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

text:
    George Austin WILSON v. STATE of Arkansas
    CR 80-253
    614 S.W. 2d 663
    Supreme Court of Arkansas
    Opinion delivered April 27, 1981

      E. Alvin Schay, State Appellate Defender, by: Ray Hartenstein, Chief Deputy Defender, for appellant.

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

Wilson was arrested for the May 27, 1979, robbery of the Magnolia Inn in Little Rock, Arkansas. By information he was charged with aggravated robbery in violation of Ark. Stat. Ann. § 41-2102 (Repl. 1977) and criminal attempt to commit felony murder in violation of Ark. Stat. Ann. § 41-701 (Repl. 1977). A jury convicted Wilson of the aggravated robbery and reduced the attempt charge to a conviction for criminal attempt to commit first degree felony murder. The trial court ordered the sentences to run consecutively.

On appeal Wilson raises three issues. First, he claims that the trial court’s imposition of consecutive sentences for what he contends were the “same offense” violates his right not to be twice placed in jeopardy. However, there was no such objection made at the trial. There was a request that the sentences run concurrently rather than consecutively and Wilson argues that this was an objection. We do not consider it to be a proper objection; it was only a request.

In a similar situation in Rowe v. State, 271 Ark. 20 (1980), cert. denied, No. 80-6178 (April 6, 1981), this court noted that no objection was made when the jury was given instructions defining both offenses; no alternate or substituted verdict form was requested by defendant; and no objection was made when the verdicts were returned. The same is true in the present case. We conclude as we did in Rowe that the arguments now advanced on appeal could have been raised in the trial court, but none of them were. Even though an error may be of constitutional proportion, as Wilson claims, we do not consider it for the first time on appeal. Shepherd v. State, 270 Ark. 457 (1980); Clark v. State, 264 Ark. 630, 573 S.W. 2d 622 (1978). We have no “plain error” rule. Smith v. State, 268 Ark. 282 (1980).

Wilson’s second argument is that the trial court erred in denying his motion for a new trial. This motion was based on a contention that the court bailiff had discussions with the jurors and entered the jury room during the jury’s deliberations. Wilson requested and received a hearing on this matter. At the hearing Wilson and another man, Tommy Lee Driggers, testified that while they were in the holding cell they observed the bailiff responding to questions from the jury. The bailiff stated at the hearing that he had no specific memory of this case, but testified as to his customary practice which was not to give legal advice. No one testified as to what was actually said in the jury room. The record revealed that the bailiff had relayed a request from the jury for further instructions concerning attempted murder and that the court had responded that no further advice could be given on this matter. When the bailiff returned to the jury room with this response he was accompanied by attorneys for both parties. No objection to this procedure was made by the defense.

On appeal of this issue Wilson relies on Williams v. State, 264 Ark. 77, 568 S.W. 2d 30 (1978) for the proposition that once deliberations have begun, the court alone should answer legal questions from the jury. Even so, Wilson failed to prove to the court’s satisfaction that the bailiff in this case counseled the jury on a point of law or acted to prejudice the appellant’s rights. The court concluded that there had been no showing of prejudice to the defendant and we cannot say the court’s decision in this regard was clearly wrong. A trial judge is never to relay any communications to the jury through a bailiff. Ark. Stat. Ann. § 43-2139 (Repl. 1977). But to reverse a decision we must find prejudicial, not harmless, error. Harrington v. California, 395 U.S. 250 (1969).

Wilson’s final contention is that the trial court’s acceptance of the defense attorney’s stipulation of five prior convictions requires reversal. Again, the appellant suffered no prejudice. The five judgments entered to prove his habitual offender status were all certified copies of court judgments (as opposed to inadmissible docket sheets); each judgment gave the name of the attorney representing Wilson in that case; all were submitted to the jury and the jury returned findings. These factors distinguish this case from the Cox cases, Cox v.State, 257 Ark. 35, 513 S.W. 2d 798 (1974);Cox v. Hutto, 589 F. 2d 394 (8th Cir. 1979); Cox v. Hutto, 619 F. 2d 731 (8th Cir. 1980); and from our recent holding inMcCroskey v. State, 272 Ark. 356, 614 S.W. 2d 660 (1981).

Affirmed.

Purtle, J., dissents.

Holt, J., not participating.

John I. Purtle, Justice,

dissenting. I dissent with amazement at the action of this court in handing down two opinions on the same date holding directly opposite each other. The present case affirms the trial court’s action in accepting a stipulation that the appellant had five prior convictions. At the same moment, we are handing down the opinion in McCroskey v. State reversing and remanding in the same trial court. We reverse and remand McCroskey because the trial judge accepted a stipulation that the appellant had been convicted of a number of previous offenses. We affirm the present case on what are essentially the same facts. Which one will the trial courts be expected to follow?

In my opinion, it was error for the trial court to accept the stipulation to the prior convictions without inquiring of the appellant whether he intelligently and voluntarily consented to such stipulation. McCroskey v. State, 272 Ark. 356, (1981); Cox v. Hutto, 589 F. 2d 394 (8th Cir. 1979); Morrow v. State, 271 Ark. 806, 610 S.W. 2d 878 (1981). Also, see Ark. Stat. Ann. § 43-2330.1 (Repl. 1977).

The Arkansas statutes give the appellant the absolute right to a trial by jury on the issue of prior offenses. This statute is certainly on the same level as the rule which prevents the acceptance of a guilty plea without inquiry by the court as to the voluntariness of such plea. Rules of Criminal Procedure, Rule 24.4 and Rule 24.5. To accept a guilty plea without first determining that it was intelligently and voluntarily made has been construed as being reversible error. Byler v. State, 257 Ark. 15, 513 S.W. 2d 801 (1974). There is no way the facts may be arranged to cover up the deficiency in the trial court’s failure to inquire as to the voluntariness of the stipulation. It seems to me that McCroskey is holding that the question is whether the accused voluntarily and intelligently agreed to the stipulation; the holding in the present case is that if there is enough evidence available to support the stipulation, the trial court will be affirmed. I agree with McCroskey and disagree with the majority in the present case.


source: Caselaw Access Project

author: Robert H. Dudley, Justice.

license: Public Domain

text:
    Ada STORY and Ada STORY, Next Friend of Angel Renee PAGE, A Minor, and the STATE of Arkansas v. Richard HODGES
    81-4
    614 S.W. 2d 506
    Supreme Court of Arkansas
    Opinion delivered April 27, 1981

      Doddridge M. Daggett, for appellants.

      Butler, Hicky & Hicky, by: Preston G. Hicky, for appellee.
   Robert H. Dudley, Justice.

Ada Story and her minor daughter, Angel Renee Page, filed a paternity suit in the County Court of Lee County alleging that Richard Hodges, the appellee, was the father of Renee. The referee ordered the standard ABO blood tests to be made and found that appellee was not the father. An appeal was taken to the Circuit Court of Lee County and appellants again asked for blood tests and the court so ordered.

Appellants then moved in limine for the court to declare Ark. Stat. Ann. § 34-705.1 (Repl. 1962) unconstitutional. This statute allows blood tests in evidence only to exclude paternity. It is contended that blood tests now should be admitted to establish paternity because a relatively new test, Human Leukocyte Antigen, can determine paternity with a reasonable degree of medical certainty. The trial court did not find a denial of equal protection and this appeal is from that ruling.

This evidentiary ruling is not an appealable order. The general rule is that appeals lie only when and if there is a judgment. Nolan v. Manning, 241 Ark. 422, 407 S.W. 2d 937 (1966); Arkansas Rules of Appellate Procedure, Rule 2 (Vol. 3A, Repl. 1979).

Appeal dismissed.

Holt, J., not participating.


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

text:
    Kate Marie SARGENT v. STATE of Arkansas
    CR 80-235
    614 S.W. 2d 507
    Supreme Court of Arkansas
    Opinion delivered April 27, 1981

      E. Alvin Schay, State Appellate Defender, by: Deborah Davies Cross, Deputy Appellate Defender; and Harold Hall, for appellant.

