author: Frank Holt, Justice.

text:
    ARKANSAS STATE HIGHWAY COMMISSION v. Gerald COOK et al
    74-43
    514 S.W. 2d 215
    Opinion delivered October 7, 1974

      Thomas B. Keys, James N. Dowell and Billy Pease, for appellant.

      Brown, Compton & Prewett, by: Robert C. Compton, for appellees.
   Frank Holt, Justice.

Appellant instituted this eminent domain action for the acquisition of some of appellees’ lands which were needed for the relocation of an existing highway fronting upon appellees’ homesite. The appellee, Gerald Cook, and his expert value witness estimated appellees’ damages at $10,000 and $7,000 respectively. Appellant’s witness estimated damages at $1,500. The jury awarded $8,-750 as just compensation. For reversal appellant contends that the “before” valuation of the landowner and his value witness, as revealed on cross-examination, is devoid of a fair and reasonable basis. Therefore, there is no substantial evidence to support the verdict.

In determining whether a verdict is supported by substantial evidence we review the testimony in that light which is most favorable to the appellee and indulge all reasonable inferences favoring the support of the judgment. Ark. Hwy. Comm'n v. Duff. 246 Ark. 922, 440 S.W. 2d 563 (1969). Appellee lived in the area all of his life and acquired the property in question approximately nine months before appellant began acquisition proceedings. He purchased the twenty acres involved as a homesite as well as pasture land for his cattle. The appellant, in relocating the highway from the front of appellees’ property, acquired a strip of land containing 2.17 acres which bisected the twenty acre tract. This resulted in leaving appellees’ home, his barn and other improvements on approximately four acres that existed between the old road and the new highway. This left approximately thirteen acres, his pasture land, completely separated from his barn and other facilities.

The appellee landowner testified that he had purchased the twenty acre tract for $10,000 and estimated the fair market value at the time of the taking nine months later at $25,000. On cross-examination he justified this before taking value on the basis that he had spent $6,000 improving the home before moving into it, had built a pond and had “cleaned up” some of the property. The relocation of the road had cut through and destroyed his pond. He lost the use of his barn for the thirteen acre residual tract except by transporting hay across the new highway or driving the cattle across it to the barn. According to him he would have to be “hauling all the time.” “I wouldn’t have time for nothing else.” It was necessary to lease other lands to pasture his cattle. He testified the price of property “goes up each year around here” and he considered himself “lucky” to have purchased the twenty acre tract for SI0,000.

Appellant in its original brief asserts that this testimony does not constitute a fair and reasonable basis for the landowner’s before value estimate. Appellant agrees that a landowner is a competent witness to testify as to the value of his land simply because he owns it. Ark. State Hwy. Comm’n v. Jones, 256 Ark. 40, 505 S.W. 2d 210 (1974). However the landowner must relate a satisfactory explanation on cross-examination to justify his value estimate. Ark. Hwy. Comm’n v. Duff, supra. In the case at bar the thrust of appellant’s argument relates primarily to the recent purchase of the property and the asserted inflated value placed upon it by appellee at the time of appellant’s acquisition. The difference between the recent purchase price of the property and the before value placed upon it by the landowner is only one item to be considered. The most critical thing that can be said about this disparity is it would tend to weaken the landowner’s opinion which is a credibility factor for the jury to determine. We said in Ark. State Hwy. Comm’n v. Russell, 240 Ark. 21, 398 S.W. 2d 201 (1966), the cross-examination must elicit evidence that demonstrates a witness “had no reasonable basis whatever for his opinion evidence.” Certainly it was not demonstrated in the case at bar there was no fair and reasonable basis whatever to support the landowner’s opinion.

Appellant also contends that the opinion of the expert value witness was not predicated upon a fair and reasonable basis with respect to the “before” value. He attributed $8,500 as the value to the improvements and $13,000 for the land. The court, on appellant’s motion, disallowed his estimate of improvements as he was not sufficiently familiar with its recent condition. It appears that this witness was a lifelong resident of the county and had been engaged for 46 years in the abstract business. At the same time he had kept himself informed about land transactions in the area and had “traded” land around this particular area including pasture land, homesites, etc. He said the land in question was approximately two miles or three minutes from the city limits of the county seat and that “land is very hard to find around Hampton.” On cross-examination he placed a value of $650 an acre on the land. Suffice it to say that this witness testified with respect to similar sales that a two acre homesite within one-half mile of appellees’ land sold for about $600 an acre and five acres in the vicinity of appellees’ property sold for $1,000 an acre. It appears that there were no improvements upon these two tracts of land. The similarity in size is only one factor in considering comparable sales. We are unwilling to say that appellent’s cross-examination of this witness destroyed his opinion evidence of any fair and reasonable basis. Therefore, the court properly refused to strike his testimony.

Appellant next asserts that the court erred in refusing to remove from the jury’s consideration the price paid for land by a condemnor (the county) in the vicinity. It is true that in Yonts v. Public Service Company of Ark., 179 Ark. 695, 17 S. W. 2d 886 (1929), we held it was impermissible on direct examination to elicit evidence as to what a condemnor paid for other lands in the area in order to establish the true market value of lands being acquired. However, in Ark. State Highway Comm ’n v. Kennedy, 234 Ark. 89, 350 S.W. 2d 526 (1961), we held that, although what a condemnor paid for property in the area is not a fair criterion of the true market value, the rule is not a prohibition against that type of knowledge the witness may possess. There we held that such value evidence elicited on cross-examination was not reversible error inasmuch as the court gave an admonitory instruction to disregard it. In Ark. Power & Light v. Harper, 249 Ark. 606, 460 S.W. 2d 75 (1970), testimony was elicited from a witness on cross-examination concerning a purchase made in the area by a condemnor. There we held the court was correct in refusing to strike the testimony inasmuch as “ [0]ne is not permitted to speculate by participating in the development of evidence and then demanding that it be stricken when it proves unfavorable.” We further observed that “perhaps appellant [condemnor] would have been entitled to a similar [admonitory] instruction had it so requested.” There it was not demonstrated whether the purchase by the condemnor in the area was by a condemnation proceeding or negotiation. Neither is it demonstrated in the case at bar. Additionally, here the value witness admittedly testified that in forming his opinion he did not take into consideration the purchase by the county of the two acre tract for $1,500 per acre. On further cross-examination he testified that a three acre tract in the vicinity of the county purchase sold for $1,-650 per acre or in excess of the county purchase per acre.

In Russell, supra, we held it was not prejudicial error where the condemnor elicited on cross-examination that the witness had taken into consideration an inadmissible offer in forming his opinion. There we said that during cross-examination one “is not entitled to embark upon a fishing expedition with immunity from any unfavorable information he may elicit. He acts at his peril in putting a question that may evoke an answer damaging to his own case.” In approving this right of a witness on cross-examination to say he had considered an offer of sale in forming his opinion, we overruled to that extent Ark. Highway Comm’n v. Wilmans, 236 Ark. 945, 370 S.W. 2d 802 (1963).

In the case at bar, as indicated, and in Harper, supra, the inadmissible testimony was elicited on cross-examination and the manner of acquisition by the public agency was not shown. Additional factors exist here. The witness admittedly did not consider the county purchase in forming his opinion. The witness further testified on cross-examination that a sale in the vicinity of the county purchase exceeded in purchase price per acre that paid by the county. Finally the court fully instructed the jury as to the meaning of the term “fair market value” as being a negotiated transaction between a willing seller and a willing buyer with neither being forced to sell or buy. In these circumstances we cannot say with confidence that the failure to admonish the jury as requested by appellant was prejudicial. At most the asserted error was harmless.

Affirmed.


source: Caselaw Access Project

author: Cari.eton Harris, Chief Justice.

license: Public Domain

text:
    Charles HOOPER and Robert WESTLIN v. STATE of Arkansas
    CR 74-47
    514 S.W. 2d 394
    Opinion delivered October 14, 1974

      John 0. Maberry, for appellants.

      Jim Guy Tucker, Atty. Gen., by: O. H. Hargraves, Dep. Atty. Gen., for appellee.
   Cari.eton Harris, Chief Justice.

Charles Hooper and Robert Westlin were charged by Information in the Madison County Circuit Court with wilfully and feloniously having in their possession 19 plastic containers of marijuana with the intent to deliver. On trial, appellants were found guilty and their punishment fixed at 10 years imprisonment and a fine of 35,000 each. From the judgment so entered, appellants bring this appeal. For reversal, seven points are relied upon which we proceed to discuss.

