text:
    DEPARTMENT OF FINANCE AND ADMINISTRATION, Revenue Division, et al v. ARKANSAS MERIT SYSTEM COUNCIL BOARD et al
    83-97
    658 S.W.2d 369
    Supreme Court of Arkansas
    Opinion delivered October 3, 1983
    [Rehearing denied October 31, 1983.]

      Timothy J. Leathers, Joseph V. Svoboda, Kelly S. Jennings, Wayne Zakrzewski, Ann Fuchs, Joe Morphew, and Michael D. Munns, by: John H. Theis, for appellants.

      Haley ir Young, P.A., by: Gregory M. Hopkins, for appellee Arkansas Merit System Council Board.

      Hardin, Grace, Napper, Allen ir East, for appellees L. Faye Pierce and E. F. Patton.
   Darrell Hickman, Justice.

The only question we must answer in this case is whether the Department of Finance and Administration, an agency of the executive branch of government, and the Commissioner of Revenue, have a right of appeal to the circuit court from a decision of the Arkansas Merit Council Board which reinstated two fired employees. There is no such right of appeal for these parties and the circuit court was right in dismissing their petition for review.

In 1981, the General Assembly passed Act 693 which established the Merit Council Board essentially to hear appeals of cases concerning disciplined or discharged state employees. The Council has been in existence for years but its jurisdiction and authority was increased by Act 693. See McCain v. Collins, 204 Ark. 521, 164 S.W.2d 448 (1942). Significantly the 1981 law plainly says: “The decisions by this Board regarding such appeals shall be final and binding on the appointing authority/agency.” That language clearly prevents the appellants from seeking judicial review of the Merit Board’s order to reinstate the two employees.

Selph v. Quapaw Vocational Technical School, 278 Ark. 23, 643 S.W.2d 534 (1982), is miscited as authority for the appellant’s position. In Selph we only held that the Merit Council could not hear an appeal over which it had no j urisdiction and that certiorari was the proper remedy there. That is undisputedly not the case here.

The appellees argue the trial court was right and agree with the trial court’s reasoning that such an appeal would make the state a defendant in its own court in violation of Ark. Const, art. 5, § 20. It is unnecessary to decide that issue in view of the plain language of the statute and the narrow issue on appeal. Miller v. Dyer, 243 Ark. 981, 423 S.W.2d 275 (1968).

The two employees, L. Faye Pierce, an auditor, and E. F. Patton, an audit coordinator, for the Department of Finance and Administration, Revenue Division, urge us to affirm the order of the Merit Council on the basis of substantial evidence and prevent further litigation they anticipate as to the constitutionality of Act 693. Neither party has placed before us issues which might conceivably permit review of this case.

Affirmed.


source: Caselaw Access Project

author: Darrell Hickman, Justice.

license: Public Domain

text:
    Wesley LONG v. STATE of Arkansas
    CR 83-65
    657 S.W.2d 551
    Supreme Court of Arkansas
    Opinion delivered October 3, 1983

      William R. Simpson, Jr., Public Defender, by: Deborah R. Sailings, Deputy Public Defender, for appellant.

      Steve Clark, Atty. Gen., by: Theodore Holder, Asst. Atty. Gen., for appellee.
   Darrell Hickman, Justice.

Wesley Long was convicted of the first degree murder of Mrs. Bobby Jean Wilburn on July 1,1982, committed at the Wilburn Fish Market in Little Rock, Arkansas. He was tried before a jury and sentenced to life imprisonment.

His appeal raises two questions: The legality of his statement to the police, and the sufficiency of the evidence. Both are meritless arguments and his conviction and sentence are affirmed.

The facts which can be gathered from the evidence are largely undisputed, only their interpretation is at issue. Long worked with his father and brother-in-law, Bobby F. Baker, in a business of demolishing buildings and salvaging salable materials, particularly bricks. On the morning of July 1st Long did not go to work at 7:00 a.m., but instead later went to the Wilburn Fish Market at 1602 East Third Street. Mrs. Wilburn (who apparently lived in the back of the establishment) answered the doorbell and informed Long that the market would not open until 10:00 a.m. Hermotherin-law testified that Mrs. Wilburn answered the door but she did not see who was there nor hear what was said. Long’s statement to the police said that he went there and was turned away. In that statement Long said he waited until she did open and ordered two fish dinners and a cheeseburger. When told the price he said he was being overcharged. According to Long they had words and he started to leave; she called him a son-of-a-bitch, he turned around and she had a knife. He related:

I went and grabbed her wrist that had the knife and there was another knife there. I grabbed the other knife. She started to swing on me with the knife she had, and I grabbed her wrist. I stabbed her with the knife I had and she ran into the other room. While she was running, I pushed her. She had fallen on the floor, and I stabbed her once more. She was left balled up, and I left the knife on the floor about two feet away. I cannot remember how many times since I was fighting with her.

Mrs. Wilburn was stabbed eight times, three times in front and five times in back. A butcher knife was still in her back. Her body showed no “defensive wounds,” no cuts indicating that she resisted the knifing. There were no cuts on Long. Evidence of a trace metal test showed that Long could have handled a butcher knife similar to the one found in Mrs. Wilburn.

When Long left the scene he took a blue bank bag. He said it was empty and that he threw it in an old abandoned building near where his father and brother-in-law were working. Mrs. Wilburn’s husband testified his wife had $80.00 the night before and he identified the bank bag as one like those used for the fish market. He could only find $ 10.00 at the market and $25.00 was found with the victim’s body. Long was found with $55.00.

Baker, Long’s brother-in-law, said he first saw Long on July 1st leaving the abandoned building where the bank bag was found. Long stated that he was late to work because he had “to take care of some business.” Long asked Baker to accompany him to the fish market. When they arrived they saw some disarray and broken glass. They could find no one, and Long said something must have happened. Long and Baker left the building and Long went next door to call the police.

Long argues there was no evidence of premeditation. The jury’s finding that Long deliberately and premeditatedly killed Mrs. Wilburn is perfectly understandable. His statement is full of holes and the physical evidence easily bears out a finding Mrs. Wilburn was robbed and brutally killed.

[Premeditation and deliberation and intent may all be inferred from the circumstances, such as the character of the weapon used, the manner in which it was used, the nature, extent and location of the wounds inflicted, the conduct of the accused and the like. Hamilton v. State, 262 Ark. 366, 556 S.W.2d 884 (1977).

The evidence of Long’s guilt is not only substantial, it is convincing.

The trial court held Long’s statement to be voluntary and admissible. Two officers testified that they warned him properly, and used no coercion or other improper tactics, and produced a signed form. Long testified that he was struck by one of the officers. On appeal of the finding of voluntariness we consider the totality of the circumstances of the statement and will only set aside the court’s decision when it is clearly erroneous. Harris v. State, 278 Ark. 612, 648 S.W.2d 47 (1983). The evidence concerning the statement was primarily testimony and testing such evidence for weight and credibility is the trial court’s function, not ours. Walters v. State, 267 Ark. 155, 621 S.W.2d 468 (1979).

Appellant argues that he testified that three officers were present when he was questioned and only two were called to testify. No request was made of the court to produce the other officer, and the state’s witnesses testified that only two officers were present. Again, this was a matter of credibility which was for the trial court’s determination. Walters v. State, supra.

Under Ark. Stat. Ann. § 43-2725 (Repl. 1977), as'put into effect by our Rule 11 (f), we consider all objections brought to our attention in the abstracts and briefs in appeals from a sentence of life imprisonment or death. In this case we find no prejudicial error in the points argued or in the other objections abstracted for review.

Affirmed.


author: Steele Hays, Justice.

text:
    Aline Merritt BECK v. Hazel L. MERRITT
    83-94
    657 S.W.2d 549
    Supreme Court of Arkansas
    Opinion delivered October 3, 1983

      Eudox Patterson, for appellant.

      Wood, Smith ir Schnipper, by: Harry E. Cook, Jr., for appellee.
   Steele Hays, Justice.

The primary issue presented by this appeal has not been decided previously, that is, whether our dower statutes violate the equal protection clause of the fourteenth amendment where the decedent dies intestate. The Probate Judge held, correctly we think, that there is no gender-based discrimination between dower and curtesy in cases of intestacy and, accordingly, he awarded dower to the surviving spouse. On appeal, we affirm.

Elmer Merritt died intestate on January 30, 1981 leaving an estate consisting mainly of land in Garland County. He was survived by a widow, Hazel, and a daughter by an earlier marriage, Aline Merritt Beck. Mrs. Beck promptly petitioned for the appointment of an administrator, recognizing Mrs. Merritt as a widow; however, nearly a year later, on January 4, 1982, she gave notice that she intended to contest any award to Hazel Merritt of dower, homestead or other allowances normally assigned to a widow. This announced intention to contest dower and homestead was based evidently on a mistaken assumption that the Merritts were divorced when Elmer Merritt died.

Mrs. Beck filed interrogatories and one request for admission from Mrs. Merritt that she admit or deny that she was divorced from Elmer Merritt. There was no response and after some ninety days Mrs. Beck moved for “Summary and/or Declaratory Judgment” on the theory that Hazel Merritt’s failure to deny the request was, as a matter of law, an admission that she and Elmer Merritt were divorced. A hearing on the motion was set for July 6 and when no one appeared on behalf of Hazel Merritt the Probate Judge granted summary judgment.

On July 15, 1982, Hazel Merritt’s attorney moved to set aside the default judgment on the grounds that the interrogatories and request for admission were never received and that his failure to attend the July 6 hearing was the result of his having undergone open-heart surgery, that he could not be contacted by his office during this absence and, as he had removed the file, other members of the firm had no knowledge of the progress of the case. The motion asserted that Hazel Merritt and the decedent, though previously divorced, had remarried on March 6, 1966 and were living together at the time of his death. A copy of the marriage certificate was attached. On August 10 the Probate Judge set aside the judgment.