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

Following the shooting death of Charlie Frank Sargent on February 18, 1980, first degree murder charges were filed against Sargent’s wife, Kate Marie Sargent, and three sons, Donald, seventeen, Cecil, fifteen, and Roy, fourteen. Immunity was granted to Cecil and Roy in exchange for their agreement to testify in the separate trials of Kate Marie Sargent and Donald.

Kate Marie Sargent was convicted of second degree murder and sentenced to 20 years and a fine of $15,000. She appeals on the single point that there is insufficient corroborating evidence of the accomplices, Cecil and Roy, to sustain her conviction. We find the corroboration to be sufficient.

The evidence against appellant consists primarily of the testimony of Cecil and Roy, accomplices in the crime, and the introduction of a statement voluntarily given by appellant after being informed of her rights, which implicates her in the crime while denying her guilt. The evidence establishes these events: In the early morning hours of February 19, 1980, the body of Charlie Frank Sargent was found along a remote stretch of Woodson Lateral Road in Saline County. His pickup truck was parked beside the road, the passenger door open, and the body, entangled in vines, was lying some 15 feet below in a ravine. Death was attributed to four bullet wounds from a small caliber weapon, the fatal wound being just above the heart. Sargent’s clothing and the truck had a strong odor of kerosene and an effort to burn the truck was evident.

Sargent’s wife and sons at first informed the police that Charlie Sargent had left home in the truck on the evening of February 18 following an argument with Mrs. Sargent and had not returned. Later, however, they gave statements which agreed in substance that Donald had planned the crime, fired the shots that killed his father and that all four had participated in the efforts to conceal the crime. Stating the facts most favorably to the State, on the evening of February 18, Donald got home around 6 p.m., shortly after his father arrived. As the family was having supper and watching television, Donald left the living room-kitchen area and went to his mother’s bedroom where he obtained a .22 caliber pistol. He returned to the living room and sat down behind his father. He fired one shot from the pistol toward his father which missed. Charlie Sargent got up and moved toward Donald, asking what he was doing with the pistol. Donald then fired four or five more times, four of the bullets striking Charlie Sargent. As Sargent lay on the floor calling for help, Mrs. Sargent made attempts to cover him with a blanket and to call an ambulance, which Donald prevented by hanging up the telephone. Mrs. Sargent, Cecil and Donald managed to get Sargent into the truck, which Donald drove ahead as Mrs. Sargent, Cecil and Roy followed in the other family vehicle, a Gremlin. In the Gremlin on the seat were two gallon milk cartons filled with gasoline or kerosene which Kate Sargent had bought the day before. Also, Cecil brought to the car a bomb fashioned from a glass beer bottle filled with gasoline with a cotton wick inserted at the top.

Donald drove east on Woodson Lateral Road some three miles to the point where the truck and body were found. According to Roy’s testimony, Donald, Cecil and Mrs. Sargent tried unsuccessfully to push the truck into the ravine. Mrs. Sargent’s statement refutes this in that she maintains she only observed the proceedings from the car. Donald and Cecil poured the kerosene on Charlie Sargent and in the interior of the truck cab. Sargent managed to get out of the truck several times and Donald struggled with him to keep him in the truck, striking him once with his fist. Donald took the “bomb” from Cecil, lit the fuse and threw it at the truck, which burst into flames behind the cab. Mrs. Sargent and the boys then got into the Gremlin and drove home “to wait and see” what developed. All acknowledge that Charlie was alive and conscious when they left, Cecil noting that he got out of the truck and fell into the ravine as they drove away. When the truck was found the next day, only the spare tire had burned as a result of the fire.

Ark. Stat. Ann. § 43-2116 (Repl. 1977) provides in pertinent part:

A conviction cannot be had in any case of felony upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows that the offense was committed, and the circumstances thereof.

As we stated in Anderson v. State, 256 Ark. 912, 511 S.W. 2d 151 (1974):

The test of the sufficiency of corroboration of the testimony of an accomplice is whether there is other evidence tending to connect the defendant with the commission of the offense which goes beyond a showing that the crime was committed and the circumstances thereof. The corroborating evidence need not be sufficient in and of itself to sustain a conviction, but it need only, independently of the testimony of the accomplice, tend in some degree to connect the defendant with the commission of the crime. Anderson, at 915.

See also, Bly v. State, 267 Ark. 613, 593 S.W. 2d 450 (1980). We have also held that the declarations of an accused before or after the crime may furnish the necessary corroboration of the testimony of an accomplice. Here, that corroboration is found in the testimony of the appellant. Olles and Anderson v. State, 260 Ark. 571, 542 S.W. 2d 755 (1976).

In this case, a number of circumstances are present which not only tend to connect appellant with the crime, but which provide a convincing network from which the jury could fairly infer her active participation in the homicide. Kate Marie Sargent’s account of the homicide to the investigating officers conflicts with the testimony of Cecil and Roy and is riddled with self-contradictions, the more notable being: she first said that she and Charlie argued over the checkbook and Donald was protecting her, later abandoning this version; she first denied that she removed his billfold after the shooting, then admitted it; she first told the officers she had no knowledge of the whereabouts of the murder weapon, then directed them to its exact location; she first denied being in the room when the shooting occurred and then admitted seeing the shots fired; she first denied any part in the “cover-up” stories, then admitted her participation. Significantly, she admitted that the day before the shooting she bought the kerosene or gasoline to burn the pickup truck; though by her version she remained in the car while the truck was being set afire, Roy testified that she, Donald and Cecil tried to push the truck into the ravine; and lastly, part of her account of the event, though self-contradictory, reveals quite clearly that she had prior knowledge of Donald’s plan to shoot and burn his father, which casts a most incriminating light on her participation in these incredible events:

Q: But the death had been planned before this, is that right?
A: Yes.
Q: Had you heard your son talk about this was going to happen, that he was going to kill his father and then burn him?
A: I begged him not to.
Q: But this was before he shot him? Did you hear this before then?
A: No.
Q: Just a minute ago —
A: Yeah.
Q: You said you had, you heard it planned.
A: The only way he talked about it...
Q: Was this the way he talked about doing it?
A: Yes.
Q: This is the exact way he talked about it before his father’s death?
A: Yes.
Q: Okay, Mrs. Sargent, you were interrupted a few minutes ago, I couldn’t hear you on the tape. You’re saying that you did understand that Donald had planned this, to kill his father by shooting him and then to burn his body, is that right?
A: Yes.

Her assertions that she begged Donald not to go through with the grisly plan have a hollow ring when one considers that she did absolutely nothing to prevent it — she did not tell Charlie Sargent, nor the police, nor did she even destroy or hide the pistol. In fact, it was she who bought the pistol not long before the murder. Her assertions that she thought Donald was taking his father to the hospital are equally implausible when one considers that the two milk cartons of kerosene were, according to the boys’ statement, on the seat of the Gremlin which she drove to the death scene and the fact that Cecil, who rode with her, brought the gas bomb from the house. Lastly, Roy’s testimony that Donald, Cecil and his mother tried to push the truck into the ravine belie the protestations of innocence. Perhaps the crowning circumstance in this tragic saga of one man’s family is the fact that a week or ten days after the murder and before suspicion had centered on the Sargents, Kate Marie Sargent purchased an automobile for Donald.

Much is made of Kate Sargent’s efforts to cover her husband as he lay wounded on the floor crying for help and of her attempts to call an ambulance. What lay behind her paradoxical behavior in this regard cannot be fathomed. Whether her efforts were self-serving, should the plan go awry as it did, or were motivated by regret or sympathy need not be scrutinized. It is enough that a strong chain of circumstance encircles the appellant sufficient to sustain the verdict of guilt, especially when viewed most favorably to the State, giving the evidence every reasonable inference the law requires. Tatum v. State, 266 Ark. 506, 585 S.W. 2d 957 (1979); Core v. State, 265 Ark. 409, 518 S.W. 2d 581 (1979).

