author: Per Curiam. John I. Purtle, Justice,

text:
    Leonard GINTER v. STATE of Arkansas
    CR 84-74
    669 S.W.2d 475
    Supreme Court of Arkansas
    Opinion delivered June 4, 1984
    Petitioner, Pro Se.

      Steve Clark, Atty. Gen., by: Theodore Holder, Asst. Atty. Gen., for respondent.
   Per Curiam.

Appellant demanded mandate and writ of certiorari. Writ of Certiorari was issued to the trial court to send up the record of the Circuit Clerk within 10 days.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. The petitioner has been in custody since June 4, 1983, a period of almost one year. He has not been convicted of a crime. He is charged with the murder of the sheriff of Lawrence County. At the time the sheriff was killed the petitioner was handcuffed and held outside his own home. There was no search warrant at the time the officers surrounded, invaded, and burned petitioner’s home. His wife, who was also handcuffed at the time, was also charged with the murder of the sheriff. Hearings in the case were held on several dates including December 5, 6, and 7, 1983. One trial date for petitioner was set on March 19, 1984. The court reporter failed to have the transcript of the earlier hearings prepared prior to March, 1984, and a continuance was requested.

Petitioner has filed what he termed a demand for mandamus. He has also filed handwritten petitions for habeas corpus; a request that the trial judge be required to recuse; a petition for dismissal pursuant to the speedy trial rule; and a petition for certiorari. Petitioner hand printed this material on plain paper while confined to his jail cell.

Although the petitions may be lacking in formality and legal finesse, they are written in plain terms which I think the members of this court understand. The trial court has refused to grant bail to the petitioner. The petitioner alleges that other individuals in the jurisdiction, charged with capital crimes, have been released on bail of $25,000 or less. He alleges and states the facts in support of the allegation that he is denied equal treatment of the law. The Constitution of the State of Arkansas, Article 7, section 4, states: “The Supreme Court . . . shall have a general superintending control over all inferior courts of law and equity; ... it shall have the power to issue writs of. . . certiorari, habeas corpus, prohibition, mandamus . . . Its judges shall be conservators of the peace throughout the State and shall severally have power to issue any of the aforesaid writs.” Arkansas Stat. Ann. § 34-1702 (Repl. 1962) states thatajudge of the supreme court shall have the power to issue writs of habeas corpus. Therefore it is my opinion that any member of this court has the authority to grant the request of the petitioner.

Arkansas R.Cr.P. Rule 28.1(a) states that any defendant charged with an offense in circuit court and incarcerated in a city or county jail in this state pending trial shall be released on his own recognizance if not brought to trial within nine (9) months from the time provided in Rule 28.2 excluding only such periods of necessary delay as are authorized in Rule 28.3.

The Constitution of the State of Arkansas, Article 2, section 8, states: “nor shall any person. . . be deprived of life, liberty or property, without due process of law. All persons shall, before conviction, be bailable by sufficient sureties, except for capital offenses, when the proof is evident or the presumption great.” Amendment 8 to the United States Constitution states: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Amendment 14 to the United States Constitution prohibits states from making or enforcing laws which deprive any person of life, liberty, or property without due process of law. The amendment also prohibits any state from denying any person within its boundaries equal protection of laws.

The petitioner has managed to pay $2,800 to the court reporter to type 250 pages of testimony taken before the trial court. Pursuant to our rules it was rejected because the clerk had not certified the record. We have the testimony before us which appellant wished us to consider. This court has refused to consider the allegations of the petitioner which, if true, clearly show that he is being illegally detained in prison in violation of the rules of this court, the statutes of the State of Arkansas and the Constitutions of the State of Arkansas and of the United States. This is truly a case where we are allowing technicalities to unnecessarily interfere with the rights of a citizen of the State of Arkansas.

I think this court should at the very least allow the appellant to be released on bail, which right has, so far that I know, always been granted to other citizens in similar circumstances. Unless good cause is shown our rules of criminal procedure require that petitioner be released on his own recognizance. Since the trial court has refused to set bail then this court, as it has done many times before, should set bail for the release of the petitioner pending a trial on the charges for which he is being held.


source: Caselaw Access Project

author:
Richard B. Adkisson, Chief Justice. P. A. Hollingsworth, Justice,
      John I. Purtle, Justice,

license: Public Domain

text:
    WALT BENNETT FORD, INC. v. Judy BROWN
    84-71
    670 S.W.2d 441
    Supreme Court of Arkansas
    Opinion delivered June 11, 1984

      Gill, Skokos, Simpson, Buford ir Owen, P.A., for appellant.

      James F. Swindoll, P.A., for appellee.
   Richard B. Adkisson, Chief Justice.

Appellant, Walt Bennett Ford, Inc.., sold a car to appellee, Judy Brown. The car was represented by the salesman and by the sales slip to be a “new demonstrator.” A jury found that this representation was false and that the car had been wrecked and repaired prior to sale. The jury awarded appellee $2,000.00 compensatory damages which the Pulaski County Circuit Court reduced to $250.00 and $8,000.00 punitive damages which the circuit court allowed to stand. Appellant argues six points for reversal. Appellee cross-appeals, arguing the trial court erred in reducing the compensatory damages from $2,000.00 to $250.00. On appeal we affirm; on cross-appeal we reverse.

Appellant first argues there was not substantial evidence to support the jury’s verdict. Appellee, Judy Brown, testified that she went to Walt Bennett Ford in response to their “T.V. ads” and told the salesman there she wanted a new car, a little smaller than her station wagon, and with front wheel drive. The salesman then showed her the 1981 Ford Fairmont automobile. He told her the car “sold for over $8,000.00,” but because it was a demonstrator, he would sell it to her for $7,434.00.

When appellee drove the car home, a neighbor who had worked as a car body repairman examined the car and told her that it had been wrecked. At trial the neighbor testified that he noticed a wad of bondo filler on the left front fender. He explained that body repairmen will beat a fender as straight as possible and then smear on the bondo, sand it, prime it, and paint it. He further testified that the braces on the car’s core support were different colors, indicating that one was not the original. He testified that he noticed “overspray up here” when he looked at the hood stops and that “the grill don’t match,” and that “the gravel shield was not attached properly.” He stated that when he saw appellee drive the car and back it in her driveway he noticed the automobile was painted two different shades of white. He further testified that in his opinion the car had been wrecked.

Another body repairman of thirty-nine years experience testified that he too had looked at the car and that in his opinion based on thirty-nine years of experience “it’s definitely been wrecked.” He itemized 1) bondo on the left front fender; 2) front fenders were not in line; 3) underside of inner shield had screws left out; 4) hood bumper blocks were painted over; 5) one grill brace was painted; the other one was not; 6) windshield washer reservoir wires had been disconnected and taped back together with masking tape instead of electrical tape; 7) left door windshield post was not the same color as the rest of the car; 8) left door and fender were not flush; 9) lower left front valve brace was missing.