On August 20, 1982, nearly eighteen months after our decision in Stokes v. Stokes, 271 Ark. 300, 613 S.W.2d 372 (1981), Aline Beck raised for the first time a claim that our dower statutes violate the equal protection clause of the fourteenth amendment by again moving for Summary and/or Declaratory Judgment. The Probate Judge denied this motion for summary judgment and upheld the right of Hazel Merritt to an assignment of dower. Aline Beck makes two arguments on appeal: that the Probate Judge should not have set aside the first summary judgment, and should have granted her later motion for summary judgment. Neither argument can be sustained.

Although she readily conceded in the trial court that Elmer and Hazel Merritt had remarried in 1966, on appeal Mrs. Beck argues that the interrogatories and request for admission were mailed to counsel and that it is mandatory under ARCP Rule 36 that requests for admissions be answered in thirty days. Granted, we have held that in the absence of excusable neglect or unavoidable casualty a verified response to requests for admission must be filed within the thirty days allowed under Rule 36. Barnett Restaurant Supply, Inc. v. Pick Vance, et al, 279 Ark. 222, 650 S.W.2d 568 (1983); Smith, Admn. v. The Goodyear Tire and Rubber Co., 261 Ark. 541, 549 S.W.2d 798 (1977); White River Limestone Products Co. v. Mo-Pac Railroad Co., 228 Ark. 697, 310 S.W.2d 3 (1958). But in those cases there was no claim of non-receipt, the only issue was whether the requests had been answered in the time and manner required by what is now Rule 36, or whether good cause existed for default. Whereas here, Mrs. Merritt’s attorney insisted the interrogatories and request for admission were never received and although that was disputed, the trial court evidently accepted his explanation as factual, observing that in light of the undisputed evidence that the Merritts were married, he would set aside the judgment. We cannot say the finding was clearly erroneous.

Turning to the substantive argument, appellant relies on three recent decisions: Stokes v. Stokes, supra; Hess v. Wims, 272 Ark. 43, 613 S.W.2d 85 (1981) and Hall v. Hall, 274 Ark. 266, 623 S.W.2d 833 (1981), which came in thewake of Orr v. Orr, 440 U.S. 268 (1979), where it was first held that in the absence of an important governmental function, gender-based statutes which discriminate by giving either sex an advantage withheld from the other, violate the equal protection clause of the fourteenth amendment.

But there is a fundamental difference between the cited cases and the case before us, which the Probate Judge correctly observed, for in those cases the widows were asserting a claim of dower against the will of the deceased husband, a right which our curtesy statutes have never given the surviving widower, whose right to curtesy applies only where the wife dies intestate or where her will predates the marriage. See Ark. Stat. Ann. § 61-228 (Repl. 1971). Thus, in each of those cases the widows were claiming a benefit which their deceased spouses could not have claimed had they survived. On that basis we were obliged to hold in Stokes, Hess and Hall, that our dower statutes are in violation of the equal protection clause of the fourteenth amendment as interpreted in Orr v. Orr, supra.

Here, in contrast, because Elmer Merritt died intestate, Hazel Merritt’s claim of dower to a part of his real property under Ark. Stat. Ann. § 61-201 is the exact equivalent of the rights of curtesy under Ark. Stat. Ann. § 61-228, which Elmer Merritt could have enjoyed had he survived Hazel. Hence, there is no impingement of the equal protection clause, as there is no discrimination in favor of either sex where the deceased spouse dies intestate.

It is true that when Elmer Merritt died our law of curtesy extended only to lands to which the wife was seized at her death, whereas dower extended to all lands to which a husband was seized during the marriage and, hence, a potential for gender-based discrimination did exist under our statutes. But that is not what we are dealing with here and it is enough to say that under the facts of this case, there was no gender-based difference in the operation of our dower and curtesy statutes, either spouse would have been entitled to the identical interest in the lands of the other.

We concede that in Stokes we said flatly that Ark. Stat. Ann. § 61-201 (Repl. 1971) is unconstitutional. That statement was too broad and extended beyond the holding reached in Stokes, which, as we have said, was that where a husband died testate the wife could not take dower against the will, there being no concomitant benefit given to husbands under the law. We should have qualified our statement in Stokes by the provisional wording used in Hess v. Wims, supra, that the statute was unconstitutional “as applied in this case.”

This result, i.e., declaring a statute unconstitutional in part, as applied to certain situations, has precedent. In R. H. Oliver and Son v. Chicago R.I. & P. Ry., 89 Ark. 466 (1909) we declared a regulatory statute partially unconstitutional, where shipments by railroads were constitutionally subject to regulation as to intrastate shipments, but not as to interstate, retaining the permissible applications of the statute, while discarding the impermissible. See also Leep v. St. Louis I.M. & S. Ry. Co., 58 Ariz. 407 (1894) and State v. Kate Marsh, 37 Ark. 356 (1881).

Accordingly, we affirm the Probate Judge.

       Ark. Stat. Ann. §§ 61-201, 202 (Repl. 1971).

      Before the March 25 effective date of Act 714 of 1981, which removed the objectionable features of our statutes by creating gender-neutral awards of dower, curtesy and allowances. See Hall v. Hall, 274 Ark. 266, 623 S.W.2d 833 (1981).

      Timeliness of the constitutional argument is not raised. See Mobley v. Estate of Parker, 278 Ark. 37, 642 S.W.2d 883 (1982) and Fonteno v. Estate of Matthews, 279 Ark. 411, 651 S.W.2d 466 (1983).


author: Per Curiam.

text:
    Donald E. COLYER v. STATE of Arkansas
    657 S.W.2d 548
    Supreme Court of Arkansas
    Opinion delivered October 3, 1983

      Hewett <b Hewett, by: Carol Hewett, for petitioner.

      Steve Clark, Atty. Gen., by: Alice Ann Burns, Deputy Atty. Gen., for respondent.
   Per Curiam.

In this criminal case the petitioner’s convictions were affirmed by the Court of Appeals on June 22, 1983. Petitioner wished to seek a review by this court, but his attorney, Carol Hewett, mistakenly thought that the time limit for filing a petition for review is 30 days instead of the 17 days allowed by Rule 29. Petitioner now seeks permission to file a belated petition for review. His attorney has filed a letter assuming full responsibility for the mistake. The petition is therefore granted, and a period of 17 days is allowed for the filing of the petition for review. A copy of this order will be sent to the Committee on Professional Conduct. See our per curiam order, 265 Ark. 964 (1979).


author: Richard B. Adkisson, Chief Justice.

text:
    Alvin J. NEWTON v. BROWN & ROOT
    83-121
    658 S.W.2d 370
    Supreme Court of Arkansas
    Opinion delivered October 10, 1983

      Pickens, Boyce, McLarty ir Watson, by: James A. McLarty, for appellant.

      William L. Bedman of Powell, Wilson, Brown ir Maverick, Houston, Texas, and House, Jewell, Dillon, Dover ir Dixon, P.A., by: Philip K. Lyon and Donna Smith Golchus, for appellee.
   Richard B. Adkisson, Chief Justice.

Appellant, Newton, an at-will employee of appellee, Brown & Root, brought an action for wrongful discharge. A jury returned a verdict for appellant in the amount of $6,000. The Independence County Circuit Court set aside its judgment on the verdict and dismissed the complaint, holding that there was insufficient evidence to sustain the verdict. Affirmed.

Appellant was a boilermaker working for Brown 8c Root, a contractor, at the Independence steam electric generating plant under construction for Arkansas Power 8c Light at Newark, Arkansas. Appellant was directed by his foreman to go to the top of the precipitator, about 120 feet above ground, to assist another boilermaker in the alignment of large steel beams called insulators. The two men had been working about an hour when they were ordered to the ground by two safety inspectors who had observed them working without their safety lanyards “ded-off” (a company regulation requiring an employee to utilize his safety belt whenever he worked more than six feet above ground). Although there was in fact no place in the work area where the two men could have “ded-off”, both were discharged immediately for failure to comply with this regulation. Neither, however, said anything about the absence of a lifeline at the time of discharge.

On appeal appellant argues that an at-will employee has a cause of action against an employer for wrongful discharge when the employee has been fired for violation of a safety rule he could not obey because of the employer’s failure to provide a safe working area. It is generally held that when the term of employment is indefinite, or at-will (terminable by either party), either the employer or the employee may put an end to the relationship at will and without cause. Little v. Federal Container Corp., 452 S.W.2d 875 (Tenn. App. 1969). 9 S. Williston, Contracts § 1017 (3rd ed. 1967). Under this common law rule, the right of the employer to terminate the employment is unconditional and absolute. Jefferson Electric Company v. N.L.R.B., 102 F.2d 949 (1939). Our own cases have adhered to this principle. Griffin v. Erickson, 277 Ark. 433, 642 S.W.2d 308 (1982); Miller v. Missouri Pacific Transportation Co., 255 Ark. 475, 283 S.W.2d 158 (1955); Moline Lumber Co. v. Harrison, 128 Ark. 260, 194 S.W. 25 (1917); St. Louis I.M. and S. R. Co. v. Matthews, 64 Ark. 398, 42 S.W. 902 (1897). See also Comment, Wrongful Discharge of Employees Terminable At-Will A New Theory of Liability in Arkansas, 34 Ark. L. Rev. 729 (1981).