We are convinced that circumstantial connections to the crime and the appellant’s own statement go “beyond a showing that the crime was committed and the circumstances thereof.” Anderson, above. The defendant’s own admissions plainly “connect the defendant with the commission of the offense.” Anderson.

We find sufficient corroboration of the testimony of the accomplices to sustain the conviction. Anderson v. State and Bly v. State, supra.

Affirmed.

Purtle, J., dissents.

Holt, J., not participating.

John I. Purtle, Justice,

dissenting. I strongly dissent in this case. There is absolutely no evidence to support a verdict finding the appellant guilty of second degree murder or any crime of a higher degree. I concede the evidence shows she is probably guilty of hindering.

The three sons of decedent and appellant all testified and made numerous statements to the officers prior to the trial. However, not one word in any of their testimony states or even alleges that appellant was in on the planning or indeed had any knowledge that this crime was to be committed.

The majority base the opinion on matters which are all after the fact. For example, the big act which they used to connect this woman to the murder of her husband is the fact that she took her husband’s billfold from his pocket after he had been shot. I do not know of a wife who would not take her husband’s billfold from his pocket when he was being sent to the hospital. Appellant did state that she thought they were taking her husband to the hospital when they left their home. Also, they make much of the fact that she had bought a gallon of gasoline which was sitting in the back of the pickup truck, and had purchased a pistol, which was kept in the house. It does not take a very smart person to know that gasoline is used in lawn mowers and other small internal combustible engines and for many other purposes around a home. It is not unusual to find gasoline in plastic containers around most any residence. Most homes have handguns and rifles in them at the present time, and this is neither a crime nor evidence of a crime. The majority even takes into consideration the fact that she helped make up a story after the murder to keep the officials from finding out that her son had killed her husband.

Let us look at what really happened. Without any prior knowledge to any other members of the family, Donald Sargent obtained the family pistol from a bedroom and shot his father several times. The pistol had been kept in different parts of the house prior to this date. The appellant was in the kitchen at the time the shooting started and she arrived in the living room in time to see Donald shoot her husband at least twice, each time stating, “This is for Connie.” She then tried to cover her husband up, but Donald would not let her. She tried to call an ambulance, and Donald would not let her. Every time she tried to help Donald stopped her.

The testimony clearly indicates that all of the family cooperated in putting her husband in the pickup truck. However, all of them but Donald seemed to think they were going to take the wounded man to the hospital in Benton. Appellant and her other two sons followed the pickup when it left the residence with Donald and his father in the cab. Apparently appellant and her two other sons were surprised when Donald made a right turn on the Woodson Lateral Road to go away from Benton instead of toward Benton. They followed him until he crossed Highway 167 at which time he drove out of view. However, shortly they came upon Donald at a place where he had parked the pickup truck with his father in it. The appellant was asked the following question:

Question: So what happened when you pulled up and saw Donald?
Answer: I started crying and I said let’s take him to the hospital and he said no, mama, we ain’t going to do it.

All testimony indicates that Donald poured some gasoline on his father and attempted to set the truck on fire. This was done by throwing a fire bomb into the bed of the pickup truck. The only damage was to the spare tire which was in the back. When the appellant was giving her statement to the officers prior to the trial, she clearly stated:

I did not have any idea that this was going to happen.

She further stated:

I kept trying to put covers on him. Donald kept jerking them off. I kept trying to call an ambulance. Donald wouldn’t let me. Donald said he would do me the same way. Donald did not say he would kill me, but he said that he would hit me. He did say he’d do the same thing to me. I was afraid for my life. When he said that it made me think that he was going to shoot me too if I didn’t do what he said. *** I took the wallet off of him when we took him out to the truck so I could have some identification and he said he’d take him in and I could follow him in to the hospital.

The strongest evidence which the majority quotes concerns a series of questions which are set out in the opinion. I call your attention to the final question and answer of the confusing sequence:

Question: But this was before he shot him? Did you hear this before then?
Answer: No.

It is relatively easy for an intelligent educated attorney to put words into the mouth of an illiterate scared defendant who is on trial for his life. The appellant stated that she understood that Donald had planned to kill his father by shooting him and burning his body; however, she stated that she did not learn this until after it was done.

There was as much evidence to prove that Peter, James and John crucified Christ as there is that the appellant murdered her husband. The disciples followed afar off and observed all that was done but somehow we never have accused them of crucifying Jesus. This case is so weak that even the state admits that the testimony, if taken at face value, did not make out a case of an accomplice so far as the appellant is concerned. In other words, you have to resort to conjecture and speculation in order to affirm this decision.

In order to support a conviction the corroborating testimony of an accomplice must be such as to connect the defendant with the commission of the offense and if the testimony merely shows the offense was committed and the circumstances thereof, it is not enough. Polk v. State, 36 Ark. 117 (1880). Testimony of an accomplice which merely raises a suspicion and is as consistent with the innocence as the guilt of the accused is insufficient to sustain a conviction. We have reversed a conviction where the evidence, aside from the testimony of the accomplice, showed that the crime had been committed but raised only suspicion that the defendant was the guilty party. Pollard v. State, 264 Ark. 753, 574 S.W. 2d 656 (1978).

In view of the fact that I find absolutely no evidence to support a conviction of second degree murder, I would reduce the conviction to that of hindering apprehension or prosecution pursuant to Ark. Stat. Ann. § 41-2805 (1977).


text:
    Hershel Doyle MARTIN v. STATE of Arkansas
    CR 80-261
    614 S.W. 2d 512
    Supreme Court of Arkansas
    Opinion delivered April 27, 1981

      E, Alvin Schay, State Appellate Defender, by: Jackson Jones, Deputy Appellate Defender, for appellant.

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

Appellant, Hershel Doyle Martin, was tried and convicted on four counts of theft of property in violation of Ark. Stat. Ann. § 41-2203 (Repl. 1977). The charges stem from separate incidents on August 26, 1978, in which counterfeit checks purportedly issued by A. Tenenbaum Company, Inc., were cashed at separate branches of Twin City Bank by a man representing himself to be the payee, James Jackson. The checks were in the amount of $3,582.51, $3,870.20, $3,672.15 and $1,875.50. They bore a facsimile signature of Jean Gann, Tenenbaum’s bookkeeper, who testified that while the checks resembled those used by the company, they were not theirs and were not, in fact, signed by her. The checks were initially debited against Tenenbaum’s account with Twin City Bank but after discovery the withdrawals were credited back to the account.

The appellant urges several points for reversal of the conviction. First, that the information was fatally defective since the proof of ownership of the property at trial did not support the allegation of the information. Appellant argues that the trial court erred in denying appellant’s motion for a directed acquittal on that ground. We disagree.

The information filed against the appellant alleged that Hershel Doyle Martin:

On or about the 26th day of August, 1978, with the purpose of depriving the true owner of its property, [did] take unauthorized control over property having a value in excess of $2,500.00, by deception, such being the property of A. Tenenbaum Company.

The remaining three counts contain identical language except for the allegation of value in count IV.

The proof at trial is uncontroverted that the checks at issue were made to appear to be those of A. Tenenbaum Company, Inc., but that that company did not issue the checks and that Twin City Bank restored the amounts of the checks to A. Tenenbaum Company’s account after the theft was discovered. From this, the appellant argues that the information was irreparably defective since the property in question, i.e., the money received from the bank upon presentment of the checks, was not in fact the property of A. Tenenbaum Company as alleged in the information. The argument is without merit.

Prior to the enactment of our present criminal code, Arkansas recognized a separate offense of “obtaining personal property by false pretense.” Ark. Stat. Ann. § 41-1901 (Repl. 1964). That offense was defined as:

Every person, firm or corporation who with intent to defraud, cheat or avoid payment therefore, shall designedly by color of any false token or writing ... obtain any money ... shall be deemed guilty of larceny, and punished accordingly.

We observe that the appellant, having obtained money by color of a false writing, here fictitious checks, could have been prosecuted under the old “false pretense” statute.