It is first asserted that the court erred in compelling appellants to go to trial without a transcript of a certain habeas corpus proceeding. On October 4, 1973, the Madison County Circuit Court conducted a hearing on a petition by appellant for a writ of habeas corpus, appellants alleging that they were being held illegally. Following the hearing, the petition was denied and the case set for trial. Thereafter, a motion was filed seeking a transcript of the testimony taken at the hearing, particularly that of the sheriff and a member of the state police. No facts are set out in the motion in support of the request, but in their argument in this court, appellants state that relative to the testimony regarding the search and seizure of the marijuana, “appellants believe” that that testimony “may be in conflict with testimony introduced at the trial." No mention is made of any conflicting evidence and it would appear that appellants just hoped there would be a conflict. The allegations were, of course, insufficient to justify the court in granting the motion, and no prejudice has been shown to have resulted from the court's action. One of the motions filed also contained a request for a continuance based on the refusal to furnish the transcript, which was denied, but this is not argued in the brief before this court. At any rate, the granting of a continuance is within the sound discretion of the trial court. Jackson v. State, 245 Ark. 331, 432 S.W. 2d 896. No abuse of that discretion is here shown.

It is next asserted that the court erred in compelling the appellants to be tried by a jury at the request of the prosecuting attorney, appellants having waived their right to a trial by jury. Ark. Stat. Ann. § 43-2108 (Repl. 1964) clearly provides that a defendant may waive trial by jury, except where the sentence of death may be imposed, “provided the prosecuting attorney gives his assent to such waiver." Here, the prosecuting attorney did not give his assent. The contention is thus without merit.

It is contended that the court erred in admitting into evidence the marijuana obtained from appellants’ vehicle by an illegal search and seizure. The evidence reflects that Sheriff Ralph Baker of Madison County received information from an informer that appellants would have an amount of marijuana in their black 1964 Ford, which would be in a large black plastic bag, in small packages, and would be located under the driver's seat. This information, acquired from, according to the sheriff, a reliable informant, was received around 8:00 P.M., and apparently the sheriff started out immediately searching for the automobile. 'This is evidenced by the fact that State Trooper Winded Byrd, who was not on duty at the time, was called by the sheriff and told that he (sheriff) had information that some marijuana was going to be moved shortly on that particular night; according to Byrd, “He said that he’d like for me to help and I needed to come pretty fast.” The trooper stated that he did not have time to put on his uniform and he accordingly answered the call in “civilian” clothes. The transcript does not reveal exactly when appellants’ car was first observed, but it is clearly indicated that this occurred not too long after the search began. After catching sight of the automobile in question, the officers got behind the car, pulled up close to appellants and tried to stop them; when this happened, according to the sheriff, “They took off.” The officers, traveling in an unmarked car, but equipped with a portable blue light, gave chase, according to the testimony, for about 40 minutes, traveling at speeds of better than 60 miles per hour even on a dirt road. The fugitive car stopped at the Westlin home and the occupants jumped out and started toward the house. The sheriff “hollered” at them and they stopped. The officer officer testified that the driver’s side door was completely open and he walked directly to the car, reached under the front seat and pulled out the black bag, the bag being partly exposed. The sheriff said that this bag was located in exactly the place mentioned by the informant, and upon opening same, it was found to contain 18 plastic bags of marijuana. This, says appellants, was an illegal search and seizure. We do not agree. The time element is of prime importance. It is evident from reading the record that the information given the sheriff occurred a short time before appellants were located; of course, the information included the fact that the illegal contraband would be in this automobile, which, of course, could be moved at any time. The circumstances clearly reveal that there was no time to obtain a search warrant; even the accompanying trooper did not have time to change into his uniform. To locate a judge, or magistrate, after office hours is not always easy to accomplish. And, it definitely appears from the record that had such an effort been made, the car would have been gone from the vicinity. As far as the actual act of taking the marijuana from the automobile, the car door was wide open and the black bag partly visible; the wild chase of the automobile certainly was sufficient to justify the sheriff and trooper in believing that the car contained the marijuana about which the informant had spoken. The circumstances bear some similarity to those in Cox v. State , 254 Ark. 1, 491 S.W. 2d 802, when, deputy sheriff received information by telephone that Cox and others had gone into a store, returned to their automobile with a shopping bag and driven off, after which articles of merchandise in the store were discovered missing. The car was described to the deputy sheriff who relayed the information to State Trooper Hale. This officer observed a car answering the description, stopped same, saw sacks on the front floorboard partly open with articles of merchandise and we held that Hale was justified, from the information that he had received, in stopping the automobile, and upon observing the merchandise on the floorboard, in ordering the car driven back to town. We commented:

“To first have obtained a warrant would mean, of course, that the occupants of the car could have driven on, with full opportunity to dispose of the merchandise in the vehicle. In other words, there was complete justification for an intrusion (considering the detention of the car as an intrusion). These were exigent circumstances requiring instantaneous action to preserve the existence of the evidence sought to be seized.”

In Cox, there is a comprehensive discussion of pertinent federal cases, including Coolidge v. New Hampshire, 403 U.S. 443, Chambers v. Maroney, 399 U.S. 42, and Carroll v. United States, 267 U.S. 132, and we quoted from Carroll as follows:

“The right to search and the validity of the seizure are not dependent on the right to arrest. They are dependent on the reasonable cause the seizing officer has for belief that the contents of the automobile offend against the law.”

Certainly, under the circumstances herein, the officers had reasonable cause to believe that the contents of the automobile offended the law, and we hold that the warrantless search was proper and legal.

It is next asserted that the court erred in permitting a bag of marijuana, which had been taken from Westlin during a search at the jail, to be admitted into evidence. We do not agree and no further authority is needed to establish that the contention is without merit than the recent case of United States v. Robinson, 414 U.S. 218, wherein Robinson was arrested for a traffic offense, and a search resulted in the seizure of heroin capsules which were admitted into evidence at the trial, such capsules being found in a crumpled cigarette package in the defendant's coat pocket. The district court was reversed by the United States Court of Appeals for the District of Columbia, that court holding that the search was violative of the Fourth Amendment. The United States Supreme Court, however, reversed the Court of Appeals, disagreeing with that tribunal in several respects, but the remarks of the court most pertinent to the issue now before us were as follows:

“A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification. It is the fact of the lawful arrest which establishes the authority to search, and we hold that in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a 'reasonable' search under that Amendment."

We have already said that the intrusion wherein the black bag was discovered in the car was lawful, and that being true, the search of Westlin at the jail was entirely reasonable.

Appellants contend that they had the constitutional right to be confronted by the “reliable" informer, who had given to the sheriff the information concerning the possession of marijuana by appellants. We do not agree under the circumstances heretofore set out that appellants were entitled to this information. In Bennett v. State, 252 Ark. 128, 477 S.W. 2d 497, the State presented an undercover investigator as a witness who testified that he went to the defendant’s apartment, accompanied by two confidential informers, and that one of the informers told the defendant “We wanted some grass.” Thereupon, the defendant handed to the undercover agent a bag of marijuana. This act was denied by the defendant, and the testimony of the undercover agent's companions during the alleged transaction was therefore relevant and material to contradict the State’s evidence. We held that the court erred in refusing to compel the prosecution to divulge the identity of these two informers. However, in West v. State, 255 Ark. 668, 501 S.W. 2d 771, the same contention was held to be without merit. In so holding, this court said:

“Often, determination whether disclosure is required is ultimately made upon the basis of whether the informant was present or participated in the alleged illegal act with which the defendant is charged or whether the informer merely furnished information concerning criminal activity to law enforcement officers, Roviaro v. United States, supra. See Bennett v. State, 252 Ark. 128, 477 S.W. 2d 497. This distinction, which is not always conclusive, is important because the testimony of an informant who is also a witness may well be the sole means of amplification, modification or contradiction of the testimony of prosecution witnesses and is therefore essential to the preparation of an adequate defense. Officer Reeder of the Pulaski County Sheriff's Department testified the informant in this case was not a participant or an eyewitness to the crime with which appellants are charged. The informant’s tip caused sheriff’s officers to have the victim and her companion view two photographic showups from which they identified appellants. There is no evidence that the informant possessed any knowledge of the crime which was vital to the preparation of appellants' defense. Appellants’ failure to show the existence of any facts or circumstances which would require the identity of the person who supplied sheriff’s officers with the lead connecting appellants to this crime to be disclosed is fatal to their contention here.” ,

In the instant case, there is no evidence that the informant possessed any knowledge which was vital to the preparation of appellants’ defense; no such objection, or allegation, was made, and in fact, the possession of the marijuana was admitted. The point is without merit.

