text:
    Ralph E. HUGHEY v. Louise BENNETT
    78-44
    568 S.W. 2d 46
    Opinion delivered July 17, 1978
    (Division I)

      Appellant, pro se.

    No brief for appellee.
   John A. Fogleman, Justice.

This is an appeal from an action in ejectment brought by appellant for possession of a half lot in Crawford County. In granting appellant’s motion for summary judgment, the trial judge ordered the appellee to remove her house from his property. Appellant appeals from that part of the judgment ordering the removal of the house. He argues that the trial judge had no right to raise the issue of the removal on his own in a law case. We agree that the part of the judgment ordering the removal of the house was erroneous and reverse that part of the judgment.

On July 1, 1976, appellant filed an action for ejectment against Louise Bennett. In the complaint he alleged that he was the owner of the south half of Lot 16 in Faber Addition in Van Burén; that he had obtained title in 1971 from the State of Arkansas; that his deed was recorded in Crawford County; and that appellee claimed some interest in the land and refused to deliver possession to him. He asked for possession of the land. Mrs. Bennett filed a general denial as an answer. She did not respond to appellant’s written interrogatories. Appellant moved for a summary judgment relying on his complaint, a copy of his deed from the state, his own affidavit which in part stated that he had paid the taxes since the purchase, and the affidavit of the county surveyor that his survey revealed that appellee’s house was located on the south half of Lot 16.

At the hearing on August 15, 1977, on the motion for summary judgment, both appellant and appellee appeared to represent themselves. However, after talking with Mrs. Bennett the judge felt that it would be advisable to appoint an attorney as guardian ad litem for her. Appellee said that she had a deed to the north half of Lot 16 and to Lot 17; she admitted that she did not have a deed to the south part. She stated that her house was on the north half of the lot. When asked how long ago she had built the house, she was very vague. She believed it had been built in 1971, but that it was not finished. She also said that it wasn’t “plumbed.” Her only “evidence” on her behalf was her statement that people, including her husband, had told her where the property lines were, that she knew her house was on the north half, and that based on this information, the survey of the county surveyor was not correct. After a great deal of discussion by both parties and the judge, the judge stated that he would have to grant summary judgment, but with the approval of appellant, he was going to delay the entry of the judgment so that appellee could have an opportunity to have the property resurveyed.

On October 19, 1977, the judge entered judgment for appellant on his motion for summary judgment, since Mrs. Bennett had taken no action to have the property surveyed. Besides the summary judgment, he ordered that appellee remove her house from the half lot owned by appellant. He further stated that appellant would be entitled to a writ of assistance to require the removal of the house.

Ark. Stat. Ann. § 29-211 (e) (Supp. 1977) provides that when a motion for summary judgment is made and supported as required by the statute, the adverse party may not rest on mere denials of his pleadings, but must, by affidavits, set forth specific facts showing that there is a genuine issue for trial. See Coffelt v. Ark. Power & Light Co., 248 Ark. 313, 451 S.W. 2d 881. We have said that when a movant makes a prima facie showing of entitlement to the relief sought, the respondent must remove the cloak of formal allegations and demonstrate a genuine issue as to a material fact by affidavits setting forth facts which would be admissible in evidence. Miskimins v. The City Nat’l. Bank, 248 Ark. 1194, 456 S.W. 2d 673; Booth v. Peoples Loan & Inv. Co., 248 Ark. 1213, 455 S.W. 2d 868. Appellee filed only one pleading in this action and that was an answer containing a general denial. While appellant presented documentary proof and affidavits, Mrs. Bennett could only say that her house was not on his property. Since appellant presented prima facie proof of his right to the half lot and this was not contradicted by affidavits as required by statute, the trial court was correct in entering summary judgment for appellant.

At common law it was felt that a person owned all that was on his property so that a mistaken improver lost ownership and could not recover the improvements or their value. To avoid this harsh rule, the equity courts developed the theory that the value of the improvements, i.e., how much the value of the land was increased by the improvements, could be set off against the amount asked by the owner for rents or profits owed by the wrongful occupancy of his land. Shick v. Dearmore, 246 Ark. 1209, 442 S.W. 2d 198; Buswell v. Hadfield, 202 Ark. 200, 149 S.W. 2d 555. It was further developed that to avoid unjust enrichment, equity could allow the removal of an improvement when it could be done without damaging the land. Shick v. Dearmore, supra. See also, Equity Rights of a Mistaken Improver, 24 Ark. L. Rev. 133. Here appellant brought his action in a court of law, not equity. He did not ask for anything such as rents or profits; he only asked for possession of his land.

The hearing from which this judgment resulted was for summary judgment. Ark. Stat. Ann. § 29-211 (c) (Supp. 1977) provides in part that the judgment sought shall be rendered if the pleadings and affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Appellant asked for a judgment for possession of his property; he did not ask that the house be removed. Appellee did not ask the court to let her remove the house. Accordingly, appellant was entitled to the judgment he asked for as a matter of law since he had presented a prima facie case and there was no issue raised by appellee’s general denial.

While Ark. Stat. Ann. § 50-103 (Repl. 1971) providing for removal of mistaken improvements might have been applicable, it was not raised by appellant nor affirmatively plead by Mrs. Bennett. The trial court could only act on those pleadings, the motion for summary judgment and the supporting documents and render judgment based on them. There was nothing before the court to show that the building was erroneously placed on appellant’s land rather than on adjoining land owned by appellee or that twelve months had not elapsed after the discovery of the erroneous placing of the building as required by Ark. Stat. Ann. § 50-103. Our understanding of this unusual proceeding is that Mrs. Bennett was claiming to own the land on which the house was built, but she has never pleaded ownership and has actually never shown, by anything of which the trial court could take cognizance that she owned the adjoining property, as is necessary to the application of § 50-103.

The statements made by appellee at the hearing in the trial court were not under oath.

That part of the judgment providing for removal of the building from appellant’s property is reversed and, since real property is involved, the cause is remanded for entry of a judgment consistent with this opinion.

We agree.

Harris, C.J., and George Rose Smith and Holt, JJ.


source: Caselaw Access Project

author: John A. Fogleman, Justice.

license: Public Domain

text:
    Otbie JETTON et al v. R. L. FAWCETT et al
    78-59
    568 S.W. 2d 42
    Opinion delivered July 17, 1978
    (Division I)

      James S. Reed, Sacramento, Cal., and Karlton H. Kemp, Jr., by: James S. Reed, for appellants.

      Eric Bishop and Finley & Finley, by: John C. Finley, III, for appellees.
   John A. Fogleman, Justice.

Otbie Jetton, Lula Bowles Talon and Mary Rogers brought an action to obtain possession of a tract of land in Miller County against appellees R. L. Fawcett and his wife, Mildred and Bunn F. Fawcett and his wife, Janice. They also sought to remove alleged clouds on their title by virtue of conveyances of the land to appellees or some of them. This action was filed on behalf of Otbie Jetton, Lula Bowles Talon and Mary Rogers on July 24, 1975, by Lon L. Witter of the firm of Atchley, Russell, Waldrop and Hlavinka of Texarkana, Texas. The defendants answered claiming title to the property and, by counterclaim, asked that title be quieted in them. The case was set for trial on February 11, 1976. On February 9, the attorneys for the plaintiffs filed a motion to withdraw as attorneys, alleging that the action had been filed by an attorney who had left the firm and the practice of law and that it was essential to the prosecution of the action that Mary Rogers, a plaintiff in the case, cooperate with the other parties, but that she had refused to do so and had even refused to consent to their representing her. Hearing on this motion was set for March 1, 1976. The motion was heard and granted. The court set the case for trial on March 22, 1976, and directed the attorneys who had withdrawn to notify the plaintiffs. The plaintiffs failed to appear on the date set for trial and a decree was entered in favor of the defendants on the complaint and on their counterclaim.