The service manager for Walt Bennett Ford testified that pursuant to a warranty claim filed with Ford Motor Company, appellant replaced a left brace, or bracket, on the gravel deflector for a cost of $6.07. The manager stated that when a car comes from the factory, it is checked for damages and that Walt Bennett Ford gets paid for the warranty work done when damages are noted. The record reflects that replacement of the bracket was the only warranty work done by appellant on the automobile.

On appeal we view the evidence in the light most favorable to the appellee, and if there is any substantial evidence to support the verdict of the jury, we must affirm that verdict. ARCP Rule 52. We find the testimony of two body repairmen that the car had been wrecked and the testimony of the service manager that the car was checked upon arrival and found to be undamaged except for a missing bracket constitute substantial evidence to support the jury’s verdict.

Appellant next argues the trial court erred in admitting the testimony of the Ford Motor Company car merchandising manager concerning certain business records for that particular car. The merchandising manager, located in Memphis, testified that in the ordinary course of his business he sent and received memos to various persons in Ford Motor Company concerning the vehicle to determine whether there was any record of damage to the car before it was delivered to Walt Bennett Ford. When asked what the memos revealed he stated, that “there had been no damage reported,” and that the records had been checked twice. Appellant contends that the manager was not the custodian of the records and, therefore, the testimony concerning the records should be excluded under Ark. Unif. R. Evid. 803(6) which provides that “the custodian of business records, or other qualified witness,” can testify concerning those records. Appellant objected to the manager’s testimony on the ground that he was not the custodian of the records. The trial court noted the objection but stated, “I’m going to let him testify,” apparently finding the manager an “other qualified witness.” Appellant failed to object to the testimony on the ground that the witness was not an “other qualified witness,” basing his objection on the fact that the witness was not the custodian of the records. Error cannot be predicated upon a ruling admitting evidence unless a timely objection is made stating the specific ground of objection if the ground is not clear from the context. Ark. Unif. R. Evid. 103(a)(i). See Pace v. State, 265 Ark. 712, 580 S.W.2d 689 (1979). Appellant is thereby precluded from raising the issue of whether the witness was otherwise qualified for the first time on appeal. Gay v. Rabon, 280 Ark. 5, 652 S.W.2d 836 (1983).

Appellant further argues that the trial court erred in allowing appellee to testify as to the value of her car. It is well-settled Arkansas law that an owner of personal property is qualified to give an opinion as to its value. Phillips v. Graves, 219 Ark. 806, 245 S.W.2d 394 (1952); Boston Ins. Co. v. Farmer, 234 Ark. 1007, 356 S.W.2d 434 (1962); Garrett v. Trimune, 254 Ark. 79, 491 S.W.2d 586 (1973); L. L. Cole & Son Inc. v. Hickman, 282 Ark. 6, 665 S.W.2d 278 (1984). Moreover, in Moore Ford Co. v. Smith, 270 Ark. 340, 604 S.W.2d 943 (1980), a case with facts almost identical to those in the instant case, this Court stated, “Mrs. Smith testified that in her opinion the vehicle she paid $4,624 for was actually worth only $2,300 at the time of purchase because of the repaired damage. An owner of property may testify as to its value.” Accordingly, we hold no error was committed.

Appellant also contends the trial court erred in denying appellant’s motion for judgment n.o.v. A trial court may enter judgment notwithstanding the verdict only if there is no substantial evidence to support the jury’s verdict and one party is entitled by law to a judgment in his favor. McCuistion v. City of Siloam Spring, 268 Ark. 148, 594 S.W.2d 233 (1980). Since we determine there was substantial evidence to support the jury verdict, this argument is without merit.

On cross-appeal appellee maintains the trial court erred in reducing the compensatory damages from $2,000.00 to $250.00. The trial court set aside the jury determination as to the amount of compensatory damages, the difference between the value of a new vehicle and a wrecked vehicle, and substituted its own view as to these damages. In effect, this is tantamount to the trial court entering a judgment notwithstanding the verdict. We conclude that since there was substantial evidence to support the jury’s verdict, the trial court erred in reducing the amount of compensatory damages from $2,000.00 to $250.00.

Since we affirm the jury’s verdict as to the amount of compensatory damages, we do not reach appellant’s last two arguments that the compensatory damages were merely nominal and that they were unsupported by the evidence.

Affirmed in part; reversed in part.

Hollingsworth, J., concurs in part and dissents in part; Purtle, J., dissents; Hays, J., not participating.

P. A. Hollingsworth, Justice,

concurring in part; dissenting in part. I disagree with the majority when they státe the appellant failed to object to the testimony on the ground that the merchandising manager was not an “other qualified witness.” My review of the record reveals otherwise. Appellant’s objection was raised as follows:

Mr. Owen: Under Rule 803 of the Rule of Evidence, I think the cases have said that the business records themselves must be presented to the court by the custodian. I don’t think Mr. Tesson is that person, even though the rule can be somewhat of a relaxed statement. If a witness cannot vouch to several things of Rule 803, that entry must be excluded. He must have knowledge of the method by which they keep those business records. Plaintiff has not satisfied Rule 803 to authorize introduction of these memos.
THE COURT: I’m going to let him testify. I’ll note your objections, save your exceptions.

It is obvious to me that the appellant’s objection went beyond the ground that the manager was not the custodian of records. A rational mind could conclude after reading the record that the objection went to the testimony of Mr. Tesson as an “other qualified witness.”

However, I believe the trial court was correct in overruling the current objection because Ark. Unif. R. Evid. 803 (6) makes the testimony admissible “if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source ofinformation or the method or circumstances of preparation indicate lack of trustworthiness.” (emphasis added). In my view, the lack of trustworthiness was not shown and the majority is in error in their reasoning on this point.

John I. Purtle, Justice,

dissenting. I believe the majority is wrong in reinstating the $2,000 award for compensatory damages. Rule 59(a)(5), ARCP allows for amendment of judgments where there is “error in the assessment of the amount of recovery, whether too large or too small.” It is my opinion that the trial court did not abuse its discretion in reducing the compensatory damages and I would affirm the judgment as entered.


author: George Rose Smith, Justice.

text:
    Reta Louise ALSTON et al v. John Harold ALSTON and His Wife
    84-21
    669 S.W.2d 909
    Supreme Court of Arkansas
    Opinion delivered June 11, 1984

      Martin, Vater if Karr, by: Charles Karr, for appellants.

      Turner, Mainard ¿r Whitehead, by: Lonnie Turner; and Woolsey & Wilson, by Bruce R. Wilson, for appellees.
   George Rose Smith, Justice.