It is next asserted that the trial court erred in not granting a motion for a new trial. The motion sets out several different grounds but the one referred to in the present argu-merit was the sixth ground which alleges that “The verdict is contrary to the law and the weight of' the evidence.” In support, it is simply stated:

“The Sheriff’s uncorroborated statement that he seized ‘about one-half pound of marijuana' is inconclusive, and there is no proof offered by the State that appellants delivered or intended to deliver the marijuana.”

It is true that there was no evidence offered by the State that appellants intended to sell or deliver the marijuana and the conviction is based on the statutory presumption. Ark. Stat. Ann. § 82-2617 (d) (Supp. 1973) provides that possession by any person of a quantity of marijuana in excess of one ounce creates a rebuttable presumption that such person possesses same with intent to deliver. The section provides, however, that the presumption may be overcome by submission of evidence sufficient to create a reasonable doubt that the person charged intended to deliver.

Whether there was error in the instruction given by the court with regard to the presumption is not raised by appellant, and is therefore not before us. Actually, the import of appellants’ argument is that the act is unconstitutional since it permits the conviction for the offense of intending to deliver the controlled substance without actual evidence that the party possessing same so intended. Both appellants testified that the marijuana was purchased for their own use, i.e., they intended to smoke it themselves, but, of course, the jury was not compelled to believe them. In Slone v. State, 254 Ark. 1011, the same question was before this court and in a comprehensive opinion we held the provision here in question to be valid and sustained the conviction. That case is a complete answer to the present argument and further discussion is not indicated.

Finally, it is asserted that the verdict of the jury is excessive and indicates passion and prejudice on the part of the jury. We have held that we have no authority to reduce a sentence that is not in excess of statutory limits, and we have consistently, in recent years, followed that rule. In Osborne v. State, 237 Ark. 5, 371 S.W. 2d 518 (1963), we said:

“Counsel vigorously maintains that the punishment is so severe that it should be reduced by this court. It is true that in a number of the older cases, including one as recent as Carson v. State, 206 Ark. 80, 173 S.W. 2d 122, we have assumed the power to mitigate the punishment imposed by the trial courts. The right to exercise clemency is, however, vested not in the courts but in the chief executive. Ark. Const., Art. 6, § 18. Our latest cases have uniformly followed the rule, which we think to be sound, that the sentence is to be fixed by the jury rather than by this court. If the testimony supports the conviction for the offense in question and if the sentence is within the limits set by the legislature, we are not at liberty to reduce it even though we may think it to be unduly harsh.”

In 1971, the Arkansas General Assembly enacted Act 333 (Ark. Stat. Ann. § 43-2701 — 2725.2 [Supp. 1973]), Section 12 (§ 2725.2) attempting to vest this court with the authority to reduce sentences that it deemed excessive. In Abholt V. State, 256 Ark. 558, 508 S.W. 2d 733 (1974), we construed this provision, stating:

“Although we have previously found it unnecessary to pass directly on the constitutionality of this provision insofar as it might be construed to empower this court to reduce a sentence otherwise proper and within statutory limits in cases arising after passage of the act, it should be clear that legislative action cannot override constitutional provisions. We strongly intimated that this act was ineffective to overrule the holding in Osborne v. State, supra, in Hurst v. State, supra, and cited in the case of People v. Odle, 37 Cal. 2d 52, 230 P. 2d 345 (1951). In that case a similar statute was construed by the California court to do no more than authorize it to reduce the punishment, in lieu of granting a new trial, when the only error found on appellate review related to the punishment imposed and was prejudicial. It specifically held that the statute granted no power to modify a sentence where there was no error in the proceeding. To construe the statute otherwise, said the court, speaking through Justice Traynor, would give the reviewing court clemency powers similar to those vested in the Governor by the California Constitution. That court clearly recognized that any construction of the statute extending the power of the appellate court any further would raise serious constitutional questions relating to the separation of powers. We think the construction given to the California statute by that state's Supreme Court was correct and that the same construction should be given our statute. When given that construction, it is clearly constitutional. If construed to give this court the power to reduce a sentence in the absence of error pertaining to the sentence, the statute would be unconstitutional for violation of Art. 6, Sec. 18 and Art. 4, Sec. 2 of the Arkansas Constitution, and upon the authority of Osborne v. State, supra.”

Finding no reversible error, the judgment is affirmed.

It is so ordered.

Byrd, J., concurs.

      The amount alleged to have been involved v\as approximately one-half pound.

      Certiorari denied by United States Supreme Court. See 414 U.S. 923.

        Simmons v. State, 227 Ark 1109, 305 S.W. 2d 1 19, Simmons was convicted of first degree murder and his punishment fixed at life imprisonment. '1'herc, we reduced the sentence to 21 years but the basis of such reduction was that the ewdence did not reveal that tire killing occurred with premeditation and deliberation, elements essential to a conviction for first degree murder. We accordingly reduced to the maximum for second degree murder.


author: George Rose Smith, Justice. John A. Fogleman, Justice,

text:
    Ira CRAIG and Phil SCHAAF v. STATE of Arkansas
    74-123
    514 S.W. 2d 383
    Opinion delivered October 14, 1974

      Brown, Compton & Prewelt, for appellants.

      Jim Cuy Tucker, Atty. Gen., by: O. H. Hargraves, Dep. Atty. Gen., for appellee.
   George Rose Smith, Justice.

This appeal involves the forfeiture of a bond in a criminal case. The appellant Schaaf is a professional bondsman. The appellant Craig was formerly in that business. On September 19, 1973, the two men made a $7,369.23 bail bond for John A. Jones, who was charged in the Cleburne Circuit Court with “hot check and false pretense.” On November 26 the court entered an order declaring a forfeiture of the bond in its full amount. This appeal is from a later order refusing to set aside the forfeiture. The appellants contend that under the statutes they are entitled to complete exoneration as a matter of right.

The facts are simple and not in dispute. Jones was arrested in Hempstead County and was taken to Columbia County, where he had written a bad check. There were additional charges pending against Jones in other counties. The appellants made a number of bail bonds for Jones, including the one now in issue and a $10,000 bond in connection with charges in Van Burén County. Van Burén and Cleburne counties are both in the 14th Judicial District.

Jones had been directed to appear in the Cleburne Circuit Court on October 8, 1973, but he left the state to avoid that appearance. The court entered an order finding that Jones had failed to appear and directing the two bondsmen to appear on November 26 and show’ cause why the bond should not be forfeited.

The bondsmen at once printed and circulated fliers seeking Jones’s apprehension. As a result of that action Jones was picked up at Winfield, Iowa. The two bondsmen drove to Winfield, paid a $500 reward, and returned Jones to Arkansas, where he was first placed in the Van Burén county jail on November 13 and then transferred to the Cleburne county jail.

Acting upon advice of counsel, the bondsmen did not appear in court on November 26, to show cause why the bond should not be forfeited. On that date the court entered an order declaring a forfeiture of the bond. A hearing upon the bondsmen’s motion to set aside the forfeiture was had on December 27. As a result of that hearing the court set aside the forfeiture of the $10,000 bond in the Van Burén County case, where restitution had been made, but refused to set aside the Cleburne County forfeiture.

The appellants, in insisting upon a right to complete exoneration, rely upon Ark. Stat. Ann. § 43-716 (Repl. 1964). We think, however, that three sections of the statutes, all being parts of the Criminal Code of 1868, must be considered. Those sections are:

Section 43-716. At any time before the forfeiture of their bond, the bail may surrender the defendant, or the defendant may surrender himself, to the jailer of the county in which the offense was committed; but the surrender must be accompanied by a certified copy of the bail-bond to be delivered to the jailer, who must detain the defendant in custody thereon as upon a commitment, and give a written acknowledgment of the surrender; and the bail shall thereupon be exonerated.
Section 43-723. If the defendant fail to appear for trial or judgment, or at any other time when his presence in court may be lawfully required, or to surrender himself in execution of the judgment, the court may direct the fact to be entered on the minutes, and thereupon the bail-bond, or the money deposited in lieu of bail, is forfeited.
Section 43-729. If, before judgment is entered against the bail, the defendant is surrendered or arrested, the court may, at its discretion, remit the whole or part of the sum specified in the bail-bond.

