufacturer has a substantial nexus within a given state. We reject that supposition. At issue here is a sales tax, a levy on three percent of the gross receipts of goods manufactured in Arkansas, not a privilege or franchise tax on activities thought to be subject to the taxing jurisdiction of this State. The activity of appellant here scrutinized is not the operation of its barges, but their manufacture, and the taxability of that enterprise is clear. International Harvester Co. v. Department of Treasury, 322 U.S. 340 (1944), Freeman v. Hewit, 329 U.S. 249 (1946).

Appellant urges that still another element of the Auto Transit case is impinged here, i.e. the tax is discriminatory on its face because Cargo Carriers is being assessed a three percent gross receipt tax while those who purchase barges from it, and who compete with it, have not had to pay the same tax. This is essentially the equal protection argument as well. Appellee’s response is that had appellant’s out-of-state purchasers taken title or possession of the barges in Arkansas, they too would have been subject to the sales tax. Nor is it shown whether such purchasers were subject to a use tax in other states. Thus, whether appellant has a competitive disadvantage is an open question. We think what has been said before is sufficient, we disagree that the imposition of a sales tax on goods manufactured in Arkansas under the circumstances of this case discriminates against interstate commerce.

The existence of a rational relationship between the taxing state and the taxable event is not subject to question. (Auto Transit, supra, Moorman Manufacturing Company v. Bair, 437 U.S. 267 [1978]). But a clearer connection between Arkansas and the event sought to be taxed in this case could hardly be imagined. These barges were manufactured entirely in Arkansas from raw materials. Steel plate was fabricated into various components, and combined into sub-assemblies from which the barge hulls were constructed. The barges assembled at appellant’s Pine Bluff plant are, according to the findings of the trial court, completed products and, therefore, the entire, manufacturing process occurs within the taxing state. The link between a taxpayer and the benefits afforded by a civilized society, i.e. a trained work force, police force, fire protection, schools, commerce, etc. was noted in Commonwealth Edison Company v. Montana, 453 U.S. 609 (1981), all of which inure to appellant at its Pine Bluff plant.

Rehearing denied.

       Justices Blackmun and Rehnquist, dissenting, Colonial Pipeline Company v. Triagle, 421 U.S. 100.


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    Mahlon Douglas REED v. STATE of Arkansas
    CR 82-83
    646 S.W.2d 6
    Supreme Court of Arkansas
    Opinion delivered February 14, 1983
    Appellant, pro se.

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

Appellant’s counsel filed a brief in this • case on December 22,1982, pursuant to Supreme Court Rule 11 (h), Ark. Stat. Ann. Vol. 3A (Supp. 1981), stating that there was no merit to the appeal. Appellant Reed was notified that, if he wished to respond, he had thirty days to file a pro se brief or other response, making his brief due for filing January 21, 1983. On January 21, appellant filed the motion for extension of time to file a pro se brief which is now before us.

The motion is denied. Appellant gives no good cause for extending the time for filing his brief beyond the thirty days provided for in Rule 11 (h). Counsel’s brief covers the issues preserved at trial, and appellant has not demonstrated that there is any need to allow him more time to prepare his brief. This Court will not grant a motion for extension of time in an appeal filed pursuant to Rule 11 (h) without a clear showing that the thirty days to respond provided for in the rule is inadequate.

Motion denied.


text:
    Garland TRICE v. CITY OF PINE BLUFF
    82-233
    645 S.W.2d 950
    Supreme Court of Arkansas
    Opinion delivered February 14, 1983

      Othello C. Cross, for appellant.

      Robert Tolson, Jr., City Atty., for appellee.
   Per Curiam.

The appellee’s motion to strike the appellant’s brief, as having been filed too late, was denied, but while the motion was under submission the time for the appellee to file its brief expired. The appellee relies upon the latter fact to justify its present motion for permission to file its brief after its due date.

It has been the court’s understanding, and that of the clerk, that one who moves to strike an adversary’s brief should protect his position by incorporating in, or attaching to, the motion a request for an extension of brief time if the motion should be denied. Otherwise the mere filing of such a motion to strike would in itself extend the movant’s brief time. Our practice, however, has not been set out in a published rule or order. For that reason the appellee’s motion to file a belated brief is granted, but in the future movants in a similar position must protect themselves by a timely request for an extention of their brief time.