In 1936 A.W. Alston died intestate, survived by five children and the descendants of a deceased child. In 1937 Alston’s heirs divided his 2,943.75 acres of land in Franklin County, by agreement. The surface interest was allotted in specific shares by an exchange of warranty deeds, with Ashley Alston receiving the 708 acres involved in this suit. That part of the agreement dividing the minerals, however, was decidedly ambiguous. Several producing gas wells were drilled on different tracts from time to time, but the descendants divided the royalties amicably by signing for each well a division order by which the royalties were shared by the six branches of the family in six equal parts. Through the years almost all the 2,943.75 acres has remained in the Alston family.

In 1982 the appellees, John Harold Alston and his wife, had acquired from the other descendants of Ashley Alston their entire interest in the 708 acres allotted to Ashley (John Harold’s father). The appellees then brought this suit in equity against the members of the other five branches of the family, alleging that the 1937 agreement dividing the mineral ownership had expired by its terms or was otherwise void. The plaintiffs asked that they be declared to be the sole owners of the minerals underlying the 708 acres in question.

After an extended trial the chancellor held that the central issue had been decided in 1952 in an earlier suit, which was res judiata. The chancellor held that the 1937 agreement, as construed in the 1952 suit, had the effect (1) of vesting an undivided half of the minerals in each tract in the particular child (or the chidren of the one deceased child) who received the surface interest in that tract, and (2) of leaving the other undivided half of the mneral ownership in the entire 2,943.75 acres undisturbed, so that the Alston heirs continued to be tenants in common of that half interest. Some members of the family have acquiesced in the chancellor’s decree, but others have taken this appeal, which conies to us under Rule 29(l)(n).

We quote the pertinent language in the 1937 agreement, which was signed on the same date the deeds were exchanged and must be read together with those deeds:

An Agreement As To the Division Of Rentals And/Or Royalties
Under this agreement, each of the six heirs at law of A.W. Alston, deceased, shall share equally in all rentals derived from any lease now existing upon any part of the lands belonging to the said A.W. Alston estate, or from any future lease granted upon such lands by any one of the said six heirs. In addition, it is further agreed that any royalty which may arise in the future, shall also be equally dividing among the six heirs, whether such rentals or royalties shall be derived from oil, gas or other minerals lying in and under said lands or any part thereof.
It is further agreed that none of the said six heirs shall sell any part of the land this day divided, without reserving an undivided one-half interest in and to all oil, gas, coal or other minerals lying in or under the land conveyed, which one-half interest so reserved shall be shared in equally by all of the said six heirs. . .

The detailed 23-page 1952 decree was rendered in a suit brought by Arkansas Western Gas Company, the holder of an oil and gas lease on some of the Alston property. All the Alston descendants were parties to the case. Their various interests were determined, that being the purpose of the suit. The court found that the 1937 “Alston Agreement,” which we have quoted, was valid and was binding on all the Alston heirs. The court also found, with respect to 240 of the 708 acres new in issue, that members of the Ashley Alston branch of the family then owned “an undivided 7/12th interest” in the minerals in the 240 acres that were included in the plaintiff’s lease. (The appellees’ brief quotes the 1952 decree as having referred to an undivided “7 l/2ths” interest instead of “7/12ths,” but such an obvious typographical error, if it occurred, would properly by corrected by a court construing the language in the decree. See Murphy v. Cook, 202 Ark. 1069, 155 S.W.2d 330 [1941].)

The court’s finding in 1952 that the Ashley branch of the family owned an undivided 7/12ths of the minerals is readily understandable. The Alston Agreement provided that past áhd future royalties would be shared equally, with the further provision that thereafter none of the six heirs should sell any part of the land without reserving an undivided one-half interest in the minerals, to be shared equally by all six. A reasonable implication of that proviso, evidently accepted by the court in 1952, is that the owner of a particular tract was free to dispose of an undivided half of the minerals for his own benefit, but the other half was to belong to the six branches of the family together. Hence each one of the six surface owners had a one-half interest in the minerals within his allotted land and also had his one-sixth shdie of the family interest in the other half, making a 7/12ths Ownership altogether. All the Alston descendants having been parties to the 1952 suit, the court’s interpretation of the Agreement binds them under the principle of res judicata.

The appellants argue, however, that since the entire Alston family joined several times in the execution of division orders that impliedly recognized 100% family ownership in all the minerals rather than in only half, that practical constuction of the 1937 Agreement should be regarded as conclusive or as a basis for an estoppel. It is true, as we held in the case cited by appellants on this point, that when “a question of doubtful construction arises,” the courts will generally follow the parties’ own interpretation of the contract. Temple Cotton Oil Co. v. Southern Cotton Oil., 176 Ark. 601, 3 S.W.2d 673 (1928). Here, however, the 1952 decree settled all possible doubts by giving an exact meaning to the words in the Agreement. That interpretation is binding upon all concerned.

Affirmed.


author: Darrell Hickman, Justice.

text:
    Duford TAYLOR et al v. Jerry PATTERSON, et al
    84-103
    670 S.W.2d 444
    Supreme Court of Arkansas
    Opinion delivered June 11, 1984
    [Rehearing denied July 16, 1984.]

      William Clay Brazil, for appellants.

      Jerry D. Patterson, for appellees.
   Darrell Hickman, Justice.

On appeal the appellants argue only that Act 656 of 1983, which sets the minimum salaries of the Marshall, Arkansas, municipal court judge and clerk, is unconstitutional in that it deprives the rural citizens of Searcy County equal protection and due process under the law. That contention was not raised below. The only constitutional argument below was in the appellants’ answer where they averred that Act 656 was special or local legislation in violation of Amendment 14 to the Arkansas Constitution.

The trial court’s decision that Searcy County is liable to pay one-half of the minimum salary requirements of Act 656 is affirmed because we do not consider arguments raised for the first time on appeal, even those arguments that are constitutional in nature. Sweeney v. Sweeney, 267 Ark. 595, 593 S.W.2d 21 (1980).

Affirmed.


author: Steele Hays, Justice.

text:
    John Edward CAMPBELL v. STATE of Arkansas
    CR 83-147
    670 S.W.2d 800
    Supreme Court of Arkansas
    Opinion delivered June 11, 1984

      Keith, Ford & Blair, by: Tom J. Keith, for appellant.

      Steve Clark, Atty. Gen., by: Michael E. Wheeler, Asst. Atty. Gen., for appellee.
   Steele Hays, Justice.

Appellant, John Campbell, was charged and convicted of five separate crimes, receiving a sentence of life imprisonment for one and a total of fifty years for the other four, the sentences to run concurrently. He filed a Rule 37 petition for post-conviction relief alleging ineffective assistance of counsel and failure of the trial court to reject his guilty plea. The trial court denied the petition for relief and we affirm.