Section 43-716, relied upon by the appellants, is not applicable to the facts of this case. That section simply enables the bondsman to avoid liability by surrendering the defendant before there has been any failure on his part to appear in court. That was the situation in all four of the cases cited by counsel for the appellants: Ex parte Graham, 150 Ark. 236, 234 S.W. 176 (1921); Hester v. State, 145 Ark. 347, 224 S.W. 618 (1920); Carter v. State, 43 Ark. 132 (1884); Sternberg v. State, 42 Ark. 127 (1883). In Sternberg, for example, the bondsman had the sheriff re-arrest the defendant in January, 1882. After that the sheriff either released the defendant or allowed him to escape. At a subsequent forfeiture proceeding in June the trial court held the surety liable, on the ground that he had not taken a written acknowledgment from the sheriff. We reversed that holding, finding compliance with the statute.

In the case at bar the other two quoted sections are controlling. Under section 43-723, when Jones failed to appear on October 8 and the court entered that fact upon its record, the bond was, in the language of the statute, thereupon forfeited. The show-cause order did not abrogate the statutory forfeiture. It merely afforded the bondsmen an opportunity to be heard with respect to a total or partial remission of the forfeiture, under section 43-729.

At that hearing the trial judge expressed his disapproval of professional bonds and indicated that it was not customary in his district for such bonds to be accepted. The law, however, favors the bondsman. As we said in Central Casualty Co. v. State, 233 Ark. 602, 346 S.W. 2d 193 (1961): “It is well settled that the giving of bail bonds is to be encouraged, not only because the accused is ordinarily entitled to his freedom before trial but also because the state is relieved of the expense of maintaining the prisoner until the case can be heard. . . . ‘The purpose of requiring bail bonds is not to enrich the treasury, but to secure the administration of justice.’ ” In that case the accused had been only a few hours late in arriving for his trial, a blizzard having delayed his airplane flight. We reduced the forfeiture from $7,500 to $750, stressing the defendant’s almost total freedom from fault.

The case at bar presents a more serious issue than that raised in the case just cited. Here the bondsmen permitted their principal to leave the state to avoid trial and failed to appear at the November 26 hearing upon the show-cause order. Even so, the bondsmen were successful in finding the defendant and returning him to custody. The record does not indicate what additional costs and expenses were incurred by the county. We have concluded that a forfeiture of $2,500 is sufficient to secure the administration of justice in this case.

The order of forfeiture is reduced to $2,500 and, as so modified, is affirmed.

Fogleman, J., dissents in part.

John A. Fogleman, Justice,

concurring in part, dissenting in part. I am unable to find any abuse of the circuit judge’s discretion when he rendered judgment for the full amount of the bond in Cleburne County, particularly in view of the fact that appellants were relieved of any obligation on a $10,000 bond for the appearance of Jones in Van Burén County. Under the very wording of the statutes, it is necessary for us to do this in order to modify the trial court’s judgment as the majority has done and what is more, the majority has no basis whatever for arbitrarily fixing the recovery from the sureties at $2,500, sua sponte.

I respectfully dissent from that part of the opinion and judgment, but otherwise concur.


author: Lyle Brown, Justice.

text:
    ARKANSAS STATE HIGHWAY COMM’N v. Ed HUBACH et al
    74-111
    514 S.W. 2d 386
    Opinion delivered October 14, 1974

      Thomas B. Keys and Philip N. Gomen, for appellant.

      Lightle, Tedder, Hannah & Beebe, for appellees.
   Lyle Brown, Justice.

In this eminent domain proceeding the Highway Department took 5.75 acres of improved property, leaving 0.81 of an acre of minimal market value. For reversal appellant contends the trial court erred in refusing to let appellant introduce two transactions involving the lands taken.

The First Sale. Four years and four months prior to the taking appellee and a partner acquired the subject property for a sum considerably less than the damages sought. Appellee objected to any evidence concerning, or reference to, that sale on the ground that it was too remote in time. The court sustained the motion. We think the court fell into error. First, it must be remembered we are dealing with the sale of the subject property to condemnee. The court’s ruling precluded any cross-examination of appellee with respect to the sale, which cross-examination should be allowed for the purpose of testing his credibility. On cross-examination of appellee, appellant asked the court for permission to inquire as to the purchase price of the land. The request was denied. Second, we do not think it was proper to hold as a matter of law that the sale was too remote in time. If the appellant could lay the proper foundation it should be permitted to introduce the sale. It is not uncommon for an expert witness to use a purported comparable sale when the witness makes proper adjustments for the passage of time and any fluctuation in values which has occurred since the sale. The general rule is well stated in Nichols on Eminent Domain (3rd Ed. 1974) § 12.311 [1]:

When a parcel of land is taken by eminent domain, the price which the owner paid for it when he acquired it is one of the most important pieces of evidence in determining its present value. However, this assumes that the sale was recent, was a voluntary transaction between parties each of whom was capable and desirous of protecting his own interests, and that no change in conditions or marked fluctuation in values has occurred since the sale. A price paid under such conditions is a circumstance which a prospective purchaser would seriously consider in determining what he himself should pay for the property. As evidence before a jury, it consumes little time in introduction and raises few collateral issues, so that every argument is in favor of its admissibility.

We adhere to the recited rulé but we think the trial judge should not have ruled out, as a matter of law, the sale to the condemnee until and unless it is shown that it is far removed from the date of condemnation and that changes in conditions are such as to make the transaction substantially useless in determining present day value.

The Second Sale. In 1970, two years prior to the taking, appellee landowner purchased the one-half interest of his partner. Upon objection being made by the landowner, the court ruled that reference could not be made to the sale. The ruling was based on the fact that the landowner propounded interrogatories to appellant prior to trial; that in those questions appellant was asked to list the comparable sales on which it expected to rely; and that appellant did not list the 1970 transaction between the partners. Again, the effect of the ruling was to deprive appellant of the opportunity to cross-examine the landowner regarding the transaction. However, in the event of another trial the appellant, upon laying the proper foundation, may introduce the sale. That is because appellee will have had ample notice that appellant proposes to introduce evidence thereon; consequently no prejudice could result from the failure to list the sale in the interrogatories.

Reversed and remanded.


author: John A. Fogleman, Justice.

text:
    Gordon Eutah McCARLEY v. STATE of Arkansas
    CR 74-80
    514 S.W. 2d 391
    Opinion delivered October 14, 1974

      Tackett, Moore, Dowd & Harrelson, for appellant.

      Jim Guy Tucker, Atty. Gen., by: O. H. Hargraves, Dep. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Appellant Eutah McCarley asserts a single point for the reversal of his conviction of second degree murder by jury verdict fixing his punishment at 21 years imprisonment. He contends that the circuit judge erred in overruling his objections to evidence of specific wrongful acts allegedly done by appellant prior to the incident for which he was tried.

McCarley was charged with first degree murder in the killing of one Lonnie Richardson on October 17, 1973 at or near McCarley’s old homeplace near Grannis. At the time, McCarley was moving back into the house there after an absence of some two or three years.

Appellant took the witness stand and on cross-examination the prosecuting attorney asked him if he had a fight with a fellow workman named W. D. Smith, if he had a pretty violent fight in a uranium mine in New Mexico, if he had engaged in bootlegging whiskey in Oklahoma, if he had not operated a still in Oklahoma, if he did not bring whiskey with him to Arkansas on the day of the shooting, and if he had an altercation in which he used a knife and his adversary used a tire tool. All of these questions were answered by McCarley in the negative except that, in response to the question about W. D. Smith, he said that he had to defend his rights with Smith.

Appellant contends that this interrogation was prohibited by Ark. Stat. Ann. § 28-707 (Repl. 1962). A short answer to this argument is that this statute has no application and does not limit cross-examination of a witness in this respect. Carter v. State, 255 Ark. 225, 500 S.W. 2d 368. This line of questioning going to the credibility of the witness was permissible. Inklebarger v. State, 252 Ark. 953, 481 S.W. 2d 750; Bowlin v. State, 175 Ark. 1047, 1 S.W. 2d 546; McAlister v. State, 99 Ark. 604, 139 S.W. 684. Furthermore, in view of appellant’s answers, he is in no position to claim that he was prejudiced by the questions, particularly since the jury was admonished that the questions affected credibility only. Wallin v. State, 210 Ark. 616, 197 S.W. 2d 26; Dailey v. State, 250 Ark. 965, 468 S.W. 2d 238; Garrison v. State, 148 Ark. 370, 230 S.W. 4; Barton v. State, 175 Ark. 120, 298 S.W. 867; Bowlin v. State, supra.

