author: Richard B. Adkisson, Chief Justice.

text:
    Nick WILSON v. ARKANSAS PUBLIC SERVICE COMMISSION
    82-239
    648 S.W.2d 63
    Supreme Court of Arkansas
    Opinion delivered March 21, 1983

      Appellant, pro se.

      Linda B. Lipe, Arkansas Public Service Commission, for appellee.

      McHenry, Skipper ir Barns, by: Robert M. McHenry, Jr., for intervenor, Carolyn Pollan.
   Richard B. Adkisson, Chief Justice.

The Pulaski County Circuit Court affirmed the order of appellee, Arkansas Public Service Commission, which allowed Arkansas Oklahoma Gas Company to charge its customers in Eastern Arkansas more than its customers in Western Arkansas and denied the request of appellant, Nick Wilson, to equalize the rates between the two areas. On appeal we affirm.

Arkansas Oklahoma Gas Co. (AOG) serves customers in both Eastern and Western Arkansas. There are 35,435 customers in the Western Division and 3,666 in the Eastern Division. AOG purchases the gas it sells to Eastern Arkansas from the Mississippi River Transmission Company, and the cost of this gas is much higher than AOG’s own gas. The more expensive gas must be purchased for Eastern Arkansas because AOG is unable to transport its gas supplies in Western Arkansas to Eastern Arkansas. The cost differential results in Eastern Arkansas customers paying about $80 more per year for gas than those customers in Western Arkansas.

On December 1, 1980, AOG requested that the PSC grant it a general rate increase for its service to Arkansas. Under the rate increase Eastern Arkansas would continue paying higher rates. Appellant filed a motion to intervene in the case, alleging that the separate rates allowed an unreasonable preference between localities and requesting that the rates be equalized. According to appellant, equalization would result in Eastern Arkansas customers paying substantially less per year while Western Arkansas customers would pay only a small amount more per year. The PSC allowed appellant to intervene and also allowed intervention by Western Arkansas customers. A hearing was held, with both sides presenting testimony. The PSC then ruled that there was a real cost differential between the two areas and that the cost differential was based upon a reasonable and fair difference in conditions which justified the different rates.

Appellant argues that the Commission’s order violates Ark. Stat. Ann. § 73-207 (Repl. 1979) which provides:

Unreasonable preference prohibited. — No public utility shall, as to rates or services, make or grant any unreasonable preference or advantage to any corporation or person or subject any corporation or person to any unreasonable prejudice or disadvantage. No public utility shall establish or maintain any unreasonable difference as to rates or services either as between localities or as between classes of service. The Department [Commission] may, in the exercise of its jurisdiction herein granted, fix uniform rates applicable throughout the territory served by any public utility, whenever in its judgment public interest requires such uniform rates. The Department [Commission] may determine any question of fact arising under this section.

Appellant agrees that the cost of gas purchased from the Mississippi River Transmission Company for the Eastern Division is a separate cost incurred only in connection with that area, but alleges that a difference in the cost of gas is not a reasonable basis for charging one group of ratepayers more than other ratepayers. Appellant relies on Missouri Ex rel. De Paul Hospital School of Nursing v. Missouri Public Service Comm., 88 P.U.R. 3rd 412, 464 S.W.2d 737 (1970) for the proposition that a utility cannot charge two or more rates for the same service. Appellant ignores the fact that the utility company in that case charged different rates for substantially the same service “under substantially the same circumstances and conditions.” Here, the circumstances and conditions upon which AOG’s rates are based are not the same. It is undisputed that AOG must pay a base price of $2.521778 for gas for the Eastern Division as compared to $1.879559 for the Western Division.

Furthermore, our statute does not prohibit differences in rates; it merely prohibits unreasonable rate differences. The PSC found that the base price of gas, the cost of transporting the gas, and the fact that the discontinuance of the differential would discriminate against the area having the lesser costs were reasonable differences which justified the higher cost for Eastern Arkansas. We have repeatedly held that if the PSC’s order is supported by substantial evidence and is not arbitrary it is our duty to permit it to stand. Inc. Town of Emerson v. Ark. Public Service Comm., 227 Ark. 20, 295 S.W.2d 778 (1956). Such is the case here.

In support of its equalization argument appellant points to the fact that AOG equalizes its Western Arkansas rates, even though it obtains gas for five towns from Arkla. This is true, but appellant overlooks the fact that the gas from Arkla is obtained pursuant to a swapping arrangement which does not affect the cost.

To further support its argument, appellant alleges that with PSC approval Arkla equalizes its rates in Arkansas even though it too must purchase more expensive gas for nine cities in Southwest Arkansas. However, the PSC is not required to make the same decision in every rate case, but must take into consideration the particular circumstances of each case. See Southwestern Bell Telephone Co. v. Ark. Public Service Comm., 267 Ark. 550, 593 S.W.2d 434 (1980).

Affirmed.

Dudley, J., not participating.


source: Caselaw Access Project

license: Public Domain

text:
    OKLAHOMA GAS AND ELECTRIC CO. v. John LANKFORD & Beverly LANKFORD, Individually and As Representatives of a Class Composed of all Customers of Oklahoma Gas and Electric Co. in the State of Arkansas
    82-254
    648 S.W.2d 65
    Supreme Court of Arkansas
    Opinion delivered March 21, 1983

      Bryan & Fitzhugh and House, Holmes & Jewell, P.A., for petitioner.

      Steve Clark, Atty. Gen., for John G. Holland, Circuit Judge.

      Martin, Vater ir Karr, by: Charles Karr, for respondents.
   Richard B. Adkisson, Chief Justice.

Petitioner, Oklahoma Gas and Electric Company (OG&E), seeks to prohibit the Sebastian County Circuit Court from exercising jurisdiction over a class action suit for declaratory judgment filed by respondents, customers and ratepayers of petitioner. Respondents requested that that part of Ark. Stat. Ann. § 73-217(Repl. 1979andSupp. 1981) which allows a utility to collect a requested rate increase under bond be held unconstitutional; that Article 19, Section 13 of the Arkansas Constitution be held not to limit the amount of interest paid to customers on a refund; and that other ancillary relief be awarded. OG&E filed a motion to dismiss, which the trial court denied; this petition for a writ of prohibition followed.

In its petition OG&E argues that the respondents’ contentions should have been presented before the Arkansas Public Service Commission (PSC) rather than the circuit court because the PSC has exclusive jurisdiction over matters pertaining to utility rates. We agree and grant the writ of prohibition.

The facts of the case are not in dispute. On May 18,1980, OG&E filed a notice with the PSC requesting a 17.8 million dollar rate increase. On October 20, 1980, prior to approval of the requested rate increase, OG&E began collecting the increase under bond, a practice authorized by Ark. Stat. Ann. § 73-217. By orders of May 18 and July 20, 1981, the PSC approved a rate increase of 11.9 million dollars and ordered OG&E to refund, with ten percent interest, the difference between the amount approved and the 17.8 million dollar rate being collected. Respondents did not seek to intervene or request a hearing before the PSC but, later, on August 11, 1981, filed an original complaint in circuit court.

We have considered the question of the trial court’s jurisdiction in several utility rate cases which are controlling in this instance. In McGehee v. Mid South Gas Co., 235 Ark. 50, 357 S.W.2d 282 (1962) McGehee, a stockholder in Mid South Gas Company, filed a complaint in chancery court attacking the validity of a merger agreement between Mid South and Arkansas Louisiana Gas Company. Mid South moved to dismiss the chancery court case on the ground that the same questions between the same parties were then pending before the PSC. McGehee answered, claiming that the PSC was without jurisdiction to determine the issues raised by the stockholders’ suit. The chancery court dismissed the complaint and this court affirmed, holding that McGehee’s remedy before the PSC was full, adequate, and complete and, therefore, the chancery court correctly declined to exercise jurisdiction.

In Commercial Printing Co. Inc. v. Ark. Power & Light Co. & Ark. Public Ser. Comm., 250 Ark. 461, 466 S.W.2d 261 (1971) the PSC entered a rate order which permitted a utility company to charge a penalty for late payments. No consumer intervenors appealed the PSC order to circuit court within the allotted time, but later Commercial Printing filed an original action in the circuit court alleging that the PSC’s order was void because the penalty was discriminatory and usurious. The trial court dismissed, and we affirmed, following our holding in McGehee, supra.

Then, in General Telephone Co. v. Lowe, 263 Ark. 727, 569 S.W.2d 71 (1978) the PSC allowed General Telephone to raise its rates in Texarkana, Arkansas, contrary to a franchise agreement between General Telephone and the City of Texarkana, Arkansas. A class action suit was filed in the chancery court to prohibit the enforcement of the rate increase, thereby bypassing an intervention before the PSC. The chancellor decided the case on the merits. On appeal this court held that a court of equity does not have concurrent jurisdiction with the PSC in public utility litigation when there is a clear, adequate, and complete remedy by an application to the PSC.

Here, under McGehee, Commercial Printing, and Lowe, respondents had a full, adequate, and complete remedy by intervention in the proceedings before the PSC. At that time the PSC could have ruled on the constitutionality of Ark. Stat. Ann. § 73-217 and the other issues which respondents are now raising. The PSC, in exercising its exclusive jurisdiction over rate setting, can also pass upon questions of law that are germane and incidental to its legislative acts. General Telephone Co. v. Lowe, supra.

Writ of prohibition granted.