As Ark. Stat. Ann. § 41-2202 (Repl. 1977) specifically provides:

Conduct denominated theft in this Chapter [§§ 41-2201 — 41-2208] constitutes a single offense embracing the separate offenses heretofore known as larceny, embezzlement, false pretenses, extortion, blackmail, fraudulent conversion, receiving stolen property, and other similar offenses. A criminal charge of theft may be supported by evidence that it was committed in any manner that would be theft under this Chapter, notwithstanding the specification of a different manner in the indictment or information, subject only to the power of the court to ensure a fair trial ... where the conduct of the defense would be prejudiced by lack of fair notice or by surprise. (Emphasis supplied.)

The issue, therefore, is whether the information filed against the appellant prejudiced the defense “by lack of fair notice or by surprise.” We are satisfied that it did not. Appellant makes no allegation nor showing that he was prejudiced. More than that, the property stolen was that of A. Tenenbaum Company beyond any doubt. The checks, although forged, were drawn on the funds of A. Tenenbaum Company on deposit in Twin City Bank. The account number on the checks was the correct account number of A. Tenenbaum Company and the balance of the company’s account exceeded the amounts withdrawn. The monies paid out by the bank in reliance on these specious checks belonged to A. Tenenbaum Company. The fact that under the law the bank is liable to its customer when it cashes a forged instrument does not alter the initial character of the crime of theft. It is the ownership at the time the offense occurs that should be looked to, not who ultimately bears the loss. This element distinguishes this case from the case of Boyette v. State, 265 Ark. 707, 580 S.W. 2d 473 (1979), on which appellant relies.

Second, the appellant argues that the trial court erred in admitting testimony concerning prior, out-of-court, identifications of the appellant by certain witnesses, as to two counts of the information. In the present case, a police officer, T. J. Farley, was allowed to testify that two weeks after the crime he had shown a six photographic “line-up” to five banks tellers and that each had picked the defendant. That the tellers could themselves have testified to their own extra-judicial identification of the defendant under the Uniform Rules of Evidence is beyond argument. Rule 801 (d) (1) (iii) provides:

A statement is not hearsay if: (1) the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is ... (iii) one of identification of a person made after perceiving him. ...

And recently in Conley v. State, 272 Ark. 33, 612 S.W. 2d 722 (1981), we made clear:

Therefore, we hold that a witness may testify on direct examination that he has previously identified the defendant and may relate when and where such identification took place. Conley, at 41.

However, the issue here presented is whether the officer may testify as to the extrajudicial identifications under Rule 801(d)(1)(iii). We are aware that prior to the adoption of Rule 801(d)(1)(iii) we held that testimony of the nature here in question was not admissible, notably in the cases of Trimble & Williams v. State, 227 Ark. 867, 302 S.W. 2d 83 (1957) and Hicks v. State, 231 Ark. 52, 328 S.W. 2d 265 (1959). As we said, the bank tellers could have testified to their extrajudicial identifications of the defendant under Rule 801(d)(1)(iii). Conley, above. We now hold that where there is no defect in the identification procedure used, and where each of the persons making the extrajudicial identification is present at trial and subject to cross-examination, recall, or is subject to being called as a hostile witness by the defense, then a witness to the extrajudicial identification may testify as to the existence and circumstances of the extrajudicial identification. We hold that under Rule 801(d)(1)(iii) Officer Farley could properly testify that each of the bank tellers initially identified the appellant as the individual committing the offense. In so holding, we are persuaded by the observation first made in Conley v. State, above, that line-up identification is often “more reliable than in-court identification.” Conley, at 41.

Finally, the appellant argues that there is insufficient evidence to support the appellant’s conviction on two of the counts charged. This argument is based on the somewhat equivocal in-court identification of the appellant by the tellers who cashed two of the checks. However, as we have held under the previous point, the jury need not rely solely on the in-court identifications, but may also consider the extrajudicial identifications testified to by Officer Farley, as well as on the similarity of all four episodes. On appeal, we must view the evidence in the light most favorable to the appellee, Lunon v. State, 264 Ark. 188, 569 S.W. 2d 663 (1978). In doing so, we observe that the appellant was positively identified as the offender by all five tellers shortly after the crime and by three of them at trial, though nearly two years had elapsed. We believe there was sufficient evidence to support the conviction on the two counts here questioned.

For the reasons given in this opinion, we affirm the trial court.

Purtle, J., dissents.

Holt, J., not participating.

John I. Purtle, Justice,

dissenting. I agree with the appellant that the trial court committed reversible error in allowing Officer T. J. Farley to give hearsay testimony relating to two witnesses who were unable to make in-court identification of the appellant. The officer was allowed to testify that the two witnesses had made extrajudicial identification of the appellant from photographs viewed at the police station. I am of the opinion that all of our case law and our rules of evidence prevent such testimony from being received.

Uniform Rules of Evidence, Rule 801, states:

* * *
(c) Hearsay. “Hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.
(d) Statements Which are Not Hearsay. A statement is not hearsay if:
(1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is ... (iii) one of identification of a person made after perceiving him; or
***

Obviously, when the officer testified that two of the witnesses identified the photographs at some point before the trial, this was clearly hearsay as defined in 801 (c). Of course, 801 (d) attempts to set out the exceptions to the hearsay and his testimony clearly does not fit into the exception. If the witnesses had testified that they observed photographs at the police station, then it would have been harmless to allow the officer to verify that they had indeed looked at photographs and made positive identification at that time. This same question was considered in the case of Conley v. State, 272 Ark. 33 (1981), wherein we stated:

If any confusion existed as to our prior decisions in the matter of extrajudicial identifications, it has been put to rest by Acts of Arkansas 1979, No. 1097. In amending the Arkansas Uniform Rules of Evidence the purpose of Act 1097 was stated by the General Assembly to be to amend Rule 801 (d) (1) to include ‘prior identification of a person’ in the definition of statements which are not hearsay. ...

We further stated:

Therefore, we hold that a witness may testify on direct examination, that he has previously identified the defendant and may relate when and where such identification took place.

Thus, both our case law and our rules permit a witness to testify as to prior identification of an accused but nowhere is there any authority for allowing a witness to testify that another witness made an extrajudicial identification of an accused.

In the case of Cromwell v. State, 269 Ark. 104 (1980), we held that a third person, such as a police officer, could not testify that another witness identified the accused on an earlier occasion. In Cromwell the extrajudicial identification which we permitted was that of the prosecuting witness. His testimony was that he identified the appellant in a line-up on an earlier occasion and that he also saw the appellant at a hearing or pretrial conference. Therefore, neither Conley, supra, nor Cornwell hold that a third party witness may testify as to extrajudicial identification made by another witness. The rule, given its plain ordinary interpretation, also excludes this testimony. Therefore, I would reverse the case and remand it for another trial.


author: George Rose Smith, Justice.

text:
    Hiram Eugene MEYER v. STATE of Arkansas
    CR 80-225
    614 S.W. 2d 665
    Supreme Court of Arkansas
    Opinion delivered May 4, 1981

      E. Alvin Schay, State Appellate Defender, by: Deborah R. Sailings, Deputy Defender, for appellant.

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

In 1980 two separate criminal proceedings were pending against the appellant Meyer in the Sebastian circuit court. The first was a petition to revoke a term of probation which had been based upon Meyer’s plea of nolo contendere to separate charges of burglary and larceny filed in 1975. In 1980 the court revoked that probation and sentenced Meyer to serve concurrent 18-year sentences upon the two charges. Meyer appeals from that order. The second proceeding was a prosecution for aggravated robbery committed in December, 1979, with the information also alleging habitual criminalism. That case was tried in 1980 and resulted in a verdict of guilty and a sentence of 40 years. Meyer also appeals from that judgment. The records in the two proceedings were prepared and certified together and filed as a single appeal in this court under Rule 29 (1) (b). The two cases are really separate, however, and must be so discussed.