The state’s attorney, however, was not satisfied with appellant’s answers and, on rebuttal, called Harold Higgins and Nell Dean McCarley, appellant’s former wife from whom he had been separated and divorced but who was living with him at the time of the alleged crime. Higgins testified, over appellant’s objection, that he had, within recent months, bought whiskey from McCarley. Mrs. McCarley testified, also over appellant’s objection, that appellant had been engaged in selling whiskey and had been in a rather violent altercation in which a rifle was involved while they were living in the west. This was clearly error. It did constitute an effort to impeach McCarley in violation of Ark. Stat. Ann. § 28-707. The questions asked were collateral to the issue and the state had no right to contradict appellant by evidence of any prior bad acts, as distinguished from evidence of a former conviction. McAlister v. State, supra. This prohibition applies with at least as great impact when the defendant is the witness as when any other witness is involved. Randall v. State, 239 Ark. 312, 389 S.W. 2d 229. The trial court’s limitation of consideration of this rebuttal evidence to the credibility of the witness could not cure the error, because its admission was contrary to the statute. See Ederington v. State, 244 Ark. 1096, 428 S.W. 2d 271.

The Attorney General, however, very appropriately foregoes any argument that there was no error in the admission of this testimony. The state’s argument is that the error was not prejudicial. That argument is supported by such decisions as Ware v. State, 91 Ark. 555, 121 S.W. 927. It presents the real issue on appeal. In Ware, we said that the erroneous introduction of testimony is not prejudicial if it does not deprive the defendant of a fair and impartial trial under all the evidence in the case, i.e., where the uncon-troverted testimony shows that the defendant is guilty of the degree of crime of which he is convicted, error in the introduction of incompetent testimony is not prejudicial because, regardless of the light in which it is viewed, the jury could not have rendered a verdict of acquittal. We recognized, however, that if the facts are,disputed or the proof controverted, that view of the testimony most favorable to the defendant should be taken and, if, in such view, the incompetent testimony would have a tendency to disparage the controverting evidence on the part of the defendant, its admission would be prejudicial. When we applied the rule in Ware, we found the error to have been prejudicial.

The rule recited in Ware has been applied without question when the verdict of the jury finding a defendant guilty of a degree of crime clearly demonstrates that the inadmissible testimony could not have been considered in arriving at the verdict. Coulter v. State, 100 Ark. 561, 140 S.W. 719. But we cannot say that this is so in the present case. Of course, we presume error to be prejudicial in the absence of an affirmative showing to the contrary unless it manifestly is not. Graves v. State. 256 Ark. 117, 505 S.W. 2d 748 (1974). The question of prejudice here is not without difficulty. It turns upon the question whether appellant’s credibility is so essential to his defense that any testimony tending to make him appear less credible is disparaging to the theory of his defense and the evidence tending to support it. If so, the error is prejudicial. Carlley v. State, 191 Ark. 363, 86 S.W. 2d 36. We must look then to the theory of his defense and its evidentiary support to answer the question.

Appellant was charged with first degree murder and it is sufficient for the purposes of this appeal to say that the evidence would have sustained a finding of guilt of that degree of homicide. The defense was self-defense. The state argues very persuasively that the jury returned the only verdict it could have returned under the undisputed evidence, even when it is viewed in the light most favorable to McCarley. The state asserts that the theory of self-defense was merely colorable, because appellant never saw a gun he said he thought the deceased was reaching for during the encounter and because any defense of his own person was abandoned when, after having fired at and shot the deceased, appellant struck him twice with the butt of a rifle and twice again fired at deceased from behind a tree at the scene.

This case is not sufficiently similar to Taylor v. State, 72 Ark. 613, 82 S.W. 495 relied upon by the state, to be controlled by it because the undisputed evidence showed that the deceased unlike the heavily armed victim in this case, was unarmed and actually ran from Taylor and his two brothers crying for help and begging them not to shoot him anymore, and that the brothers continued to shoot him until he had fallen and even thereafter. Clearly there was no basis for a finding of self-defense there.

Still McCarley could not avail himself of the defense he asserted if he provoked or brought on, either by acts or demonstrations, the alleged attack by Richardson, if he approached Richardson in anticipation that Richardson would attack him, with the intention of killing Richardson, if McCarley voluntarily entered into a duel or contest with Richardson, or if he had not done everything in his power to avoid the danger and avert the necessity of the killing. Burton v. State, 254 Ark. 673, 495 S.W. 2d 841; Clingham v. State, 207 Ark. 686, 182 S.W. 472; Valentine v. State, 108 Ark. 594, 159 S.W. 26; Sharp v. State, 175 Ark. 1083, 3 S.W. 2d 23; Yancey v. State, 120 Ark. 350, 179 S.W. 352. Without reviewing it, the testimony was such, even accepting McCarley’s version, that the jury verdict is readily understandable. Still, we cannot say with absolute assurance, when all inferences are drawn in favor of appellant and the situation viewed as it appeared to McCarley, acting as a reasonable person, his plea of self-defense was totally foreclosed as a matter of law. Richardson, according to McCarley, was reputed to be a bully and always went armed. There was evidence tending to corroborate this view. Richardson was sitting in the road in his vehicle, armed with a .308 rifle and a .22 calibre pistol, watching McCarley move into the old home. Richardson had ignored McCarley’s signal inviting him to come down to the house. When McCarley first approached Richardson, Richardson was raging and cursing and a hot argument ensued. McCarley thought Richardson reached for a weapon before McCarley fired his .22 rifle, shooting Richardson. Unquestionably, Richardson had fired the rifle at McCarley before Richardson succumbed to McCarley's fatal shot.

The plea of self-defense raised the issue of manslaughter, because if one acts too hastily and without due care in assaulting another, even though he believes he is about to be assaulted by the other, he is not justified in taking human life and is guilty of manslaughter. Peters v. State, 245 Ark. 9, 430 S.W. 2d 856; Ellis v. State, 234 Ark. 1072, 356 S.W. 2d 426. The jury was instructed on the crime of manslaughter and a verdict on that degree was possible under the evidence.

Furthermore, we cannot ignore the fact that the jury meted out the maximum punishment for second degree murder. Long ago, we recognized that error in the admission of contradicting evidence was prejudicial, even though the competent evidence clearly showed guilt, when the matter contradicted could properly be considered by the jury in mitigation of punishment if it gave credit to the defendant’s statement. Stone v. State, 56 Ark. 345, 19 S.W. 968. We certainly are not prepared to say that the jury would not have assessed a lesser punishment, even on a verdict of second degree murder, had it not been for the shadow cast on appellant’s credibility by the improper admission of the impeaching evidence. We also find some significance in the jury recommendation that McCarley be required to serve the full sentence imposed. When a greater sentence is imposed than might have otherwise been assessed, had incompetent testimony not been admitted, we have held that its admission was prejudicial. Williams v. State, 183 Ark. 870, 39 S.W. 2d 295.

When all factors are considered, we cannot say that the error was not prejudicial, so the judgment is reversed and the cause remanded for a new trial.


author: Coni.ey Byrd, Justice.

text:
    Bobbie BOWERS v. Richard W. BOWERS, Gary C. BOWERS
    74-110
    514 S.W. 2d 387
    Opinion delivered October 14, 1974
    [Rehearing denied November 18, 1974.]

      Camp, Thornton & Griggs, for appellant.

      McKay, Chandler & Choate, P.A., and Woodward & Kinard, Ltd., for appellees.
   Coni.ey Byrd, Justice.

The issues here involved arise out of a divorce action between appellant Bobbie Bowers and appellee Richard W. Bowers. Appellee Gary C. Bowers, the son of Richard Bowers, was brought into the action by appellant to set aside an alleged gift to him of the machine shop business known as Bowers Debarking Tools, Inc. The trial court denied a divorce to both appellant and appellee Richard Bowers and dismissed the third party complaint against Gary Bowers for want of equity. In addition the trial court awarded appellant support money in the amount of $300 per month and a total attorney’s fee of $1,000. Appellant has appealed and for reversal makes the contentions hereinafter discussed.