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

text:
    Judy Ann Phillips TATE v. Valda GREGSON and Shelby PHILLIPS, Co-executors
    82-246
    648 S.W.2d 447
    Supreme Court of Arkansas
    Opinion delivered March 21, 1983
    [Rehearing denied May 2, 1983.]

      Anthony W. Bartels and Val P. Price, and Homer E. McEwen, Jr., for appellant.

      Henry & Mooney, by: John R. Henry, for appellees.
   George Rose Smith, Justice.

Jennie Phillips Dunlap, age 84, died in 1980. Her will, made in 1975, left her residuary estate equally to thirteen named nieces and nephews. Judy Ann Phillips Tate, a niece not named in the will, intervened in the probate proceeding to claim a one-fourteenth share of the estate. She appeals from an adverse decision holding that the testatrix intended a gift to the named individuals rather than to her nieces and nephews as a class. Our jurisdiction is specified by Rule 29 (1) (p).

Three paragraphs of the will are pertinent. After making a provision for the support of her two living brothers the testatrix went on to declare in her will:

After the death of both my brothers, my will may be fully executed. My estate is to be divided equally among those of my nieces and nephews still living at the time of the death of the last of my surviving brothers]....
My nieces and nephews are namely: Pearlie Wood, Ira Lewis, Frances Martin, and Lillie Surber; Ruby Baskin, Olean Box, and Wilma Hurdle; Sylvia Majstoravith and Eugene Phillips, Jr.; Myrtle Taylor, Mirl Phillips, Valda Gregon, and Shelby Phillips; making a total of thirteen (13) nieces and nephews.
##*###
All the rest, residue, and remainder of my estate not heretofore disposed of, I give, devise, and bequeath in equal shares to those of my nieces and nephews still living at the time of death of my last surviving brother

The probate judge correctly ruled that the case is controlled by Rand v. Thweatt, 222 Ark. 556, 261 S.W.2d 778 (1953), where we held that in a case of this kind the decisive inquiry is whether the testatrix was looking to the body of persons as a unit or to them as individuals. We quoted several pertinent principles from Page on Wills, including these:

If the gift is made to beneficiaries by name, the gift is, prima facie, not one to a class, even if the individuals who are named possess some quality or characteristic in common.
#####*
If the names of the members of the class as well as the number of the members are given, the inference is quite strong that the gift is to individuals, and not to a class.

Here the will not only named the nieces and nephews but also stated, “making a total of thirteen (13) nieces and nephews.” The inference against a class gift is therefore quite strong.

In Rand we observed that in attempting to ascertain the testatrix’s intent we had only the will itself, unaided by extrinsic evidence or circumstances. In this case, however, we do have extrinsic circumstances. The appellant, born in 1952, was the illegitimate daughter of the testatrix’s brother, Eli Phillips, then 60, and Bobbie Ray Hindman, then 21. Phillips and Ms. Hindman had lived together for about five years, but they separated about two years after the appellant’s birth, with the appellant thereafter living with her mother. Eli Phillips died in 1962, thirteen years before the testatrix made her will. It is shown that the testatrix knew that the appellant was Eli’s child. Even though the Supreme Court of the United States has held that the equal protection clause of the Fourteenth Amendment prohibits discrimination against illegitimate children, that clause applies only to actions by a state, not to actions by individuals. The testatrix was therefore at liberty, if she chose to do so, to exclude from her bounty an illegitimate niece who had lived with her father, the testatrix’s long since deceased brother, for only about two years. Hence the prima facie inference against a class gift that arises from the will itself is strikingly confirmed by the extrinsic circumstances.

The question presented by this case is not even superficially similar to that considered in Walker v. Case, 211 Ark. 1091. 204 S.W.2d 543, 173 A.L.R. 1009 (1947), relied upon by the appellant. There the testator’s next of kin were his five surviving children and six grandchildren, the children of the testator’s deceased daughter. The will contained bequests to the surviving children of the testator and made this reference to the grandchildren: “I give to my five grandchildren, who are children of my daughter Bert Rand Finley, deceased, the sum of $50 (fifty dollars) each.” The six grandchildren made the novel argument that they were not even mentioned in the will and were therefore entitled to a sixth of the estate, as pretermitted descendants of the testator. The court cited many cases holding that, under the statute requiring that children or their descendants be mentioned in the will, it is sufficient to refer to such children or grandchildren as a class. The court reached the obvious conclusion that since the will mentioned the deceased daughter’s children as a class (not by name, as here), the reference was sufficient to satisfy the statute. How that case can be thought to control this one escapes us.

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. I believe this was clearly a class gift and not an individual one. It may well have been that the testatrix intended to eliminate the illegitimate niece but in my opinion she failed to do so. Had she stated that the gift was to “the following named nieces and nephews,” and then named them this would clearly have been an individual gift to each niece and nephew. However, she stated: “My estate is to be divided equally among those of my nieces and nephews still living...” The next paragraph attempted to name her nieces and nephews but this seems to have been merely an effort to assist an executor in contacting the members of the class. There may even have been other members of the class other than appellant.

The majority opinion appears to be in direct contradiction to our holding in Walker v. Case, Ex’r, 211 Ark. 1091, 204 S.W.2d 543 (1947), wherein we held that a gift by the testatrix to “my five grandchildren, who are children of my. daughter ...” was a gift to her six grandchildren as a class. There is no distinction between the two cases that I can see. Therefore, I presume we are overruling Walker and several others holding to the same effect, and I cannot agree.


author: George Rose Smith, Justice.

text:
    Reginald Lee WADE v. STATE of Arkansas
    CR 82-151
    648 S.W.2d 66
    Supreme Court of Arkansas
    Opinion delivered March 21, 1983

      William R. Simpson, Jr., Public Defender, by: Jackson Jones, Deputy Public Defender, for appellant.

      Steve Clark, Atty. Gen., by: Velda P. West, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

The circuit judge, hearing the case without a jury, found the appellant guilty of aggravated robbery and, after considering a pre-sentence report disclosing a number of prior offenses, imposed a 35-year sentence. The only argument for reversal is that the prosecutrix’s identification testimony was tainted by the inclusion of four separate photographs of Wade among 200 or more photographs that the witness examined at police headquarters in picking out Wade as the man who robbed her. No error is shown.

There is no indication that either the prosecutrix or the police knew the identity of the criminal when she looked through the file of photographs. Thus there is no intimation that the inclusion of four pictures of Wade was deliberate. The prosecutrix testified that in the file there was sometimes one picture of a suspect, sometimes two, sometimes five. She was positive in her identification of Wade at the trial, saying that she had seen his face for probably four minutes on a bright sunny afternoon during the robbery, which was only a day or so before she went through the photographs.

In West v. State, 255 Ark. 668, 675, 501 S.W.2d 771 (1973), we upheld an identification although the twelve pictures shown to the prosecutrix included two each of the defendant and of three other suspects. Where, as in the case at bar, several pictures of the ultimate defendant are included among hundreds of pictures, without improper motive, it is reasonable to think that a combination of various pictures of the same person might materially assist the witness in the identification process, both in the selection and in the rejection of possibilities. Moreover, the trial judge expressed his conviction that the prosecuting witness had identified the defendant “to an absolute certainty.” His decision is not clearly erroneous.

Affirmed.


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

text:
    Steven BROWN v. STATE of Arkansas
    CR 82-115
    648 S.W.2d 67
    Supreme Court of Arkansas
    Opinion delivered March 21, 1983

      Jack R. Kearney, for appellant.

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

The appellant was convicted by a jury of two counts of aggravated robbery (Ark. Stat. Ann. § 41-2102 [Repl. 1977]) and one count of first degree battery (Ark. Stat. Ann. § 41-1601 [Repl. 1977]). The jury fixed punishment at 15 years imprisonment for each count of aggravated robbery and 12 years for first degree battery. The court ordered that the sentences run consecutively. The appellant argues two points for reversal. We affirm.

The appellant first contends that there was insufficient evidence to support the verdict. On appellate review we seek to determine whether the verdict is supported by substantial evidence, which means whether the jury could have reached its conclusion without having to resort to speculation or conjecture. Cassell v. State, 273 Ark. 59, 616 S.W.2d 485 (1981). In determining the sufficiency of the evidence, it is necessary to ascertain only that evidence favorable to the appellee, and it is permissible to consider only the testimony that tends to support the verdict of guilt. Chaviers v. State, 267 Ark. 6, 588 S.W.2d 434 (1970); Rhodes v. State, 276 Ark. 203, 634 S.W.2d 107 (1982). The credibility of the witnesses and the weight to be given their testimony are for the jury. Sanders v. State, 276 Ark. 342, 635 S.W.2d 222 (1982). Where the testimony is conflicting, this court does not pass upon the credibility of the witnesses and has no right to disregard the testimony of any witness after the jury has given it full credence. Barnes v. State, 258 Ark. 565, 528 S.W.2d 370 (1975).

Viewing the evidence most favorable to the appellee, the state adduced the following. Thomas Foltz, then a student at Central High School in Little Rock, accompanied Holly Herndon to Central’s football game on the night of October 9, 1981. After they left the game, they returned to Foltz’s car, which was parked in front of a house at the corner of Thirteenth and Dennison. After Foltz had seated Herndon on the passenger side and began to walk around the car, two black males approached, pulled guns, and stated, “We want it all.” The assailants were in a yard ten or twelve feet away when Foltz first saw them. Foltz gave them money from his wallet and his watch, and Herndon gave them two rings. One of the assailants then fired a shot that narrowly missed Foltz’s head and wounded Herndon. Another shot was fired into the car.