First, the revocation of probation. The court’s original judgment, dated June 11, 1975, did not specifically accept Meyer’s plea of nolo contendere, but it did place him on “statutory probation” for five years. Meyer argues, and the State concedes, that if the court actually accepted the plea it could not thereafter sentence Meyer to more than five years’ confinement (the period of probation). Queen v. State, 271 Ark. 929, 612 S.W. 2d 95 (1981). We need not decide whether the plea was accepted in 1975, because it was certainly accepted in a revocation proceeding in 1977, when the court revoked the original probation and sentenced Meyer to confinement for five years with three years suspended. Hence under our holding in Queen the court, upon revoking the probation in 1980, could sentence Meyer to additional confinement only for the remaining three years of the probationary period. The judgment in the first case must be modified to reduce the sentences to three years.

In a second point for reversal in the first case, Meyer points out that at the close of the revocation hearing on February 28 the judge announced that he found by a preponderance of the evidence that Meyer had been guilty of aggravated robbery (as asserted in the prosecutor’s petition for revocation) and that he was sentencing Meyer to the maximum remaining time for the original burglary and larceny offenses, which was 18 years out of the original 20. The formal judgment, however, as entered on August 4, recited that the probation was being revoked not only for the aggravated robbery but also for fleeing arrest, possession of narcotics, and other lesser offenses as to which the State had withdrawn its proffer of testimony. Meyer argues that since the trial judge considered alleged offenses that were not actually proved, the cause should be remanded for resentencing.

There are at least three reasons why this argument must fail. First, there was no such objection in the trial court. Wicks v. State, 270 Ark. 781, 606 S.W. 2d 366 (1980). Second, Meyer designated an abbreviated record in the revocation case and did not include this point in the statement of points to be relied upon. Appellate Procedure Rule 3 (g); see Jones v. Adcock, 233 Ark. 247, 343 S.W. 2d 779 (1961). Third, the circuit judge stated positively at the close of the hearing that he was imposing the maximum sentence of 18 years because Meyer had committed aggravated robbery with a gun. It would be idle to send the case back to see whether the same judge would consider a three-year sentence for that same offense to be excessive.

In the second phase of the case, the appeal from the conviction for aggravated robbery, Meyer argues only that two pairs of prior burglary-larceny convictions should be treated as a single conviction, because the judgments were entered on the same day. It is contended that the legislature intended that an offender be punished more severely for a second offense only because he was not deterred by his punishment for the first offense. Hence, it is argued, two convictions with no intervening punishment should be counted as one. That identical argument, however, was rejected under the law as it existed before the Criminal Code and has again been rejected under the Code. Cox v. State, 255 Ark. 204, 499 S.W. 2d 630 (1973); Blackmon v. State, 272 Ark. 157, 612 S.W. 2d 319 (1981).

Affirmed as modified.

Holt, J., not participating.


author: Darrell Hickman, Justice. George Rose Smith, Justice,

text:
    ARKANSAS STATE HIGHWAY COMMISSION v. PULASKI INVESTMENT COMPANY et al
    80-304
    614 S.W. 2d 675
    Supreme Court of Arkansas
    Opinion delivered May 4, 1981

      Thomas B. Keys and Chris Parker, for appellant.

      Friday, Eldredge & Clark, by: George Pike, Jr., for appellee.
   Darrell Hickman, Justice.

This is the second appeal of this condemnation case. See Arkansas State Highway Comm’n v. Pulaski Investment Co., 265 Ark. 584, 580 S.W. 2d 679 (1979).

On this appeal the Arkansas State Highway Commission argues two errors: The owner and appellee introduced testimony contrary to a pretrial motion in limine; there is no substantial evidence to support the $ 152,000.00 verdict.

Relevant portions of the motion in limine read:

... the defendants, its witnesses and its attorney [are prohibited] in the trial of this cause from testifying, arguing, or in any way making reference to the fact that the plaintiff had condemned a part of the defendant’s land [Tract 313R] for the purposes of exchanging it for other property to be used as right-of-way for the highway project in question.

Reference was made to the sale of Tract 313R by two expert witnesses who used that sale as one comparable for their opinion testimony. Such testimony was authorized in our first decision.

The record reflects that at best the appellant only has an argument that the order was violated; there is no obvious violation. The order granting the motion in limine was somewhat broad and necessarily was subject to some judgment in interpretation and enforcement. We have concluded that the questioned testimony did not violate the court’s order. While the history of the sale of Tract 313R was recited, it was not mentioned that the Highway Commission acquired this tract “for the purposes of exchanging” it, which was the essence of the prohibition.

The Highway Commission conceded that it made no proper objection during trial to the testimony concerning Tract 313R, but argues that an objection was unnecessary since a motion in limine was granted. We need not reach that issue since we find no violation of the order.

The second allegation of error is without merit since no objection of any sort was made at the trial in this regard.

Affirmed.

George Rose Smith., J., concurs.

Holt, J., not participating.

George Rose Smith, Justice,

concurring. I agree that in this case there was no actual violation of the court’s order sustaining the appellant’s threshold motion. Such motions, however, which were almost never filed thirty years ago, are becoming more and more frequent. For that reason I venture to make some observations that perhaps go beyond the particular necessities of this case.

In Kitchen v. State, 271 Ark. 1, 607 S.W. 2d 345 (1980), we pointed out that the trial judge should deny a threshold motion that is vague and indefinite, because the motion is properly used to prohibit the mention of some specific matter, perhaps of an inflammatory nature, until its admissibility has been shown out of the hearing of the jury. If a sufficiently specific motion is overruled, then it may not be necessary for counsel to renew his objection if the specific prejudicial matter is later introduced. See Ward v. State, 272 Ark. 99, 612 S.W. 2d 118 (1981).

In the case at bar the threshold motion should have been overruled, because, as the majority observe, it was somewhat broad and necessarily subject to some judgment in its interpretation. The court, however, sustained the motion, broad as it was. There was in fact no violation of the court’s prohibitory ruling. I write this concurrence to emphasize my firm belief that if there had been a violation, it would have been incumbent upon appellant’s counsel to renew his objection, because he was responsible for the vagueness in his motion. A renewal of the objection would permit the trial judge to determine at once whether the proffered testimony in fact fell within the vague contours of the motion. If such a renewed objection is not required there will always be the possibility of what Llewellyn aptly called “the horror of a new trial,” since a definitive ruling will not be made until an appeal is taken and may then result in a second trial that should have been avoided.


author: Darrell Hickman, Justice.

text:
    Andrew A. ROQUE v. Deborah Ann FREDERICK
    80-310
    614 S.W. 2d 667
    Supreme Court of Arkansas
    Opinion delivered May 4, 1981

      Jones & Reynolds, by: Ray A. Reynolds, for appellant.

      Esther M. White and Putman, Gallman & Dickson, by: W. B. Putman, for appellee.
   Darrell Hickman, Justice.

This is a case concerning an illegitimate child and the legal rights that surround such a child. The specific question before us is whether the putative father of an illegitimate child has the right to a hearing in county court on his petition to have reasonable visitation with that child. We hold that he does have the right to such a hearing. Our decision is rendered in this case without regard to the effect of Acts 664 and 665 of 1981 which will, no doubt, be a determinative factor in any cases arising after their effective dates.

There is no dispute over actual paternity in this case since the parties agree that the appellant, Andrew A. Roque, is the father of the child. Roque and the mother, Deborah Ann Frederick lived together intermittently in California before and after the child was born in 1977. They were never married. After the child was about five months old the parents separated and have remained so since. After separation Roque began paying support to Frederick for the child. First he paid §150.00 a month for about seven months; then §200.00 a month for about eight months. During this time Roque regularly visited the child. There has never been a legal determination of paternity.