On August 19, 1976, appellants and Mary Rogers filed a complaint for vacation of the decree, alleging that unavoidable casualty and misfortune had prevented them from appearing at the trial. This pleading was later amended to add John Jones, as assignee of appellants as a party plaintiff on an assignment made in May, 1976. Hearing was held on June 29, 1977 and on August 15, 1977, the trial court found that the plaintiffs, except for Mary Rogers, had failed to show unavoidable casualty. The decree was set aside as to Mary Rogers. Appellants rely on two points for reversal. They assert that the trial court erred in finding that the withdrawal of counsel was not unavoidable casualty or other misfortune preventing them from appearing and maintaining and defending the action. They also contend that notice of withdrawal of counsel and of the trial date did not meet constitutional standards of due process. We find no reversible error on these points.

The only allegation of the amended petition, as abstracted, stating any fact in support of the conclusion that unavoidable casualty and misfortune prevented them from appearing on March 22, 1976, was that Otbie Jetton and Mary Rogers had no notice of that hearing. There was no allegation that they had not received notice of the motion of the attorneys to withdraw on the hearing on that motion. Apparently the original complaint or petition for vacation of the decree was supported by affidavits, but if so, none of them have been abstracted and they are not before us.

Charles Bleil of the law firm of Atchley, Russell, Waldrop and Hlavinka testified that he had conferred with Mr. Witter about the case. The file revealed that Witter had written Otbie Jetton on December 8, 1975, explaining the necessity for the cooperation of Mary Rogers, who had failed to return certain interrogatories and papers. Bleil said that on January 26, 1976, he had written Otbie Jetton, by ordinary mail addressed to Route 3, Box 14, Ashdown, Arkansas, saying that his firm proposed to withdraw because Mrs. Rogers would not cooperate. Bleil said that he was directed by the chancellor to advise the plaintiffs of the hearing on the motion of counsel to withdraw and of the Setting of the case for trial on the merits on March 22, 1976 — with substitute counsel if the motion to withdraw was granted. He said that by letter dated February 11, 1976, addressed to the plaintiffs, and John C. Finley, Jr. and Eric Bishop, the attorneys for the defendants, and sent by certified mail, he advised the addressees of the settings and invited the attendance of all concerned. He had receipts from the two lawyers and Mrs. Talon, but had none from Mrs. Rogers or Mrs. Jetton. Bleil said that after the motion was granted, he wrote a letter on March 2, 1976, addressed to Mrs. Rogers, Mrs. Talon and Mrs. Jetton, advising them of the court’s action and the trial setting, enclosing a copy of the chancery court order granting the motion and relieving his firm, and reciting that a hearing of the case was set for March 22. He exhibited a certified mail receipt to which Otbie Jetton’s name had been signed by her 21-year-old daughter, Brenda Jetton. Bleil said that he never heard from any of the appellants after he took over the file in their case.

Mrs. Jetton testified that she was responsible for commencement of the suit and knew that Witter was going to withdraw. She said that she was advised on or about March 15, 1976, that she was to seek another lawyer, but said that the law firm advised her that nothing would be done until she found a lawyer and that she had no notice of withdrawal prior to that date. She said that she could not read very well. Mrs. Talon said that she signed the receipt for the letter of February 11, 1976, but signed only one receipt, saying, “The next one I was gone fishing.” She also said that she couldn’t read and couldn’t understand “too good,” and didn’t read any of the letters sent her in connection with this matter. She said that she could not see well enough to read one of the letters, although she tried.

At the outset, we point out that the setting aside of a judgment or decree under the governing statute, Ark. Stat. Ann. § 29-506 (Repl. 1962), lies within the sound judicial discretion of the trial court and its action will not be reversed in the absence of an abuse of that discretion. Davis v. McBride, 247 Ark. 895, 448 S.W. 2d 37. In the case cited we pointed out that a party seeking relief against a judgment must show that he has been diligent and without negligence. We there stated that, after a defendant has been served with summons, he must thereafter take notice of the pendency of the suit and subsequent proceedings. Any litigant, plaintiff or defendant, is required to take notice of all proceedings during the pendency of an action to which he is a party and to keep himself informed as to the progress of his case. Karam v. Halk, 260 Ark. 36, 537 S.W. 2d 797. The trial court found that appellants had notice of the withdrawal of counsel.

The burden of showing unavoidable casualty or misfortune rested upon appellants. This burden included a showing that they were not negligent. Karam v. Halk, supra. Their lack of diligence is apparent on the record as abstracted. Even one whose reading ability is limited would, in the exercise of diligence, make some inquiry of someone who could read about the content of letters received in the mail. If appellants had taken any steps to replace counsel before the trial setting on March 22 they would undoubtedly have been entitled to a continuance for a reasonable time. Their lack of diligence in the matter is indicated by the fact that they filed nothing until nearly five months after the entry of the decree they now ask be vacated. This delay is significant, not only in the trial judge’s consideration of the evidence on the question of diligence, but to our consideration of the question of abuse of discretion. Awbry v. Hoopes, 145 Ark. 502, 224 S.W. 959; Bickerstaff v. Harmonia Fire Ins. Co., 199 Ark. 424, 133 S.W. 2d 890.

Since the statute under which appellants proceeded is in derogation of common law and of the important policy of upholding finality of judgments, a judgment should not be disturbed under the act unless the case comes clearly within the spirit and policy of the act. Anderson v. Mellon, 222 Ark. 892, 263 S.W. 2d 909; Parker v. Sims, 185 Ark. 1111, 51 S.W. 2d 517.

Appellants also argue that the notice given does not meet minimum due process requirements. The trial court held that notice of the motion to withdraw might not have been sufficient, because of “conflicting interests” but held that notice of the trial setting was sufficient. Mrs. Jetton testified that she received no notice from her attorneys prior to March 15. In a case where a defendant sought to set aside a default decree on the basis that she had no notice of the pendency of the action, we held that it was not error for the trial court to decline to do so, when the defendant took no action prior to the entry of the decree, not even to acknowledge its receipt, and received a copy of the decree two weeks after its entry, but delayed filing a petition to vacate the decree until a month after she received it. Gaines v. Gaines, 187 Ark. 935, 63 S.W. 2d 333. Assuming that the notice was not earlier received by Mrs. Jetton, as it well might have been, the evidence of her neglect after receipt is such that we cannot hold that the chancellor abused his discretion or that the notice given was not adequate to insure appellants a hearing. In view of the fact that appellants could have been heard had they acted with diligence and would likely have been entitled to a continuance, we are unable to say that they were deprived of due process of law.

On cross-appeal, appellees seek reversal of the decree favorable to Mary Rogers and John W. Jones as her assignee. They first contend that these parties did not prove a meritorious defense or even introduce any evidence to show that they had one. A meritorious defense was alleged by them in their complaint for vacation of the decree by incorporation of appellants’ original complaint, the allegations of which would have constituted a defense to the counterclaim. The moving parties did offer to make an evidentiary showing of a meritorious defense but the chancellor declined to permit them to do so because of the fact that he found no basis for vacating the decree as to appellants Jetton and Talon, even if they did have a meritorious defense. Of course, the mere allegation of a meritorious defense is not sufficient. Haville v. Pearrow, 233 Ark. 586, 346 S.W. 2d 204. But cross-appellees should not be held delinquent in this respect when they are not at fault. If they actually have no meritorious defense, that fact probably could easily be disclosed by discovery and summary judgment procedures.

Appellees also argue that appellants filed no reply or answer to their counterclaim and that they were thereby in default and barred from defending on appellees’ cause of action by Ark. Stat. Ann. § 27-1137 (Repl. 1962). Ark. Stat. Ann. § 27-1160 (Supp. 1977) provides that the court must, in every stage of an action, disregard any error or defect in the proceedings which does not affect the substantial rights of the adverse party and that no judgment shall be reversed or affected by reason of such error or defect.