In M.B.M. Co. v. Counce, 268 Ark. 269, 596 S.W.2d 681 (1980) this court had occasion to consider a public policy exception to the at-will doctrine. There we were unable to decide if we would recognize such an exeption because appellant did not make a case for wrongful discharge. Here we are again prevented from deciding this issue because appellant himself contributed to the unsafe conditions by failing to protest or advise the employer of the unsafe work area. The trial court noted that had appellant refused to work in the area or had he come down immediately and said something about the condition, he would have made a case on the issue of wrongful discharge. Had that happened, then we would have occasion to reach the merits of appellant’s argument on appeal.

Affirmed.


author: George Rose Smith, Justice.

text:
    Buddy GRIGGS et al v. STATE of Arkansas
    CR 83-119
    658 S.W.2d 371
    Supreme Court of Arkansas
    Opinion delivered October 10, 1983
    [Rehearing denied November 7, 1983.]

      Charles A. Potter, for appellants.

      Steve Clark, Atty. Gen., by: VictraL. Fewell, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

After a non-jury trial the three appellants, brothers, were found guilty of third-degree battery and sentenced to fines of $750 and to a year in jail, with nine months suspended. The defendants were represented by trial attorneys in the court below, but the record does not show that the defendants personally waived a jury trial either in writing or in open court, as contemplated by A.R.Cr.P. Rules 31.1 and 31.2. There is no assertion that the defendants did not in fact waive a jury, but it is argued by appellate counsel that the omission in the record entitles them to a new trial. The case was transferred to us by the Court of Appeals under Rule 29 (1) (c).

There is a constitutional right to a jury trial in felony cases, but the manner of waiver is not specified by the constitution, any more than the manner of entering a plea of guilty is so specified. See Smith v. State, 264 Ark. 329, 571 S.W.2d 591 (1978). Even a constitutional question, which this one is not, must be raised in the trial court to be reviewable on appeal. Shepherd v. State, 270 Ark. 457, 605 S.W.2d 414 (1980). The present question not having been raised below in any manner, no issue is presented for our decision.

Affirmed.


author: Frank Holt, Justice.

text:
    BEEBE SCHOOL DISTRICT et al v. NATIONAL SUPPLY COMPANY
    83-103
    658 S.W.2d 372
    Supreme Court of Arkansas
    Opinion delivered October 10, 1983

      Hughes if Hughes, by: Thomas M. Hughes, III, for appellants.

      Pickens, Boyce, McLarty if Watson, by: Wayne Boyce, for appellee.
   Frank Holt, Justice.

The issue here is whether appellants are liable to appellee for the unpaid balance of material and labor furnished to the appellants in the remodeling of the school district’s gymnasium. We hold appellants are not liable.

The appellants, the school district and its officials, contracted with Dewey Rodgers to supply all materials and perform labor in connection with alterations to the Beebe School gymnasium. Admittedly, Rodgers neither furnished nor filed a contractor’s bond as is required by Ark. Stat. Ann. § 51-632 (Supp. 1983) and Ark. Stat. Ann. § 51-637 (Repl. 1971). Rodgers purchased the building supplies from appellee. The appellant school district paid Rodgers the amount agreed upon in the contract. However, Rodgers failed to fully pay the appellee for the materials purchased and used in the gymnasium. After the remodeling was completed, the appellee materialman discovered that no construction bond by Rodgers existed. By that time the contractor had become insolvent and had gone out of business. The appellee filed suit in chancery court against the school district and its officials, seeking to impose an equitable lien on the gymnasium. The chancellor imposed the lien and hence this appeal.

Section 51-632 reads in pertinent part:

No contract in any sum exceeding $10,000 providing for the repair, alteration, or erection of any public building, public structure or public improvement shall be entered into by the . .. school district. . . unless the contractor shall furnish to the party letting the contract a bond in a sum equal to the amount of the contract.

Section 51-637 reads:

Before any work is performed under the contract the bond shall be filed with the Clerk of the Circuit Court of the County in which said repairs, alterations or erection of any building, structure or improvements are made.

The chancellor found that under § 51-632 the school district is liable to materialmen for supplies sold to a contractor and used in school remodeling projects when the school district failed to exact and have filed a bond from the contractor.

We have clearly held that the directors of the school board are not individually liable to materialmen for their failure to require a contractor’s bond. Blanchard v. Burns, 110 Ark. 519, 162 S.W. 63 (1913). There we further said:

There is another sufficient reason why appellees as directors could not be held liable, and that is that the statute itself imposes no liability, either upon the school district or upon the officers, and the indebtedness was incurred after the failure of the contractor to give bond. The statute provides that the bond be placed of record so that all persons dealing with the contractor may know whether or not the bond has been executed. Appellant [materialman] was chargeable with notice whether the bond had been given, and he had no right to voluntarily impose liability, either upon the district or the directors, when he knew, or could have known, that no bond had been given. (Italics supplied.)

Recently, in Arkhola Sand & Gravel Co. v. City of Booneville, 694 F.2d 528 (8th Cir. 1982), Blanchard was recognized as being a correct interpretation of § 51 -632. There, the court further said:

If Arkhola wanted to protect itself, all it had to do was check the public records to determine whether the bond had been filed. The fact that no bond was required did not give Arkhola a cause of action against anyone since, according to the Arkansas Supreme Court, it had no right to rely on the statute but, instead, had a duty to check to see if bond had been posted.

Although here the statute does require a contractor’s bond, we have placed the burden on materialmen dealing with a contractor to check the public records to verify the fact that such a bond has been obtained before selling supplies to the contractor. Where, as here, the supply company checks the records after the sales are made, construction is completed, and the contractor has become insolvent, it cannot maintain suit against the school district or its officials to recover its losses.

Appellee maintains that the Blanchard decision is inapplicable since it was rendered in a law court while this case arose in chancery court. We disagree. The maxim that “equity follows the law” is “strictly applicable whenever the rights of the parties are clearly defined and established by law. ...” 30 C.J.S. Equity § 103. Furthermore, we have reached the same result in a chancery case. In East End School Dist. No. 2 v. Gaiser-Hill Lumber Co., 184 Ark. 1165, 45 S.W.2d 504 (1943), we said:

It is also true that, if the board of directors had entered into a contract for the construction of a public building and had not given a bond, the contractor alone would have been liable. The directors would not have been personally liable, and, they having contracted with a contractor to construct the building, the contractor to furnish labor and material, there would, of course, be no liabilty of the directors or district where the material was sold to the contractor. (Italics supplied.)

Our position is in accord with the majority view. See 17 Am.Jur.2d § 51; and 64 A.L.R. 678. We find no merit in appellee’s allegations of constructive fraud and unjust enrichment. The duty was clearly on the appellee to ascertain whether a contractor’s bond was filed. Therefore, the appellants are not liable to the appellee materialman for the $5,151.10 balance of the money owed the materialman by the contractor. We deem it unnecessary to discuss appellants’ other contentions for reversal.

Reversed and remanded.

Hickman, J., not participating.


text:
    Paul MATTHEWS, C. L. MATTHEWS, and Georgine MATTHEWS v. Mahlon MARTIN, Rubin W. WEBB, and Nathaniel M. GRIFFIN
    83-102
    658 S.W.2d 374
    Supreme Court of Arkansas
    Opinion delivered October 10, 1983

      W. Edward Tarvin, for appellants.

      Jack Magruder, 111, City Atty., by: James L. Sloan, Asst. City Atty., for appellees.
   Darrell Hickman, Justice.

The appellants, Paul Matthews, C. L. Matthews and Georgine Matthews, sued the Little Rock Fire Chief, Rubin W. Webb, the Director of Planning of the City of Little Rock, Nathaniel M. Griffin, and the City Manager, Mahlon Martin, in their official capacities alleging that due to the appellees’ negligence the appellants’ residence burned because of the Little Rock Fire Department’s refusal to respond to a call for assistance. The circuit judge granted a motion to dismiss the complaint because the defendants were sued in their official capacities for negligence in performing their city roles and such officials are immune from suit.

On appeal we affirm the circuit court’s judgment because these individuals are immune from suit for torts occasioned by any negligent act they may commit in the performance of their official duties. Municipal immunity for governmental functions has been the rule in Arkansas for over a hundred years. In Parish v. Pitts, 244 Ark. 1239, 429 S.W.2d 45 (1968), the doctrine was abolished. The legislature promptly enacted Act 165 of 1969 reinstating municipal immunity to tort liability as a matter of public policy. Ark. Stat. Ann. § 12-2901 (Repl. 1979). In Hardin v. City of Devalls Bluff, 256 Ark. 480, 508 S.W.2d 559 (1974), we stated that Act 165 “[I]s a statement of public policy that is plain and unambiguous and leaves no room for doubt,” and upheld the constitutionality of the Act. The appellants in this case, who were the defendants below, were sued in their official capacities, and not individually, for what were alleged to be acts of negligence in carrying out their official duties. Such a suit is distinguishable from one where a public official or employee is sued individually for violation of a duty imposed upon that individual by law in common along with all other people. See Grimmett v. Digby, 267 Ark. 192, 589 S.W.2d 579 (1979). The immunity granted to municipalities extends to the city’s officials and employees. Jones v. Sewer Improvement District No. 3, 119 Ark. 166, 177 S.W. 888 (1915).

Affirmed.


author: John I. Purtle, Justice.

text:
    John Wayne McGEE v. STATE of Arkansas
    CR 83-47
    658 S.W.2d 376
    Supreme Court of Arkansas
    Opinion delivered October 10, 1983

      Garner Taylor, Jr., Deputy Public Defender, for appellant.

      Steve Clark, Atty. Gen., by: Theodore Holder, Asst. Atty. Gen., for appellee.
   John I. Purtle, Justice.

Appellant was convicted by a jury of the crimes of rape and burglary for which he received sentences of forty and ten years respectively. Eight points are argued on appeal for reversal. We do not find prejudicial error to have occurred in the trial court.