Frederick moved to Arkansas with the child and they have remained here. Roque, a California resident and a practicing physician, filed a petition in the County Court of Washington County seeking a legal declaration that he is the father of the child and asking for reasonable visitation privileges. He offered to pay support for the child. Frederick resisted Roque’s right to file such a petition or have visitation privileges. When Frederick admitted in a deposition that Roque was the father and had supported the child, Roque filed a motion for summary judgment. Frederick countered with a motion to dismiss Roque’s petition, claiming that Roque lacked standing. The county court ruled that Roque’s petition must be dismissed because Arkansas law does not permit a father to file such a petition, that right being granted only to a mother. On appeal to the circuit court the case was considered de novo and the same conclusion was reached.

Roque’s argument on appeal to us is based on the Equal Protection and Due Process Clauses of the United States Constitution. He argues that the Arkansas statutes granting mothers the right to file a petition against a man to have him declared the father but not granting a father the right to file a suit establishing his own paternity violates the Equal Protection Clause. This argument is based on cases which have struck down other unjustifiable gender-based statutes. See Orr v. Orr, 440 U.S. 268 (1979); Hatcher v. Hatcher, 263 Ark. 681, 580 S.W. 2d 475 (1979). Roque also argues that if Arkansas law prohibits him from even a hearing on the question of paternity and visitation, it violates the Due Process Clause of the United States Constitution.

Frederick’s argument is based on the common law and the Arkansas statutes. She cites two principles as controlling: the mother, not the putative father, of an illegitimate child is bound to maintain it, Davis v. Herrington, 53 Ark. 5, 13 S.W. 2d 215 (1890); there is no common law duty for the father of an illegitimate child to support it and since there is no duty there are no common law rights in the father. Eborn v. Podraza, 51 Ill. App. 3d 816, 367 N.W. 2d 300 (1977). Frederick also relies on the specific language of Ark. Stat. Ann. § 34-702 (Repl. 1962). This statute begins: “On complaint made to the county court by any woman resident of the county ...” [Emphasis added]. That statute and others provide that the county court can determine paternity and require a father to support the child. Ark. Stat. Ann. § 34-706 (Repl. 1962). The only reference in the statutes to visitation is made in Act 621 of 1979. It provides that when paternity is determined and the father is ordered to make periodic support payments the county court may grant reasonable visitation rights to the father. Frederick argues that Roque has no right to file a petition to determine paternity and therefore no right of visitation exists.

Nowhere in these statutes, or any others relating to bastardy proceedings, is there any mention of the right of a man to file a petition in county court to have paternity declared in his favor. There is no mention of any right of a father to visit his child except as provided for in Ark. Stat. § 34-715 (Supp. 1979). (See Footnote 1.)

The law concerning illegitimate children and the rights of the natural parents of such children has changed in recent years. For centuries the laws have been harsh. For example, in the Old Testament there is a law that for ten generations “No bastard shall enter the Assembly of the Lord.” Deuteronomy 23:2. The law has been harsh for perhaps two reasons: to punish those who go against society and to foster the state of marriage. Even so the result has been that the child usually bears the brunt of social and legal discrimination, not the parents who committed the moral and legal wrong.

The law has changed because it must. Whatever wrongs the parents did are no fault of the child, and whatever wrong the parents did should not forever deny them the privileges that other parents enjoy. People should be allowed to acknowledge their mistakes and try to rectify them. So the law has changed from discrimination against illegitimate children and unwed parents to a more tolerant view.

Within the last few years the United States Supreme Court has struck down state laws which prohibit an illegitimate child from inheriting property from his father, while permitting inheritance from the mother. Labine v. Vincent, 401 U.S. 532 (1971); Trimble v. Gordon, 430 U.S. 762 (1977). Arkansas had a similar law and we followed the Trimble decision in declaring the Arkansas law unconstitutional in Lucas v. Hancock, 266 Ark. 142, 583 S.W. 2d 491 (1979); Frakes v. Hunt, 266 Ark. 13, 583 S.W. 2d 497; and Lewis v. Petty, 272 Ark. 250 (1981).

Fathers of illegitimate children do have certain rights. In Lipsey v. Battle, 80 Ark. 287, 97 S.W. 49 (1906), we found that the father of an illegitimate child had rights superior to that of a stranger in custody disputes over the child. In Lee v. Grubbs, 269 Ark. 205, 599 S.W. 2d 715 (1980), we upheld a probate court order that granted care and control over a child to the putative father. The mother resisted the claim.

Other states have recognized certain basic rights in fathers of illegitimate children, either as a matter of equal protection or due process of law. State v. Edwards, 574 S.W. 2d 405 (Mo. 1978). The Missouri Supreme Court found that a Missouri law which denied putative fathers any opportunity for a hearing on their rights in a custody case violated the due process and equal protection guarantees of the Fourteenth Amendment to the United States Constitution. In the case of In re R., 119 Cal. Rptr. 475, 532 P. 2d 123 (1975), cert. denied 421 U.S. 1014 (1975), the Supreme Court of California recognized that the interest of an unwed father in his children “is not only cognizable but also of such sufficient substance to warrant deference except when the deprivation comports with equal protection and due process requirements.” The California Court struck down a statutory presumption which denied an unwed father the right to offer evidence that he was the father of the child and, therefore, entitled to consideration regarding custody.

In Stanley v. Illinois, 405 U.S. 645 (1972), the United States Supreme Court examined an Illinois law which effectively prohibited a putative father from consideration in a custody hearing regarding a child. The Court recognized that such a father had “cognizable and substantial” interests in the “companionship, care, custody, and management of his children.” In recognizing those rights the Court dealt at length with the state’s special interest in promoting marriage and in assuring the preservation of the family. The Stanley Court said:

The court has frequently emphasized the importance of the family. The rights to conceive and to raise one’s children have been deemed “essential,” Meyer v. Nebraska, 262 U.S. 390 (1923), “basic civil rights of man,” Skinner v. Oklahoma, 316 U.S. 535, 541 (1942), and “[r]ights far more precious ... than property rights,” May v. Anderson, 345 U.S. 528, 533 (1943). “It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.” Prince v. Massachusetts, 321 U.S. 158, 166 (1944). The integrity of the family unit has found protection in the Due Process Clause of the Fourteenth Amendment ... [citation], the Equal Protection Clause of the Fourteenth Amendment, ... [citation], and the Ninth Amendment, ... [citation].
Nor has the law refused to recognize those family relationships unlegitimized by a marriage ceremony. The Court has declared unconstitutional a state statute denying natural, but illegitimate children a wrongful-death action for the death of their mother, emphasizing that such children cannot be denied the right of other children because familiar bonds in such cases were often as warm, enduring, and important as those arising within a more formally organized family unit. Levy v. Louisiana, 391 U.S. 68, 71-72 (1968). “To say that the test of equal protection should be the ‘legal’ rather than biological relationship is to avoid the issue. For the Equal Protection Clause necessarily limits the authority of a State to draw such ‘legal’ lines as it chooses.’’ Glona v. American Guarantee Co., 391 U.S. 73, 75-76 (1968). [Emphasis added.]

The Court held that Illinois was barred as a matter of both due process and equal protection from taking custody of the children of a putative father absent a hearing and a finding the father was unfit.

In Quilloin v. Walcott, 434 U.S. 246 (1978), the Court defined further the rights of a putative father. The Court held that the rights were not the same as those of a “legal” father and therefore a putative father was not necessarily entitled to equal treatment in every case. In Quilloin, the putative father had never sought to be declared the father for eleven years; he had provided support only on an irregular basis. Even so, the Court held that the putative father was entitled to notice and a hearing when the child was being considered for adoption.

We can only conclude that fathers of illegitimate children have basic rights when the welfare of their children is concerned. Those rights are not absolutely definable nor can they be. In every case that we have cited, the father has shown an interest in the child; before seeking legal relief the father sought to accept some responsibility for the child and was able to show that a relationship of some kind existed between himself and the child.

In this case Roque will have no rights unless he can be declared the father, a fact this is undisputed. Both parties acknowledge that he is the father; it is undisputed that he has supported and visited the child. In such circumstances, can Arkansas law deny him any right to have even a hearing on his request to visit his child? Not according to Stanley v. Illinois, supra, and Quilloin v. Walcott, supra.