The reason for the chancery court’s vacating the judgment is pertinent here. He held that Mrs. Rogers had not been brought before the court on the counterclaim. This finding was based on the fact that the chancellor was unable to determine that Mrs. Rogers had ever authorized the employment of the law firm filing the complaint. There was testimony by her which supported that finding. She also denied signing the original complaint. The chancellor also held that, even though Mrs. Rogers received notice of the subsequent proceedings by letter, she was not charged with it to the same extent as the others because of her advanced age.

Obviously, a reply would not introduce any new issue into the case. It is apparent from the original complaint, the motion to vacate the decree and the proceedings on that motion that Mrs. Rogers and her assignee Jones rely upon the allegations of the complaint as a defense to the counterclaim and that the issues raised by the complaint and answer would be the same as those raised by the counterclaim. If crossappellees Rogers and Jones prevail on the allegations of the complaint, appellees cannot prevail on their counterclaim.

The situation here is comparable to that prevailing in Easley v. Inglis, 233 Ark. 589, 346 S.W. 2d 206, in some respects. There we said that if an “answer” to a counterclaim had been stricken as untimely, the refusal to grant a default judgment would not have been error, because testimony of the same issues would necessarily be heard on the issues made by the pleadings that were timely filed. See also, Smiley v. Smiley, 247 Ark. 933, 448 S.W. 2d 642. Where the evidence introduced by a plaintiff at trial on the complaint tends to rebut the allegations in the counterclaim, the trier of fact is not required'to take the allegations of the counterclaim as true, but the presiding judge may, in his discretion, permit the filing of a formal reply after that evidence has been introduced. Beekman Lumber Co. v. Kittrell, 80 Ark. 228, 96 S.W. 988.

Allowing evidence on the issues made by the complaint and answer to rebut the allegations of a counterclaim is certainly in keeping with the rationale of the cases cited and the dictates of Ark. Stat. Ann. § 27-1160. There was no error in setting aside the decree insofar as Mrs. Rogers and her assignee were concerned.

The decree of the chancery court is affirmed on appeal and cross-appeal.

We agree.

Harris, C.J., and George Rose Smith and Holt, JJ.

      For the purposes of this opinion, Otbie Jetton and Lula Bowles Talon (and John Jones as their assignee) are the appellants. Mary Rogers was successful in the trial court.


text:
    Albert D. WILLIAMS, Jr. v. STATE of Arkansas
    CR 77-101
    568 S.W. 2d 30
    Opinion delivered July 17, 1978
    (In Banc)

      Harold L. Hall, Public Defender, by: William R. Simpson, Jr., Deputy Public Defender, for appellant.

      Bill Clinton, Atty. Gen., by: Joseph H. Purvis, Deputy Atty. Gen., for appellee.
   John A. Fogleman, Justice.

On a charge of murder in the first degree, appellant was found guilty and sentenced to 25 years’ imprisonment. The verdict was largely dependent upon the testimony of one Larry Thompson, a nurse’s assistant employed by the Veteran’s Administration. When accorded the right of allocution immediately after the verdict was accepted and the jury discharged, appellant advised the trial judge that during the jury deliberations on the preceding day, one of the jurors came out and told the bailiff that they could not come to any agreement because one of the jurors was a good friend of the key witness and that, when asked what could be done, the bailiff responded that it did not then make any difference. The bailiff then stated in open court that the foreman of the jury had said that, after going to the jury room, it had been discovered that one of the jurors was a friend of one of the witnesses and that he had said, “Well, it’s too late to do anything about it now.” The circuit judge appropriately directed that a motion be filed on behalf of appellant.

A motion to set aside the verdict was Filed based upon allegations as to the conduct of the bailiff. At the hearing on the motion, there was a slight elaboration on the previous statements of appellant and the bailiff. The bailiff specifically stated, however, that the foreman had not asked him to inform the court. The foreman of the jury gave a slightly different version. He testified that he went to the jury room door, told the bailiff that one of the jurors was acquainted with the state’s witness and asked if this would have any bearing on the case and that the bailiff answered, “No, I don’t think so.” After the conversation with the bailiff, the jury resumed its deliberation and eventually achieved unanimity. The motion to set aside the verdict was denied.

The proper procedure in the situation which had arisen is set out in Ark. Stat. Ann. § 43-2139 (Repl. 1964) in the following words:

After the jury retires for deliberation, if there is a disagreement between them as to any part of the evidence or if they desire to be informed on a point of law, they must require the officer to conduct them into court. Upon their being brought into court, the information required must be given in the presence of, or after notice to, the counsel of the parties.

In Golf v. State, 261 Ark. 885, 552 S.W. 2d 236, we held, not only that the provisions of this statute are mandatory, but that where the facts call for an application of its provisions, rulings of the court will constitute prejudicial error unless corrected by repetition of the communications by the judge in the presence of the entire jury, either in the presence of counsel for both parties or after notice to them. Although the specific error in that case turned upon the action of the trial judge in the absence of the defendant’s attorney and without notice to him, we recognized that the purpose of the statute was to protect the parties from any steps being taken in the case in regard to the evidence and the law, after the cause has been submitted to the jury for deliberation unless in open court and after notice to the counsel of the respective parties. We have also held that the statute must be strictly followed. Andrews v. State, 251 Ark. 279, 472 S.W. 2d 86.

The inquiry made by the foreman of the jury was certainly a request for information on a point of law. The failure of the foreman to require the bailiff to conduct the jury into court was itself contrary to the statute and constituted misconduct, even though it was an innocent omission. The obvious good intentions of the bailiff and the foreman of the jury cannot excuse non-compliance with the statute. Laine v. State, 154 Ind. App. 81, 289 N.E. 2d 141 (1972). Even if, under the circumstances of this case, the bailiff’s answer might have been shown to be correct, the impropriety is not excused. Holzapfel v. State, 120 So. 2d 195 (Fla. App., 1960). In effect, the bailiff assumed the power to answer an inquiry on a question of law which should have been answered only by the judge. Wittmeier v. Post, 78 S.D. 520, 105 N.W. 2d 65, 97 ALR 853 (1960). Non-compliance with the statute by court officials still gives rise to a presumption of prejudice. Smith v. State, 194 Ark. 264, 106 S.W. 2d 1019; Wheaton v. U.S., 133 F. 2d 522 (8 Cir., 1943). That presumption is not easily overcome.

It has long been held that failure to comply with such a mandatory provision is prejudicial as a matter of law unless it is shown that no prejudice resulted or could have resulted from the non-compliance. Wittmeier v. Post, supra. It has also been held that lack of prejudice must be shown by clear and convincing evidence and that any doubt on the issue must be resolved in favor of the accused. Foreman v. State, 370 P. 2d 34 (Okla. Cr., 1962); State v. Kristich, 226 Or. 240, 359 P. 2d 1106 (1961). See also, Wheaton v. U.S., supra.

To begin with, we presume that any error is prejudicial, unless we can say with confidence that it is not. Upton v. State, 254 Ark. 664, 497 S.W. 2d 696. One reason for placing such a heavy burden upon the state is the necessity for preserving the sanctity of the jury deliberations. Laine v. State, supra. Another is because of the conduct of the court officials in performing their duties and following the procedures prescribed for them should be such as to leave no possible suspicion of acting either prejudicially or favorably to an accused. In Oklahoma where the provisions of a similar statute are considered to be mandatory, the Supreme Court in Lowrey v. State, 87 Okla. Cr. 313, 197 P. 2d 637 (1948) quoted from Ridley v. State, 5 Okla. Cr. 522 at page 526, 115 P. 628 (1911). That quotation was, in part:

*** It will be presumed, in the absence of anything to the contrary, that the rights of the defendant were prejudiced by the action of the jury and clerk of the court in disregarding and failing to observe the requirements of the statute. Courts cannot be too strict in compelling a rigid and vigilant observance of the provisions of the statutes designed to preserve inviolate the right of trial by jury and the purity of jury trials.