About 1:00 a.m. on May 10, 1982, the 74 year old victim, who lived alone, was raped. The victim indicated to the police that she knew who her assailant was because he had been to her house with her nephew, George Edwards, on a previous occasion. The victim’s eyesight was a point of contention; it was undisputed that it was very poor and she could not see to read or write. The appellant’s defense was an alibi. He produced several witnesses at trial who stated he was in Oklahoma at the time of the rape. The disputed evidence relates primarily to identification of the appellant.

The first argument presented is that the trial court should have suppressed the identification testimony of the victim. He argues his arrest was illegal and therefore the identification was fruit of the poisonous tree. Identification is normally a matter to be decided by the trier of fact. Beed v. State, 271 Ark. 526, 609 S.W.2d 898 (1980). The trial court is granted a wide latitude of discretion during trial and will not be reversed in the absence of abuse of discretion. Lasley v. State, 274 Ark. 352, 625 S.W.2d 466 (1981). The trial court did not abuse its discretion even though the victim’s testimony may have been confusing and even contradictory. It was the duty of the jury to determine the reliability of her testimony.

After police officers appeared at his home and requested he go with them, appellant voluntarily went to the station. At the station where he was being questioned, he refused to appear in a lineup. An information had been filed by the prosecuting attorney. The affidavit of Officer Brooks was also filed. An arrest warrant was issued by a deputy clerk who had been authorized to do so. Appellant was arrested and then required to particpate in a lineup at which time he was identified by the victim as her assailant. Appellant argues the arrest was not legal because the affidavit for the warrant was not sworn and there was no probable cause. He argues the identification by the victim was the fruit of the poisonous tree as stated in Wong Sun v. United States, 371 U.S. 471 (1963).

We believe the warrant was issued upon probable cause which is sufficient to support the arrest. Allen v. State, 277 Ark. 380, 641 S.W.2d 710 (1982). The officers learned that the appellant had been in the victim’s house on a previous occasion. A neighbor had observed an automobile parked near the victim’s house the night of the incident and told the police she had seen the appellant driving the same vehicle on previous occasions. The neighbor picked appellant’s picture from a photo lineup and identified him as the driver of the automobile which she had also identified from a photograph. Also the victim had told the attacker as he left her house to have her nephew, George, return her clock. The attacker replied that he didn’t know George had taken it. Even though the warrant may have been invalid for lack of a sworn affidavit it could have been issued upon probable cause or by the authority of the information which had been filed against the appellant. A.R.Cr.P. 7.1 (c).

The second argument is that the court erred in allowing the photographic lineup to be entered into evidence. Appellant cites no authority for this argument. The argument is based upon the fact that these photographs had letters and numbers on them indicating appellant had been previously convicted. It is true that the evidence of prior convictions was on the pictures. The record reveals that appellant insisted that the identification marks on the photographs not be taped over as suggested and at his request the court gave a limiting instruction to the jury which directed them not to consider the identification plaques as indication of any prior criminal conviction. Under the circumstances we consider the appellant to have waived this argument.

Appellant argues that a directed verdict should have been given at the close of the State’s case and at the close of the trial. These arguments necessitate a review of the evidence. The state presented evidence that appellant had accompanied the victim’s nephew, George Edwards, on a visit to her home; that at the time of the rape the victim told appellant she knew who he was but did not remember his name; that as the attacker was leaving the victim asked him to tell her nephew to return her clock and the appellant responded that he did not know George had taken it; identification of appellant was made by photo and live lineup; and, testimony was presented that appellant’s car was parked at a vacant house next to the victim’s residence at the time of the rape. The evidence, including the victim’s testimony, may have been inconsistent or contradictory, but it was a matter for the jury to weigh its credibility and application. Lasley v. State, supra. We view the evidence on appeal in a light most favorable to appellee. Fountain v. State, 273 Ark. 457, 620 S.W.2d 936 (1981). Under the facts presented in this case, we find that there was no error in the trial court’s refusal to grant a directed verdict for appellant.

Appellant argues reversible error was committed by the court in limiting cross examination of a witness. While Officer Jones was on the witness stand defense counsel asked him to give a description of the car he was looking for and the court sustained the state’s objection to the question. The defense counsel should have been allowed to ask and have answered the question about the description of the car the officer was looking for. However, we find the error to be nonprejudicial because there was abundant evidence presented, including photographs, concerning the automobile in question. The court properly sustained the state’s objection to the officer being asked to give the witness’ description of the vehicle. Appellant cites no authority for the argument that the refusal to allow such an answer was prejudicial and we do not find any cases or other law to support it. It is also argued that it was erroneous to reject testimony tending to show a family feud over the fact that George Edwards had brought appellant to the victim’s home. The question presented to Officer Brooks required a hearsay answer and was properly excluded. Arkansas Uniform Rules of Evidence, Rule 802.

The sixth argument for reversal is that the trial court erred in allowing Officer Boyd to testify in rebuttal about a statement appellant made when he was first contacted by the police. Officer Boyd testified that when he went to appellant’s home and told him the police desired to question him about the rape of Ms. Lockett he responded to the effect that he knew her and he was at home at the time she was raped. This testimony came after appellant had presented several alibi witnesses who testified that he was in Oklahoma at the time of the commission of the crime in question. Appellant insists such testimony was not rebuttal because appellant did not take the stand to testify. This testimony was proper in rebutting appellant’s alibi evidence. It was a voluntary statement made without interrogation and while he was not in custody. Crawford v. State, 254 Ark. 253, 492 S.W.2d 900 (1973). The Miranda rule does not apply because the appellant was not under arrest and was not in custody when he made the spontaneous utterance. Neither was he being interrogated by the police at the time. Lacy v. State, 271 Ark. 334, 609 S.W.2d 13 (1980). Appellant had been notified in advance of the trial that this statement would be used only if his defense was alibi. A correct ruling by the trial court will not warrant reversal simply because the court gave the wrong reason for the ruling. Chisum v. State, 273 Ark. 1, 616 S.W.2d 728 (1981).

The final argument is that a mistrial should have been granted because the jury apparently considered parole eligibility in its deliberations. Almost two hours after commencing deliberation the jury returned to ask what difference forty years or life would make on parole eligibility. The court overruled appellant’s request for a mistrial. The court also rejected appellant’s request for an instruction informing the jury that they should presume the appellant would serve whatever sentence he received by the court. Instead the trial court instructed the jury that they were not to consider parole in any way during deliberations. It seems to us the court was following our rule as stated in Andrews v. State, 251 Ark. 279, 472 S.W.2d 86 (1971). Although it would have been error to instruct the jury about the law as it relates to parole, it is not possible to keep jurors from using common knowledge to think about parole eligibility during deliberations. Ashby v. State, 271 Ark. 239, 607 S.W.2d 675 (1980).

Affirmed.


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

text:
    John Andrew WARD v. STATE of Arkansas
    CR 83-82
    658 S.W.2d 379
    Supreme Court of Arkansas
    Opinion delivered October 10, 1983

      Ken Cook, Deputy Public Defender, for appellant.

      Steve Clark, Atty. Gen., by; Velda P. West, Asst. Atty. Gen., for appellee.
   Steele Hays, Justice.

Appellant’s conviction for burglary and theft of property was affirmed by the Court of Appeals [8 Ark. App. 209 (1983)] by a vote of three to three, resulting in our granting appellant’s petition for review pursuant to our Rule 29 (6)(c).

The Wonder Junior High School in West Memphis was burglarized sometime after 5:00 p.m. on Friday, February 5, 1982, when the school was locked for the weekend, and Monday morning. Musical instruments and shop tools, exceeding $2,500.00 in value, were stolen. Appellant, John Ward, was convicted of the burglary and theft of property and, having five felony convictions, received a lengthy prison sentence. On appeal, the only issue is whether a motion for a directed verdict for lack of evidence should have been granted. We affirm the Court of Appeals.

On the same morning the crime was discovered, Ward attempted to sell three of the stolen instruments at a Memphis pawn shop. A Memphis police officer, assigned to the pawn shop detail, was called to question Ward, who claimed to have been part of a musical group which had recently disbanded and the instruments were no longer needed. Pressed for evidence of ownership, Ward went to his car for identification but, instead of returning, he left the instruments and hurried away in the wrong direction on a one-way street. The Memphis police gave the West Memphis police a description of appellant’s car and license number, which led eventually to his arrest. The tags had been removed from the automobile.

Ward at first denied having been in Memphis on February 8, claiming to have been at work. But employment records showed that he called in sick on February 8 and 9. His explanation for being in possession of stolen goods was that a fellow worker had found the instruments about fifteen minutes before quitting time at 3:53 p.m. on Friday, February 5, and Ward had volunteered to sell them for him. The worker had since died and was unavailable to the defense.

As early as 1879 we expressed the rule, already followed elsewhere, in cases of burglary, larceny and possession of stolen property that possession of recently stolen property is prima facie evidence of the guilt of the party in whose possession the property is found, unless satisfactorily accounted for by the evidence. Boykin v. State, 34 Ark. 443. Nor is the rule limited to larceny and possession. In Gunter v. State, 79 Ark. 432 (1906), we declined to draw a distinction between larceny and burglary, and explained the rule:

Such evidence raises no presumption of law as to the guilt of the accused, but only warrants an inference of fact, of more or less weight according to the particular circumstances of each case, which the jury may draw therefrom as to his guilt. It makes a question for the jury, and is sufficient to warrant conviction where it induces in the minds of the jury a belief, beyond a reasonable doubt, of the guilt of the accused.