Appellant’s allegations arise from a hearing on March 23, 1982 which resulted in his changing a not guilty plea to one of guilty on all charges. He had originally pleaded not guilty to the first four charges on January 8, 1982, by reason of mental disease or defect. He was then examined by a psychiatrist from Ozark Mental Health Center and found to be without psychosis and competent to stand trial. While awaiting trial on these charges, he was charged with second degree battery involving an incident in the county jail. At the Rule 37 hearing appellant’s attorney testified he’d had a number of discussions with appellant after the arraignment on the first four charges and although he tried to dissuade him, the appellant told him he wanted to plead guilty. The attorney was aware that appellant had been previously hospitalized in Texas for mental disorders and in one of their last meetings told appellant he would ask the court to order additional mental evaluation. Appellant still wanted to plead guilty, but told his attorney to make the motion and if the Judge would not agree to send him to the hospital, he would enter a guilty plea. At the March hearing the attorney made a request for further evaluation on the grounds of incompetency to stand trial. The court denied the request and told the attorney he could file a motion on that point but did not “see any reason to send him on down there.” The attorney then told the court the appellant wanted to change his plea in regard to all the charges. During the sentencing phase, the attorney presented information on appellant’s prior mental problems in Texas as a mitigating factor.

The appellant contends that, as the attorney had information about the appellant’s prior history of mental problems, he was under a duty to pursue the leave granted by the court to file a written motion for further evaluation on those grounds. Additionally, he argues, having some question of the appellant’s competency, the attorney should have prevented the appellant from pleading guilty.

The issue here is whether the plea was entered intelligently and voluntarily with the advice of competent counsel. The appellant has the burden of showing that the assistance or advice he received was not within the range of competence required of lawyers in criminal cases, and there is a presumption that counsel is competent that must be overcome. Thomas v. State, 277 Ark. 74, 639 S.W.2d 353 (1982). We will reverse the denial of a Rule 37 petition only if the findings are clearly against the preponderance of the evidence. Thomas v. State, supra; Williams v. State, 273 Ark. 371, 620 S.W.2d 277 (1981).

Under the circumstances of this case we do not find any merit to appellant’s allegations. The Texas reports stated that appellant was not psychotic and the attorney testified in essence that were he to draw attention to the reports, contrary to appellant’s assertion, it would probably confirm the previous evaluation on the appellant and would not be helpful in trying to obtain additional information. The attorney’s failure to pursue further evaluation does not fall outside the range of competence expected of lawyers in criminal cases. First, the attorney’s action in not filing the motion can be viewed as strategy and we have consistently held that matters of trial strategy open to debate by experienced counsel are not grounds for relief under our postconviction rule. McDaniel v. State, 282 Ark. 170, 666 S.W.2d 400 (1984); Leasure v. State, 254 Ark. 961, 497 S.W.2d 1 (1973). Second, in two other cases where appellants argued similarly that the attorney should have pursued an insanity defense or presented additional evidence of insanity in the sentencing phase, the trial courts ruled as was done here. See Thomas, supra; Henderson v. State, 281 Ark. 401, 664 S.W.2d 451 (1984). The court in Thomasioxmd that evidence already presented was sufficient to establish that there was no insanity defense and in Henderson that the appellant did not demonstrate how the additional evidence would have negated findings already presented. ,In this case, more substantial evidence than that in Thomas was presented to show competency and the appellant does not show how the evidence of his prior history in Texas would have negated the findings of the evaluation that had already been presented. Absent a showing of prejudice, a claim of ineffective assistance of counsel will not prevail. Strickland v. Washington, - U.S. -, 104 S.Ct. 2052 (1984).

As to appellant’s second point under this argument, he recognizes that under A.R.Cr.P. 25.2 the decision to enter a guilty plea ultimately rests with the defendant, which is what occurred here. The attorney had sufficient discussions with the appellant to learn that appellant wanted to enter a guilty plea and never testified that he thought appellant incompetent. It would be plainly contrary to Rule 25.2 for him to have resisted the plea which appellant wanted to make.

Appellant’s second argument is that the trial court, aware of appellant’s prior history of mental problems, erred in failing to reject the guilty plea. For the reasons already stated, the court was under no duty to halt the proceedings because of questionable competency of the appellant. His competency had already been determined and there was nothing in the information relayed to the court that contradicted any of the findings by the evaluation already presented or that would give the court cause to question the appellant’s competency.

The judgment is affirmed.


author: P. A. Hollingsworth, Justice. Darrell Hickman, Justice,

text:
    Jodine CARTER, Individually and as Executrix of the Estate of J. C. CARTER, deceased v. Eddie BUSH, Ernest COLLARD and COMMERCIAL UNION INSURANCE CO.
    84-16
    677 S.W.2d 837
    Supreme Court of Arkansas
    Opinion delivered June 11, 1984
    [Substituted Opinion on Denial of Rehearing October 8, 1984]

      Daggett, Van Dover, Donovan ir Cahoon, by: Robert J. Donovan, for appellant.

      Gail O. Matthews, Ted Goodloe, and Chester Lowe, for appellee.
   P. A. Hollingsworth, Justice.

The petition for rehearing is denied. This substitute opinion is issued to replace the opinion of June 11, 1984, for clarification of issues raised by the Attorney General and appellees.

The appellees, Eddie Bush and Ernest Collard, in the course of their jobs as patrolmen for the Arkansas Highway Police, stopped a tractor-trailer truck at night on Highway 1 near DeWitt, Arkansas, to weigh the vehicle. As they finished weighing the truck, a second tractor-trailer stopped in the opposite lane to be weighed. The trucks completely blocked the travel portion of the highway. While the trucks were so stopped, the decedent, J. C. Carter, ran into the back of one of the trailers and received injuries which ultimately resulted in his death. The decedent’s executrix, the appellant Jodine Carter, brought a suit for wrongful death against Bush and Collard and against Commercial Union Insurance Co. The suit asked for the proceeds from the insurance policies both Bush and Collard had in force covering their own personal vehicles. In the alternative, the appellant sought the proceeds from the uninsured motorist insurance coverage provided to the decedent by Commercial Union.

The trial court dismissed the cause of action with prejudice as to Bush and Collard pursuant to Ark. Stat. Ann. § 13-1420 (Supp. 1981) which bars civil suits against state governmental employees. There was apparently no disposition of the case as to the insurance company. This case comes to us on appeal under Ark. Sup. Ct. R. 29(1 )(c) because it involves the construction of a statute. We reverse.

The appellees argue that the issue raised by the appellant was not raised before the trial court and is being presented for the first time on appeal. However, the appellant made substantially the same argument in a memorandum brief submitted to the trial court. Therefore, the argument is properly presented.

The appellant is also attempting to collect on an insurance policy issued to the decedent by Commercial Union. In the trial judge’s order dismissing the appellant’s complaint, no mention was made of the status of the suit as to Commercial Union. Since there is no final, appealable order in the record, that portion of the appellant’s argument which is directed to Commercial Union is not properly before us and will not be discussed.