Foltz testified that the assailants were similar in size and build to the appellant and the codefendant. However, neither he nor Herndon could positively identify either one of them. Lisa Elliot, a student at Central, testified that she had known the appellant as a fellow student during the preceding school year. She saw him and another person following Foltz and Herndon to their car. A short time later she saw appellant and another person when they ran in front of her and “bumped” her date, who did not testify. She said, “‘What’s going on?’ And they kept on going.” She did not see the robbery. She received $500 as reward money. Carlos Brodie, appellant’s acquaintance, testified that when he drove through the street where and about the time the shooting occurred, he saw the appellant in that area. Mark Moore, who knew the appellant, testified that he saw the appellant twice on the evening of the shooting, once about dusk and a second time when he saw the appellant leaving the game. He also testified at a pretrial hearing that he saw the appellant in a pool hall sometime after the shooting and heard him brag, “I should have shot that redneck in the head.” Although at trial, Moore stated that he could no longer remember the events to which he had testified 13 days earlier at the hearing, he did remember giving the recited testimony. Appellant denied any complicity in the robbery and shooting. He maintained that he was not in the vicinity of Central High School at any time on the day of the shooting and was attending the Arkansas State Fair. Numerous witnesses testified in support of appellant’s alibi by placing him at the State Fair during the entire afternoon and evening when the shooting and robbery occurred. Appellant and his brother testified that appellant had not been a student at Central the preceding year in contradiction of a portion of Elliot’s testimony. Appellant denied that he had ever been in the pool hall where Mark Moore saw him.

Although the evidence connecting the appellant to the crime is circumstantial, the law makes no distinction between direct evidence of a fact and evidence of circumstances from which a fact may be inferred. Cooper v. State, 275 Ark. 297, 628 S.W.2d 324 (1982). In Harshaw v. State, 275 Ark. 481, 631 S.W.2d 300 (1982), we unanimously found substantial evidence to support an aggravated robbery conviction where the appellant was placed at the scene of the robbery immediately before and after it occurred, and his conduct was explainable only in connection with it. Here, Lisa Elliot, whom the jury was entitled to believe, saw the appellant following the victims and shortly thereafter running away from the scene of the crime. Carlos Brodie placed him near the scene of the alleged offense. Mark Moore saw him before the game and also leaving the game and heard him make incriminating remarks about the alleged offense. Each of these witnesses contradicted appellant’s alibi defense.

A j ury’s finding on an alibi defense is conclusive on that issue. McCraw v. State, 262 Ark. 707, 561 S.W.2d 71 (1978); and Butler v. State, 198 Ark. 514, 129 S.W.2d 226 (1939). Reconciling conflicts in the testimony and weighing the evidence are within the exclusive province of the jury, and it is the jury’s prerogative to accept such portions of the testimony which it believes to be true and discard that deemed false. Houpt v. State, 249 Ark. 485, 459 S.W.2d 565 (1970); Sanders v. State, supra; and Barnes v. State, supra. Here, viewing the evidence most favorable to the state, as we must do on appeal, we hold there is substantial evidence to support the jury’s verdict.

The appellant asserts that the trial court erred in sentencing the appellant in that it abused its discretion in weighing aggravating and mitigating factors. He argues that the trial court should have granted his request to have a pre-sentence report prepared before entering sentence. The only authority for pre-sentence investigation in our criminal code is Ark. Stat. Ann. § 41-803 (Repl. 1977), which states that the court “may” order a pre-sentence investigation, if it fixes punishment. We find no authority requiring the court to do so here.

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. In dissenting in this case I realize that if this view were to prevail it would overturn the jury verdict. In my opinion this is one of the very few cases in which the jury should not have been allowed to consider the facts. The underlying reason being that there are no facts to support the verdict, thus a directed verdict should have been granted. I believe the appellant is a victim of a demanding public who wants to see that this particular crime is vindicated. It is my sincere belief that the appellant was convicted because of this public demand and because he happened to fit the description of one of the persons who committed the crime. Not one single person testified to seeing the appellant participate in the crime nor did anyone even observe him standing by the victim’s vehicle. The dastardly crime resulted in the senseless shooting of a respected, popular and talented white teenager by two unknown black males. There was soon raised a public hue and cry for the apprehension of the perpetrators. Certainly the public was justified in demanding that justice be done. However, that demand for justice has, in my opinion, resulted in a severe injustice.

The function of the judiciary in this case is to require that our laws be strictly adhered to and not to join the mob in punishing a person conveniently at hand. Thomas Jefferson said: “A society that trades a little liberty for a little order will deserve neither and lose both.” Taking the liberty of one person unjustly is the first step in taking liberty from all the people. Even a fairly constituted jury may occasionally reach a verdict which has no basis in the facts of the case; in my opinion that is exactly what happened here. It is necessary for the evidence to be reviewed very carefully in order to view the injustice.

On October 9, 1981, McClellan High School played a football game at Central High School. Thomas Foltz and Holly Herndon attended the game, then returned to his car, which was parked near Central. It was at this time that they became victims of an aggravated robbery during which Holly was shot by one of the two black male participants in the robbery. Neither Foltz nor Herndon ever identified the appellant as being one of the criminals. In fact, when Foltz first viewed mug shots at the police station he picked out two other persons besides appellant as suspects. He was obviously honest and truthful. His identification testimony is summarized by his answer to a question in which he stated: “So my identification is in no way positive.” He continued by saying that the two persons being tried were about the same size as the ones who robbed him and Holly. He further stated the two who robbed them appeared to him to look about the same as several hundred other blacks who attended Central. Holly Herndon, the victim of the robbery and shooting, stated she did not see the robbers until she was inside the car. She did not identify the appellant as one of the criminals who shot her.

The chief witness for the state was a female student at Central. Her testimony, both at the omnibus hearing and at the trial, was very contradictory and ambiguous. She stated she saw appellant and the other accused walking behind the victims and headed toward the student parking lot. This would have caused the appellant to go north from Fourteenth Street. However, Foltz stated that he observed the robbers coming south on Dennison from Twelfth Street. This witness stated she spoke to the victims when they left the stadium after the game but neither Foltz nor Herndon remembered seeing the witness, who stated she left with her date before the game was over. This witness testified she had met the appellant several times the year before, during school hours. However, the proof revealed appellant was not a student at Central the previous year. She claimed to have observed the appellant running away from the scene. This was immediately after a high school football game when hundreds or maybe thousands of people were scurrying about, leaving the game. Although this witness testified she was at or very near the scene, she first learned about the incident a few days later when she called her mother. Two pistol shots were fired and some nearby people were screaming yet this witness neither heard nor saw either. When a local television station re-enacted the scene during a program called “Crimestoppers” this witness learned there was a reward being offered for information leading to the arrest of suspects in the highly publicized case. She subsequently identified two persons, one of which was appellant, and received a five hundred dollar reward. Although this witness left the game with several friends none of them ever indicated that they observed anything the witness testified about. Even her date, whom she alleges was knocked down by one of the people she saw, did not corroborate her testimony. On cross-examination the witness admitted that the name of the appellant was first suggested to her by Mr.. Maples, the principal. This portion of her testimony is best described in her own words when she stated:

I read in the paper that there was a reward for this, and that the reward consisted of $1,500.00. I received $500.00 for my statement. I did not give the name of Steven Brown or Charles Robinson to Mr. Maples, he gave them to me. He suggested the names to me.

If everything this witness said were considered true and accurate, all it did was place appellant near the crime scene where there were several hundred others matching appellant’s physical appearance. Any of the others meeting this general description could have been convicted upon the evidence presented at this trial.

Carlos Brodie, another witness for the state, testified that he drove past the scene of the crime and saw appellant’s face in the crowd. The shooting had taken place before the witness drove past. The only other witness who gave any information of value to the state was Mark Moore. This witness testified that he observed appellant on the school grounds after the ballgame. At a date perhaps as long as a week later the witness stated he met appellant at a pool hall and appellant was bragging about shooting a redneck and stated: “I should have shot him in the head.” Without any showing whatsoever that there was a connection between the statement and the crime in question I find this statement to be wholly without value and think it was prejudicial and should not have been admitted into evidence.

An extensive investigation by the Little Rock Police Department failed to turn up a weapon or any evidence linking appellant to the shooting and robbery. The testimony most favorable to the state reveals that appellant was among the crowd leaving the stadium after the ballgame. Victim Foltz clearly remembers his assailants came from the north and were headed south toward Thirteenth street. The victims are the only known witnesses and neither could identify the appellant as one of the attackers. The witness who received $500 reward and learned the name of appellant from her principal claims the appellant was heading north behind the victims immediately before the incident.

I believe we should consider the testimony of appellant’s witnesses because of the absence of direct evidence. Stephanie Herbert, Anthony Brown, Tracy Bryles, Wesly Bryant, Booker Edwards, and Leon Minor all testified the appellant was at the fair at the time of the robbery. Evelyn Minz, a teacher, identified Tracy Bryles and stated she talked to Tracy at the fairgrounds about the time Holly Herndon was shot near Central High.