The most difficult question is that of prejudice. We cannot say that lack of prejudice is manifest. The state actually concedes that it had the burden of proving that there was no prejudice. See Brust v. State, 153 Ark. 348, 240 S.W. 1079; Bodnar v. State, 176 Ark. 1049, 5 S.W. 2d 293; Hydrick v. State, 103 Ark. 4, 145 S.W. 542. If the matter had been called to the attention of the trial court, the judge could have cautioned the jury that it must confine its consideration of the case to the evidence before it, disregarding any knowledge or information from any other source, save common knowledge. Bodnar v. State, supra; Howell v. State, 220 Ark. 278, 247 S.W. 2d 952. At that time, the jury had deliberated for only 45 minutes, after having retired at 11:50 a.m.

In considering the matter of prejudice, we have disregarded the testimony of the individual jurors, as to their deliberations, statements made during the deliberation, matters considered, the votes taken, the votes of the individual jurors and other such matters admitted into evidence over the strenuous and repeated objections of the prosecuting attorney. Even though the attorneys for both appellant and appellee seek to show how this testimony supports the position of their clients, this testimony was inadmissible and the state has never waived its objection, having called attention to it before seeking to turn the testimony to its advantage. Ark. Stat. Ann. § 43-2304 (Repl. 1964) prohibits the examination of any jurors to establish grounds for a new trial unless it can be shown that the verdict was by lot. We have adhered strictly to this rule. Smith v. State, 59 Ark. 132, 26 S.W. 712, 43 Am. St. Rep. 20; Smith v. State, 160 Ark. 178, 254 S.W. 463; Halley v. State, 158 Ark. 641, 251 S.W. 359; Wooley v. State, 97 Ark. 643, 133 S.W. 831; Scott v. Shairrick, 225 Ark. 59, 279 S.W. 2d 39; Strahan v. Webb, 231 Ark. 426, 330 S.W. 2d 291; Hyde v. State, 212 Ark. 612, 206 S.W. 2d 739; Napier v. State, 220 Ark. 208, 247 S.W. 2d 203; Capps v. State, 109 Ark. 193, 159 S.W. 193, 46 LRA (n.s.) 741, Ann. Case. 1915 C 957; Wilder v. State, 29 Ark. 293.

There was some reason for the foreman’s going to the trouble of making the inquiry. With the presumption of prejudice we cannot say with assurance that the jury, which deliberated all the rest of the day and well into the next day before reaching a verdict, was not influenced by matters outside the record. Since the evidence about the deliberations was inadmissible, we can only speculate about the effect of the fact that the juror in question had worked with the state’s principal witness at the Veteran’s Administration at Ft. Roots for about three months and felt that he was reliable and a very credible person.

Since we cannot say with assurance that appellant was not prejudiced, the judgment is reversed and the cause remanded.


text:
    Quinton SPEARS, Jr. v. STATE of Arkansas
    CR 77-84
    568 S.W. 2d 492
    Opinion delivered July 17, 1978
    (Division II)

      Guy Jones, Jr., Guy H. Jones, Phil Stratton, and Casey J. Jones, for appellant.

      Bill Clinton, Atty. Gen., by: Joseph H. Purvis, Deputy Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Quinton Spears, Jr. was charged with delivery of one pound of marijuana on June 19, 1975, and sale or delivery of phencyclidine, sometimes called PGP or T to Don Sanders of the Arkansas State Police on three separate occasions, i.e., on June 5, June 6, and June 15, 1975. His defense was entrapment by an informant variously known as Junior Caldwell, Izzy Caldwell, Izzie Lee Caldwell, Jr., Isaac Dominic, Isaac Dominy, Izzie Dominy and Izzie Lee Dominy (or Dominic). Spears was found guilty on all four counts and was given a sentence of eight years and a fine of $8,000 for sale or delivery of marijuana and three years for delivery of PCP in each case and fined $2,000 on one charge and $1,000 each on the other two. He asserts six points for reversal. We find reversible error as hereinafter indicated.

I

The first point has to do with the form of the jury verdicts. In each case, the verdict provided for a prison sentence and a fine. The statute under which the charges were laid [Ark. Stat. Ann. § 82-2617 (Repl. 1976)] provides in every instance for a prison sentence or a fine or both. The forms submitted to the jury did not indicate that the jury had the right to impose either a prison sentence or a fine or both. The form indicated that both imprisonment and fine were mandated. No instruction as to punishment was given by the trial court. The only reference to the permissible punishment on the charges presented to the jury was in the forms of verdict submitted. A form typical of them follows:

“We, the jury, find the defendant, Quinton Spears, Jr., guilty in Case #CR-75-187 in that he did deliver a controlled substance, phencyclidine, to Don Sanders for the sum of $10.00 on June 15, 1975, and fix his punishment at years in the Arkansas State Penitentiary and dollars. (3 to 10 years and up to $15,000.00).” [Emphasis ours.]

Although the verdict form submitted in Harris v. State, 262 Ark. 680, 561 S.W. 2d 69, used the conjunction “and/or” rather than “and” to join the phrases on potential imprisonment and on potential fine, we reversed a verdict in which the jury had inserted a term of years in the blank for imprisonment and an amount in dollars in the blank for fine, because the verdict form did not sufficiently explain the options available to the jury in fixing punishment. Even though the use of “and/or” in civil or criminal proceedings has been condemned and described as “slovenly” pleading, and as having brought more confusion than clarity to the task of construction of statutes, contracts and pleadings, it does not render a sentence in which it is used meaningless if the intention of the user can be ascertained so this “hybrid” conjunction can be taken to mean either “and” or “or.” See Gurein v. State, 209 Ark. 1082, 193 S.W. 2d 997; Heath v. Westark Poultry Processing Corp., 259 Ark. 141, 531 S.W. 2d 953. In Harris, we could not determine the intention of the jury, even though an instruction as to the options had been given. The lack of any advice to the jury, other than the verdict forms, is certainly more prejudicial to the accused than was the case in Harris.

We must reverse the judgment on the basis of the verdict forms submitted, unless the failure of appellant to object constituted a waiver. In Rowland v. State, 263 Ark. 77, 562 S.W. 2d 590, where the form of verdict did not mention punishment alternatives and the trial judge had fully instructed the jury on that subject, we held that there was no reversible error in the jury verdict imposing both forms of punishment, even though appellant had objected to the failure of the form of verdict to state the options. We pointed out that, if a defendant desires a particular form of verdict, or any instruction to the jury as to the form submitted, it is his duty to prepare and submit a correct form or instruction and request the trial court to submit or give it. This was not done in this case, probably because the trial court informed the jury just prior to commencement of arguments by the attorneys that verdict forms would be prepared for each case and stapled together and that the attorneys would explain them, and the punishment on a finding of guilty, to the jury.

Appellant says that his attorney never had an opportunity to see the forms or to either explain or object to them, because the trial judge, instead of furnishing the forms to trial counsel, handed them directly to the jury. He relies upon the holding in Alford v. State, 223 Ark. 330, 266 S.W. 2d 804. In Alford, the death penalty had been imposed and we held that it is the affirmative duty of the trial court to bring to the attention of the jury, the option it then had between the death penalty and life imprisonment, and that the failure to do so was reversible error, in spite of the fact that the accused had not asked the court to do so. The rule of Alford once was reserved for capital cases. See Webb v. State, 154 Ark. 67, 242 S.W. 380, 383 (opinion on rehearing). We did not apply it in Brown v. State, 261 Ark. 683, 550 S.W. 2d 776, as appellant contends, where the appellant submitted proper forms of verdict. We will not apply it in cases arising after the decision in Goodwin v. State, 263 Ark. 856, 568 S.W. 2d 3, because of the many opportunities to raise the question in the trial court pointed out in Goodwin and Rowland v. State, supra. In other words, a question of this sort must first be raised in the trial court, before we will consider it on appeal.