The appellant’s principal contention, and the only one we will consider, is whether § 13-1420 operates as a complete bar to suits against governmental employees or whether it grants such immunity only to the extent that said employees do not have liability insurance coverage or to the extent that the injured party is not insured. We do not decide in this opinion whether or not the appellees were in fact negligent or whether their insurance policies would cover this situation if they were negligent. We are merely deciding whether or not the appellant can maintain an action against the appellees. We hold that she can.

The appellant would be unable to maintain an action against the officers if she was actually attempting to sue the State of Arkansas under Art. 5, § 20, of the Arkansas Constitution which provides that the State “shall never be made defendant in any of her courts.” However, we have allowed lawsuits to be filed against police officers when the matter involves a negligent action caused by the officer’s violation of a duty imposed upon him by law in common with all other people — as where a policeman violates a traffic rule and causes an accident. Kelly v. Wood, Judge, 265 Ark. 337, 578 S.W.2d 566 (1979); Grimmett v. Digby, Circuit Judge, 267 Ark. 192, 589 S.W.2d 579 (1979).

The difficulty in this case arises because of Ark. Stat. Ann. § 13-1420 (Supp. 1981) which provides:

Officers and employees of the State of Arkansas are immune from civil liability for acts or omissions, other than malicious acts or omission, occurring within the course and scope of their employment.

The trial court held that this provision precluded a lawsuit against the appellees, since they were acting in their official capacity when they stopped the two tractor-trailers. We are holding that an employee of the State.of Arkansas who had liability insurance to cover negligence in the operation of a motor vehicle can be sued directly and tne insurance company held liable for damages caused by the employee’s negligent acts, even though the employee at the time is in the performance of duties as a state employee. While this is consistent with our decision in Grimmett, the Legislature has enacted a statute pertinent to this case. The title of Act 586 of 1981 reads:

An Act to Require the Arkansas State Claims Commission to Hear All Claims Regardless of Insurance Coverage; to Provide That a Claimant Must Exhaust All Remedies Against Insurers Before Filing a Claim with the Claims Commission; to Prohibit the Claims Commission from Hearing Subrogation Claims; to Grant Civil Immunity to State Employees for Non-Malicious Acts Occurring within the Course and Scope of Their Employment; to Require the Claims Commission to Refuse Consideration of a Claim if the Subject Matter of That Claim Has Been Before Any Court of Law or Equity and That Court Has Rendered a Final Judgment or Order; and for Other Purposes.

The relevant sections applicable to this case are:

SECTION 3. If the Arkansas State Claims Commission awards damages to a claimant who has received benefits under any policy of insurance, the premium of which has not been paid by or on behalf of the claimant, the Commission shall reduce its award by the amount of insurance benefits received by the claimant. The Arkansas Claims Commission shall not reduce awards for damages to a claimant who has received benefits under a policy of insurance the premium of which has been paid by or on behalf of the claimant.
SECTION 5. Officers and employees of the State of Arkansas are immune from civil liability for acts or omissions, other than malicious acts or omissions, occurring within the course and scope of their employment.
SECTION 8. Emergency. It is hereby found and determined by the General Assembly that the State Claims Commission does not now hear claims when the injured party has received partial compensation from an insurer; that such policy is inequitable and that this Act is immediately necessary to provide such equitable treatment.

This Act is codified as Ark. Stat. Ann. § 13-1420 et seq. (Supp. 1981).

There is another pertinent Act applicable to this case, Act 543 of 1977. The title reads:

An Act Authorizing the State of Arkansas to Pay Actual Damages Adjudged Under Certain Circumstances Against Officers or Employees of Arkansas State Government, or Against the Estate of Such an Officer or Employee; Defining the Extent of Applicability of the Act; and for Other Purposes.

The relevant sections applicable to this case are:

SECTION 1. The State of Arkansas shall pay actual, but not punitive, damages adjudged by a state or federal court, or entered by such a court as a result of a compromise settlement approved and recommended by the Attorney General, against officers or employees of the State of Arkansas, or against the estate of such an officer or employee while acting without malice and in good faith within the course and scope of his employment and in the performance of his official duties.
SECTION 3. Damages payable under this Act shall be reduced to the extent that the officer or employee has been indemnified or is entitled to indemnification under any contract of insurance.

This Act is codified as Ark. Stat. Ann. § 12-3401 et seq. (Repl. 1979).

Statutes enabling the public to seek redress against government officials, as both these statutes do, are enacted to benefit the public. We have held that such statutes are to be interpreted most favorably to the public. Laman v. McCord, 245 Ark. 401, 432 S.W.2d 753 (1968). We have also held that any interpretation of a statute which avoids opportunities to evade the act is favored in the law. Sturdivant, Adm’x v. City of Farmington, 255 Ark. 415, 500 S.W.2d 769 (1973). We can observe both of these rules if we hold that § 13-1420 is not to be construed to provide governmental immunity since that is controlled by § 12-3401. Although it is a general rule of construction that a repeal by implication of the earlier statute is accomplished whenever the legislature enacts a subsequent, conflicting statute, Berry v. Gordon, 237 Ark. 547, 376 S.W.2d 279 (1964), it is also a rule that our function is to ascertain and give effect to the intent of the legislature. Berry, supra. We held in Berry that the “reason, spirit, and intention of the legislature . . . shall prevail over its letter . . .especially. . . where adherence to the letter would result in absurdity or injustice, or would lead to contradiction, or would defeat the plain purpose of the law.”

These Acts recognize the reality that state employees are being sued in our state and federal courts and being held liable for damages. The provisions of the Acts allow state employees to be held liable for negligent acts which occur during the course and scope of their employment and in the performance of official duties where an employee has liability insurance. Act 543 of 1977 provides for a way of paying claims adjudged against employees who have no insurance to pay the claim or the claims exceed the limits of the employee’s coverage. In no instance are the employees to incur any personal liability for their nonmalicious acts.

The trial court in this case held that the two state employees in question were immune from suit under Ark. Stat. Ann. § 13-1420 (Supp. 1981). Wereverse the trial court’s dismissal of the appellees from this lawsuit and remand this case for further proceedings not inconsistent with this opinion.

Darrell Hickman, Justice,

concurring upon rehearing. Essentially, I agree with the substituted opinion which I conclude holds a state employee that has liability insurance may be sued, that is, named a party defendant, but may not be held personally liable for negligent acts that occur in the course of his employment.

This is not consistent with our decision in Grimmett v. Digby, 267 Ark. 192, 589 S.W.2d 579 (1979), which held a state employee could be found liable personally for negligent acts which violate a duty imposed on him in common with all other people.

After our decision in Grimmett, the General Assembly in 1981 passed Act 586 which contains a section that unequivocally is contrary to Grimmett. It reads: “Officers and employees of the State of Arkansas are immune from civil liability for acts or omissions, other than malicious acts or omissions, occurring within the course and scope of their employment.” § 13-1420. The result we have reached in this case is consistent with the provisions of Act 586 and Act 543 of 1977.


author: P. A. Hollingsworth, Justice.

text:
    Sanders CARTER v. STATE of Arkansas
    CR 84-25
    670 S.W.2d 439
    Supreme Court of Arkansas
    Opinion delivered June 11, 1984
    Appellant, pro se.