Other cases applying the rule are: Williams v. State, 258 Ark. 207, 523 S.W.2d 377 (1975); Taylor v. State, 254 Ark. 620, 495 S.W.2d 532 (1973); Richie v. State, 250 Ark. 700, 466 S.W.2d 462 (1971); Duty v. State, 212 Ark. 890, 208 S.W.2d 162 (1948); Chapman v. State, 201 Ark. 91, 143 S.W.2d 575 (1940); Fletcher v. State, 198 Ark. 376, 128 S.W.2d 997 (1939); Morris v. State, 197 Ark. 778, 126 S.W.2d 93 (1939); Trammel v. State, 193 Ark. 21, 97 S.W.2d 902 (1936); Johnson v. State, 190 Ark. 979, 82 S.W.2d 521 (1935).

Here, Ward was found to be in possession on Monday morning of property stolen during the weekend, but we need not depend on that alone. His explanation to the jury that the stolen goods were found by a fellow worker, who entrusted them to Ward to sell was not only implausible, it was demonstrably false, as the state’s proof was the goods were still at the school at closing time, an hour after Ward claimed they were found. Moreover, he admittedly lied, first to the Memphis officer as to how he came by the property and again when he told the West Memphis police he had not gone to Memphis that morning. Particularly significant is the fact that he took to his heels when the Memphis officer sought to obtain some identification from him, [See Murphy v. State, 255 Ark. 90, 498 S.W.2d 884 (1973)], and his admission that before taking the goods to the pawn shop he made an anonymous call to the police to see if there had been any report of stolen goods affecting the instruments.

When the prosecution is based on circumstantial evidence the jury should be informed, as it was here, that circumstantial evidence must be consistent with the guilt of the defendant and inconsistent with any other reasonable conclusion, AMCI 106. But on appeal, our responsibility is simply to determine that the verdict is based on substantial evidence. Cassell v. State, 273 Ark. 59, 616 S.W.2d 485 (1981); Brown v. State, 258 Ark. 360, 524 S.W.2d 616 (1975). We find the evidence supporting the convictions to be substantial.

The judgment on the sentences is affirmed.

Hickman and Purtle, JJ., dissent.

Darrell Hickman, Justice,

dissenting. There is no doubt that the state proved that John Andrew Ward was in possession of recently stolen property and could be convicted for possession of stolen property. The state was also able to demonstrate that Ward probably lied in his testimony. But the state did not prove that Ward was a burglar. I seriously doubt whether a legal inference can be drawn which would support a conviction for burglary based on the simple fact that one is in possesson of recently stolen property. It is a requirement of the due process clause of the United States Constitution that the state prove each material element of an offense beyond a reasonable doubt. Patterson v. New York, 432 U.S. 197 (1977). Every conviction must be based upon substantial evidence. In the case of Jackson v. Virginia, 443 U.S. 307 (1979), the Court said: "Under our system of criminal j ustice even a thief is entitled to complain that he has been unconstitutionally convicted and imprisoned as a burglar.”

With all due respect to the majority it is my judgment that the evidence does not meet those standards in this case. Therefore, I dissent.

John I. Purtle, Justice,

dissenting. In dissenting I concede the majority opinion follows our precedent. However, it is my opinion that our case law is wrong. This opinion will no doubt encourage overcharging by the state as was suggested in the dissent from the Arkansas Court of Appeals. The appellant in the case before us was charged with three counts of burglary and three counts of theft of property. Why would the state charge a man with three burglaries growing out of one incident unless it is to sway the trier of fact to find him guilty of a single burglary? In this case perhaps thirty people could be convicted of burglary because anyone in possession of any one of the stolen items could be found guilty of the crime of burglary even though they may have never set foot in Arkansas.

It seems to me that the appellant could have, with clear conscience, been charged as an habitual offender and with the felony of theft by receiving. There is not a single shred of evidence anywhere in the record to connect the appellant with a burglary, other than him being in possession of three of the thirty items stolen in a recently executed burglary. His possession was in another city in another sate. Admittedly he lied about how he obtained the articles but that is as much in line with trying to avoid being charged with possession of stolen property as it is with burglary. He could have received a stiff sentence (up to 40 years) under a charge of theft by receiving and being an habitual offender.

To be guilty of burglary under Ark. Stat. Ann. § 41-2002 (Repl. 1977) one must have been found to have been physically upon the burglarized property with the intent to commit an offense punishable by imprisonment. The only manner by which this appellant could have been found guilty of burglary of the Wonder School instruments was by conjecture and speculation. On the other hand, the evidence would clearly support a conviction of theft by receiving. The majority opinion is void of any evidence supporting the conviction for burglary because it would have to be inserted from outside the record.

The presumption indulged in by the majority shifts the burden of proof from the state to the accused in violation of the state and federal constitutions as well as statutory law. Merely because we have previously been wrong does not make it right for us to continue to be wrong.

The Supreme Court of Louisiana was caught in the same dilemma this court is in today but the Louisiana court, unlike this court, faced the issue and overruled its prior case law. State v. Searle, 339 So.2d 1194 (La. 1976). I find the Searle case very persuasive. A judicial presumption simply cannot stand muster against a constitutional right. The appellant had a right to have the state prove every element of the crime of burglary. The state did not meet its burden according to the record. The appellant now stands convicted not by evidence, either direct or circumstantial, but by inference or presumption. Under this theory of the law a person unknowingly walking past the body of a murdered policeman could be convicted of capital murder. I must insist that the state prove every element of an offense beyond a reasonable doubt before I vote to affirm a sentence confining an individual to imprisonment.


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

text:
    R. M. JAMES, Jr. v. STATE of Arkansas
    CR 83-88
    658 S.W.2d 382
    Supreme Court of Arkansas
    Opinion delivered October 10, 1983
    [Rehearing denied November 7, 1983.]

      Mary Beth Sudduth and William M. Clark, by: Mary Beth Sudduth, for appellant.

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

      Purtle, J., would grant rehearing.

   Steele Hays, Justice.

Appellant R. M. James, Jr. was charged with possession, delivery and manufacture of a controlled substance and attempted capital felony murder. He was convicted of possession of a controlled substance, delivery of a controlled substance and aggravated assault. He brings this appeal asking reversal on several points.

A confidential informant supplied information that was the basis for a search warrant that produced evidence used by the state. The informant was present when James was arrested and witnessed the incidents that gave rise to the charges for delivery of a controlled substance and attempted capital felony murder, the latter charge based on evidence that when the police officers surrounded James he drew a pistol and grabbed one of the officers. James was subdued before any shots were fired.

James moved for disclosure of the informant’s identity and the motion was denied. Citing Bennett v. State, 252 Ark. 128, 477 S.W.2d 497 (1972), he argues that when an informant is also a witness or participant to the criminal incident, the identity of the informant should be disclosed. Appellant is correct in his statement of the general rule as stated in Bennett, however, this is not a per se rule, but dependent upon the circumstances of each case. This is made clear in Roviaro v. United States, 353 U.S. 53 (1957) cited by Bennett. Roviaro emphasizes the need for “balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case...’’ Roviaro at 62.

In Bennett we pointed out that the defendant had denied the accusations of the state, and the testimony of the informants could be relevant in contradiction of the state’s evidence. In the case at bar, we find distinguishing facts. When James moved for disclosure of the informant, his request was supported only by a statement that he was interested in getting the informant’s version of the story. There was no specific contention that it would be helpful to his defense, as in Bennett. See also State v. Lechner, 262 Ark. 401, 557 S.W.2d 195 (1977). Additionally, the prosecution stated it was required to divulge any exculpatory evidence and there was none that the informant could supply. Of significance were the representations of the prosecution that the informant had been threatened and his residence destroyed by fire. There were no such countervailing considerations in Bennett. Under Roviaro, and our own cases, we cannot say the denial of disclosure in this case was error.

James next sees error in the trial court’s refusal to suppress evidence which was taken at night allegedly in violation of A.R.Cr.P. Rule 13.2 (c). The rule requires searches to be made between 6:00 a.m. and 8:00 p.m. unless within the stated exceptions. The search of the White Oak Gun Club, managed by James, and of his adjacent residence, began at 7:10 p.m. when an officer displayed the warrant to workers at the Gun Club and took control of the building. Before continuing the search, however, one of the officers returned to the judge who had issued the warrant to have the affidavit amended to include a controlled buy recently made from James. The warrant was reissued at 9:12 p.m. The officer returned to the Gun Club to conduct the search and the search was concluded by 10:40 p.m. James does not allege nor does it appear that the search warrant was deficient before it was amended. The officer testified he believed the original warrant was sufficient but the amendment would add more credibility to the warrant.

Although we found a related nighttime search unreasonable in State v. Broadway, 269 Ark. 215, 599 S.W.2d 721 (1980), we find that case distinguishable. The search here was actually commenced at a permissible time, 7:10 p.m., with an apparently sufficient warrant. Only an abundance of caution by the officer caused the delay. In Broadway, a warrant was issued in the early evening and the search did not begin until 9:15 p.m. A.R.Cr.P. Rule 16.2 (e) requires suppression of the evidence only if the violation is substantial. In Harris v. State, 264 Ark. 391, 572 S.W.2d 389 (1978), we found accumulation of deficiencies to amount to a violation of A.R.Cr.P. Rule 16.2 (e) and said, “The state has not demonstrated a reasonably good faith effort was made to comply with the rules.” All other aspects of the warrant in this case are proper and the officers here additionally demonstrated their good faith by their efforts to make certain that the warrant was properly substantiated. Under the circumstances presented here we cannot say the violation was substantial.

James also submits the search warrant was deficient because the supporting affidavit does not meet the two-prong test of Aguilar v. Texas, 378 U.S. 108 (1964). Under Aguilar the warrant must state: 1) underlying circumstances from which the informant concluded the items to be seized would be there; 2) underlying circumstances showing the informant to be reliable. The appellant challenges only the second prong of Aguilar, reliability of the informant.