The evidence that appellant was at the fair during the time this crime was committed is overwhelming. I believe there is a complete lack of credible evidence on the part of the state to support a conviction. There is no need to cite authority for the proposition that a person is presumed innocent until proven guilty beyond a reasonable doubt. The presumption of innocence is a fundamental right in the American system of criminal justice. It predates the Constitution and is an essential element of due process. Williams v. State, 259 Ark. 667, 535 S.W.2d 842 (1976). Conjecture and speculation are the only means the jury could have used to convict the appellant upon the evidence presented in this case. There is absolutely no substantial evidence in the record of this case. Not one witness testified that appellant was one of the participants of the crime nor was there a single piece of tangible evidence indicating appellant’s guilt. Even the cases cited in the majority opinion state unequivocally that evidence, circumstantial or otherwise, must be substantial. There is simply no substantial evidence in this case. The judge should have directed a verdict for the appellant. Not to do so under these circumstances constitutes reversible error. For this reason, I would reverse and dismiss.


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

text:
    Lee Francis HARRIS v. STATE of Arkansas
    CR 80-183
    648 S.W.2d 47
    Supreme Court of Arkansas
    Opinion delivered March 21, 1983

      William R. Simpson, Jr., Public Defender, and Howard Koopman, Chief Deputy Public Defender, by: Carolyn P. Baker, Deputy Public Defender, for appellant.

      Steve Clark, Atty. Gen., by: William C. Mann, III, Asst. Atty. Gen., for appellee.
   Darrell Hickman, Justice.

Harris was convicted of attempted capital murder and sentenced to twenty-five years. On appeal we remanded the case for the trial court to make a specific finding of whether Harris’ confession was voluntary. Harris v. State, 271 Ark. 568, 609 S.W.2d 48 (1980). The trial court heard additional testimony and held that the statement was voluntary and admissible.

We did not review the totality of the circumstances surrounding Harris’ statement on his first appeal and must do so now. The test we apply is whether, considering the totality of the circumstances, we can say that the trial court’s decision that the statement was voluntary is clearly erroneous. Dillard v. State, 275 Ark. 320, 629 S.W.2d 291 (1982); Tucker v. State, 261 Ark. 505, 549 S.W.2d 285 (1977).

Harris was certainly acting in a strange and bizarre manner the day he attempted to shoot a police officer. He had been spraying a mixture of orange juice and milk on a neighbor’s yard and she called the police. Harris shot at a police officer who tried to apprehend him. After a gun battle, Harris ran and hid in his house, surrendering two hours later.

Hariris was immediately taken to the police station and advised of his rights. He waived those rights in writing and thirty-five minutes later signed a short statement admitting that he tried to shoot the officer.

After entering a plea of not guilty and not guilty by reason of insanity, Harris was admitted to the Arkansas State Hospital. Thereafter Dr. W. R. Oglesby, Director of Forensic Psychiatry Services, wrote the trial judge that Harris was unable to stand trial because of his mental state; that he suffered from a mental disease or defect to the degree that he could not cooperate in his own defense and that he did not understand the criminality of his conduct. Harris was kept at the hospital and treated and a few months later was found competent to stand trial.

Dr. Oglesby and two psychiatrists who treated Harris all gave testimony at Harris’ trial and hearings that it was their unanimous conclusion that Harris was a psychotic paranoid schizophrenic and was so at the time of his arrest. Harris’ mother and brother testified that Harris had been ill for several years and described some of his bizarre behavior. Harris had never in the past been treated for a mental disorder, however.

Both of the officers who weré with Harris when he made his statement, and another officer who was present at Harris’ arrest, testified that Harris’ behavior was not unusual considering the circumstances; that he calmly acknowledged his rights, signed a waiver and answered their questions clearly and coherently. The officers said that they had been told Harris had a hearing defect, but that, otherwise, they knew of no physical or mental disorder and that he had not exhibited any signs of one. Police officers routinely deal with people who act in a bizarre manner but who are not necessarily insane.

The officers’ testimony directly contradicted the medical testimony that Harris was probably not lucid enough to knowingly waive his rights and make a voluntary statement and that Harris could not rationally follow a chain of questions without incoherent or rambling answers.

There is no evidence that the officers used any force, physical or otherwise. Harris’ statement was routinely transcribed and was completed within thirty-five minutes after Harris acknowledged and waived his rights.

Can we say as a matter of law that one diagnosed as a paranoid schizophrenic could not six weeks earlier have made a voluntary statement? Must we say that lay witnesses’ testimony that a person seemed normal and clearly seemed to understand questions has to be disregarded when it conflicts with medical testimony? We would have to answer both questions “yes” to reverse the trial court. Furthermore, there are few absolutes in the diagnoses of such individuals or the certainty of their condition on given days, and the medical witnesses in this case could not say more than what Harris’ condition probably was the day that he was ques-. tioned. Additionally, we cannot just ignore the trial court’s findings. Degler v. State, 257 Ark. 388, 517 S.W.2d 515 (1974).

This case is easily distinguishable from Blackburn v. Alabama, 361 U.S. 199 (1960), where the United States Supreme Court overturned a conviction because the appellant, a former mental patient, had confessed after being interrogated nine hours by three officers in a tiny room.

We cannot say that the evidence in this case compels a finding that the trial court’s decision was clearly wrong.

Affirmed.

Purtle and Hays, JJ., dissent.

John I. Purtle, Justice,

dissenting. In reviewing the totality of the circumstances I do not see how it could be said that the appellant was not incompetent by reason of mental disease or defect. With the exception of the officers who arrested the appellant, all other witnesses (including four psychiatrists) stated he had been acting in a strange and bizarre manner for a long time. The fact that he signed a statement has no bearing on his competency. A five year old child or a lunatic would likely sign any statement requested by an officer of the law. I doubt that we would hold such a statement to be incriminating.

It would take at least a dozen pages to enumerate all the evidence of appellant’s incompetency. I will list only the most obvious testimony relating to his mental condition. He first started having delusions in 1976 when he claimed strange men came into his room and attacked him. No other members of the family observed any intruders. He called an ambulance and had it take him to the state hospital but he returned home without treatment. During 1977 he claimed to be the owner of the rented house where he and the family lived. He refused to pay rent but tried to collect rent from the family instead. He started burning copper scouring pads on the stove in order to rid the house of odors. Although appellant was unmarried he claimed to have a wife and children. The family stated that he started talking incoherently in 1976 and continued until he was arrested for the offense for which he has been convicted which was just after spraying a neighbor’s woodpile with a mixture of milk and orange juice to get rid of unwanted things. This mixture had been used by him in spraying the house where he lived to get rid of rats, varmints and unwanted people. Eventually all the members of his family moved out of the house because they were afraid of him and thought he was mentally disturbed. He kept with him a little spray bottle filled with orange juice and milk in case he needed to spray such things while he walked, obviously including the neighbor’s woodpile.

The appellant exhibited typical symptoms of one suffering from paranoid schizophrenia and/or psychosis since his disability commenced in 1976. Frequently he thought people were trying to kill him and at various times felt he was working with the police and/or the FBI. In 1976 he was charged with some type of offense which required his appearance before a judge. Although the charges were dropped, the trial judge suggested that appellant seek psychiatric help. The appellant also has a severe hearing loss for which he was receiving disability payments. He sometimes wears a hearing aid for the condition, but people oftentimes have to yell to get his attention.

Officer David Sanders was called to the area of 4001 West Thirteenth Street. A Ms. Gant informed officer Sanders that a gentleman had come by her house spraying a substance in her yard and on her woodpile. Ms. Gant identified the appellant walking south on Cedar Street. He was carrying a bottle with a spout on it. Officer Sanders walked up to the appellant, who was proceeding down the sidewalk, and stated: “I need to talk to you for a minute.” The appellant looked at Sanders and continued to walk away. The officer tapped appellant’s shoulder and stated: “Mister, I need to talk to you for a minute.” The officer then took hold of appellant’s shoulder. Appellant turned quickly to face the officer. The officer had pulled his gun and cocked it while pointing it toward appellant. The officer backed up, tripped over something and fell. As the officer was falling his gun hand was extended into the air. The appellant grabbed the officer’s hand and gun at that time. The officer then pulled the trigger because he thought the appellant was trying to turn the gun on him. Appellant screamed and jumped backwards. However, during the scuffle, and after the first shot was fired, the officer dropped his weapon on the ground. By this time the appellant had pulled a gun and pointed it, “right between my eyes” according to Sanders. Appellant’s weapon was then fired, the bullet grazing the officer’s head. The appellant then picked up the officer’s weapon “ ... stood there and looked at it, you know, like he didn’t know what to do with it... ” according to Sanders, and fired a shot at him as he was departing the scene. Immediately after this incident the appellant retreated to the confines of his home where he barricaded himself in until he was forced out by tear gas. The whole episode began when the officer approached the appellant, who was suffering from a hearing disability and at the time was merely walking down the sidewalk, demanding to talk with him. Everyone who has knowledge of people with certain mental disabilities as the ones under which appellant suffered knows that they are especially resentful of people taking hold of or touching them. There was also testimony that appellant feared someone was trying to kill him.