      Steve Clark, Atty Gen., by: Alice Ann Burns, Dep. Atty Gen., for appellee.
   P. A. Hollingsworth, Justice.

The appellant, Sanders Carter, pleaded guilty to burglary and criminal attempt to commit rape and was sentenced to two ten-year prison terms, to run concurrently. Seven months after the judgment was entered, the appellant filed a motion seeking post-convicdon relief pursuant to Ark. R. Crim. P. 37. After a hearing, the relief was denied. We affirm.

In his petition for post-conviction relief, the appellant argues that his plea was rendered involuntary by the court’s failure under Ark. R. Crim. P. 24.4 (d) to inform him of the direct consequences of his guilty plea. Because this is the appellant’s second conviction, he is subject to Act 93 of 1977, Ark. Stat. Ann. § 43-2829 (Supp. 1983), which requires a second offender to serve one-half of his sentence before becoming eligible for parole. In contrast, first offenders must serve one-third of their sentences under the parole rules and regulations. The appellant argues that he voluntarily pled guilty based on what the court told him when he entered his plea and that no mention was made to him of the parole requirement for second offenders.

This Court reverses a denial of post-conviction relief only if the lower court’s findings are clearly against the preponderance of the evidence. Williams v. State, 273 Ark. 371, 620 S.W.2d 277 (1981). Here, the trial court’s findings are correct.

We have held several times that a question involving parole eligibility is not an attack on the validity of the sentence imposed, but rather is an attack on the execution of the sentence. Such a challenge is not a proper matter to be considered in a petition for post-conviction relief. Bosnick v. State, 275 Ark. 52, 627 S.W.2d 23 (1982); Rightmire v. State, 275 Ark. 24, 627 S.W.2d10 (1982); Higgins v. State, 270 Ark. 19, 603 S.W.2d 401 (1980); Houff v. State, 268 Ark. 19, 593 S.W.2d 39 (1980).

In Clark v. State, 271 Ark. 866, 611 S.W.2d 502 (1981), the petitioner raised the same argument, that Ark. R. Crim. P. 24.4 (d) required the trial judge to advise him that he might be subject to additional or different punishment because of his status as a prior offender. In Clark, we stated that substantial compliance with Rule 24.4 is sufficient and that the critical question is whether the plea was voluntary. Here, the petitioner did nqt designate the portiqn of his transcript that covered his plea and sentencing, making a review impossible. We said in Clark however, “that even a silent record does not require automatic reversal if it be proved at a post-conviction hearing that the plea was voluntarily and intelligently made.” At his evidentiary hearing, the appellant testified that the only reason he was challenging the voluntariness of his plea was because of the court’s failure to inform him of parole considerations. When asked by the trial judge if he would still have entered his guilty plea if he had known about his parole status, the appellant replied that he was unable to say whether or not he would have pled guilty if he had known of Act 93 but that “it would have carried considerable weight in making my decision to plead guilty and. . .1 would have consulted with my attorney to get a full understanding of Act 93 and what consequences it would have served on my sentence.” Because he does not state that he would not have pled guilty had he been so informed by the court, the appellant fails to establish that he has been prejudiced in any way. The only other evidence the appellant offered at his hearing was the testimony of his mother and sister who both stated that the only thing they heard was that the appellant could either “take 10 years or get 40.” An accused’s justified fear of receiving a higher sentence if he went to trial does not warrant post-conviction relief. Thomas v. State, 277 Ark. 74, 639 S.W.2d 353 (1982).

In Rightmire, supra, an almost identical situation is presented, except there the petitioner stated that he definitely would not have accepted the plea agreement had he known of its effect on his consideration for parole. In Rightmire, we held: within the control of the Departent of Correction and the courts have nothing to do with the parole system in the ordinary course of events.

It appears the appellant was satisfied with his sentence until he determined he was going to have to serve a longer period than he anticipated when he entered the guilty plea. There is no requirement that his attorney or the court or anyone else tell him how long he will have to serve on any given sentence. In fact, it would be sheer speculation for an attorney or the court to tell an accused that upon being sentenced to a time certain he would only have to serve a certain percentage of that time. This is a matter that is solely

Affirmed.


author: Thomas L. Cashion, Special Justice. Robert H. Dudley, Justice,

text:
    John W. HALL, Sr. v. Reed W. THOMPSON, Mayor of the City of North Little Rock, Arkansas, in his individual and official capacity
    83-177
    669 S.W.2d 905
    Supreme Court of Arkansas
    Opinion delivered June 11, 1984

      John Wesley Hall, Jr., for appellant.

      Jim Hamilton, City Atty., for appellee.
   Thomas L. Cashion, Special Justice.

Appellant filed a taxpayer’s suit for a declaratory judgment to keep the City of North Little Rock from paying a fee to a private attorney. The attorney had represented the mayor of North Little Rock, who had been charged with disorderly conduct and resisting arrest. These charges were subsequently dismissed. The complaint alleged an illegal exaction which is prohibited by art. 16, § 13, Constitution of the State of Arkansas. The chancellor dismissed the complaint and this appeal resulted.

John W. Hall, Sr., instituted this suit against Reed W. Thompson in his capacity as mayor and as an individual. Thompson hired a private attorney to defend him against the charges of disorderly conduct and resisting arrest. The arrest grew out of an incident of October 12, 1982, when the mayor went to the police and courts building. The chief of police was in the process of investigating a wrecker contract entered into between the city and a third party. As part of the investigation, subpoenas were issued for several members of the mayor’s staff. When the mayor went to the police department to find out what was happening some type of disagreement between him and the chief of police ensued and the chief arrested the mayor for disorderly conduct and resisting arrest. The mayor denied any wrongdoing. At the trial it was stipulated that Chief Younts was a well qualified officer and if he were present he would testify he had probable cause to arrest Thompson. Prior to the trial of the case, the bill for the private attorney, in the amount of $3,600, was paid from the mayor’s emergency fund. No appropriation for the attorney’s fee was made by the city council. Although there had been a resolution passed by the city council agreeing to appropriate funds as needed for the purpose of paying outside counsel in matters requiring use of such attorneys there was no effort to proceed in accordance with the resolution.

The funds used by Thompson to pay his privately retained defense counsel were taxpayers’ money. The Arkansas Constitution, art. 16, § 13, authorizes any taxpayer to institute suit in behalf of himself and all other interested parties against illegal exactions. The suit was properly filed. The fact that the funds sought to be prevented from being expended had been spent before the chancellor rendered the decree would ordinarily render the question moot. However, we reach the merits because of the possibility of future similar disputes. To fail to reach the merits of the case would tend to encourage the expenditure of public monies without proper procedures and safeguards.