The record shows that both Bobbie Bowers and Richard Bowers had previously been married. Bobbie’s first husband Kelly Lewis was superintendent of the Magnolia Water works. He died with a heart attack in 1964. Richard Bowers’ former wife was killed in a car-train collision in 1964. Mr. Bowers, the driver of the car, also received some injuries. Mrs. Bowers has only one child, Michael Lewis and Mr. Bowers had only one child, appellee Gary C. Bowers.

When Mr. and Mrs. Bowers married in 1966, they moved into the rented house in Waldo where Mr. Bowers had lived since 1954. Mr. Bowers had operated a machine and welding shop in a garage on the back of the rented property. After the marriage Mr. Bowers continued to operate the machine and welding shop. After the marriage Mrs. Bowers assisted in the operation of the business by doing some painting, running some errands and answering the phone. According to the income tax returns the annual income of the machine shop did not exceed $5,031.56 until 1971, when it climbed to $18,035.00. The record shows that Gary Bowers joined the business in April or May of 1972, and that the business was incorporated on August 4, 1972. On that date all of the shares of stock in Bowers Debarking Tools, Inc., were assigned to Gary.

The record shows that Gary grew up in his father’s machine shop. When he was inducted into the navy, he was promoted to 3rd class machinist, because of certain aptitude tests. Gary graduated from Baylor University Law School in 1963 and was admitted to the practice of law in the State of Texas. Following the death of his mother, Gary returned to Waldo and helped his father in the machine shop until 1965, when his father recuperated to the point that he could run the shop by himself. Gary had a private law office in Houston, Texas, until he closed it down to return to Waldo in 1972.

POINTS I and II. Under these points appellant contends that she was entitled to a directed verdict of divorce and a divorce on her counterclaim. The thrust of appellant’s argument is that since appellee Richard Bowers testified that appellant was a homosexual and did not corroborate the charge she is entitled to a divorce under the doctrine set forth in Relaford v. Relaford, 235 Ark. 325, 359 S.W. 2d 801 (1962). The doctrine set forth in the Relaford case is as follows:

“It has been repeatedly held by us that the husband’s making of an unfounded charge of lascivious conduct against an innocent wife is in itself evidence of and constitutes cruel and inhuman treatment within the meaning of the statute, entitling the wife to divorce, except where the charge is made, not maliciously but in good faith, upon reasonable grounds for believing it, even though held untrue, (citing cases) Also, we have held that accusations in pleading of spouse as to improper conduct of the other spouse, where not supported by such evidence as to imply good faith, constitutes cruel and inhuman treatment where false and malicious.

Thus before appellant can rely upon the Relaford case it must appear that Richard Bowers was not in good faith when he testified.

The proof shows that a year or two before the separation in February 1973, a school teacher, some 26 or 27 years of age, who lived injunction City, Arkansas, but was teaching school at Waldo, started spending all of her spare time with appellant. Richard Bowers testified that the teacher was over there after school, at night and stayed theré at night when he went out of town. Marie Harris testified that the teacher came to appellant’s house every day as soon as school was out and stayed until bed time. On nights when Mr. Bowers was out of town the teacher would spend the night. Before the temporary hearing the teacher parked her car at appellant’s house when she came. After the temporary hearing the teacher continued to visit appellant but parked her automobile at the home of a relative.

During the presentation of his side of the evidence appellee Richard Bowers at one place testified he left when he found-out two nights before his separation that appellant was a sex deviate. At one other place he used the term “homosexual”. After appellant had testified there was no problem in the marriage relating to sexual matters, Richard Bowers, in rebuttal, testified that on the two nights before their separation, appellant wanted him to participate in some oral sex acts. He also explained that his impression of a “homosexual” is the participation in an unnatural sex act. He further stated that he didn’t know whether there was anything wrong or unnatural with the relationship between the teacher and appellant.

Appellant quotes the dictionary definition of a “homosexual” and contends that since Mr. Bowers did not corroborate the charges he made, she is entitlted to a divorce. Underlying this contention is appellant’s supposition that the proof relative to the teacher was only for the purpose of corroborating Mr. Bowers’ sexual charges. We do not necessarily agree on either contention. The proof as to the teacher also tended to substantiate Mr. Bowers’ assertions of appellant’s indifferent attitude toward him. His only real assertion in the matter is that the woman was there “too often”. Furthermore, we do not go so far under the theory set forth in Relaford v. Relaford, supra, as to hold that a spouse is entitled to a divorce whenever such charges are not corroborated. On the record here we cannot say that Mr. Bowers’ testimony relative to the unnatural sex acts was not in good faith.

Appellant also contends that she was entitled to a divorce because Mr. Bowers abandoned her without cause; caused certain utilities to be cut off; and refused money for support, etc. These were fact issues before the chancellor and we have been shown no evidence whereby the chancellor abused his discretion in refusing to grant appellant a divorce. Furthermore, appellant’s testimony leaves some doubt as to whether she desires a divorce.

POINT III. Appellant contends that the trial court should have set aside the transfer of the machine shop business to Gary Bowers. We find no merit in the many contentions made. In the first place the record shows that Mr. Bowers had been operating this business in the same place since 1954. Thus, the contention that the business was accumulated through their joint efforts is not supported by the record. In the next place the business was transferred to a corporation and the corporation is not a party to this proceeding. Furthermore, in the absence of a showing of any interest in the business other than inchoate dower rights, appellant is not entitled to a property division until such time as a divorce is granted.

POINT IV. The trial court awarded a fee of $300 to appellant’s counsel at the temporary hearing and an additional $700 in the final decree. Appellant now contends that she was entitled to a $5,000 fee and that the fee should be assessed against both Richard Bowers and his son Gary Bowers. The matter of allowance of attorney’s fees in divorce cases is a matter over which the trial court has considerable discretion and on the record before us we cannot say that the chancellor abused his discretion in awarding only $1,000 for the services of her attorney in the trial court. Furthermore, Gary Bowers, the son, would not be personally responsible for the fees to be allowed in the divorce case.

Affirmed with an additional attorney’s fee of $1,000 being awarded to appellant as against Richard Bowers for the services of her attorney on appeal.

Harris, C.J., concurs.


author: George Rose Smith, Justice.

text:
    Debra Ann FORTMAN et al v. TEXARKANA SCHOOL DISTRICT NO. 7
    74-71
    514 S.W. 2d 720
    Opinion delivered October 21, 1974

      James E. Davis, for appellants.

      Ned A. Stewart Jr., for appellee.
   George Rose Smith, Justice.

This is an action by the appellants, two tenth-grade high school girls (suing by their next friends), for a writ of mandamus to compel the appellee school district to re-admit them to the Texarkana, Arkansas, high school. The circuit court, in sustaining the district’s motion for summary judgment, held that the board of directors of the district had the authority to permanently expel the two girls. Whether that ruling was legally correct is the only issue argued by the appellants.

The material facts are not in dispute. On the evening of March 21, 1973, some sort of verbal controversy took place at a dance attended by high school students. As an aftermath to that altercation the two appellants on the following day, during school hours, attacked a third girl, Kathy Walker, on the school grounds. The attack was deliberately planned in advance. The Walker girl was kicked, beaten, and stabbed twice in the head with a six-inch pair of scissors. Her injuries were serious but not fatal. The principal of the high school promptly suspended the appellants for the remainder of the school term.

The principal then recommended to the directors that the two assailants be expelled. After a public hearing, about which no constitutional question is raised, the board voted unanimously for permanent expulsion. At the hearing the district’s attorney advised the board that it would have the authority to reinstate the two girls later on if it saw fit to do so. The circuit court, in denying the requested writ of mandamus, noted that after their expulsion the girls had pleaded nolo contendere to charges of assault with intent to kill and had each received a five-year suspended sentence.

Counsel for the appellants, in insisting that school directors cannot expel a student, argues that the board’s only authority in the matter must be derived from Ark. Stat. Ann. § 80-1516 (Repl. 1960), which was part of the comprehensive 1931 school law:

The directors of any school district may suspend any person from school for immorality, refractory conduct, insubordination, infectious disease, habitual uncleanliness or other conduct that would tend to impair the discipline of the school, or harm the other pupils, but such suspension shall not extend beyond the current term. The board of directors may authorize the teacher to suspend any pupils, subject to appeal to the board.

We are unwilling to construe the board’s authority so narrowly. In the first place, the power of expulsion was legislatively recognized in Section 13 of Act 63 of 1969 (Ark. Stat. Ann. § 80-1656 [Supp. 1973]):

Nothing in this Act shall be construed to limit a local school district’s power to adopt reasonable rules, regulations, and policies, not inconsistent with the purposes of this Act, to insure continued orderly operation of schools, including adult education and area vocational-technical high schools, and such powers are deemed to include the right of expulsion for student participation in any activity which tends, in the opinion of the Board, to disrupt, obstruct or interfere with orderly education processes.