The appellant was subsequently sent to the Arkansas State Hospital for detention, care, and treatment. At least four psychiatrists: Dr. Hamed, Dr. Ninan, Dr. Oglesby and Dr. Whitehead were all of the opinion that appellant was suffering from mental illness, namely schizophrenia, paranoid type, to such a degree that he was unable to understand the nature of the proceedings against him, and did not have the mental ability to aid in his own defense. In other words, he was unfit to stand trial. After months of treatment appellant was in remission. At one hearing Dr. Oglesby stated:

And we felt that he was affected by this at the time that this incident occurred to the degree that he really couldn’t appreciate the criminality of his conduct and that also he would have had impairment of his ability to conform his conduct to the requirements of the law. And he really was so confused that he didn’t really know what he was charged with and it was difficult for him to communicate. So, we didn’t think he was fit to proceed at the time and we requested a treatment commitment, which we got. And he was started on antipsychotic medication. And, even in the most severely disturbed psychotic, I’ve seen patients recover in three to four weeks completely to where you could retest and reinterview them and couldn’t detect anything wrong.

There is no need for me to proceed further with the record because it is all in the same vein as that which has been discussed. The psychiatrists all agreed that it was not likely that the appellant would have had a lucid moment on the date of this regretful incident. None of the officers testified as to their opinion of appellant’s mental condition except for that period of time during which the statement was written by the officers and signed by the appellant. I cannot in good consicence vote to send this man to the penitentiary for a period of 25 years instead of the Arkansas State Hospital where I think he clearly belongs. -

I am authorized to say that Hays, J., joins in this dissent.


author: John I. Purtle, Justice.

text:
    Herbert Thomas MITCHELL, Jr. v. Helen Thayer MITCHELL
    82-258
    648 S.W.2d 51
    Supreme Court of Arkansas
    Opinion delivered March 21, 1983

      Martin, Vater & Karr, by: Charles Karr, for appellant.

      Hardin, Jesson ir Dawson, for appellee.
   John I. Purtle, Justice.

Appellant was granted a divorce in Sebastian County, Arkansas on September 9, 1981. The court withheld disposition of the property until March 30, 1982, at which time appellant was ordered to return to the appellee certain items of furniture and furnishings held by the appellant. The appeal is from the later order; it is argued that the trial court erred in awarding the appellee any property held by appellant. We are of the opinion that the trial court acted properly and affirm.

The parties to this action were married in 1955. Shortly thereafter the appellee inherited some furniture and furnishings from her mother. It is these items with which we are concerned. In 1973 appellant, a foreign service officer with the United States Department of State, was reassigned from Honolulu, Hawaii to Washington D.C. The appellee and the children stayed in Hawaii. Appellant took an assignment to Bogota, Colombia, and was not accompanied by appellee and the children. He returned to Washington in 1975 and the furniture was shipped from Hawaii to him in Washington during that year. On April 2, 1976 appellant filed suit for divorce in Virginia. Appellee filed no answer and appellant was granted a divorce on June 18, 1976. He married again on September 11, 1976 and a child was subsequently born to this marriage. On June 16, 1978 appellee petitioned the Virginia court to set aside the Virginia divorce and later asked for separate maintenance. The divorce was set aside on January 6, 1981. At that time appellant was stationed at Fort Chaffee, Arkansas. On March 19, 1981 he filed suit for divorce in Sebastian County and the divorce was granted on September 9,1981. However, the court withheld a decision on the appellee’s claim for the property in the possession of the appellant. On March 30, 1982 the remaining issues were heard, and appellant was ordered to return, freight pre-paid, certain items of personal property to the appellee. It is from this order that the appellant brings his appeal.

Appellant’s argument in chief is that appellee was barred from asserting her counterclaim because of the statute of limitations. His argument is founded upon the fact that the property was shipped to him in Washington D.C., in 1975, with the express knowledge and consent of the appellee. Therefore, he argues that the statute of limitations ran prior to the commencement of her 1978 suit to set aside the Virginia divorce.

The sole issue before this court is whether appellant is bound to return to appellee the items of property now in his possession which were inherited by the appellee during the marriage. When the divorce was obtained in Virginia the property rights between the parties were not settled. Apparently the Virginia court granting the divorce had no authority to dispose of personal property owned by either of the parties. The trial court in Sebastian County did not attempt to rule on the legal effect of the proceedings in the state of Virginia nor did it address the question of the running of the statute of limitations. The appellant commenced an original action in this state, therefore, the case is legally no different from any other divorce proceeding in Arkansas under the same or similar facts. The Arkansas statute of limitations could not begin to run until notice of the Arkansas divorce action was given to the other party.

Under the circumstances we think the court properly proceeded pursuant to the provisions of Ark. Stat. Ann. § 34-1214 (Supp. 1981). This is the controlling statute relating to disposition of this property. The trial court found that the items were neither gifts to appellant nor were they abandoned by the appellee. There being no evidence in the record, nor in the appellant’s brief, that the property in question was not inherited by the appellee, we must affirm the decree of the chancery court.


author: Robert H. Dudley, Justice.

text:
    Sue Ann SUMTER and Donald Ray SUMTER, Husband and Wife v. William C. ALLTON
    82-261
    648 S.W.2d 55
    Supreme Court of Arkansas
    Opinion delivered March 21, 1983

      Elrod ir Lee, by: John R. Elrod, for appellants.

      Niblock Law Firm, by: Walter R. Niblock, for appellee.
   Robert H. Dudley, Justice.

In Allton v. Sumter, 274 Ark. 448, 625 S.W.2d 502 (1982), we remanded this case to the trial court to conduct a hearing on whether a decree of adoption should be set aside on the basis of fraud. The trial court set aside the decree and we affirm. The issue presented is whether, under our prior adoption law, the fraud involved was of the extrinsic type which tolled the statute of limitations. Jurisdiction is in this Court pursuant to Rule 29 (1) (j), the subsequent appeal rule.

On June 15,1977, appellant Donald Ray Sumter filed a petition to adopt Christopher Charles Allton. Appellant Sue Ann Sumter, the biological mother and the wife of Donald Ray Sumter, joined in the petition and gave her consent to the adoption. They falsely alleged that the biological father, appellee William C. Allton, had abandoned Christopher. As a result, no notice was given to the biological father and he did not appear to contest the proceeding. The final order of adoption was granted in 1978 but appellee did not learn of it until 1980. He immediately filed suit to set aside the final order of adoption. The probate judge held that the action was governed by the Revised Uniform Adoption Act which bars a challenge to an order of adoption for any reason more than one year after the final decree. However, the effective date of the Revised Act was July 5, 1977, which was after the petition in this case was filed. The biological father filed the first appeal and we reversed. We held that the proceeding was governed by the statutes in effect on the date the petition was filed. In that opinion we stated:

The appellant [biological father] made a proffer of proof that in our judgment was a prima facie showing that the appellant’s former wife did conceal the adoption proceedings from the appellant and did commit fraud in obtaining the decree. It will be up to the trial judge to conduct a hearing to see if fraud actually existed and if it was the kind and nature that would entitle the appellant to set aside the decree. In Olney v. Gordon, 240 Ark. 807, 402 S.W.2d 651 (1966) and Hughes v. Cain, 210 Ark. 476, 196 S.W.2d 758 (1946), we found that a natural parent wrongfully deprived of a notice and opportunity to participate in an adoption proceeding has standing to petition to set aside the adoption decree. Furthermore, in Olney, we held that the statute of limitations was tolled when fraudulent concealment of the parent’s cause of action existed. The issue of fraud is critical because this suit was filed beyond the two year statute and without such proof the appellant’s claim could possibly fail. But see Armstrong v. Manzo, 380 U.S. 545 (1965); Hughes v. Cain, supra.
If the appellant succeeds in his claim of fraud, then the proceedings will be conducted as though no temporary order had been entered, and in accordance with the law in effect when the petition to adopt was filed. The question of whether the appellant abandoned his child will be an issue to be relitigated.

Allton v. Sumter, 274 Ark. at 451, 625 S.W.2d at 504.

Upon remand the trial judge held that appellants had perpetrated a fraud upon the court by alleging that appellee had abandoned his son when, in fact, he had not. The probate judge found that such action constituted an extrinsic fraud which tolled the applicable statute of limitation. Ark. Stat. Ann. § 56-112 (Repl. 1971), repealed by 1977 Ark. Act 735, § 22. He then set aside the decree of adoption and, as a result, this case is before us for the second time.

The appellants contend that abandonment was an issue to be resolved in the original action and therefore the matter is intrinsic, not extrinsic, and may not be used to toll the statute of limitations. However, that argument fails because the fraudulent allegation of abandonment did more than establish that single fact in the original proceeding. It operated to deny the biological father notice of the proceeding and prevented him from contesting the termination of his parental relationship. The fraud practiced in this case fits within our definition of extrinsic fraud:

The fraud which entitles a party to impeach a judgment must be fraud extrinsic of the matter tried in the cause, and does not consist of any false or fraudulent act or testimony the truth of which was or might have been in issue in the proceeding before the court which resulted in the judgment assailed. It must be a fraud practiced upon the court in the procurement of the judgment itself.

Williams v. Purdy, 223 Ark. 275, 265 S.W.2d 534 (1954) quoting Parker v. Sims, 185 Ark. 1111, 51 S.W.2d 517 (1932).

The probate judge correctly ruled that the nature of the fraud was sufficient to toll the statute of limitations and appropriately set aside the original decree.