We now consider the argument that this expenditure was an illegal exaction. There is no statutory authority in Arkansas allowing payment of attorney’s fees for public officials and employees when they are terminated or charged with criminal offenses. Even if a public employee is wrongfully discharged and subsequently ordered reinstated he is not authorized to collect attorney’s fees from public funds. Williams v. Little Rock Civil Service Commission, 266 Ark. 599, 587 S.W.2d 42 (1979). Other jurisdictions have also held that attorney’s fees are not recoverable by public officials or employers who are successful in getting the charges dismissed. Chapman v. City of New York, 168 N.Y. 80, 61 N.E. 108 (1901); Schieffelin v. Henry, 123 Misc. 792, 206 N.Y.S. 172 (1924); Guerine v. City of Northlake, 1 Ill. App.3d 603, 274 N.E.2d 625 (1971); Holtzendorff v. Housing Authority of Los Angeles, 250 Cal. App. 2d 596, 58 Cal. Rptr. 886 (1967), cert. denied, 389 U.S. 1038 (1968). In Chapman, supra, the court stated:

It is not the duty of the public to defend or aid in the defense of one charged with official misconduct. The history of morals or jurisprudence recognizes no such obligation. When a citizen accepts a public office, he assumes the risk of defending himself against unfounded accusations at his own expense.

Many other cases from various jurisdictions hold that payment of attorney’s fees for defending against criminal charges is the responsibility of the person so charged.

The official duties of a public official or employee never require him to participate in criminal activities except in most unusual cases. Certainly Mayor Thompson was not charged with performing his public duties. He was charged with violating criminal laws.

The fact that he was not convicted does not change the reason for the arrest. Nothing in the record tends to show that the public benefitted from the confrontation of the two officials. There being no public benefit by the conduct of the mayor, it follows that the public should not pay for his defense.

If the mayor were falsely arrested, he has a right to claim against the responsible parties. If he should recover, it would be purely personal.

Although the exaction was illegal we are unable to do more than declare it so. Neither the city nor the attorney is a party in this proceeding.

Reversed.

Hays, J., not participating.

Dudley and Hollingsowrth, JJ., dissent.

Robert H. Dudley, Justice,

dissenting. I dissent both on a procedural basis and on a substantive basis.

The appellant, John W. Hall, Sr., as a taxpayer, filed suit for a declaratory judgment against the. appellee, Reed W. Thompson, in his capacity as mayor and as an individual. The complaint alleged appellee intended to use public funds to employ attorneys to defend misdemeanor charges filed against him and that such a future expenditure would be against public policy. The appellant sought a declaratory judgment that appellee’s proposed actions were illegal and also sought an injunction to prevent the anticipated expenditure. He did not seek a temporary restraining order, and did not seek to advance the case as a matter of significant public interest. The public funds were expended long before the case came to trial. The appellant did not amend his pleadings although the trial judge granted leave to amend. The suit for declaratory judgment and injunction became moot when the funds were expended. It is still moot. We do not ordinarily decide moot issues. Mabry v. Kettering, 92 Ark. 81, 122 S.W. 115 (1909). There is a second, and more significant, procedural reason not to decide this moot case.

After the public funds were expended the City of North Little Rock became a necessary party. Yet the city was not made a party, nor did appellant amend to allege that he was acting in a trust capacity for the city. Even now, appellant, John W. Hall, Sr., is the only plaintiff. He has made no attempt to comply with Rule 23, the class action rule. See City of Little Rock v. Cash, 277 Ark. 494, 644 S.W.2d 229 (1982). The attorneys who received the funds from the city were not made parties to the action. The appellant does not seek to recover the money which was paid out. The monetary issue was not properly tried, and, in tacitly admitting the lack of necessary parties, the majority states: “Although the exaction was illegal we are unable to do more than declare it so.” Consequently, the taxpayers do not obtain the monetary judgment for an expenditure which the majority holds is illegal. Again, the appeal should be dismissed.

The majority chooses to disregard our established rules of procedure and, instead, to issue an advisory opinion which, in turn, establishes our substantive common law. ] am of the other view on that issue also.

The facts surrounding the misdemeanor charges are not in dispute. The arresting officer, former Police Chief William D. Younts, was allowed to refuse service of summons and, consequently, did not appear at the trial.

Appellant’s attorney was surprised by Younts’ failure to appear and moved for a continuance. In order to avoid a continuance appellee stipulated that if Younts had appeared, he would have testified that he thought he had probable cause to arrest appellee. The only witness at the trial, the appellee, testified that he went to the mayor’s office at the city hall about 3:40 on the afternoon of October 12, 1982. The city clerk told him that Chief Younts and another officer had intimidated her. She told him the two officers had subpoenaed both the city finance director and the city purchasing officer, and, at that time, they were still at the police department. The appellee testified that he knew the city finance director had suffered a heart attack. He testified that he was concerned about the finance director’s physical condition and wondered why it was necessary for the police to subpoena the city employees to the police department. He stated that, as part of his official duty, he left his office to go to the police department. He testified that while he was in the hallway, just outside the chief’s office, he was arrested by Chief Younts and charged with disorderly conduct and resisting arrest. The appellee testified that he was not disorderly and did not even raise his voice. In municipal court, the appellee was found not guilty on both charges. At the trial of this case, the trial judge did not find Chief Younts had probable cause. In the record before this court, the charges were nothing more than unfounded accusations. The majority opinion recites, “When a citizen accepts a public office, he assumes the risk of defending himself against unfounded accusations at his own expense.”

Certainly, public funds cannot be spent to defend criminal activities by public officials, but the power and the duty of a municipality to defend its officials against unfounded and unsupported criminal charges is an entirely different matter. The independence and integrity of a public office and of the public officer demand their protection against groundless assaults upon the discharge of public duty. See City of Birmingham v. Wilkerson, 194 So. 548 (1940). A public official should be allowed to feel free to fulfill his public duties without worrying about the expense of defending against unfounded accusations. If a municipality, or other governmental entity, is unable to protect its officers from groundless charges, a ruthless person could conceivably prevail over all but wealthy public officials.

Pragmatically, I am concerned about the substantive law embodied in the majority opinion. I do not know who public officials are or whether this holding will be expanded to other governmental entities or whether it will be expanded to civil accusations.

For example, are police officers public officials? If so, how many times can a policeman afford to defend himself against unfounded accusations? Are judges public officials? If so, must they expend their own money every time an inmate files some unfounded accusation and, if so, how long can they afford to serve?

Perhaps the members of the General Assembly will act to change the public policy to one which will clearly allow governmental entities to protect public officials from the expense of defending unfounded accusations.


author: Richard B. Adkisson, Chief Justice. John I. Purtle, Justice,

text:
    Floyd PURSLEY v. Earl Leo PRICE
    84-13
    670 S.W.2d 448
    Supreme Court of Arkansas
    Opinion delivered June 18, 1984

      Thomason & Thomason, by: Bryon Thomason, for appellant.