It is true that Act 63 was adopted by the legislature to implement Constitutional Amendment 53, which specifically confirmed the power of the General Assembly and of school districts to expend public funds for the education of persons over twenty-one or under six years of age. Nevertheless, we find it difficult to believe that the lawmakers meant to recognize the school board’s authority to expel a student after his twenty-first birthday but to deny that power immediately before that anniversary. We can discern no reasonable basis for such a distinction.

In the second place, the directors have implied powers as well as express ones. “But school directors are authorized, not only to exercise the powers that are expressly granted by statute, but also such powers as may be fairly implied therefrom and from the duties which are expressly imposed upon them. Such powers will be implied when the exercise thereof is clearly necessary to enable them to carry out and perform the duties legally imposed upon them.” A. H. Andrews Co. v. Delight Spec. Sch. Dist., 95 Ark. 26, 128 S.W. 361 (1910). Our school laws unquestionably impose upon school boards the duty of providing orderly educational institutions. Scant imagination is required to think of innumerable situations in which the power of expulsion might be the school board’s only effective means of protecting the student body from the disruptive, violent, or criminal actions of an incorrigibly intractable pupil.

The controlling principles are well stated by Professor Bolmeier in “The School in the Legal Structure,” § 16.17 (2d ed., 1973):

The legal principle is also firmly established that school authorities may expel or suspend from school any pupil who disobeys a reasonable rule or regulation. School officials are clothed with considerable discretionary authority in determining whether or not a rule has been violated, and, in the event they conclude that a violation has occurred, they also have discretionary authority in determining the nature of the penalty to be imposed — providing it is not arbitrary or unreasonable. When, however, parents challenge the action of school boards as being beyond the bounds of reasonableness, litigation may develop.
There are a number of cases concerning pupil suspension and expulsion. The terms “suspension" and “expulsion” are sometimes used interchangeably. There is, however, considerable difference in the legal meaning of the two terms. “Suspension" is generally an act of a professional member of the school staff, whereas “expulsion” is a prerogative of the school board. Suspension is usually for a short period of time, or until the pupil conforms to the rule or regulation involved, whereas expulsion is usually permanent or substantially so.
The courts look somewhat askance at acts of suspension, and particularly at expulsion, as methods for forcing pupils’ conformance to rules and regulations. Some incorrigible pupils violate school regulations for the very purpose of being removed from the school environment. It should be realized that when a pupil is denied school attendance he is deprived of education designed for his betterment. Of course when a pupil's misconduct or disobedience is of such a grave nature that his presence is disrupting to the school and detrimental to the morale of the student body, suspension, or even expulsion, is likely to be judicially condoned.

The courts have been reluctant to interfere with the authority of local school boards to handle local problems. Our position was well stated in Safferstone v. Tucker, 235 Ark. 70, 357 S.W. 2d 3 (1962): “In this State a broad discretion is vested in the board of directors of each school district in the matter of directing the operation of the schools and a chancery court has no power to interfere with such boards in the exercise of that discretion unless there is a clear abuse of it and the burden is upon those charging such an abuse to prove it by clear and convincing evidence.” We cannot say that an abuse of discretion has been shown by the undisputed facts in the case at bar.

Affirmed.


text:
    William H. HOWELL v. STATE of Arkansas
    CR 73-123
    514 S.W. 2d 723
    Opinion delivered October 21, 1974

      Tackett, Moore, Dowd & Harrelson, for petitioner.

      Jim Guy Tucker, Atty. Gen., by: 0. H. Hargraves, Dep. Atty. Gen., for respondent.
   George Rose Smith, Justice.

This is a petition by William H. Howell for a writ of certiorari to review the order of the Miller Chancery Court finding Howell guilty of criminal contempt of court and sentencing him to serve ten days in jail. We stayed the enforcement of the order pending our review of the proceedings — a review that has been delayed by the court reporter’s inability to transcribe the testimony promptly. The petitioner contends that the trial court erred in finding him guilty of an offense not specified in the order requiring him to show cause why he should not be punished for contempt of court. We find the petitioner’s contention to be sustained by the record.

On December 3, 1971, the trial judge, sitting as a chancellor on exchange, granted a divorce to the petitioner’s wife and awarded her the custody of the couple’s two-year-old daughter, Susan, with certain visitation rights in the father. Various post-decretal hearings appear to have been held. The present controversy arises from such a hearing held on July 31, 1973, at which the court approved a proposed trip that the petitioner Howell desired to take with his daughter.

No testimony was taken at that hearing. Opposing counsel had jointly conferred with their clients and had agreed upon detailed plans for the trip. It was expected that Mr. Howell and Susan would be gone for about twelve days, stopping at specified places in Oklahoma, at Fayetteville, Arkansas, and at Marshall, Missouri. It was contemplated that Howell’s mother, who lived in Oklahoma, would travel with her son and granddaughter for about seven days, including a four-day stop at Fayetteville. Howell’s older brother (a doctor) was also to join the group.

The trip was completed as planned, except that Howell’s mother was unable to be absent from her job and consequently did not accompany the others, as expected. Upon Howell’s return to Texarkana his former wife filed a motion that he be cited for contempt, on the ground that he had failed to make certain telephone calls that he had agreed to make and that Howell’s mother had not been present for at least two days during the trip. In response to that motion the trial judge issued an order directing Howell to appear and show cause why he should not be held in contempt “for his failure to comply with the plan for visitation approved by the Court on the 31st of July, 1973."

At the hearing upon the contempt charge Howell explained that his mother had been unable to leave her job. Needless to say, that was not Howell's fault. He also testified, without contradiction, that at the joint conference with the lawyers, before the trip, he had explained that his mother had a new job and might not be able to make the trip. That possibility, however, was not explained by anyone to the court when the plans were approved.

At the close of the hearing the trial judge found Howell guilty of contempt, upon the sole ground that he had not told the court on July 31 that his mother might not be able to leave her job. The judge pointed out that Howell is an attorney and had a duty to be open with the court and not permit his own lawyer to mislead the court.

We cannot sustain the conviction for criminal contempt. Such a charge must be established by proof beyond a reasonable doubt. Blackard v. State, 217 Ark. 661, 232 S.W. 2d 977 (1950). The accused is entitled to be informed with reasonable certainty of the facts constituting the offense, so that he can present his defense. Taliaferro v. Taliaferro, 252 Ark. 1078, 483 S.W. 2d 189 (1972).

Here there was no notice, either in the motion for citation or in the show-cause order, that Howell was being charged with a failure to inform the court of his mother’s possible inability to leave her work. Had that charge been made, Howell might have engaged additional counsel to act for him, so that his own attorney would be free to testify in his behalf, perhaps taking the blame himself. We cannot say that Howell was not prejudiced by being found guilty of a criminal charge of which he had no notice and therefore no fair opportunity to prepare his defense.

The writ of certiorari to review the trial court's order is granted, and the order is set aside.


text:
    Peggy Ann JENKINS v. Leslie Leverne JENKINS
    74-105
    514 S.W. 2d 701
    Opinion delivered October 21, 1974

      Monroe L. Bethea, for appellant.
    No brief for appellee.
   John A. Fogleman, Justice.

On this appeal, appellants seeks to sustain service of process on the appellee-defendant (under the “longarm” provisions of the Uniform Interstate and International Procedure Act [Ark. Stat. Ann. § 27-2501 — 2507 (Supp. 1973)]) in her divorce action. The chancery court denied appellant a divorce, holding that, even though appellee had actually received the notice given, service on him had not been completed. We agree.

Service was attempted by the issuance by the clerk of a writ labelled “summons” but in the form of a warning order. By affidavit filed in the case the clerk deposed that she had served this process, to which a copy of the complaint was attached, on appellee by certified mail and had received a return receipt therefor. This receipt was attached to the affidavit. It showed that a letter from the clerk for delivery to the addressee only had been directed to Leslie Leverne Jenkins, c/o Clyde Jenkins, Route 1, Louisville, Illinois. The receipt was signed “Leslie Jenkins.”