Where can Roque have a hearing? The mother argues not in county court since the statutes do not permit it. We held in Rapp v. Kyzer, 260 Ark. 656, 543 S.W. 2d 458 (1976), such a request could not be heard in chancery court. This is not a guardianship proceeding as was the case of Lee v. Grubbs, supra. Certainly it is not a civil lawsuit that ought to be filed in circuit court.

The only logical and indeed the proper forum is county court. The constitution explicitly places jurisdiction in that court in “all matters relating to ... bastardy.” Ark. Const. Art. 7, § 28. [Emphasis added.]

We have not addressed all the relative rights of a putative father. Custody is not before us, only a request for a paternity declaration and visitation rights. Furthermore, we do not have a case where paternity is disputed or where a putative father has never shown an interest in a child.

The judgment of the circuit court is reversed with directions to reinstate the petition of Roque and grant him a hearing in the county court regarding his petition for paternity and visitation. Roque’s request for visitation privileges will require the consideration of numerous factors. The most important factor is the best interest of the child. Quilloin v. Walcott, supra; Rothstein v. Lutheran Social Serv., 405 U.S. 1051 (1972). Also, the court must consider the past relationship between the parents of the child and the relationship that may have existed between the father and the child. Whether a father has shown any concern or feeling for a child should be considered, as well as whether the father has supported the child in the past or to what extent he will support the child in the future. Apparently it is the judgment of the General Assembly that visitation should not be granted unless support is ordered. Ark. Stat. Ann. § 34-715 (Supp. 1979). There is nothing wrong with that premise. These are all matters that should be considered when a hearing is held.

Reversed and remanded.

Holt, J., not participating.

       Since the briefs were filed in this case the General Assembly passed two acts that relate to the subject of this case. Act 664 grants to any man the right to file a petition for a determination of paternity. Act 665 provides that a man who has been declared the father of an illegitimate child may petition for custody of the child. The Acts will apparently be effective July 17, 1981.


text:
    Tom CURTIS et al v. Honorable David PARTAIN, Circuit Judge
    80-293
    614 S.W. 2d 671
    Supreme Court of Arkansas
    Opinion delivered May 4, 1981

      Bethell, Callaway & Robertson, by: Donald P. Calla-way, for petitioners.

      Shaw & Ledbetter, for respondent.
   Darrell Hickman, Justice.

We are asked to prohibit the Sebastian County Circuit Court from enforcing a pretrial order requiring Tom Curtis to disclose his latest financial statement and his federal tax returns for the past three years. We grant the writ only because we deem the matter to be of first impression and of general interest to all trial courts.

Larry Carter and several other individuals sued Tom Curtis, August Khilling, George Pollan, and Ather Dorse, who were officers, directors and stockholders of Consolidated Builders, Inc., a bankrupt construction company. The complaint alleged that a construction contract was made with Consolidated and $61,625.00 was paid on that contract, of which only some $5,300.00 was used by Consolidated to pay materialmen, suppliers, and laborers; the rest was diverted and used by the stockholders and officers in connection with the construction of buildings owned by the officers and in payment of unrelated corporation expenses. The complaint alleged a fraudulent scheme which resulted in unjust enrichment. In addition to asking for judgment for the $56,000.00 contract damages, the complaint asked for $100,000 in punitive damages against all four officers, jointly and severally.

Motions were filed asking that all four officers produce their financial statements and tax returns. On the advice of counsel Tom Curtis refused, and on this refusal the issues focus. The complaint was amended to ask for punitive damages against Tom Curtis only, dropping that claim against the other three officers. The only additional allegation of wrongdoing against Curtis was that he used the contract money to build tennis courts on his private property “as well as other projects.” All other allegations remained. The sole reason given for needing the tax records and financial statement was to use the information in connection with the claim for punitive damages.

Curtis resisted the motion to produce his financial records for four reasons: The complaint did not state a cause of action for punitive damages; a prima facie case for punitive damages must be made before a defendant can be ordered to disclose personal financial information; by electing to sue only one of several defendants for punitive damages, the claim for such damages is waived; and, Curtis’s tax records are privileged and are not evidence of financial worth.

The trial judge deemed the complaint sufficient, found that the claim for punitive damages was not waived since only one, not all defendants were being sued for punitive damages, and the evidence was relevant to Curtis’s financial worth. The judge found the request for information was too broad and only ordered Curtis to produce his latest financial statement and his last three years’ tax returns. The court also entered a protective order prohibiting the information from being used for any purpose other than in this suit. No mention was made in the court’s order of the necessity for a prima facie showing of proof in order to receive punitive damages.

Curtis brings this action asking for a writ of prohibition. The four questions presented to us are the following: Is a writ of prohibition proper in this case? Have the claimants made a proper claim for punitive damages? Have the claimants waived their claim for punitive damages by seeking to prove those damages against only one defendant? and, Are tax returns relevant evidence of financial worth?

Ordinarily we would not issue a writ of prohibition in such a case. Such a writ is discretionary and is most often used when the trial court has no jurisdiction, has clearly exceeded its authority, or there are no disputed facts and the writ is clearly warranted. Webb v. Harrison, 261 Ark. 279, 547 S.W. 2d 748 (1977). Here, the court’s order was essentially a pretrial discovery order, discretionary, and within our rules. See Ark. R. Civ. P. 26 (b)(1). However, this case involves issues that ought to be resolved for the benefit of the trial courts and presents questions of first impression. Therefore, we grant the writ which will prohibit the trial court from enforcing the order unless the parties amend their pleadings and a hearing is held.

The California Supreme Court has used this procedure to review interim orders in discovery matters which ordinarily would not be reviewed until after the case was tried and was appealed. Oceanside Union School District v. Superior Court, 23 Cal. Rptr. 375, 373 P. 2d 439(1962). We deem such a procedure proper in extraordinary cases. Once the trial court acts again in this case pursuant to our instructions, no appeal will lie from that order.

The complaint does not state a cause of action for punitive damages. It simply alleges that the plaintiffs were defrauded and the four officers diverted contract money to their personal benefit. There is no allegation of willful or malicious conduct on the part of these four officers. Generally punitive damages are not recoverable in actions for breach of contract. Deming v. Buckley’s Art Gallery, 196 F. Supp. 246 (1961). That is the rule in most jurisdictions and there are few exceptions. See 5 Corbin on Contracts 438 (1964); 11 Williston on Contracts 210 (3d ed. 1968). To support a claim for punitive damages there would have to be a willful or malicious act in connection with a contract. A bare allegation of fraud which results in a monetary loss would not justify punitive damages and that is essentially what the complaint alleges in this case.

In order to be fair to the parties and the trial court it is necessary that we answer the other issues that are presented. What if a proper allegation is made against Curtis upon which a claim for punitive damages could rest? In that event, would the complainants have to make a prima facie case showing a cause of action for punitive damages before Curtis could be required to provide personal financial records? Curtis argues that such a hearing would be required, citing as authority City National Bank v. Wofford, 189 Ark. 914, 75 S.W. 2d 666 (1934). Wofford is not controlling because it was decided before the Rules of Civil Procedure and is not directly on point. However, Wofford does provide some guidance. In that case the bank was ordered to open its books to inspection without any necessity being shown as to which books or records were needed. We entered a writ of prohibition and ordered that evidence would have to be produced establishing the allegations of the complaint before such a general order should be permitted. That is still a sound principle. It does not appear that Curtis specifically asked for a hearing although he argued that the order should not be entered because a prima facie case had not been made. The court did not address this matter in its order. Carter and the other plaintiffs argued that they should not be required to make a prima facie case because that would mean that they would have to try their case prior to the trial. They also argued that the Rules of Civil Procedure permit such pretrial discovery. No doubt our rules were designed to improve and expedite trials, but not at the expense of basic fundamental rights. A claim for punitive damages is a serious matter; private tax records and personal financial data should not be made readily available unless clearly relevant. In this case the only reason that the information was sought was for the purpose of showing the jury Curtis’s financial worth so that punitive damages could be justified. It was not argued that the information was needed to prove the funds were fraudulently diverted. A prima facie case will have to be made before the court orders production of the requested records.