There is no fixed formula to make this determination and we have considered several measures by which the informant’s reliability may be established. See Baxter v. State, 262 Ark. 303, 556 S.W.2d 428 (1977); State v. Lechner, 262 Ark. 401, 557 S.W.2d 195 (1977). Criteria pertinent to this case are: information within the knowledge of affiant furnishing corroboration of the informant’s disclosures, Baxter at 309, and recent and personal observations by informant of criminal activity. Lechner at 406.

In the warrant in question, the affiant stated that: the informant had established his reliability; all information provided by the informant had been determined by the affiant to have a basis and foundation in fact; at the request of affiant the informant had obtained marijuana samples from James which the informant said were taken from James’ property; the informant related that there were large quantities of marijuana on the property; the informant had told affiant that he was employed as a laborer on James’ premises and the affiant had seen the informant there on at least one occasion; an undercover agent related to affiant that he, accompanied by informant, had made a recent buy of what was understood to be marijuana from James. The foregoing is not just a bare statement by the affiant of the informant’s reliability, but a statement of corroboration and support of the informant’s disclosures. We find from the above statements sufficient basis for finding the informant reliable.

In appellant’s fourth argument he claims the court committed error by commenting on a factual matter in the presence of the jury. When reference to a confidential informant was made by one of the attorneys, the court admonished the jury not to rely on that information or to let it influence their decision in any way and that the identity of the informant had no probative value. James argues that these remarks amounted to comments on matters of fact, contrary to Art. 7 § 23 of the Arkansas Constitution, by invading the province of the jury, the sole judge of credibility of witnesses.

We find no error in the court’s comments. The remarks went only to the relevancy of the evidence, which is a determination to be made by the court. Unif. R. Evid. 104. The credibility of the witness was never at issue and was not ruled upon by the court.

Appellant next contends that the trial court erred by instructing the jury that aggravated assault was a lesser included offense to the charge of criminal attempt to commit capital murder. We find no error.

Ark. Stat. Ann. § 41-105 (2) (c) states:

A defendant may be convicted of one offense included in another offense with which he is charged. An offense is so included if:
(a) *
(b) *
(c) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a lesser kind of culpable mental state suffices to establish its commission.

The commentary to the statute states that this test for a lesser included offense provides for lesser offenses within the same generic class, so, for example, second degree battery is an included offense of first degree battery and manslaughter is an included offense of murder.

Before our present criminal code was adopted in 1976, attempt crimes were denominated as assault crimes, which the Commentary to § 41-105 points out. We traditionally found degrees of assaults of a given crime within the same generic class, Wills v. State, 193 Ark. 182, 98 S.W.2d 72 (1936), and a lower degree as an included offense of the higher. Simple assault was an included offense of assault with intent to rape. Wills v. State, supra; Fike v. State, 255 Ark. 956, 504 S.W.2d 363 (1974). Aggravated assault was an included offense of assault with intent to kill. Sharpensteen v. State, 220 Ark. 839, 250 S.W.2d 334 (1952); Browning v. State, 233 Ark. 607, 346 S.W.2d 210 (1961).

The new code includes a general attempt statute, § 41-701, and eliminates many of the older assault statutes, e.g. assault with intent to kill, assault with intent to rape, assault with intent to rob, etc. See Ark. Stat. Ann. § 41-701, Commentary. The code now contains only four assault statutes, Ark. Stat. Ann. § 41-1604 — § 41-1607, and they are graded from aggravated assault down through assault in the third degree. Although the wording of these statutes differs somewhat from the statutes they replaced, [see § 41-1601, Commentary], there is nothing in the language that would dictate a change from our former approach of finding a lower degree of assault as a lesser included offense of an attempt crime of an assaultive nature. Additionally, the Commentary to Ark. Stat. Ann. § 41-1601 indicates that assault retains the same character under the new criminal code as it had under previous law and changes that were made have no bearing on lesser included offenses nor were the changes meant to alter any prior law in that area. See also § 41-701, Commentary. Under the new code then, the lower degrees of an attempt crime are found within the assault statutes and are within the same generic class as attempt crimes, as in this case, where aggravated assault was held to be a lesser included offense of attempted capital murder. The trial court ruling in this case was correct under prior law and under our present law, which law has not been substantively changed by the criminal code.

The appellant next argues without authority that he was denied his fifth amendment rights under the United States Constitution, that he not be compelled in any criminal case to be a witness against himself. He was charged with several counts of possession, delivery and manufacture of a controlled substance and one count of criminal attempt to commit capital murder. He made a motion to limit cross-examination by the state to the offenses for which he would choose to testify. The motion was denied and he chose not to testify at all. But we said in Williams v. State, 258 Ark. 207, 523 S.W.2d 377 (1975): “Where an accused takes the stand in his own behalf he subjects himself to the same rules of cross-examination as any other witness.” Although there appears to be some criticism of this approach to the problem, this is also the current approach and general rule in other jurisdictions.

In appellant’s final point he argues that under Art. 2 § lOof theArkansas Constitution andArk. Stat. Ann. §43-2133, the trial of a defendant should be heard in the county in which the crime was committed and the state in its case failed to prove this jurisdictional fact, citing Ward v. State, 77 Ark. 19, 90 S.W. 619 (1905). Appellant’s argument is readily answered by subsequent developments in the law. Ark. Stat. Ann. § 43-1426 provides for presumption of venue unless the evidence affirmatively shows otherwise. See Johnson v. State, 254 Ark. 703, 495 S.W.2d 845 (1973); Hill v. State, 253 Ark. 512, 487 S.W.2d 624 (1972).

Affirmed.

Adkisson, C.J., not participating.

Hickman, J., concurs.

Purtle, J., dissents.

Darrell Hickman, Justice,

concurring. I agree with the result because the identity of the informant was a false issue, as the trial judge stated. The defendant knew the informant and had for some time. While the state’s action in refusing to cooperate was senseless in my judgment and perhaps not in good faith, there was no prejudicial error.

John I. Purtle, Justice,

dissenting. I do not agree with the majority statement that the confidential informant was only a witness to the transaction which gave rise to the charges upon which appellant was convicted. He was the person who set up the deal and was an active participant in the transaction. Therefore, he was an indispensable witness to appellant’s defense on the delivery charge. Appellant timely requested the identity of the informant but the state steadfastly refused to reveal his identity in spite of the requirement that it do so. Bennett v. State, 252 Ark. 128, 477 S.W.2d 497 (1972); A.R.Cr.P., Rules 17 and 19. Such a practice of refusing to disclose information vital to an accused’s defense will eventually lead to trial by affidavit without allowing the accused the right to confront his accusers.

It is not enough for me to rely upon unfounded statements that the appellant knew the identity of the informant. The most that may be said is that appellant thought he could recognize the face of the character. He did not know his name or address. Both defense attorneys stated in court that they did not know his identity. Only the state knew the identity of the confidential informant and how to contact him. Common sense tells me the appellant would have revealed the identity of his accuser to his attorneys.

The trial court commented on the evidence when the court, sua sponte, stated:

Ladies and gentlemen of the jury, I want to give you this admonition before we proceed on with the trial in this matter. The question of the identity of a confidential informant has been mentioned or brought up two or three times during the trial of this thing, and the court feels that the identity of the confidential informant has no probative value. I have admonished the attorneys not to go into that any more in the trial of this matter, to confine themselves to other pertinent, relevant matters, and I’m going to admonish you in reaching your verdict in this case not to take into consideration anything concerning that person that acted as a confidential informant and to not rely upon, use or allow to influence your decision in any manner the fact that a confidential informant was at one time a part of this particular process and procedure.

How can it be said that an eye witness to a criminal act is of no probative value? From voir dire to closing arguments the jury was reminded there was a party to this transaction which they had not been able to hear. It is my opinion that the court in effect told the jury that they were not to consider the fact that the state did not produce a known witness to the transaction. It is proper for a j ury to consider the absence of a known witness while deliberating on the case.

As to the search warrant, there were no exigent circumstances for allowing a nighttime search of appellant’s home, which was connected to the club building. The majority states the search actually commenced at 7:10 p.m. However, I read the record to reveal the officer with the warrant went to appellant’s club and residence but decided to go back and amend the affidavit and warrant in order to show a buy made earlier the same day. The decision not to use the first warrant was to lend credibility to the informant because the amended warrant would reveal the actual delivery of a controlled substance. Appellant was already under arrest and in custody before the 7:10 p.m. appearance. At that time the officers secured the premises. There was no danger of appellant removing or destroying evidence, unless he escaped from jail and I see no evidence this was probable. The warrant states that the evidence was secured at 10:40 p.m. Neither the affidavit nor the warrant contained even the allegation that exigent circumstances existed which might support a night search. The only reliability of the informant was that he produced two samples of marijuana which he claimed to have been obtained from the appellant. He had never before been proven to be reliable. He thus proved his reliability by his own unsworn testimony.

Our rules relating to searches are not mere technicalities and hinderances for those enforcing the laws; they exist to assure people that when an officer appears with a search warrant they can reasonably expect that it is issued with probable cause and in accordance with our laws and the constitution. Harris v. State, 262 Ark. 506, 558 S.W.2d 143 (1977). Our criminal laws do not exist for the benefit of criminals. They exist for the benefit of the people. Our constitutions mandate certain rights, even to those accused of crimes, and our courts and law enforcement officials are bound to protect such rights.