The state does not concede that appellant was deprived of an opportunity to raise the question here. It asserts that there were three opportunities afforded appellant. It first points out that appellant requested no instruction as to the possible punishments. But appellant may not have felt it necessary when verdict forms might have been submitted which themselves furnished adequate explanation. See Shelton v. State, 261 Ark. 816, 552 S.W. 2d 216, decided after this case was tried. The state álso contends that appellant could have presented his own suggested form of verdict. But Rowland v. State, supra, was not decided until after this case was submitted. Appellee also contends that, since the trial judge stated that the attorneys would explain the verdict form, it is obvious that appellant’s attorney saw the forms at some time prior to their delivery to the jury. In view of a silent record, we cannot assume that this is so, and must give appellant the benefit of any doubt about the matter. We are compelled to reverse the judgment on this ground.

II

Appellant argues that the trial court erred in excluding testimony relative to Junior Caldwell, an admitted state informant, whom appellant describes as an informant, perpetrator and agent provocateur for one Don Sanders, an undercover agent with the narcotics section of the Arkansas State Police. Appellant caused a subpoena to be issued for Caldwell. Although it was served, Caldwell failed to appear and the court ordered a warrant of arrest to be issued for him. The warrant was placed in the hands of the sheriff of Faulkner County. It was never served and Caldwell did not appear. Apparently, the failure to execute the warrant was attributable to the fact that Caldwell was then in the naval service of the United States. Appellant’s defense was that he was entrapped by Caldwell and that Caldwell was not only the source for the marijuana he procured, but that he enticed appellant to enter into the transactions which resulted in the charges against appellant.

The first witness who was not permitted to testify was Lynn Bell. At a pretrial hearing at which the trial court ruled her testimony inadmissible, she testified that her relationship with Caldwell was very close, and that she was a confidant of his. She said that Caldwell had sold drugs in Faulkner County and had gotten into trouble in Stone County, after which his financial condition was such that he lived off her. She said she accompanied him to Mountain View when he was arraigned on the Stone County charges. Appellant’s efforts to proffer the testimony of this witness were abruptly halted by the trial judge, who held that her testimony was not competent in any way. Appellant’s attorney then stated that if permitted to testify, this witness would say that:

Caldwell had dealt in controlled substances for a number of years; she had worked with him and tried to get him out of the drug traffic; after telling her that, in order to get out of trouble himself, he would have to set other people up, he had a conference with Jerry Roberts, an undercover state police officer, and thereafter his car, which was “shot” had been repaired and four new tires placed on it; Caldwell told her that he was going to “set up” people by causing them to purchase or secure controlled substances and that Quinton Spears, Jr. was one of the individuals that he was to induce or entice or otherwise cause to procure marijuana and other drugs; Caldwell was following the advice of Roberts and Sanders and told her that he was to be paid by state or federal authorities; just before Caldwell went into the navy, he had called her by telephone and told her that he had “set up” many of his close friends in transactions at the request of Arkansas State Police and federal officers.

Appellant did not contend that this witness was present during any transaction in which he was involved. The trial judge held that this testimony would be inadmissible, since Caldwell would not testify. Of course, the trial court’s ruling was correct insofar as the testimony related to any bias of Caldwell in the matter.

It was shown in camera that the state had paid for meals and lodging for Caldwell while he was working with the undercover agents from March to July, 1975. Appellant’s attorney offered, but was not permitted, to show that one of the undercover agents negotiated with the authorities in Stone County for nolle prosequi of the charges against Caldwell there in order to compel Caldwell to comply with the requests and directions of Roberts, another state police undercover agent, for fear of reinstatement of the charges. Roberts did testify, also in camera, that he told Caldwell he would report whatever Caldwell did for the police in effecting arrests of other drug “pushers” to the prosecuting attorney in the district in which Stone County was located and that, pursuant to this “deal,” the charges were either dismissed or “nolle prossed.” Roberts said that Caldwell worked with him, Sanders, and another officer named Best. Sanders said that he told Caldwell, at their first meeting, that he expected Caldwell to set up everyone he could.

At the trial, Sanders testified that Caldwell had introduced him to Spears and was with Sanders on four occasions, that he purchased controlled substances from Spears and, on the last of these occasions, Caldwell had made a telephone call to Spears on the night preceding the purchase. On the first occasion, he said that Spears came up to a car in which he and Caldwell were sitting and asked if Sanders wanted to buy a certain controlled substance. Sanders had arrested Caldwell at Mountain View. He said that while working with him, Caldwell had followed his directions explicitly and that on one occasion he did direct Caldwell to call Spears, and that Caldwell had appeared to be Spears’ friend. Sanders knew that Caldwell’s car had been dilapidated, that its motor was missing and that it needed new tires. Sanders said that he had obtained employment with a marine company for Caldwell, who worked there for a while.

Spears testified that he and Caldwell had been casual friends when Caldwell started supplying him with marijuana and diet pills in 1974. According to Spears, Caldwell started calling him one to three times a day in May, 1975 and accosted him on the streets looking for drugs and continued to do so, until he finally obtained a quantity of a drug Caldwell wanted from a seller from whom he knew Caldwell had purchased controlled substances. This, said Spears, was the drug he delivered on the first occasion Sanders described. Spears testified that Caldwell awakened him the next morning and begged him urgently to obtain more of the drug and, after refusing, he finally consented to do so “one more time” because Caldwell “needed it,” but said that this would be the last time. Spears said that after delivering this package, he told Caldwell, in the presence of Sanders, to get away from him and stay away. Thereafter, he said, Caldwell called him at least two or three times a day. He was prevented by the court from stating what was said by Caldwell on these occasions. He admitted having obtained a quantity of the same controlled substance from the same source on one other occasion, after numerous calls by Caldwell, but said that he again told Caldwell in the presence of Sanders that he wanted no “part of it.” He was not permitted to state Caldwell’s response.

On several occasions the court prevented Spears from testifying to what Caldwell had said to him. Spears said that he had obtained the drugs because Caldwell badgered him and because he felt sorry for Caldwell. He said he had advised him to see a drug counselor. According to Spears, whenever he saw Sanders and Caldwell they were in Caldwell’s car. He also said that on every occasion, the deliveries were made to Caldwell and Caldwell paid him, that he never had any conversation with Sanders about the transactions and that Sanders had never paid him any money.

Appellant also offered the testimony of Bruce Sellers that he was present when Caldwell was served with a subpoena and that Caldwell had said that he was not about to go to Judge Roberts’ blankety blank court and that Jerry Roberts had promised to pay him $1,000 for setting everybody up and making a bust to get his record erased in Stone County.

The question is one of relevance to the defense of entrapment. Entrapment occurs when any person acting in cooperation with a law enforcement officer induces the commission of an offense by using persuasion or other means likely to cause normally law-abiding persons to commit the offense. Ark. Stat. Ann. § 41-209 (2) (Repl. 1977). Primary importance is accorded to the conduct of a law enforcement officer, or the person acting in cooperation with him. See Commentary § 41-209. Any evidence having any tendency to make the existence of entrapment more probable is admissible. Ark. Stat. Ann. § 28-1001, Rule 401 (Supp. 1977). The accused should be allowed a reasonable latitude in presenting whatever facts and circumstances he claims constitute an entrapment, subject to ordinary rules of admissibility. State v. Chacon, 37 Idaho 442, 216 P. 725 (1923). See also, State v. Melon, 232 N.C. 602, 61 S.E. 2d 626 (1950). The proffered testimony of Lynn Bell and Bruce Sellers should have been admitted.