The probate court must be affirmed for another reason. There was no notice to the biological father. Under our prior statutes which were repealed in 1977, Ark. Stat. Ann. §§ 56-104 and 56-106 (Repl. 1971), an adoption was authorized without consent of a parent in the event of abandonment, but notice was required in order to determine the question of abandonment. If no notice was given the probate court was without jurisdiction. Hughes v. Cain, 210 Ark. 476, 196 S.W.2d 758 (1946); see also Pender v. McKee, 266 Ark. 18, 582 S.W.2d 929 (1979); Schrum v. Bolding, 260 Ark. 114, 539 S.W.2d 415 (1976); Olney v. Gordon, 240 Ark. 807, 402 S.W.2d 651 (1966).

Affirmed.


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

text:
    W. A. MASSEY v. STATE of Arkansas
    CR 82-159
    648 S.W.2d 52
    Supreme Court of Arkansas
    Opinion delivered March 21, 1983
    [Rehearing denied April 25, 1983.]

      Metcalf & O’Neal, for appellant.

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

      Purtle, J., would grant rehearing.

   Robert H. Dudley, Justice.

The State charged appellant with incest and rape by alleging that on numerous occasions he engaged in sexual intercourse or deviate sexual activity by forcible compulsion with his fourteen year old daughter. He employed an attorney but that attorney was granted leave to withdraw as the result of a conflict of interest. Appellant requested that.he be allowed to represent himself. The trial judge appointed a second attorney to assist appellant in the preparation of his defense and to act in a standby capacity at trial. The second attorney carefully detailed the various possible sentences which appellant faced and offered to assist the appellant in any manner. That attorney then moved to Texas and a third one was appointed. Over the next three and one-half months the third attorney consulted in person with appellant, telephoned him and wrote him. It is undisputed that the attorney related the nature of the charges and the possible penalties. He informed him of a plea bargain offer by the State. However, the appellant stated he did not want to plea bargain and did not want the attorney to defend him. Immediately prior to trial, the trial judge conducted another in camera hearing and again appellant stated that he desired to proceed without an attorney. He stated: "I understand that I have a right to use Mr. Lippard as my attorney. In fact he is my lawyer.” The j udge cautioned the appellant and questioned the wisdom of his decision. He responded that there was no defense and "I’ll take what they give.” Additionally, he stated that his family had already been hurt enough.

At trial, appellant’s daughter testified to incidents of sexual intercourse by forcible compulsion as well as deviate sexual activity by forcible compulsion. A medical doctor’s testimony tended to corroborate her testimony. The State rested. Appellant’s attorney approached the bench and stated that appellant would not allow him to put on a defense. In chambers appellant again stated he did not want to further embarrass his family and he simply did not want to defend.

The jury found appellant guilty and fixed his punishment at twenty years on the charge of rape and ten years on the charge of incest. We affirm,

An accused may voluntarily and intelligently waive the right to counsel and choose to represent himself. Barnes v. State, 258 Ark. 565, 528 S.W.2d 370 (1975). Here, such a waiver undoubtedly occurred. Nonetheless, the trial judge appointed a standby attorney but appellant refused to allow the attorney to defend. The services of an attorney cannot be forced upon an accused. Nichols v. State, 273 Ark. 466, 620 S.W.2d 942 (1981).

Appellant next contends that the charges of rape and incest should have been merged because they grew out of the same factual situation. We do not find it necessary to determine whether rape by sexual intercourse or rape by deviate sexual activity and incest require different elements of proof. There was ample testimony by which the jury could have found that appellant committed rape by deviate sexual activity on one occasion and, on other occasions, was guilty of incest by having sexual intercourse with his daughter. Each act constituted a separate offense. King v. State, 262 Ark. 342, 557 S.W.2d 386 (1977). Appellant was properly convicted on separate counts.

Appellant was convicted and transported to the Department of Correction. Twenty-six days later a motion for a new trial and a notice of appeal were filed. At the hearing, which was held two months after appellant was imprisoned, the trial judge announced he would change the sentences to run concurrently if he could. He later ruled that he no longer had jurisdiction to alter the sentences. The trial judge was correct. Once the execution of the sentence has begun the trial court loses jurisdiction to modify the sentence. Charles v. State, 256 Ark. 690, 510 S.W.2d 68 (1974).

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. In addition to the fact that appellant never had the services of any single lawyer long enough to prepare a defense I disagree with the majority opinion. As I understand the opinion it holds that one act of sexual conduct may result in a conviction for rape by deviate sexual activity or rape and incest. If that is not the holding then the holding must be that it is not necessary to charge and convict a defendant for a criminal act performed on a particular date so long as there is evidence that some or similar criminal acts were committed in the past. It is not possible to determine from the record, briefs or majority opinion on what date the criminal act occurred or for which specific act appellant was convicted. The same conduct cannot support two convictions in violation of Ark. Stat. Ann. § 41-105 (Repl. 1977). See Akins v. State, 278 Ark. 180, 644 S.W.2d 273 (1983). The majority cites King v. State, 262 Ark. 342, 557 S.W.2d 386 (1977) as support for the opposing position; however, King was convicted of burglary and theft by receiving. His offenses occurred at separate places and apparently on different dates. I agree with our holding in King but think it has absolutely no bearing on the present facts.

I cannot agree with an opinion which holds that the trial court had no authority to cause the sentences to run concurrently after the appellant commenced serving his sentence under the present circumstances. Appellant was tried on March 3, 1982, and transported to the Arkansas Department of Correction the next day. The judgment was not filed until March 11, 1982, at which time appellant was already serving the sentence. On March 29, 1982, a motion for a new trial was filed. Notice of appeal was filed on the same date. On April 14, 1982, the trial court ordered appellant returned for a hearing on the motion for a new trial. This hearing was held on May 11, 1982. The motion was denied but appellant was allowed to remain on bail pending an appeal. He is still on bond pending appeal.

The majority rely upon the case of Charles v. State, 256 Ark. 690, 510 S.W.2d 68 (1974). Charles had entered guilty pleas to eight charges and had served four months of his sentence. Additionally, Charles is not precedent for the present facts because he sought to have the trial court order the department of correction to credit him with time served. The holding was that the trial court had no authority to order prison officials to credit certain time toward the sentence. The Charles opinion did recognize that the trial court had power over i ts j udgmen t during the term in which it was renderd and until the appeal is perfected to an appellate court. Appellant had no time within which to perfect his appeal because he was whisked away the day after his trial.

If such procedure is allowed to stand, the state may cause a person to be illegally sentenced and rush him to the penitentiary to start serving a sentence thereby denying him his right of appeal to correct the error. A.R.Cr.P. Rule 36.13 (Supp. 1981) specifically deals with appeals after confinement. The rule states in part:

If the trial court admits the defendant to bail pending appeal, the court may recall the commitment by which the sentence was carried into execution.

The trial court set appeal bail at ten thousand dollars on the day of the trial. The majority opinion allows the sheriff to override the court order, and deny appellant his rights, by simply rushing the convicted person to prison immediately after trial. This simply cannot be right, and I must dissent.


author: Steele Hays, Justice.

text:
    C & C MACHINERY, INC. v. Charles D. RAGLAND, Commissioner of Revenues, State of Arkansas
    82-256
    648 S.W.2d 61
    Supreme Court of Arkansas
    Opinion delivered March 21, 1983

      Richard L. Peel, for appellant.

      Timothy J. Leathers, Jr., Joseph V. Svoboda, Kelly S. Jennings, WayneZakrzewski, Ann Fuchs, and JoeMorphew, by: John H. Theis, for appellee.
   Steele Hays, Justice.

Appellant operates a machine shop, transforming unprocessed metal materials into finished products. In June, 1976 appellant bought twelve pieces of equipment in Oklahoma for use in its shop in Arkansas and was assessed a use tax of three percent of the purchase price under the Arkansas Compensating Tax Act of 1949, Ark. Stat. Ann. § 84-3101 (Repl. 1980), et seq., amounting to $696.68 in tax, penalty and interest.

Appellant paid the assessment under protest, claiming the purchase was exempt under § 84-3106 (D) (2), which exempts machinery and equipment “used directly in producing, manufacturing, fabricating, assembling, processing, finishing, or packaging articles of commerce at manufacturing or processing plants or facilities in the State of Arkansas” and sued to recover the amounts paid. The Chancellor found the appellant was not engaged in manufacturing as that term is used in the act and on appeal appellant claims the decision is against the clear preponderance of the evidence. We affirm the Chancellor.

While we are persuaded that appellant’s milling operation changes raw metal into a finished product, we are not persuaded that the finished product is an “article of commerce”, as required under the exemption provision of the act, § 84-3106 (D) (2) (a, b and c). The Chancellor was justified in finding under the evidence that appellant does not maintain a stock or inventory of finished articles for sale to the general public, rather, it produces custom items prepared for specific customers in response to special orders. Its products are prepared to customer specifications and are not readily marketable to the general public. We think the Chancellor’s finding was consistent with the preponderance of the evidence. See ARCP Rule 52.

In Western Paper Company v. Qualls, 272 Ark. 466, 615 S.W.2d 369 (1981), we held that a commercial printer did not qualify for the exemption allowed manufacturers under the Arkansas Gross Receipts Tax (Sales Tax), § 84-1904 (r) (2) (identical to the exemption provided in the use tax statutes) because the product created had no commercial market value other than to the individual customer for whom it was produced. We said: “Ordinarily, we think of a manufactured article as something to be placed on the market for retail to the general public in the usual course of business. Morley v. E. E. Barber Construction Co., 220 Ark. 485, 248 S. W.2d 689 (1952).”