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    Mildred M. ALEXANDER et al v. FIRST NATIONAL BANK OF FORT SMITH
    82-207
    646 S.W.2d 684
    Supreme Court of Arkansas
    Opinion delivered February 21, 1983
    [Rehearing denied March 28, 1983.]

      Edward B. Helms and Thomas S. Stone, for appellants.

      Rose Law Firm, P.A., by: W. Dane Clay, for appellee.
   Richard B. Adkisson, Chief Justice.

This is the third appeal arising from the will of Fred Alexander, in which he left one-half of this estate to his widow, Mildred, with the residue in trust for his two children, Mary and Caruth II, with Mildred as trustee. Caruth II died, and his widow sued Mildred for an accounting on behalf of her son Caruth III who was a beneficiary of the trust. On the first appeal we removed Mildred as executrix and remanded for a full and final accounting of the estate. Alexander, Ex’x v. A lexander, Ex’x, 262 Ark. 612, 561 S.W.2d 59 (1978). The second appeal resulted when Mildred filed her own purported full and final accounting and the Executor in Succession, the First National Bank of Fort Smith, filed its own accounting. The trial court approved the Bank’s accounting, but deferred action on the various claims for attorney’s and executor’s fees. Mildred appealed the trial court’s approval of the Bank’s accounting, and we affirmed in Alexander v. First National Bank of Fort Smith, 275 Ark. 439, 631 S.W.2d 278 (1982). During the second appeal, after notice of appeal was filed in the trial court but before the record was filed in this Court, the trial court held a hearing on the various claims for attorney’s and executor’s fees. The following awards were made which are the subject of this appeal:

$7,000 to the First National Bank of Fort Smith as Executor in Succession
$17,176 to Mr. W. Dane Clay as attorney for the Executor in Succession for his work from May 26, 1978 — June 5, 1981
$30,540 to Mr. W. Dane Clay for his work for Caruth III from 1970 — May of 1978, one-half to be paid by the widow and her daughter.

Appellants first argue that the trial court was without jurisdiction to award attorney’s fees since at the time of the award the notice of appeal had been filed. However, we stated in Andrews v. Lauener, 229 Ark. 894, 318 S.W.2d 805 (1958) that the trial court retains jurisdiction of the case until the record is filed and the appeal is docketed. This had not yet been done in this case when the award was made. Furthermore, matters that are collateral or supplemental to the trial court’s judgment are left within the trial court’s jurisdiction even though an appeal has been docketed. Bleidt v. 555, Inc., 253 Ark. 348, 485 S.W.2d 721 (1972). Here, the award of attorney’s and executor’s fees was collateral to the appeal from the trial court’s decision to uphold the Bank’s accounting.

Appellants next argue that the probate court’s judgment as to a $30,570.00 attorney’s fee awarded to Mr. Clay should be reversed because the ruling made from the bench by the trial judge at the June 22 hearing as to the fee is inconsistent with his actual order concerning the fee. At the hearing, the following exchange took place:

The Court: All right. I divided your claim in half.
I am considering the duplicity and all of the other matters, so that you are entitled to Fifteen Thousand Two Hundred Eighty Five Dollars ($15,285.00) in that connection for recovery of assets for the trust and for the estate, and I am surcharging that one-half against Mildred Alexander, and one-half against Mary Mildred Alexander.
Mr. Clay: All right. What you are saying is the total fee allowed is only one-half of what I asked for?
The Court: The total fee is . . . $15,285.00. . .

However, the trial court’s order in this regard filed July 8, 1981, states:

... That considering all of the facts and circumstances made known to the Court herein, the fees and expenses claimed in this connection by Mr. Clay as attorney in the amount of $30,570.00 are found to be reasonable and should be allowed. That however only one-half of this sum or the amount of $15,285.00 would be surcharged to Mrs. Mildred Alexander and her daughter, Miss Mildred Alexander, jointly or severally, for which judgment should be granted against these parties and such interest as may be distributed to them from decedent’s estate herein. That in so doing the Court recognizes that Mr. Clay’s services were necessary and were effective to protect the interest of the residual heir and beneficiary Caruth Alexander, III; and also of benefit indirectly to the estates of Caruth Alexander and Dorothy Alexander. That therefore the other one-half of the requested fees and expenses to be surcharged, i.e. $15,285.00, should be charged to or received from Caruth Alexander, III, beneficiary of both his parents’ estates.