Showing that Caldwell was addicted to drugs and had dealt in them was relevant. Statements made by him pertaining to his motivation to induce an acquaintance to deliver controlled substances would be relevant. The state contends that this testimony was properly excluded as hearsay. A declaration by Caldwell of his intent, plan, motive or design was not excluded by the hearsay rule. Ark. Stat. Ann. § 28-1001, Rule 803; 4 Weinstein’s Evidence 801-6C, § 801 (c) (01). The conduct of a government informant in connection with the transaction, and the purposes of his conduct and communications are proper matters for examination and inquiry at the trial. Sherman v. U.S., 356 U.S. 369, 78 S. Ct. 819, 2 L. Ed. 2d 848 (1958); People v.Judd, 170 Cal. App. 2d 212, 338 P. 2d 458 (1959). The fact that Caldwell did not testify was not a proper basis for excluding, as collateral, testimony relating to his activities with relation to Spears. French v. State, 260 Ark. 473, 541 S.W. 2d 680. Appellant also should have been permitted to show the charges placed against Caldwell and their disposition, particularly in view of the fact that Sanders, who arrested Caldwell, testified that Caldwell was not to receive anything at all in exchange for his helping Sanders “set up everybody he could” and taking Sanders to everybody who sold drugs. It should be mentioned that Spears testified that he had never previously sold or delivered controlled substances.

Appellant also sought to show by the testimony of Joe Martin, Sheriff of Faulkner County, that a warrant of arrest had been issued for Caldwell. The state contends that there was no error because the records from the sheriff’s office could have been introduced at any time. Appellant was entitled to show his efforts to obtain the testimony of Caldwell, which was very material on the defense of entrapment, and to explain his absence, in order to attempt to avoid the jury’s drawing of inferences unfavorable to him and rejecting his testimony as to the facts relating to the transactions in which Spears admitted involvement, because of the absence of this witness. Long v. State, 72 Ark. 427, 81 S.W. 387. The sheriff would have been the appropriate vehicle for the introduction of the records of his office. There is nothing in this record to indicate that they would have disclosed the reasons why efforts to obtain the attendance of Caldwell were unsuccessful.

7’he testimony of Judy Rowlett tending to show bias of Roberts toward appellant was not admissible because Roberts did not testify.

III

Appellant contends that the trial court erroneously excluded or limited his testimony as to conduct, actions, conversations and communications of Caldwell. In many instances of which appellant complains no proffer of the evidence was made and it appears that some of this testimony might not have been relevant. It also appears that, on occasion, the trial judge restricted or prevented proffers suggested by appellant’s attorney. Suffice it to say that any statement made by Caldwell to, or in the presence of appellant, indicative of the fact that Caldwell was using persuasion or other means to induce a normally law-abiding person to deliver controlled substances was admissible, not to show the truth of Caldwell’s statements, but to show that they were made. Wilson v. State, 261 Ark. 5, 545 S.W. 2d 636. See also, Ark. Stat. Ann. § 28-1001, Rule 801 (c) and authorities above cited.

IV

Most of appellant’s arguments on this point are so similar to those advanced by the appellant in Goodwin v. State, 263 Ark. 856, 568 S.W. 2d 3, with reference to the production of various records, reports and writings, that what we said there is dispositive of them. In addition, appellant complains that his attorney was not permitted to examine records and reports relating to payments made to Caldwell. Although Lt. Beach admitted, at a hearing held some eight months prior to trial, that he could provide the prosecuting attorney with such records, the trial judge directed appellant’s attorney to issue a subpoena duces tecum for the records. The subpoena was issued on the first day of the trial and served just before noon recess on that day. The trial judge ruled that he would not compel production of the records due to lack of diligence in obtaining the subpoena. There is nothing in this record indicative of any abuse of discretion. Appellant seeks to excuse the delay by reference to a court order relating to state police records entered in State v. Goodwin (which was appealed to this court and docketed as Goodwin v. State, CR 77-85, supra), which would have permitted the same attorney to inspect these records. He refers us to the transcript in that case for substantiation. We cannot, however, take judicial notice of records in other cases. Murphy v. Citizens Bank of Jonesboro, 82 Ark. 131, 100 S.W. 894, 11 LRA (n.s.) 616, 12 Ann. Gas. 535.

V

Appellant contends that the court erred in refusing to give his requested instructions on the defense of entrapment. The state contends that there was no error because the matters covered in them were properly covered by instructions actually given by the court and because one of them was an incorrect statement of the law as to the burden of proof. Although neither brief has proven to be much help to us on this point, we must treat it because of the likelihood that it will arise on a retrial. Most of these requested instructions were adequately covered in instructions given. We will treat only those that we cannot say with assurance were adequately covered.

By his requested instruction No. 4, appellant asked that the jury be instructed that the defense of entrapment was available if, by inducement of persons who were not law enforcement officers, one was lured into the commission of a criminal act, which he would not have otherwise performed, for the purpose of having him arrested and punished. It should be noted, at the outset, that we have previously considered the defense of entrapment from the standpoint of case law. See Peters v. State, 248 Ark. 134, 450 S.W. 2d 276. Appellant was not entitled to this instruction under our case law. The appropriate distinction was pointed out in Whittington v. State, 160 Ark. 257, 254 S.W. 532, where we upheld the action of the trial court in refusing to submit the question of entrapment to the jury in a case where defendant was charged with illegally selling intoxicating liquors. The defendant had asserted the defense that the liquor was purchased from him for the very purpose of having him prosecuted for its sale and requested that the jury be instructed that, if this was true, he was entrapped and not guilty. We said:

*** There is a clear distinction between inducing a person to do an unlawful act for the purpose of prosecuting him, where the consent of the prosecuting witness is a necessary element of the offense, and catching the offender in the execution of a criminal design of his own conception.
In certain crimes relating to person or property, consent is a necessary element of the offense, and, where the accused is lured into the commission of such a crime for the very purpose of prosecuting him therefor, there are well-considered cases holding that no conviction may be had. Prosecutions under the liquor laws do not fall within this class of cases. The sale of intoxicating liquors contrary to the statute depends after all upon the voluntary act of the person selling the liquor. The fact that an officer of the law procured a detective or other person to purchase the liquor for the purpose of convicting the defendant can make no difference, since an officer cannot, by consenting to the sale, justify the illegal act of selling on the part of the defendant, any more than could the consent of any private person justify the sale. The mode adopted by the officer in this case to bring to light the fact that the defendant was selling intoxicating liquors had no necessary connection with his violation of the law.

We find nothing in the Criminal Code that changes the law in this respect.

Appellant asked by his requested instruction No. 11 A that the jury be instructed that, in determining the question of entrapment, it must examine the statements and conduct of the officer, rather than the defendant’s predisposition. This instruction, as worded, is not wholly correct. It has been held that merely affording one an opportunity to do that which he is otherwise ready, willing and able to do is not entrapment. Peters v. State, supra. The new statute does not materially change the law in that respect. Under case law, where the defense was entrapment, a searching inquiry into the defendant’s conduct and predisposition has been held to be appropriate on the issue. Sherman v. U.S., 356 U.S. 369, 78 S.Ct. 819, 2 L. Ed. 2d 848 (1958); Sorrells v. U.S., 287 U.S. 435, 53 S. Ct. 210, 77 L. Ed. 413, 86 ALR 249 (1932). See also, Peters v. State, supra. The statute changes the rule only by focusing the inquiry so as to attribute more importance to the conduct of the law enforcement officers than to any predisposition of the defendant, and the question is directed to the effect of that conduct on “normally law-abiding persons.” The purpose is to discourage government conduct that might induce innocent persons to engage in criminal conduct. Commentary, Ark. Stat. Ann. § 41-209. Conduct of the officer or informant merely affording the accused the opportunity to commit an offense is not entrapment. Ark. Stat. Ann. § 41-209. Thus, defendant’s conduct and predisposition, both prior to and concurrent with, the transactions forming the basis of the charges are still material and relevant, on the question whether the government agents only afforded the opportunity to commit the offenses with which he is charged. Grossman v. State, 457 P. 2d 226 (Alaska, 1969).

Appellant also asked that the jury be instructed that the state had the burden of showing that the conduct of the police officers was not part of a plan to lure, entice, deceive or induce a sale of narcotics by defendant. The trial court correctly instructed the jury that entrapment was an affirmative defense. See § 41-209 (1); Brown v. State, 248 Ark. 561, 453 S.W. 2d 50. He also correctly stated that this defense must be proved by the defendant by a preponderance of the evidence. Ark. Stat. Ann. § 41-110 (4) (Repl. 1977).