We have frequently said that the party claiming an exemption from taxes has the burden of proving his entitlement beyond a reasonable doubt. S. H. & J. Drilling Corp. v. Qualls, 268 Ark. 71, 593 S.W.2d 178 (1980). Appellant has failed to meet that burden.

The decree is affirmed.


author: Steele Hays, Justice. Appellants,

text:
    Timothy Ellis McDANIEL and Jaran GOOKIN v. STATE of Arkansas
    CR 82-60
    648 S.W.2d 57
    Supreme Court of Arkansas
    Opinion delivered March 21, 1983

      Tapp Law Offices, by: /. Sky Tapp, for appellant McDaniel.

      Anderson ir Anderson, by: Sam L. Anderson, Jr., for appellant Gookin.

      Steve Clark, Atty. Gen., by: Theodore Holder, Asst. Atty. Gen., for appellee.
   Steele Hays, Justice. Appellants,

Tim McDaniel and Jaran Gookin, known as Jose, were convicted of the capital felony murder of Thomas Farnham, Jr., and sentenced to life without parole. For reversal, they argue three points in common: The trial court erred in refusing to sever the charges and try thém separately; they were wrongfully restricted in peremptory challenges; and the trial judge should have granted motions for mistrial after telling the jury this “could very well be a divided type of trial”.

Additionally, McDaniel contends grounds for a mistrial occurred when a witness stated McDaniel used an “alias”; that a statement allegedly made by McDaniel to a police officer was improperly admitted; and that the trial court erred in instructing the jury in accordance with AMCI 401. Gookin argues the trial court erred in not giving AMCI 403 to the jury in conjunction with 401; that it is cruel and unusual punishment for an accomplice to be subjected to punishments imposed under the capital felony murder statutes, and that a motion for a directed verdict should have been granted because there was no evidence to rebut Gook-in’s affirmative defense that he did not solicit, induce or aid in the commission of the murder. We find the argument that the severance motions should have been granted to be persuasive and, accordingly, we reverse and remand the cases for separate trials.

On August 22, 1981, the Hot Springs Police Department received a report that Thomas Farnham, Jr. had been missing since the evening of August 16, when he had left home to meet Jose Gookin and Tim McDaniel at a 7-11 store on Park Avenue to demonstrate a machine gun. Farnham’s whereabouts remained a mystery until August 30, when Mike Brewer, a friend of McDaniel, reported to the police that McDaniel had told him he had murdered Farnham. McDaniel and Gookin were taken into custody and each gave an account of Farnham’s death, the major difference being that each accused the other of the murder. Farnham’s body, badly decomposed, was found on information supplied by Gookin. McDaniel showed the police where he had hidden the machine gun and where he had thrown the murder weapon, a 22 pistol, in the lake. Both weapons were recovered.

Gookin and McDaniel agreed they had met Farnham on Sunday evening and driven out on Mill Creek Road in Gookin’s sister’s car to try out the machine gun McDaniel proposed to buy. Gookin says that Farnham and McDaniel each fired the machine gun as dusk was falling. Farnham called to Gookin to turn the car lights toward the target so he and McDaniel could examine the pattern. As he walked toward the car, Gookin says he heard a shot and turned to see Farnham clutch the back of his head and run toward the road. Gookin says he shouted at McDaniel, who then pointed the pistol at him. He says McDaniel shot Farnham a number of times and dragged his body out of sight. When he returned fifteen minutes later he was covered with blood and had the pistol, machine gun and Farnham’s billfold containing $22.00. Gookin says he refused McDaniel’s offer to divide the money.

McDaniel’s account largely reversed their roles: he says that as he watched, Gookin shot Farnham in the back of the head and dragged the body out of sight. According to McDaniel, they divided the money and Gookin dropped McDaniel off at his brother’s home. McDaniel admitted keeping the machine gun and pistol, inadvertently leaving behind a sheet of instructions on the machine gun. Each man claimed the pistol belonged to the other and each denied knowledge of its presence until the murder occurred. In one other important respect their stories differed: McDaniel says he and Gookin wanted the machine gun to rob a jewelry store and planned to take it from Farnham simply by force, not by murder. McDaniel explains that the gun was illegal and Farnham would not have been able to report the robbery. Gookin denies any plan to rob either Farnham or a jewelry store — that McDaniel simply wanted to buy the gun, or so he thought. Gookin says McDaniel asked him later about the instruction sheet left in the car, from which Gookin retrieved it, hiding it in his bed. Gookin attributes hiding the instruction sheet and his failure to go to the police to McDaniel’s threats that he would kill him if he reported the murder.

Shortly after the jury had retired it returned to tell the trial judge it was unable to determine who had actually pulled the trigger. In a bifurcated proceeding the jury found both men guilty and fixed punishment at life without parole. The verdict forms reflect an irreconcilable finding: on Form 2 (mitigating circumstances) as to McDaniel, the jury placed an “X” by Circumstance No. C (6), finding that “The capital murder was committed by another person and McDaniel was an accomplice and his participation relatively minor.” But the identical finding was made with respect to Gookin, thus the jury found that neither Gookin nor McDaniel had committed the murder — that each was merely a passive participant. Hence, it is clear beyond question that the jury did not, or could not, segregate the evidence with respect to the crucial issue of which defendant committed the murder.

Appellants insist that their motions to sever the informations and grant separate trials should have been granted, and for a number of reasons we have come to the conclusion that unless the arguments are sustained a manifest error will be left uncorrected.

Prior to the adoption of the Arkansas Rules of Criminal Procedure, our law gave the trial court discretion in granting severance of defendants in all but capital cases, where defendants were entitled to severance as a matter of right. Ark. Stat. Ann. § 43-1802 (Repl. 1977); Vault v. Adkisson, Judge, 254 Ark. 75, 491 S.W.2d 609 (1972). However, A.R.Cr.P. Rule 22.3 superseded § 43-1802 and gives the trial court discretion to grant or deny a severance in all cases. And we will not disturb that ruling on appeal in the absence of an abuse of discretion. Hallman and Martin v. State, 264 Ark. 900, 571 S.W.2d 688 (1979). Although we have uniformly upheld the trial court in cases where severance of defendants is denied, (Spillers v. State, 268 Ark. 217, 595 S.W.2d 650 [1980]; Legg v. State, 262 Ark. 583, 559 S.W.2d 22 [1977]), in doing so we have noted that the defenses were not antagonistic. See Hallman and Martin v. State, supra; Ingram v. State, 255 Ark. 6, 498 S.W.2d 862 (1973); see also Washington, Ward and Hampton v. State, 267 Ark. App. 1040, 594 S.W.2d 29 (1980). Thus, the current state of our law pertaining to severance of defendants in capital cases rests upon the sound discretion of the trial court, but while the discretionary power is broad, it is not unlimited, and the overriding duty of the trial judge is to determine that the defendants can be tried together without substantial injustice.

The rule recognized in many jurisdictions is that where defenses are antagonistic, severance should be granted and this principle has the sanction of the American Bar Association’s Standards Relating to Joinder and Severance: “[I]t has long been the view that defendants joined for trial should be granted a severance whenever their defenses are antagonistic to each other”.

In Jenkins and Warner v. State, 230 A.2d 262 (Del. 1967), the Delaware Supreme Court said that although severance is ordinarily a matter of discretion, where defenses are antagonistic, severance should be granted. The court observed that defenses are antagonistic when to believe one defendant, it is necessary to disbelieve the other. In People v. Krugman, 252 N.Y.2d 846 (1964) the Court stated that the need for severance most frequently arises when each defendant asserts his own innocence and accuses the other. In Jung v. State, 145 N.W.2d 684 (Wise. 1966) the Wisconsin Supreme Court said that the demands of a fair trial require that such cases should be tried separately because the defendant should not be forced to face the double burden of having to meet the attack of both the prosecutor and his co-defendant. Louisiana has said that no more classic example of the need for severance exists than when two co-defendants each place the blame for the crime on the other. State v. Singleton, 352 So.2d 191 (La. 1977). See also, State v. Thibodeaux, 315 So.2d 769 (La. 1975), where it was said that a defendant ought not to stand trial before two accusers, a co-defendant and a prosecutor. In People v. Braune, 2 N.E.2d 839 (Ill. 1936) it was said that while the granting of a separaté trial is within the sound discretion of the trial court, it is nevertheless a judicial and not an arbitrary discretion. Braune was much like the case before us in that each defendant admitted being present when the crime occurred, but each charged the other with the crime itself. The Illinois court noted, as well we might, that the trial was in many respects more of a contest between the defendants than between the prosecution and the defendants, saying “any set of circumstances which is sufficient to deprive a defendant of a fair trial if tried jointly with another is sufficient to require a separate trial.”

In State v. Holup, 355 A.2d 119 (Conn. 1974) the Supreme Court of Connecticut found that substantial injustice had occurred where severance was denied. Holup and Gordon, charged with kidnapping and robbery, were tried together. Gordon testified, Holup did not. Gordon’s defense was that though he participated in the crimes, he did so only because Holup had coerced him at gunpoint. The court noted that Gordon was the most effective witness in the State’s case against Holup in asserting his own submission to Holup’s duress, that the two defenses were not only incompatible but completely antagonistic:

“In the trial of a person charged with the commission of a crime, it is more important to enforce the time-tested safeguards which the law has erected for the protection of the innocent than to distort and subvert them in order to block the escape from punishment of even an apparently guilty person.”