The pronouncement from the bench made at the June 22, 1981, hearing is inexplicably different from the other which was later entered on July 8, 1981. The court apparently changed its mind after its pronouncement from the bench following the June 22 hearing. In such instances we note the court may change an order entered by it. Rule 60, A.R.Civ.P., Vol. 3A, Ark. Stat. Ann. (Repl. 1979); Ark. Stat. Ann. § 62-2015 (Repl. 1971). We have no alternative but to accept the court’s last order regarding this matter, there being no showing of mistake or fraud and, therefore, affirm the award of $30,570.00 attorney’s fees.

Appellants further argue that the trial court erred in surcharging $15,285.00 in attorney’s fees to them, because the will specified that expenses for administration be paid out of the residuary one-half of the estate. We cannot fully agree with this contention. At one time Mildred was the personal representative of the estate and as such was liable and chargeable for losses to the estate resulting from neglectful or willful breaches of duty in regard to the administration of the estate. Ark. Stat. Ann. § 62-2801 (Repl. 1971). The probate court specifically found that “Mrs. Mildred Alexander did breach her fiduciary duty, and did intentionally neglect her duties as personal representative ____” Therefore, the probate court did not err in surcharging her; however, it was error to surcharge Mary Alexander, a mere beneficiary, there being no authority for such action. Therefore, Mildred Alexander is liable for the total assessment of $15,285.00 under the court’s order holding appellants jointly and severally liable.

Appellants contend that the probate court erred in awarding First National Bank of Fort Smith an executor’s fee of $7,000. This fee was based primarily on approximately $100,000 which the estate received for flood easements and approximately $42,000 from farm rentals. Appellant alleges that since appellant had the absolute power to dispose of personal property under our ruling in Alexander, Ex’x v. Alexander, Ex’x, 262 Ark. 612, 561 S.W.2d 59 (1978), the money should not have gone to the Bank in the first place, and therefore the trial court erred in basing the executor’s fee on this amount. We cannot agree with this contention. We approved in Alexander v. First National Bank of Fort Smith, 275 Ark. 439, 631 S.W.2d 278 (1982), the Bank’s final accounting, which included the amounts received as flood-age easements and farm rentals. The amounts in question passed through the Bank’s hands; therefore, it was not error for the Bank to recover its fee based upon these amounts. Ark. Stat. Ann. § 62-2208 (Supp. 1981).

Appellants also argue that Mr. Clay is entitled to no compensation because he represented Caruth III while he was also appointed by the court to represent the Executor in Succession. We cannot agree with this contention. The record reflects that Mr. Clay represented Caruth III from 1970 through May 1978, and then represented the Executor in Succession from May 26, 1978, until the present time. As attorney for the executor in succession, he represented the interests of the estate and thus necessarily represented the interests of Caruth III to the extent that he was a beneficiary of the estate.

Appellant’s argument that an attorney employed by the personal representative must look to the personal representative for payment is also without merit. Ark. Stat. Ann. § 62-2208 (Supp. 1981) specifically authorizes the personal representative to employ legal counsel and contemplates that counsel’s fee will be paid by the estate.

Finally, appellants argue that the will created a residuary trust and that the probate court erroneously awarded attorney’s fees which were related to the trust since trust matters are within the jurisdiction of the chancery court. This argument is without merit. Here, the residuary trust does not come into existence until the estate is closed. Until then no trust is created and jurisdiction remains in probate.

Affirmed in part, reversed in part.


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    TWIN CITY CORPORATION, d/b/a TWIN CITY AGENCY v. Clifford RIGGINS, d/b/a RIGGINS TRUCKING
    82-206
    646 S.W.2d 10
    Supreme Court of Arkansas
    Opinion delivered February 21, 1983

      Friday, Eldredge ¿r Clark, by: William M. Griffin, HI, for appellant.

      Hankins, Capps, Hicks & Madden, by: Harold W. Madden, for appellee.
   George Rose Smith, Justice.

The appellee, Riggins Trucking, is a contract carrier that formerly obtained its insurance from the appellant, Twin City Agency, a local agent for various insurance companies. In 1976 one of Riggins’s trucks, leased for the trip to Willis Shaw Frozen Express, was in an accident in which Shaw’s cargo was destroyed. Riggins’s cargo insurance had been placed by Twin City Agency with Northwestern National Insurance Company, but Northwestern denied liability for the loss.