The requested instruction does not conform to these requirements of existing law, established either by the Criminal Code or pre-Code case law. There is no suggestion by appellant that the requirements of existing law are invalid. The defense of entrapment is an affirmative defense which was unknown to the common law. 21 Am. Jur. 2d 212, Criminal Law § 144. But there can be no entrapment unless the law has been violated. Brown v. State, supra. See also Peters v. State, supra. The defense has been aptly described as one of confession and avoidance. State v. Hsie, 36 Ohio App. 2d 99, 303 N.E. 2d 89 (1973). But this does not mean that the defense may not be raised along with a plea of not guilty. This was pointed out in Rodriguez v. U.S., 227 F. 2d 912 (5 Cir., 1955), which was the authority for our holding in Brown. See also, State v. Hsie, supra. Thus, the state still bears the burden of proving all the elements of the offense charged. But the defendant, in order to “avoid” a finding of guilt, must show entrapment to commit the offense by a preponderance of the evidence. The situation is analogous to a defendant’s seeking to exonerate himself from criminal liability by showing justification or excuse. See Buckingham v. State, 32 Ark. 218. The act of the defendant in such a case is admittedly criminal. The purpose of allowing the entrapment defense is to discourage government activity that might induce innocent persons to engage in criminal conduct. Commentary, Ark. Stat. Ann. § 41-209. Since there first must be a violation of the law, before the defense is available, the burden of proving entrapment properly rests on the defendant.

The majority of the court is of the opinion that the court should have given all of appellant’s requested instruction No. 5, with the exception of the last sentence.

VI

Appellant also contends that the court should have taken further steps to procure the attendance of Junior Caldwell, who had ignored a subpoena and apparently avoided the service of a bench warrant. Appellant moved for action under Ark. Stat. Ann. § 43-2004 et seq (Repl. 1977) and Ark. Stat. Ann. § 27-2501 et seq (Supp. 1977). We do not see how the latter statute has any bearing on the subject. Since the testimony of Caldwell was material, a matter for consideration in applying the former statute was whether it was necessary. Where there is an admitted informer who was a participant in transactions in controlled substances, the state should make every effort to produce him or to assist an accused in doing so. Jerry Roberts testified that Caldwell had promised to be present. Eight months had elapsed after the court had directed that the warrant be issued. We are not satisfied that appellant had exercised sufficient diligence in the matter to be in a position to complain. His motion for a continuance is now moot. He should now be in a position to take timely steps to invoke the processes of the court to obtain the attendance of the witness, or to obtain his testimony by some alternative means as the state has suggested. This matter should be presented in a different light before a new trial is commenced.

VII

Appellant contends that the trial court erred in permitting the state to present the testimony of Jess Baker, Jr. that he had purchased controlled substances from appellant on three different occasions between September 1974 and April 1975. This testimony was offered as a part of the state’s case in chief. There was no evidence of entrapment in the state’s evidence. Under the entrapment statute, this testimony was not proper at that stage of the proceeding. It would not be proper to show intent, because appellant was charged with delivery, not possession with intent to deliver. Sweatt v. State, 251 Ark. 650, 473 S.W. 2d 913. But the testimony would have been proper in rebuttal to appellant’s testimony relating to entrapment, because it would be relevant to the question whether the conduct of the undercover officer, and more particularly, his informant, did more than afford appellant an opportunity to make a sale of controlled substances. Sweatt v. State, supra; Cary v. State, 259 Ark. 510, 534 S.W. 2d 230. See also, Ark. Stat. Ann. § 28-1001, Rule 404 (b).

For the errors indicated, the judgment is reversed and the cause remanded.

We agree.

George Rose Smith, Holt, Byrd and Hickman, JJ.

      Although this section of the Arkansas Criminal Code would not have otherwise been applicable, defendant elected to avail himself of the right to have the construction and application of any defense governed by the provisions of the code.


author: Conley Byrd, Justice.

text:
    Jimmy Lonnie LOVELL v. MARIANNA FEDERAL SAVINGS & LOAN ASSOCIATION and Ann Parker LOVELL
    77-289
    568 S.W. 2d 38
    Opinion delivered July 17, 1978
    (Division II)

      Ray & Donovan, for appellant.

      Dane & Felton, and Daggett, Daggett & Van Dover, for appellees.
   Conley Byrd, Justice.

Prior to March 2, 1973, R. L. Lovell, deceased, deposited $36,000.00 with Marianna Federal Savings & Loan Association in the name of “R. L. Lovell or Ann P. Lovell.” The certificates of deposits were issued and delivered to R. L. Lovell. Ann P. Lovell never saw the certificates although she had knowledge the accounts were in her name and her husband’s name. The three certificates and ledger sheets evidencing the accounts had the account designation “R. L. Lovell or Ann P. Lovell.”

On March 2, 1973, R. L. Lovell personally made known to Marianna Federal Savings & Loan his desire to terminate the joint account with Ann Lovell in the sum of $36,000.00 and to create a new account with right of survivorship between R. L. Lovell and Jimmy Lonnie Lovell. Imogene Eaton, Manager and Secretary-Treasurer of Marianna Federal Savings & Loan took the three certificates in question, placed them in a typewriter and struck the name Ann P. Lovell and typed in the notation “name change 3/2/73.” Mrs. Eaton had R. L. Lovell to sign each of the certificates and then witnessed R. L. Lovell’s signature by signing her own name as witness. The name of Jimmy Lonnie Lovell was added as joint tenant replacing the name of Ann P. Lovell which had been stricken. Mrs. Eaton pulled the ledger sheets that relate to each of the certificates, struck the name Ann P. Lovell and inserted the name Jimmy Lonnie Lovell and included the information “changed 3/2/73” and caused R. L. Lovell to initial each of the changed ledger sheets. The same sequence of events were performed upon each of the certificates and upon each of the ledger sheets.

Mrs. Eaton testified that the signature card was the binding agreement between the depositor and the institution. Mrs. Eaton also testified that she understood at that time that it was R. L. Lovell’s intention to terminate his wife’s interest in each of the altered accounts and to create a joint tenancy with the right of survivorship between Jimmy Lonnie Lovell and R. L. Lovell. Mrs. Eaton further testified that if the funds in dispute were determined by the court to be the property of Ann P. Lovell then her purpose in making the changes as well as the intention of R. L. Lovell, as she understood it, has been defeated.

On May 16, 1973, Mr. R. L. Lovell returned and requested that he be allowed to withdraw certain funds represented by the certificates because he had had a serious operation for cancer and his wife had left him. R. L. Lovell was allowed to withdraw $10,000.00 of the total of $66,000.00 at that time because of the emergency situation. Mrs. Eaton testified she recognized on May 16, 1973, that a problem existed concerning the ownership of the account but she did not so advise R. L. Lovell and took no action to correct the situation. At some undetermined date, Mr. R. L. Lovell notified his son, Jimmy Lonnie Lovell, that there were certain certificates of deposits in their joint names and that they were located in a safety deposit box held in their joint names also. Jimmy Lonnie Lovell never actually saw the certificates of deposits until after his father’s death and had no knowledge of the transfer occurring on March 2, 1973 until after that date, but did have knowledge of such transfer long before R. L. Lovell's death.

Shortly after Mr. R. L. Lovell’s death, Jimmy Lonnie Lovell took the certificates to Marianna Federal Savings & Loan, presented them to Imogene Eaton to liquidate but Mrs. Eaton refused to cash the certificates on the grounds that the maturity date had not expired. Mrs. Eaton was aware of Mr. R. L. Lovell’s death at the time; she advised Jimmy Lovell that in order to withdraw the proceeds prior to maturity, there had to be an emergency and that the request to withdraw the proceeds had to go before the Board. She then called her attorney, who came and discussed the matter with Jimmy Lovell. No board meeting was held to consider any emergency situation.