In my opinion the majority concludes from the results of the search that the informant was reliable and nighttime search was warranted. These criteria are to be decided prior to the issuance of a warrant. Unless they exist at that time the warrant should not issue. Here, there was ample evidence to convict appellant without the aid of this invalid search warrant. Even if one were needed it would have been just as successful the next day. In fact, another one was issued the next day. I would suppress the items received as a result of the nighttime search.

The direction taken by the majority in this case chills me to the bone. It is beyond my comprehension how the law enforcement officers, the prosecutor and the trial court could all so clearly bulldoze through appellant’s constitutional rights and be upheld on appeal. The very sad part is that it was all so unnecessary. Appellant stood a very good chance of being convicted without any of the disputed evidence being admitted. I cannot in good conscience vote with the majority to deny fundamental constitutional rights to the appellant, the denial of which may one day return to haunt us all. I must, therefore, dissent.

       We note that in Thompson v. State, 280 Ark. 265, 658 S.W.2d 350 (1983), we said in the future we will apply the totality of the circumstances testas recently enunciated in Illinois v. Gates, _ U.S _, 103 S.Ct. 2317 (1983).

      1 That commentary does suggest that under the new code, acts constituting an attempt to commit a crime might contain more elements than are necessary to prove assault, but that does not preclude finding in such a case that an assault is a lesser included offense of the attempt.

      See McCormick on Evidence (2d ed. 1972 § 132).


text:
    James F. MILLER, d/b/a A. BAIL BONDS v. STATE of Arkansas
    83-114
    658 S.W.2d 389
    Supreme Court of Arkansas
    Opinion delivered October 17, 1983

      Davidson, Horne, Hollingsworth, Arnold ir Grobmyer, P.A., for appellant.

      Steve Clark, Atty. Gen., by; Matthew Wood Fleming, Asst. Atty. Gen., for appellee.
   Richard B. Adkisson, Chief Justice.

Appellant, James Miller, d/b/a A Bail Bonds, brings this appeal from an order of the circuit court ordering judgment of $31,050.00 against him for nine bond forfeitures. Appellant contends the trial court erred in holding him personally liable on bonds for which Cotton Belt Insurance Company, placed in receivership in 1982, was the insurer. We agree.

The trial court found that in each case the executing agent was appellant or one authorized by him. In eight of the cases, the defendant failed to appear and a bond forfeiture was declared. In the ninth case, the defendant failed to appear because he was detained in a federal penitentiary. Appellant denies liability on all the cases, contending he acted solely as an agent of Cotton Belt Insurance Company. Liability on the ninth case was also denied pursuant to Ark. Stat. Ann. § 43-733 which provides no forfeiture be rendered when the principal in the bond is detained under authority of the federal government.

The record reflects the trial court knew appellant was acting for Cotton Belt Insurance Company: “The Court: I think I will stipulate to that. I don’t think Jimmy ever told me he’d be respnsible for it, notwithstanding the fact that there are some contracts otherwise. I think that I always dealt with Jimmy as Cotton Belt.” Here, the stipulation was determinative of the fact that appellant was acting as an agent and not as a surety.

Reversed.


text:
    Joseph Michael BREAULT v. STATE of Arkansas
    CR 83-45
    659 S.W.2d 176
    Supreme Court of Arkansas
    Opinion delivered October 17, 1983

      Jeff Rosenzweig, for appellant.

      Steve Clark, Atty. Gen., by: Velda P. West, Asst. Atty. Gen., for appellee.
   Richard B. Adkisson, Chief Justice.

The appellant, Joseph Michael Breault, was convicted in the Saline County Circuit Court of the capital felony murder of Sandra McCann. The jury fixed his punishment at life imprisonment without parole. On appeal, we affirm.

On February 2, 1980, Robert Richard Heffernan, Doreen Smock, appellant, and appellant’s wife, Annette Breault Pinsonnault arrived at the Jellystone Park near Benton. They were traveling in a truck with a camper attached and registered under the fictitious name of Barry Moore. Both appellant and Heffernan wore pistols. The camper was removed from the truck. Appellant and Heffernan, both wearing guns, left the park together in the truck on various occasions during their stay there.

On February 3,1980, at about 5:45 p.m., the victim went to the laundromat at Indian Springs. Around 9:00 p.m., when she had failed to return home, her mother’s fiance went to look for her at the laundromat. The victim was not there. Some of the clothes she had taken to wash were in the dryers, some on the floor, and some hanging up. The victim’s car keys and book were left on a table; her coat was left in a chair.

The next day around dinner time, her body was found on a dirt road off Flighway 5. She was dressed in blue jeans and a sequin-appliqued tee shirt. Motile sperm were found in her vagina. She had been shot four times. A bullet was retrieved from her body and another one from her clothing.

On February 5,1980, appellant, Heffernan, and the two women left Jellystone Park, cutting short their intended stay by one day, and traveled to Lake Texoma, Oklahoma. Appellant there stated to Ms. Pinsonnault in front of the others that he had gotten rid of the pistols. The four then traveled to Colorado where they were apprehended by the Colorado State Police.

First, appellant argues that the evidence was insufficient to support the jury’s verdict. Testimony established that appellant departed from the campground wearing a gun and in company with Heffernan; there was testimony of appellant’s statement made at Lake Texoma that he had gotten rid of the guns; testimony established that two bullets taken from the victim’s body had been fired from the gun recovered from Lake Texoma; and it was established that the hair and sequins found on the victim’s body matched the hair and sequins found on appellant’s clothing retrieved from the camper. This evidence was sufficient to support the jury’s verdict. “The fact that evidence is circumstantial does not render it insubstantial — 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. 207, 209, 628 S.W.2d 324, 325 (1982). Where the verdict is supported by any substantial evidence the verdict must be affirmed. Jones v. State, 269 Ark. 119, 598 S.W.2d 748 (1980). See also Cassell v. State, 273 Ark. 59, 616 S.W.2d 485 (1981).

Second, appellant argues that the trial court erred in instructing the jury not to complete the verdict forms on the underlying felonies. The jury, by implication, had to find appellant guilty of either kidnapping or rape in order to find him guilty of capital felony murder. The circumstantial evidence is equally persuasive as to both kidnapping and rape. We have previously held that the jury need not specify which one of two underlying felonies the defendant is guilty of in a capital felony murder charge. Sumlin v. State, 266 Ark. 709, 724-25, 587 S.W.2d 571, 580 (1979).

Third, appellant argues that the integrity of the evidence was violated, making testimony of the scientific comparison of the animal hair and sequins unreliable. Both truck and camper were sealed when seized. Only police investigators entered the vehicles. There is, therefore, no merit to this argument.

Fourth, appellant argues that error occurred in the seating of the jury. Appellant contends that the trial court’s denial for cause of venireman Hess Carlton forced him to use his last peremptory challenge which resulted in another j uror being seated whom he would have challenged. During questioning, Carlton stated that a person found guilty of kidnapping and rape should be executed. In further questioning by the trial court, Carlton stated he would consider the law and the evidence and deliberate with the other j urors before voting for a death sentence. We find that juror Carlton was sufficiently rehabilitated by the trial court so that the court was correct in not striking him for cause. Hill v. State, 275 Ark. 71, 83-84, 628 S.W.2d 285 (1982).

Appellant also argues that the jury, being death qualified pursuant to Witherspoon v. Illinois, 391 U.S. 510 (1968), was more prone to convict and that he was thus denied a fair trial. We have consistently rejected this argument. For a review of our cases so holding, see Rector v. State, 280 Ark. 385, 659 S.W.2d 168 (1983).

Fifth, appellant argues that the trial court erred in failing to submit to the jury, as a simple defense, the affirmative defense of nonparticipation provided for in Ark. Stat. Ann. § 41-1501 (2) (Repl. 1977). Appellant contends that an affirmative defense places the burden of proof upon the defendant to prove a fact by the preponderance of the evidence which is actually an element of the crime and therefore a fact which the State must prove beyond a reasonable doubt. Such is not the law. We have previously held that the burden on the defendant to prove an affirmative defense does not arise until the state has met its burden of proof as to the elements of the offense. Moss v. State, 280 Ark. 27, 30-31, 655 S.W.2d 375 (1983).

We have examined all other objections made during the trial pursuant to Rule 11 (f), Rules of the Supreme Court, Ark. Stat. Ann., Vol. 3A (Repl. 1977) and find no error. See Earl v. State, 272 Ark. 5, 612 S.W.2d 98 (1981).

Affirmed.


author: George Rose Smith, Justice. Steele Hays, Justice,

text:
    Hazel LEE v. BIG FLAT PUBLIC SCHOOLS
    83-56
    658 S.W.2d 389
    Supreme Court of Arkansas
    Opinion delivered October 17, 1983

      Cearley, Mitchell ir Roachell, by: Richard W. Roachell, for appellant.

      Poynter, Huckaba ir Gearhart, P.A., by: Frank H. Huckaba; and Mark F. Cooper, for appellee.
   George Rose Smith, Justice.

The appellant, Hazel Lee, is a nonprobationary school teacher. This dispute is about the Big Flat School District’s nonrenewal of Mrs. Lee’s teaching contract for the 1982-83 school year. At her request the school board held a public hearing in July, 1982, and adhered to its earlier decision not to renew her contract. Contending that she had not been given the required written notice of nonrenewal, Ark. Stat. Ann. § 80-1264.3 (Repl. 1980), Mrs. Lee appealed to the circuit court, where testimony was taken. The circuit judge, affirming the board, rejected the argument that the board’s action was arbitrary and capricious, which would be true only if the board’s decision is not supportable on any rational basis. Lamar Sch. Dist. No. 39 v. Kinder, 278 Ark. 1, 642 S.W.2d 885 (1982). We must affirm the trial court’s decision if not clearly erroneous. ARCP Rule 52.