Appellant places her sole reliance upon § 27-2502 B and 27-2502 C 1(a) which reads:

B. Personal jurisdiction based upon enduring relationship. A court may exercise personal jurisdiction over a person domiciled in, organized under the laws of', or maintaining his or its principal place of business in, this State as to any cause of action.
C. Personal jurisdiction based upon conduct.
1. A court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a (cause of action) (claim for relief) arising from the person’s (a) transacting any business in this state;

We readily reject the idea that appellee, either by marriage to appellant or by living with her in Arkansas, was in any sense of the word transacting any business in the state on which personal jurisdiction over appellee could have been exercised by the chancery court. Furthermore, the provisions of §27-2502 B are not applicable, because there is no showing whatever that appellee is, or for that matter ever was, domiciled in the State of Arkansas.

The order of the chancery court is affirmed.


author: Conley Byrd, Justice.

text:
    David GARRISON v. STATE of Arkansas
    CR 74-101
    515 S.W. 2d 222
    Opinion delivered October 21, 1974
    [Rehearing denied December 2, 1974.]

      Adams & Covington, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Gary Isbell, Asst. Atty. Gen., for appellee.
   Conley Byrd, Justice.

Appellant David Garrison’s sole contention for reversal of his two year conviction and sentence for possession of a controlled substance (LSD) is that the trial court should have excluded under the Fourth Amendment, as an illegal search, any evidence of the drugs that he voluntarily delivered to a confidential informant and an undercover narcotics agent. We find no merit in the contention. See Lewis v. United States, 385 U.S. 206, 87 S. Ct. 424, 17 L. Ed. 312 (1966).

Affirmed.


text:
    Jimmy SMITH, Administrator of The Estate of James Albert SMITH, d/b/a CRESCENT LIQUOR STORE, and ALCOHOLIC BEVERAGE CONTROL BOARD v. RIDGEVIEW BAPTIST CHURCH, Inc.
    74-120
    514 S.W. 2d 717
    Opinion delivered October 21, 1974

      Murphy, Carlisle & Taylor, for appellants.

      Bob I. Mayes and Truman H. Smith, for appellee.
   Frank Holt, Justice.

The appellant Alcoholic Beverage Control Board granted appellant Smith’s petition to transfer a retail liquor license to within 200 yards of appellee church. The trial court reversed the Board’s action pursuant to Ark. Stat. Ann. § 48-310 (Repl. 1964) which, in pertinent part, reads:

No new permit shall be issued for the location of a business within two hundred (200) yards of any church

Appellants assert for reversal that this statute § 48-310 (§ 2 of Act 352 of 1939) was illegally enacted by the legislature. Therefore, the appellant Board’s “Regulation #124” (as authorized by Ark. Stat. Ann. § 48-203 [c] [Repl. 1964]), which requires the retail outlet to be only in excess of 100 yards (and not 200 yards) from church property, is controlling as to the required distance. Appellants rely upon Matthews v. Bailey, Governor, 198 Ark. 830, 131 S.W. 2d 425 (1939), to the effect that Act 352 is invalid. The appellee, however, argues that Matthews is not the latest expression on the validity of the Acts enacted in 1939 and that decision is no longer authoritative or binding. We agree with the appellants that § 48-310 is invalid.

On January 4, 1939, the governor appointed the Honorable Paul Gutensohn to fill a vacancy in the Arkansas State Senate. This procedure, however,'was in direct conflict with a mandate by the electorate as reflected by Amendment 29, § 1, Ark. Const. (1874). Two months previous to the appointment this constitutional Amendment was enacted and in pertinent part reads: “Vacancies in the office of **** the general assembly **** shall [not] be filled by the governor.” Subsequent to this obviously invalid appointment, the senate enacted Act 352 of 1939 (§ 48-310) by a vote of 18 to 11. It is stipulated that Gutensohn’s vote was one of the 18. Therefore, without his vote the Act would not have received the necessary majority vote of the senate as is required by Art. 5, § 2, Ark. Const. (1874). Now, after approximately 36 years, the validity of this particular Act is squarely presented for the first time by this appeal. Bell v. Adams, 243 Ark. 895, 422 S.W. 2d 691 (1968). However, we are not without precedent as to the validity of a legislative act voted upon by Gutensohn during the 1939 session. In Matthews, supra, the issue was whether the emergency clause of Act 4 of 1939 was validly adopted. Gutensohn’s vote constituted the required majority. We held that he was neither a de jure nor de facto senator. We said:

It will be conceded that the governor has not the power to appoint members of the Legislature, and has never had. As an express condemnation of the policy of appointing, Amendment No. 29 to the Constitution was adopted November 8, 1938, and became effective thirty days thereafter.

In determining Gutensohn was not a de facto official, we further said:

We find no case of our own holding that legislation enacted by the vote of a stranger to the Senate or the House is sacrosanct.
There are no instances where it has been said that designation by appointment contrary to the Constitution shall have the force of election, or that the admitted right of the Senate and the House to judge of the qualifications, returns and election of members goes to the extent of nullifying the Consitution. Those elected to the General Assembly take an oath to support the Constitution, and there is no presumption that senators and representatives do not intend to adhere to the basic, law, and they do attempt to obey it.
‡ ‡ ‡ $ The general rule is that when an official, person or body, has apparent authority to public office, and apparently exercises such authority, and the person so appointed enters on such office, and performs its duties, he will be an officer de facto, notwithstanding there was want of power to appoint in the body or person who professed to do so, or although the power was exercised in an irregular manner.

Then we emphatically said:

In the instant case there was no apparent authority to appoint Gutensohn; and, although the latter served energetically and with a high degree of intelligence, the service was not that of of a senator; nor could he have been a de facto officer in view of the want of apparent authority by the appointive agency.

In Trussell v. Fish, 202 Ark. 956, 154 S.W. 2d 587 (1941), the county assessor appointed an ineligible deputy. We held that since the assessor had the appointive authority, although exercised improperly or ineffectively, the appointee deputy was a de facto official, citing Matthews, supra, but distinguishing it on the basis that the appointing officer there had neither actual nor apparent authority.

Appellee vigorously asserts that Matthews was overruled either specifically or by implication in Pope v. Pope, 213 Ark. 321, 210 S.W. 2d 319 (1948). (See also Howell v. Howell; Stevens v. Stevens, 213 Ark. 298, 208 S.W. 2d 22 [1948] which followed the reasoning in Matthews with reference to dejure and de facto officials.) In Pope the issue was the validity of Act 42 of 1947 where the legislature created a division of chancery court and at the same time appointed a chancellor to serve in this division.

The court held in Pope and Howell-Stevens that the naming of a chancellor was unconstitutional and beyond the legislature’s power. However in Pope, contrary to Howell-Stevens, we held the chancellor named by the legislature to a de jure position constituted a de facto official and, therefore, the chancellor’s acts as a judge were lawful.

We cannot agree with appellee that Matthews, when applied to the case at bar where the pertinent facts are virtually identical, is not binding and controlling. In Matthews we said it is an invalid appointment and contrary to our constitution. In doing so we declined to give a de facto status to this appointment because there was not even “apparent authority” for the governor to make the appointment. In fact, the appointment was specifically prohibited by a very recent amendment.

It is stipulated, as was said in Matthews, that although the senate is the “sole judge" of the qualifications and election of its members, Ark. Const., Art 5, § 1, there was no finding by the senate that Gutensohn was a member of that body. Neither was he compensated as other members. Only by a special act of the legislature was payment provided. Furthermore, we have construed Amendment 29 as being an “express condemnation” by the people as to the practice of the governor to appoint members to the general assembly. Matthews. We are unwilling to recede from our decision in Matthews and specifically hold that it has not been overruled, either specifically or by implication, since the issue there, as here, concerned the validity of the appointment by the governor to the legislature. We unequivocally held the appointment was without apparent authority and contrary to the constitution. Therefore, the appointee’s vote was that of a “stranger”„and without a de facto basis. It is well established that the legislature is deemed cognizant of our decisions respecting statutory interpretation whenever it enacts legislation. The legislature, during the intervening 36 years since our decision in 1939, has met biennially and sometimes in extraordinary sessions. Apparently it has not considered it necessary to correct the obviously invalid 1939 enactment. To the contrary, the appellant Board has continued to exercise its legislative authority in formulating regulations such as the pertinent one in the case at bar. Regulaion 124 as authorized b.y § 48-203 (c).

It follows that it becomes unnecessary to discuss appellant’s other contention that the trial court had no jurisdiction in that appellee did not comply with the terms of the Administrative Procedure Act.

Reversed and remanded.

Harris, C.J., dissents.