Riggins paid Shaw the amount of the loss, $32,190.84, and sued Twin City for that sum, asserting that Twin City had been negligent in failing to carry out Riggins’s instructions to arrange with Northwestern to have Shaw named as an additional insured in the policy. Twin City’s liability for negligence was the only issue submitted to the jury, whose verdict was for Riggins in the amount sought. Our jurisdiction of the appeal is under Rule 29 (1) (o).

At the trial all the testimony was directed to the issue of Twin City’s asserted negligence, but Twin City moved for a directed verdict on a different ground, that the loss was actually covered by Northwestern’s policy. The denial of that motion is the basis for Twin City’s principal argument for reversal.

There are at least two reasons why Twin City was not entitled to a directed verdict. First, paragraph 7 of the complaint alleged that after the loss Twin City had told Riggins that the loss was not covered by the policy because Shaw had not been added as a named insured. Paragraph 8 alleged that if Shaw had been added, Riggins would have been liable only for the $500 deductible amount. Twin City’s answer specifically admitted the allegations of both paragraphs, but asserted that the request for the added coverage was not timely. Hence the pleadings admitted that Riggins had coverage if the request was timely, and there was proof that it was. An issue of fact was presented.

Second, Mr. Riggins testified that his company was authorized to carry exempt commodities only, which he described as "produce, chickens, and certain things.” To carry regulated commodities he had to haul them "through somebody like Willis Shaw.” That was evidently the arrangement at the time of the accident, for there was proof that Shaw issued the bill of lading and that the cargo was frozen foods owned by Stouffer Foods Corporation. The policy, however, was evidently limited to exempt commodities, for it covered Riggins’s liability only for the loss of “lawful goods and merchandise consisting principally of poultry, produce, candy, boxed meat, janitorial supplies, patented medicine.” Hence it cannot be said as a matter of law that Riggins had any insurance protection in excess of $500 for the loss suffered. The motion for a directed verdict was correctly denied.

Twin City’s other two arguments fail, for essentially the same reason. Since the court’s action in refusing to direct a verdict was correct, it is immaterial that a wrong reason may have been given. Carolus v. Ark. Light & Power Co., 164 Ark. 507, 262 S.W. 330 (1924). On the same point, when the trial judge refused to direct a verdict at the close of the plaintiff’s case, he also denied defense counsel’s request that he be permitted to argue the matter of coverage to the jury. That ruling was right, because, as we have seen, under the pleadings and testimony the existence of coverage turned upon the timeliness of Riggins’s request and Twin City’s possible negligence in honoring it. Counsel were free to argue those issues.

Affirmed.


author: Darrell Hickman, Justice.

text:
    Verna Cook GARVAN v. POTLATCH CORPORATION et al
    82-224
    645 S.W.2d 957
    Supreme Court of Arkansas
    Opinion delivered February 21, 1983

      Moses, McClellan ir McDermott, by; Harry E. McDermott, Jr., for appellant.

      Haley ir Claycomb, by: Richard L. Roper, for appellees.
   Darrell Hickman, Justice.

Potlatch Corporation and others filed suit to set aside a tax deed to certain mineral interests in Pike County. The chancellor held the deed was void because the mineral interests, which were listed separately in the assessments books from the fee or surface interests, were not “subjoined” as the law and our decisions require. We agree and affirm.

In a line of cases we have held that when a tax deed to mineral interests derives from a defective assessment it is void. Adams v. Bruder, 275 Ark. 19, 627 S.W.2d 12 (1982); Stienbarger v. Keever, 219 Ark. 411, 242 S.W.2d 713 (1951); Sorkin v. Myers, 216 Ark. 908, 227 S.W.2d 958 (1950). See 12 Ark. L. Rev. 338, O. B. Core, Tax Forfeiture Problems in the Examination of Abstracts. Those cases all hold that when a separate assessment is made for mineral interests, the assessment must be “subjoined” to the fee assessment. The appellant argues the assessment was subjoined in this case, or at least that our holdings in those cases are distinguishable.

Subjoined means to add at the end, to append, to place in sequence or juxtaposition. THE RANDOM HOUSE DICTIONARY OF THE ENGLISH LANGUAGE 1415 (Unabridged ed. 1967).