The statute requires that notice of the school superintendent’s recommendation of nonrenewal be given by registered or certified mail during the period of the existing teaching contract or within ten days after the end of the school year. Section 80-1264.3. Substantial compliance with the notice requirement is sufficient, absent a showing that prejudice resulted from a want of strict compliance. Fullerton v. Southside Sch. Dist., 272 Ark. 288, 613 S.W.2d 827 (1981).

Before the termination of her contract Mrs. Lee had been teaching remedial reading, a program partly supported by federal funds. On April 6,1981, the superintendent wrote to Mrs. Lee, explaining that because of cuts in federal funds the school board, after long deliberation and after having hired Mrs. Lee for the 1981-82 year, had voted not to have a remedial reading program in the 1982-83 school year. The implication of the letter was that Mrs. Lee would not have a job for the 1982-83 year, but the letter did not specifically so state.

Nevertheless, Mrs. Lee apparently so understood the letter. During the winter of 1981-82 she applied to four other school districts for a job, sending the applications by registered mail. The school superintendent testified in substance that during the 1981-82 year he had numerous discussions with Mrs. Lee, all centering on the fact that she knew she would not be re-employed by the district.

Next, a written policy of the district provides that teachers will be considered for renewal at the February board meeting each year, options will be presented to the teachers after that meeting, an option will not be offered unless the board fully intends to hire that teacher, and teachers will be hired at the March meeting. Mrs. Lee admits that she was familiar with that regulation. She certainly knew that she had not been offered an option to renew her contract in February and had not been hired at the March meeting, 1982. In this connection the testimony of the school board president about another possible opening for Mrs. Lee is pertinent:

Well, I don’t know how you could work in a small system as we have and not become aware of what is going on, I don’t understand that. We have only ten or twelve teachers in the system, and how information could get by without her knowing it is beyond me.

Finally, at Mrs. Lee’s request the superintendent gave her this letter which could hardly have been more explicit:

April 5, 1982.
To Whom It May Concern:
Hazel Lee has been employed by the Big Flat School District #32 for a period of eleven (11) years. During most of this time she has taught Title I Reading to the students who were below grade level.
Mrs. Lee would have been re-employed by the Big Flat School District if federal funds would have permitted.
I would recommend Mrs. Lee for a position in elementary school and federal programs where students are placed.
Donald G. Lee, Superintendent.

That communication was in writing, was signed by the school superintendent, and was within the time fixed by the statute.

To sum up, the issue before both the triers of fact — the school board and the circuit court — was whether there had been substantial compliance with the requirement that notice of nonrenewal be timely given to Mrs. Lee. On the one side, the trial court’s decision is supported by these facts: (1) The April 1981 letter, telling her that no teacher would be employed in the remedial reading program in the 1982-83 school year; (2) Mrs. Lee’s recognition of that fact by applying to other districts for a 1982-83 job; (3) the school board’s failure to offer her an option in February 1982 or a contract in March; (4) her apparent knowledge that other teachers had been employed for 1982-83, leaving no position for her to fill in that year; and (5) her solicitation and receipt of the To Whom It May Concern letter, reciting that she had not been re-employed. On the other side, there is only Mrs. Lee’s assertion that the board’s written decision on July 28 was “the first time that I had received the message that... I would not be employed.” With the proof so strongly supporting the decision of the circuit court, and with the issue of credibility resting with that court, not with us, we have no basis for holding that its decision is clearly erroneous.

There is also a second argument for reversal. Although counsel for the appellant concede that the school district had the right to discontinue the remedial reading program, it is argued that the school board acted arbitrarily and capriciously in not offering the position of science teacher to Mrs. Lee, who was qualified in that field. The school board’s president testified that the science position had been filled by a teacher who was also an instructor in physical education. “We got both jobs at the price of one.” He also testified that it is the practice for the teachers to make the application, not for the board to solicit, and Mrs. Lee made no request for the job. There is no indication that Mrs. Lee sought the science position until after the other teacher had been employed, presumably in March, 1982. Finally, Mrs. Lee’s appeal to the circuit court was from the school board’s decision not to renew her contract. Ark. Stat. Ann. § 80-1264.9. In the matter of running the schools the courts cannot interfere with a school board in the exercise of its discretion unless the complainant sustains the burden of showing by clear and convincing evidence an abuse of discretion. Safferstone v. Tucker, 235 Ark. 70, 357 S.W.2d 3 (1962). No basis for relief is established by this second contention.

Affirmed.

Adkisson, C.J., and Hickman and Hays, JJ., dissent.

Steele Hays, Justice,

dissenting. Mrs. Lee alleges that notice by the school board was insufficient and that her dismissal was arbitrary and capricious, contrary to the requirements prescribed by Arkansas law. See Ark. Stat. Ann. § 80-1264.3, § 80-1304 (b) and § 80-1264.4 (Repl. 1980). She also contends the district failed to notify her of an opening for a science teacher for 1981-82 and in hiring the son of a board member (a substitute teacher who was not certified in science) was arbitrary and capricious, inasmuch as she was certified and had taught science for several years. I agree with the majority on the second issue, but cannot agree that the district was in substantial compliance with respect to the nonrenewal of her contract and on that ground, I would reverse.

I recognize that there is evidence supporting the conclusion that Mrs. Lee doubted she was going to be rehired for the 1982-83 school year, as the trial court found. Ordinarily, that would end the matter. But there are, I believe, convincing reasons to reverse that decision as clearly erroneous.

Mrs. Lee had taught science and remedial reading in the Big Flat schools for eleven years and was under contract for the 1981-82 school year as a remedial reading teacher, her position being funded by Federal Title I funds. On April 6, 1981, she received a letter from the superintendent informing her that due to cuts in federal funds the school board had voted not to have a Title I remedial reading program for the 1982-83 school year.

The letter to Mrs. Lee did not comply with Ark. Stat. Ann. § 80-1264.3, which reads in part:

Every contract. . . shall be renewed . .. unless on or by the time provided in subsection (b) of Section 4 of Act 319 of 1941 [Ark. Stat. Ann. § 80-1304 (b) (Repl. 1980)], as amended, the teacher is notified by the school superintendent that the superintendent is recommending that the teacher’s contract not be renewed... A notice of nonrenewal shall be mailed by registered or certified mail to the teacher . . .

The letter was not sent by either registered or certified mail, as is clearly required. More importantly, it utterly failed to state in plain terms or even, I think, to imply, that her employment with the district was being terminated. The letter mentioned neither her contract nor nonrenewal — it simply stated that because of reduction in federal funds no teacher in remedial reading would be employed for the 1982-83 school year.

The district maintains the letter is in substantial compliance with § 80-1264.3, or its almost identical counterpart, § 80-1304.6. I would reject that contention, as the letter fails to comply even marginally with our statutes. In previous cases we have given school boards the benefit of a lesser standard, i.e. substantial compliance, rather than strict compliance, with the statute. In Fullerton v. Southside School District, 272 Ark. 288, 613 S.W.2d 598 (1981), where the required notice was sent by the district, rather than the school superintendent, this court found substantial compliance, even though the act specified that the superintendent send the notice. Also, in Allred v. Little Rock School District, 274 Ark. 414, 624 S.W.2d 487 (1981) we found substantial compliance where the letter told the teacher his performance was unsatisfactory and “Therefore,... you will not be presented to the Board of Directors at the May 29 board meeting for reelection for the 1980-81 school year.” But there are differences. In Fullerton, the letter itself fully complied with the law and in Allred, while the letter failed to track the precise language of the statute, it was abundantly clear from the wording used that the teacher’s contract to teach was not being renewed. Hence, neither this court nor the trial court had any difficulty finding substantial compliance. But there are limits, and a willingness to find substantial compliance in those cases should not lead us to find it where it cannot be rationally inferred.

Mrs. Lee had taught in the school system for a good many years and in several positions other than remedial reading. Although she was told the remedial reading program was being discontinued, that by no means informed her that she was not to be rehired in any capacity. The most that can be said of the letter is that it left her uncertain as to her future. She testified that though she had had conversations with the superintendent about her position, she was never told that her contract would not be renewed and she was under the impression that the matter was not settled. In fact, she said the superintendent had expressed the possibility of her staying on if there were a way to “refigure the money.” I concede these differences address themselves to the trial court, but I do not find a direct denial of her assertions in the testimony of the superintendent, and the letter itself provides documentary support for Mrs. Lee’s position: it never mentions nonrenewal and was sent by ordinary mail.

It is precisely to avoid these misunderstandings that the current requirements for nonrenewal were enacted. The uncertainties that arise from inadequate notice are illustrated by this case. The reasons for these requirements have been stated:

One obvious purpose of the statute requiring written notice was elimination of uncertainty and possible controversy regarding the future status of a teacher and a school. Newton v. Calhoun County School District, 232 Ark. 943, 341 S.W.2d 30 (1960).

Although the evidence makes it plain that Mrs. Lee knew her employment for the following year was in doubt, still, it is not so certain that her long tenure with the district was terminated as to warrant the district’s substantial noncompliance with the law. It is to prevent the very problems this case typifies that prompted the adoption of § 80-1264.3, requiring the simplest sort of act by the district. And where the district neglects to follow the statute in substantial fashion, the reasonable consequences of its failure must fall upon the district rather than the teacher. The legislature in unambiguous language placed the burden on the school district to unequivocally notify a school teacher of termination. The majority has essentially rewritten the law to place a burden on the teacher to conclude he has been fired.

The act itself hardly burdens the district, it simply requires a timely written notice to the teacher by certified mail that his or her contract is not renewed. And we have lightened that task even further by the holdings cited earlier, that strict compliance is not required, so long as compliance is substantial. As I can find no substantial compliance, I would reverse.

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