Marianna Federal Savings & Loan thereafter, filed its bill of interpleader and tendered the certificates into the registry of the court naming Ann P. Lovell and Jimmy Lovell as defendants. Jimmy Lovell filed a counterclaim asking that the documents be reformed to comply with the known intention of R. L. Lovell, deceased, and alleged in the alternative that if the funds were awarded to Ann P. Lovell that he was entitled to recover over from Marianna Federal Savings & Loan for their negligent acts in failing to fulfill or carry out the known intention of their depositor after having undertaken to do so.

The bank responded to the counterclaim of Jimmy Lovell by filing only a general denial. The trial court in disposing of the issues in a memorandum opinion ruled as follows:

“OWNERSHIP OF THE FUNDS: The Chancellor reaches the inescapable conclusion that Mrs. Lovell is the owner of the funds as surviving joint tenant. The account was opened as joint with right of survivorship. The attempt to extinguish that estate by manual alteration of the evidence of ownership was totally ineffective. Only by opening a new account in the manner provided by law could the new tenancy be created. This was not done. Likewise, only by physical withdrawal of the funds then in joint tenancy with Mrs. Lovell could the existing one be extinguished. This was not done.
Mrs. Lovell will be declared the owner of all impounded or interplead funds and accrued interest.
THE CROSS COMPLAINT AGAINST MARIANNA FEDERAL: Jimmy Lonnie Lovell cross complained asserting that the certificates should be reformed to conform to the intention of parties at the time and in the alternative that he be awarded damages for the loss of his expectancy resulting directly as a consequence of Mrs. Eaton’s neglect. Though the Chancellor agrees with his arguments as to ‘privily,’ agency and liability of banking institutions for loss resulting from defective bill and notes executed by their executive officers in principle, there are facts and circumstances here present which make them inapplicable.
Ordinarily a married man may make an absolute transfer of personalty during marriage without the consent of his wife, she having only an inchoate right therein, provided of course, it is not done while she stands in the posture of ‘creditor.’ However, this rule applies only to absolute transfers during the lifetime of the husband. This right is not absolute and cannot apply where, as here, the transfer is made as a mere device by which the husband, while not parting with dominion over the asset during his lifetime, seeks at death to deprive.the wife of her distributive share in his personalty. 41 Corpus Juris Secondum, page 419, Section 20(a).
There are many factors to be considered in the application of the rule. Certainly a married man has a right to select one other than his spouse as the payee on death of deposits such as those involved here. If he has made other adequate provisions for her distributive share, the rule would not come into play. In the matter before the court there appears to have been no provision made for her.
Another factor to be considered is the secrecy with which the transfer is made. Here the wife was not informed and, in fact, did not know of the transaction until after his death.
The son was informed of it at some later date by his father, but the certificates remained in the exclusive possession and under his dominion until his death.
Another factor of significance here is that the property sought to be transferred by the husband was not exclusively his nor subject only to an inchoate right of dower. It was jointly held by her as joint tenant with right of survivorship. His intent to divest her of that interest, place it in another while retaining dominion over the whole for his life might, under the circumstances be, in and of itself, a fraud on her rights.
Another factor which ought to be considered is the marital history of the parties. Mr. and Mrs. Lovell had been twice divorced and thrice married. A fourth action for divorce was filed against Mr. Lovell in June of 1973. Mrs. Lovell testified that he had so provoked her that she ‘up and left him’, fixing the time of separation as a ‘couple of months' before'her suit was filed. By calculation this would have placed the separation as having occurred after the attempt to transfer was made. However, being so close in point of time the court would be justified in concluding that the actions of Mr. Lovell were influenced or motivated by marital discord.
No one of these factors is considered as conclusive, but when all the facts and circumstances are considered, the court concludes that the attempted transfer was intended as a device by which Mr. Lovell would retain dominion and control over the funds during his lifetime, seeking at his death to deprive her of her rights. A court of equity could not permit him or any person claiming as his donee beneficiary to retain the fruits of such a fraud on her rights. As between Mr. and Mrs. Lovell the transfer, if completed, would have been so tainted with fraud it would have been set aside. Jimmy Lonnie Lovell, not being a transferee for value and there being no showing that he has changed his position to his detriment in reliance upon it can have no higher standing. He cannot maintain an action against Marianna Federal based upon a transaction so conceived.
The Chancellor is frank to state that these proceedings have presented a number of what appear to be questions of first instance in this state. If the court has misapplied the law on the point herein discussed, then an entirely different result would have been reached, for the Chancellor is firmly in accord with defendants’ positions on the questions of privity, agency and authority of Mrs. Eaton.
In the absence of this finding of constructive fraud, conclusions of law favorable to defendant would have been reached.”

To sustain the action of the trial court the Marianna Federal Savings & Loan contends on appeal that the conduct of R. L. Lovell in changing the names on the certificates during marital discord was sufficient to sustain a finding of a constructive trust and that the acts of Marianna Federal Savings & Loan has frustrated a fraud. In other words the asserted property interest of appellant exists as a result of a fraudulent act and were it not for the fraud, appellant would have no property interest. We find no merit to this contention and reverse the trial court.

Our cases regularly hold that when fraud is relied upon, it must be distinctly pleaded, Bridges v. Harold L. Schaefer, Inc., 207 Ark. 122, 179 S.W. 2d 176 (1944). This case is a prime example why such issues should be raised by the pleadings. The record, as abstracted, does not show the source of the funds that R. L. Lovell deposited with Marianna Federal Savings & Loan and appellant Jimmy Lovell without an issue of fraud having been raised in the pleadings had no reason to make a showing of the source of the funds. The record shows that R. L. Lovell and Ann Lovell were married three times, they were divorced twice and the third divorce suit was filed on June 22, 1973, before Mr. Lovell’s death on November 10, 1973. The certificates of deposit were at all times in the possession of Mr. Lovell — Ann Lovell had never been to the bank and her only knowledge of the deposits was the signing of the signature card. Also at the time this litigation was tried, Mr. Lovell’s estate had been probated and closed — yet the record does not show what provision was made for Ann Lovell as the surviving spouse. Ann Lovell in claiming the interpleaded funds did not plead fraud. Consequently, since fraud was not alleged, we hold that the trial court erred in ruling that a constructive fraud was in issue before the parties.

Furthermore, we have concluded that Marianna Federal Savings & Loan is not in a position to rely upon fraud as a defense to Jimmy Lovell’s counterclaim in the absence of an allegation of fraud by Ann Lovell. The deposit by Mr. Lovell was made as “a joint account with right of survivorship” with the distinct understanding that either Mr. Lovell or Ann Lovell could withdraw the funds without the signature of the other. The record discloses that a tender of the certificate of deposit was a prerequisite to the withdrawal of any funds and that the three certificates of deposit were always in the exclusive possession of Mr. Lovell. After all the deposit of funds in a joint account with right of survivorship under such circumstances is nothing more than a convenient way to plan one’s estate — it has sometimes been referred to as a “Poor Man’s Will.” A bank holding out to the public that money could be so deposited and withdrawn is not in a position to allege fraud to protect it from its malfeasance in transferring such funds when no such claim is made by the person or persons whose names appear on the joint account. To hold otherwise would permit the bank to receive the funds under a false premise.

The bank in making its argument here relies upon Union & Mercantile Trust Co. v. Hudson, 147 Ark. 7, 227 S.W. 1 (1921) and Porter v. Trainor, 243 Ark. 550, 420 S.W. 2d 860 (1967). In both of those cases either the wife or her estate was alleging fraud by the husband. In the last mentioned case we pointed out that it was undesirable to permit rival heirs to reach far back into the past to raise a suspicion that one spouse had cheated the other in the disposition of funds when the spouse had made no such contention. The same principle should apply to strangers.

It follows that the trial court should have entered judgment in favor of Jimmy Lovell and against Marianna Federal Savings & Loan.

Reversed and remanded.

We agree: Harris, C.J., and Fogleman and Holt, JJ.

Hickman, J., dissents.