In Sorkin v. Myers, supra, and Steinbarger v. Keever, supra, the severed mineral interests were listed in a separate book from the fee assessments. In Adams v. Bruder, supra, the mineral interests were listed at random in a separate section of the tax books. In each case we held the assessments were improper because the mineral assessments were not subjoined.

In Pike County the separate mineral assessments were listed in one section following the fee assessments. The appellant argues they were listed in the same book, easy to find, and consisted of only about one hundred separate assessments. In Sorkin, a separate book was used and over 4,000 different assessments were listed.

But the question is whether the separate mineral assessments were subjoined to the fee assessments, and we hold they were not. The separate assessments must be listed individually immediately after each respective fee or surface interest. That is the only way a fee holder or any interested person can readily and certainly determine the state of taxes on mineral interests that lie under the tract.

The appellant, in addition, argues that her tax deed that she obtained in 1956 gave her color of title and because she has paid taxes since, she had gained title under Ark. Stat. Ann. § 37-102 (Repl. 1962). She argues that she has also gained color of title by paying taxes on the mineral interests for over fifteen years. Ark. Stat. Ann. § 37-103. This court has held that those statutes refer only to wild, unenclosed land and, therefore, only to the surface rights. Brizzolara v. Powell, 214 Ark. 870, 218 S.W.2d 728 (1949).

The statute of limitations did not begin to run against the appellees because appellant never took actual possession of the minerals by opening and operating mines as required to claim adverse possession of mineral rights. Adams v. Bruder, supra; Claybrooke v. Barnes, 180 Ark. 678, 22 S.W.2d 390 (1929).

The appellant claims that since the appellees did not respond to her defenses of laches, estoppel and abandonment they should be taken as admitted. Those are defenses. No response to such averments is required by the Arkansas Rules of Civil Procedure. See ARCP, Rules 7 and 8 (d). Although the chancellor did not specifically address the estoppel issue, we do not find that appellant was precluded from offering evidence on the issue. Here, appellant was relying on a defective tax deed and had not taken actual possession of the minerals. We have reviewed the case de novo and we find no merit to the defenses asserted under the facts presented. See Adams v. Bruder, supra.

Affirmed.


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    Melvin Glenn HANEY v. STATE of Arkansas
    CR 82-137
    646 S.W.2d 9
    Supreme Court of Arkansas
    Opinion delivered February 21, 1983

      Harold W. Madden, for appellant.

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

The only question in this case is whether a city attorney’s acting as a criminal defense lawyer denies that defendant the effective assistance of counsel, a right granted by the sixth amendment to the United States Constitution. The trial court held that it does not and we affirm.

Melvin Glenn Haney was convicted in the Pulaski County Circuit Court of four counts of theft by receiving, three being felonies, one a misdemeanor. He was sentenced a total of six years imprisonment for the felonies and six months jail time for the misdemeanor.

Haney’s trial lawyer, evidently retained by him, was the city attorney of North Little Rock. Different counsel filed a motion for a new trial stating that a conflict of interest existed at Haney’s trial since the city attorney’s position was a prosecuting attorney’s role; that his trial counsel was charged with representing the city and sometimes the state against criminal defendants which was a role that necessarily conflicted with that of a criminal defendant’s attorney in the same county. It was not even suggested the trial lawyer was ineffective in his performance; indeed, it was conceded he had vigorously and ably represented the defendant. Therein lies the answer to the question. A defendant has the burden to prove ineffective assistance of counsel to the degree that he was deprived of his constitutional right. Blackmon v. State, 274 Ark. 202, 623 S.W.2d 184 (1981); Leasuxe v. State, 254 Ark. 961, 497 S.W.2d 1 (1973). No evidence at all was offered in this regard; it is merely argued that it was improper for the city attorney to act in this case and that that amounts to ineffective assistance of counsel. Haney buttresses the argument with the statement that this is especially true since all the investigating officers were North Little Rock policemen who look to the city attorney for advice, support, and representation from time to time. The trial court found that the appellant failed to sustain his burden of proof and we affirm.

We do not reach the question of whether it is improper from an ethical standpoint for a city attorney to so act or whether the trial court should have excused the trial lawyer on a proper motion. It is not necessary to answer those questions here, and we might later be called upon to review findings of misconduct by our Committee on Professional Ethics in this or similar cases. Even if the representation was improper, it could not void the trial court’s decision because the issue presented is ineffectiveness of counsel, not unethical conduct.

Affirmed.