The most difficult question for us is the claim that punitive damages were waived because only Tom Curtis was sought to be punished. The law is well established that when punitive damages are sought against several defendants it is error to present the financial worth of only one of those defendants. Washington Gas Light Company v. Lansden, 172 U.S. 534 (1898); Dunaway v. Troutt, 232 Ark. 615, 339 S.W. 2d 613 (I960). The prejudice is obvious. One defendant is singled out as able to pay that which all ought to pay. No doubt that one becomes the target for punishment for acts that are equally the fault of others.

The respondent argues that the Lansden case is distinguishable because in that case and all others following it all defendants were sued for punitive damages, and proof was given or offered as to only one. It is argued that, here, only Curtis is sued since the complaint was amended to drop the claim for punitive damages against the other three officers. We see the claim as virtually identical; all are claimed to have defrauded the plaintiffs by causing the plaintiffs’ money to be diverted to petitioner’s individual use. In Curtis’s case the amended complaint only added the fact that Curtis caused tennis courts to be built on his property. That is not essentially different from the claims against the others. It is all a case of diversion. There is no claim that Curtis acted willfully or maliciously or indeed any different from the others. The claim is that all defendants joined in the scheme and personally benefited.

We conclude that the amendment is purely cosmetic. As it stands, only one of several persons is sought to be punished for wrongful conduct which is equally blamed on all four officers. Under these pleadings the plaintiffs have waived their claim for punitive damages.

The writ is entered prohibitng the trial court from enforcing the order as entered. We cannot anticipate the other actions that the parties or the trial court may take, but if the court acts in accordance with our opinion, the court’s orders will not be subject to further review until an appeal is made.

Writ granted.

Holt, J., not participating.


author: John I. Purtle, Justice.

text:
    Dennis BLACK v. FARM BUREAU MUTUAL INSURANCE COMPANY OF ARKANSAS, INC., William R. CHAMBERS and Viola D. BOHANNON
    81-6
    614 S.W. 2d 937
    Supreme Court of Arkansas
    Opinion delivered May 4, 1981

      Guy Jones, Jr., for appellant.

      Matthews & Sanders, for appellees.
   John I. Purtle, Justice.

The parties presented this matter to the trial court upon the pleadings and a stipulation of facts. Appellant appeals from the decision of the trial court which dismissed the complaint.

The only point in the appeal is whether the trial court erred in holding appellant was not entitled to recover under the uninsured motorist provision of his automobile insurance policy.

The parties stipulated the appellant’s damages were caused by the action of joint tortfeasors, Chambers and Bohannon. They further stipulated that the appellant has uninsured motorist coverage with Farm Bureau and that Bohannon’s liability insurance company had paid appellant $10,000 and obtained a release. They further stipulated that the terms of appellant’s uninsured motorist coverage were:

Any amount payable under the terms of this endorsement because of bodily injury sustained in an accident by a person who is insured under this coverage shall be reduced by:
(1) All sums paid on account of such bodily injury by or on behalf of (i) the owner or operator of the uninsured automobile and (ii) any other persons or organization who may be liable together with such owner or operator for such bodily injury including all sums paid under the bodily injury liability coverage of the policy.

The stipulation certainly makes this case less difficult than it might have been. There being no disputed facts, it is clear that had Farm Bureau paid appellant pursuant to the terms of his uninsured motorist coverage it would have been entitled to subrogation under the provisions of Ark. Stat. Ann. § 66-4006 (Repl. 1980). Therefore, when joint tortfeasor Bohannon paid $10,000 to appellant and his carrier, this amounted to collection of subrogation in advance and satisfied the liability under the uninsured motorist provision of the policy.

An individual is entitled to only one recovery for the minimum limit of the Arkansas Financial Responsibility Act. MFA Mutual Insurance Co. v. Wallace, 245 Ark. 230, 431 S.W. 2d 742 (1968). If he collects only a portion of the minimum from a joint tortfeasor or any other responsible persons or organization, he may collect the balance up to the minimum from his uninsured motorist carrier. State Farm Mutual Automobile Insurance Co. v. Cates, 261 Ark. 129, 546 S.W. 2d 423 (1977).

We cannot agree with appellant that we should overrule our prior decisions. Therefore the trial court’s decision is affirmed.

Affirmed.

Holt, J., not participating.


author: Steele Hays, Justice.

text:
    TRI-STATE EQUIPMENT COMPANY, INC. v. M. C. TEDDER
    81-9
    614 S.W. 2d 938
    Supreme Court of Arkansas
    Opinion delivered May 4, 1981

      Bill D. Etter, for appellant.

      Branch & Thompson, by: Robert F. Thompson, for appellee.
   Steele Hays, Justice.

Appellant, Tri-State Equipment Company, sold certain machinery to appellee, M. C. Tedder. Upon Tedder’s failure to make payments on the equipment, Tri-State sued for replevin. Tedder answered that the contract for the sale of the equipment was usurious and therefore void. Tri-State is a Tennessee corporation admitted to do business in Arkansas. It concedes that if Arkansas law applies, the contract is usurious and void. Tri-State contends that effect must be given to a provision in the “Security Agreement (Conditional Sales Contract)” signed by both parties, stating that the contract is to be governed by Tennessee law, and that the contract is not usurious under Tennessee law. The court below found the contract to be an Arkansas contract and void under Arkansas law as being usurious. We agree.

The evidence is uncontroverted that all negotiations surrounding the transaction were conducted in Arkansas — the equipment was ordered and delivered in Arkansas, the contract was signed in Arkansas, Tedder’s trial and approval occurred in Arkansas, and the sales tax on the transaction was paid in Arkansas.

In early June, 1979, Tedder contacted a representative of Tri-State in Jonesboro concerning the lease of a Komatsu Dozer Shovel, a front-end loader. Tri-State’s representative met with Tedder at Paragould and placed an order for the equipment for a two-day trial demonstration. Tedder decided to purchase the equipment and signed a “Note and Disclosure Statement” dated June 14, 1979, which provided that the contract was to be governed by Arkansas law. Later, the parties signed a “Security Agreement (Conditional Sales Contract)” dated June 28, 1979, which provided that the contract was not to take effect until it was accepted by TriState’s office in Memphis and that the contract was to be governed by Tennessee law. Tedder maintains that this was when he learned that Tri-State was not located in Jonesboro but in Tennessee.

In an almost identical case, Standard, Leasing Corporation v. Schmidt Aviation, Inc., 264 Ark. 851, 576 S.W. 2d 181 (1979), this court held that a contract substantially executed and performed in Arkansas was in fact an Arkansas contract governed by the laws of this state, notwithstanding stipulations by the parties in the contract itself to the contrary. The opinion states:

Finally, we cannot sustain the argument that the contract is governed by the law of Tennessee, as the instrument recites, rather than by the law of Arkansas. ... The seller sent its representatives to Arkansas where the actual sale occurred. The Arkansas sales tax was paid. The air compressor was delivered and installed by the seller in Arkansas. Efforts by the seller to repair it were made in Arkansas. The original written contract was prepared and signed by Schmidt in Arkansas. It may have been accepted and approved in Memphis, where Standard Leasing has an office, although the testimony is not positive on this point. ... Essentially it was an Arkansas contract, governed by Arkansas law. Standard Leasing, at 855-856.

The facts of this case are substantially the same as those presented in Standard Leasing. From the evidence presented, the chancellor could certainly conclude that in spite of a provision to the contrary, the contract was an Arkansas contract and should be governed by Arkansas law. We will not reverse the findings of the chancellor unless they are clearly contrary to the preponderance of the evidence. Digby v. Digby, 263 Ark. 813, 567 S.W. 2d 290 (1978); Minton v. McGowan, 256 Ark. 726, 510 S.W. 2d 272 (1974).

We therefore affirm.

Holt, J., not participating.