A thorough review of severance cases can be found at 82 ALR3 245 and 54 ALR2 858, from which these conclusions may be drawn: the issue of severance is to be determined on a case by case basis, considering the totality of the circumstances, with the following factors favoring severance: (1) where defenses are antagonistic; (2) where it is difficult to segregate the evidence; (3) where there is a lack of substantial evidence implicating one defendant except for the accusation of the other defendant; (4) where one defendant could have deprived the other of all peremptory challenges; (5) where if one defendant chooses to testify the other is compelled to do so; (6) where one defendant has no prior criminal record and the other has; (7) where circumstantial evidence against one defendant appears stronger than against the other. We think it significant that in some degree all of these factors are present here. McDaniel’s defense and Gookin’s defense could not have been more antagonistic, each was almost the mirror image of the other. The difficulty of segregating the evidence to determine which defendant was actually guilty of the crime is fully demonstrated by the irreconcilable jury verdicts finding that neither defendant actually pulled the trigger. Even without Gookin’s testimony, the State’s case against McDaniel was clearly supported by substantial evidence; in contrast, the case against Gookin was almost non-existent except for McDaniel’s testimony. Too, the circumstantial evidence was stronger against McDaniel than Gookin. A pivotal issue centered on the murder weapon, (We note it was McDaniel who kept it when the two men parted company after the murder, and it was McDaniel who later threw it in the lake). Had the ownership of the pistol been shown, it would doubtless have better enabled the jury to unravel the conflicting accounts, as each defendant claimed the pistol belonged to the other. Yet evidence of this crucial fact was available — the statement given the police by Mike Brewer, a key witness called by the State, shows unmistakably that Brewer was familiar with the pistol and knew it belonged to McDaniel. However, this evidence was not elicited by either Gookin or the State, though the State at least had knowledge of it.

Considering the totality of the circumstances of this case and the obvious inability of the jury to resolve the issue of guilt, we believe these defendants were entitled to separate trials. We do not suggest that simply because defenses are antagonistic the trial court must grant severance or risk reversal, merely that where the defenses are antagonistic, particularly in capital cases, careful consideration should be given to all the factors which weigh for or against achieving substantial justice in the trial process, and where it can be seen that either defendant is unduly jeopardized by a joint trial, severance should be granted. Here, there was an evident strategy by the prosecution to permit these two defendants to try each other which, in the end, tainted the result by leaving the ultimate issue unanswered.

To the argument that it doesn’t matter which defendant was the actual murderer, that both are equally guilty as principal or accessory, there are two answers: first, by Gookin’s account, he had no knowledge that a crime of any kind was in the offing, yet if that account is true, he stands convicted of a capital murder only because the jury was confused; on the other hand if McDaniel’s account is true, while McDaniel is guilty of planning and executing a robbery, he was not an accessory to murder. Moreover, not even by accepting a combination of the two accounts can we perceive how the jury could have arrived at the conclusion that these defendants were equally culpable. Under our system, the j ury decides guilt and then fixes the punishment it deems appropriate. In a capital case it may fix a lesser punishment simply as an act of mercy, but it may not impose a greater punishment, indeed any punishment, as an act of doubt. Here, it is conceivable the jury would have chosen to impose the death penalty on the defendant who actually committed so loathsome a crime as this one, and chosen to impose a more lenient punishment on the defendant who was, as each claimed to be, caught by surprise by the murder. Thus, in spite of its best efforts, this jury may well have given a lesser sentence to one defendant, and a greater sentence to the other, than it might otherwise have done. Our system, thankfully, will not leave such fortuitous results undisturbed.

Turning to the other points for reversal, on the issue of AMCI 401 and 403, 403 should have been given in view of Gookin’s testimony; however, no request for the instruction was made. At any retrial of Gookin, if the evidence warrants, then both instructions would be appropriate. As to McDaniel’s argument that it was error to admit the testimony of Robert Merchant, a Hot Springs police officer, that McDaniel told him he would not be in the fix he was in if he had killed the witness, referring to Gookin, there was no error. There was no evidence the officer was seeking information from McDaniel; on the contrary, it is clear that McDaniel made a spontaneous comment against his interest which the court properly admitted. The argument that the probative value of the statement was outweighed by its prejudicial effect is equally without merit. The other arguments are either cured by the fact the defendants will be tried separately or will not, in all likelihood, arise again.

The judgment is reversed and the case is remanded to the trial court for separate trials.

       American Bar Association Project on Minimum Standards for Criminal Justice, Standards Relating to Joinder and Severance, Approved Draft, 1968, § 2.3 (b) commentary, PP. 40-41.

       A transcription of Brewer’s statement to the police was introduced at a pre-trial hearing and appears in the record in its entirety.


author: Per Curiam.

text:
    Robyn MASINGILL v. STATE of Arkansas
    CR 83-15
    648 S.W.2d 62
    Supreme Court of Arkansas
    Opinion delivered March 21, 1983

      Felver A. Rowell, Tom Donovan, and John Wesley Hall, Jr., for petitioner.

      Steve Clark, Atty. Gen., by: Victra L. Fewell, Asst. Atty. Gen., for respondent.
   Per Curiam.

The Court of Appeals reversed appellant’s conviction of tampering with evidence. Masingill v. State, 7 Ark. App. 90, 644 S.W.2d 614 (1983). We granted the State’s petition to review that reversal. After carefully studying the issues presented and the record, we are of the view that the petition was granted under a misconception. Consequently, we dismiss the petition. As we have said, a denial of a petition for review does not imply approval or disapproval of the decision. Wilson v. City of Pine Bluff, 278 Ark. 65, 643 S.W.2d 569 (1983); Moose v. Gregory, 267 Ark. 86, 590 S.W.2d 662(1979).

Petition dismissed.


text:
    Bill WRIGHT, Mayor of the City of Conway et al v. Ronald L. BURTON, Municipal Judge et al
    82-264
    648 S.W.2d 794
    Supreme Court of Arkansas
    Opinion delivered March 28, 1983

      Jesse W. Thompson, for appellants.

      James L. Sloan, for appellees.
   George Rose Smith, Justice.

In 1981 the appellee Ronald L. Burton, the municipal judge of the city of Conway, held in a criminal case in his court that two ordinances adopted earlier that year by the Conway city council were unconstitutional. That decision threatened to result in substantial losses of revenue to the city. The mayor and the members of the city council brought this action against Judge Burton, his court clerk, and the chief of police, for a declaratory judgment upholding the ordinances. This appeal by the mayor and council is from a declaratory judgment holding the ordinances to be partly valid and partly invalid. For reversal the appellants insist that the ordinances are valid in their entirety. Our jurisdiction is under Rule 29 (1) (c).

The first ordinance, No. 81-26, fixed minimum fines and minimum appearance bonds for 53 enumerated misdemeanors. We list a few of the specified offenses and minimum fines:

Theft of property $100.00

Reckless driving 100.00

150.00 Class A misdemeanor offense

100.00 Class B misdemeanor offense

50.00 Class C misdemeanor offense

The second ordinance, No. 81-36, provided that when a person charged with an offense under the first ordinance deposits a sum of money as a fine and costs in lieu of any court appearance, "said sum shall be equal to the minimum fine for such offense,” plus costs. Judge Burton held that the ordinances unconstitutionally encroached upon the municipal court’s exclusive authority to fix bail bonds for the release of accused persons. The circuit judge agreed with that point of view, but he upheld Ordinance 81-26 to the extent that it fixes minimum fines for Class A, B, and C misdemeanors, because the Criminal Code fixes no minimum fines for those offenses. Ark. Stat. Ann. § 41-1101 (Repl. 1977).

We hold both ordinances invalid, on the ground that they exceed the city’s statutory authority to fix the penalty for offenses defined and punishable by state law. A city has express authority to prohibit and punish any act which the state laws make a misdemeanor, Ark. Stat. Ann. § 19-2410 (Repl. 1980), but that section declares that a city cannot prescribe penalties exceeding those prescribed for similar offenses against the state laws. The next section, § 19-2411, makes it unlawful for a city to prescribe less penalties than those prescribed by state laws for similar offenses. Thus the penalties fixed by the city must fall within the state mínimums and máximums.

The ordinances in question do not observe the permissible limits. For example, all the offenses mentioned earlier in this opinion subject the offender not merely to a fine but also to possible imprisonment: Theft of property, as a Class A misdemeanor, § 41-2203; reckless driving, § 75-1003 (Repl. 1979); and classified misdemeanors A, B, and C, §41-901. The effect of the two ordinances, taken together, is to permit anyone who commits such offenses to avoid any possibility of imprisonment merely by paying the minimum fine fixed by the city, plus costs. The ordinances unquestionably prescribe a minimum penalty substantially less than that fixed by state law. On the other hand, we do not question the city’s authority to provide for the forfeiture of cash deposits in lieu of court appearances in minor cases, such as traffic tickets. Thompson v. City of Little Rock, 264 Ark. 213, 570 S.W.2d 262 (1978).

This opinion will serve as a declaratory judgment holding the ordinances to be invalid. The appellees, it is true, have not cross-appealed from that part of the circuit court’s judgment upholding the validity of some of the minimum fines, but in a case of public interest we think it desirable to point out fatal defects in the ordinances that could be raised by any defendant in any prosecution under those enactments.

Modified and affirmed.