      Anderson, Crumpler & Bell, P.A., for appellee.
   Richard B. Adkisson, Chief Justice.

On July 3,1982, at about 12:30 a.m. appellee, Earl Leo Price, age 53, drove onto the premises of the American Motel in Magnolia, Arkansas, to air up a tire on his truck. Appellant, Floyd Pursley, age 59, lived on the adjoining property and was sitting under his carport talking to his wife when Price drove up. Pursley had been drinking. Pursley yelled to Price, “Hey man, how about turning your lights out? You’re blinding us over here. ’ ’ Price proceeded to air up his tire. Pursley repeated his request, but when Price failed to respond, he went to his pick-up and got his “varmint gun’’ out. As Price was driving off, Pursley fired several shots at his truck. Price stopped, fell in the seat (because he thought he was dead), crawled from his truck to the motel, and telephoned the police.

Price filed suit, and the jury returned a verdict for damages to the truck in the amount of $367.28) for mental anguish damages in the amount of $20,000.00, and for punitive damages in the amount of $30,000.00. On appeal Pursley argues that the trial court erred in admitting testimony as to his reputation for violence when drinking.

The record reflects that Pursley testified on direct examination that he had never shot at anybody and that he had never had any problem other than a speeding ticket in his life. The police officer who investigated the altercation testified for Price in rebuttal that Pursley had a reputation in the community for violence when he was drinking. When a proponent opens the door to a line of questioning, the opposing party may fight fire with fire by introducing rebuttal testimony on that issue. McCormick, Handbook of the Law of Evidence § 57 (1972). By testifying to his past exemplary conduct Pursley thereby opened the door to the admission of rebuttal evidence, otherwise inadmissible, concerning his reputation for peacefulness. We do not hold or imply that Ark. Unif. R. Evid. 404 is abrogated, but we conclude that under the circumstances of this case, the trial court did not abuse its discretion in admitting the testimony.

Appellant further argues that the reputation testimony was produced without a proper foundation. Appellant’s timely objection to the testimony on this ground was sustained. But appellant failed to move to strike the testimony; therefore, the issue is not preserved for appeal.

Appellant last argues that the jury verdict for mental anguish damages in the amount of $20,000.00 and for punitive damages in the amount of $50,000.00 was so great as to demonstrate passion and prejudice on the part of the jury and to shock the conscience of this Court. We do not agree. Appellant’s conduct was completely unacceptable and repugnant to normal response in civilized society. This Court has previously held that the amount of damages growing out of mental anguish is ordinarily left to the determination of the jury. W.U. Tel. Co. v. Blackmer, 82 Ark. 526, 102 S.W. 366 (1907). Punitive damages constitute a penalty and must be sufficient not only to deter similar conduct on the part of the same tortfeasor, but they must be sufficient to deter any others who might engage in similar conduct. Matthews v. Rodgers, 279 Ark. 528, 651 S.W.2d 455 (1985).

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. Arkansas Unif. R. Evid. 404 states: “Evidence of a person’s character ... is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion. . . .” In my opinion the foregoing words are plain and unambiguous and need no unusual interpretation. It is argued that the exception to the rule set out in Rule 404(a)(1) is applicable here. I do not think so. The exception states: “Evidence of a pertinent trait of his character offered by an accused, or by the prosecution to rebut the same;. . .’’It lakes no stretch of the imagination to see that this exception is intended to be used in criminal cases. Here we have a civil action sounding in tort.

In the present case appellant admitted he was the aggressor. This issue was not in dispute. Even if it were relevant proof would have been unnecessary because the fact was admitted. When the question about this trait of his character was asked his attorney made an objection. The court failed to allow him to state specific objections by stating: “Make your objections now and I will let you specify more in detail later,...” All parties were no doubt aware of Rule 404 at the time of the objection. A lawyer who insists upon stating specific objections, after being told not to do so by the trial court, risks not only losing points with the jury, but exposes himself to possible contempt. I believe everyone understood the reason for appellant’s objection. This court should not evade the real issues and refuse to consider it on its merits. So far as I am concerned this is putting form over substance.

Also, in my opinion the award of damages is shocking to the conscience. Three hundred dollars property damage does not support a $50,000 award for personal damages when there was no physical trauma. I would reverse and remand for another trial because it is obvious the verdict resulted from passion and prejudice.


author: Richard B. Adkisson, Chief Justice. John I. Purtle, Justice, Darrell Hickman, Justice,

text:
    Ralph Lewis KRAMER v. STATE of Arkansas
    CR 84-58
    670 S.W.2d 445
    Supreme Court of Arkansas
    Opinion delivered June 18, 1984

      William R. Simpson, Jr., Public Defender, by: Kelly Carithers, Deputy Public Defender, for appellant.

      Steve Clark, Att’y Gen., by: Patricia G. Cherry, Asst. Atty. Gen., for appellee.
   Richard B. Adkisson, Chief Justice.

Appellant, Ralph Lewis Kramer, was tried and convicted by the court of sexual abuse, 1st degree, in violation of the Ark. Stat. Ann. § 41-1808 (Repl. 1977) and sentenced to four years imprisonment. On appeal appellant argues the evidence is insufficient to support the conviction. We agree.

The victim, a twelve-year-old girl, testified that on June 19,1983, while she was standing in line to get a soft drink in a store, appellant touched her on her buttocks. Appellant argues that the sexual abuse statute does not prohibit touching of the buttocks and that therefore the evidence is insufficient to support the conviction.

Ark. Stat. Ann. § 41-1808 (Repl. 1977) provides:

(1) A person commits sexual abuse in the first degree if:
(c) being eighteen (18) years or older he engaged in sexual conduct with a person not his spouse who is less than fourteen (14) years old.

Sexual contact is defined in Ark. Stat. Ann. § 41-1801(8) (Repl. 1977) as follows:

(8) “Sexual conduct” means any act of sexual gratification involving the touching of the sex organs or anus of a person, or the breast of a female.

It has long been held that penal statutes are to be strictly construed with all doubts resolved in favor of the defendant, and nothing is taken as intended which is not clearly expressed. Austin v. State, 259 Ark. 802, 536 S.W.2d 699 (1976); Scarmardo v. State, 263 Ark. 396, 565 S.W.2d 414 (1978). Touching of the buttocks is not prohibited sexual conduct as defined in Ark. Stat. Ann. § 41-1801(8); therefore appellant’s conviction cannot stand under this statute.

Reversed and dismissed.

Purtle, J., concurs.

Hickman and Hays, JJ., dissent.

John I. Purtle, Justice,

concurring. I take strong exception to the dissenting opinion. It is manifestly unfair to state that the majority legalizes the fondling of twelve year old girls by adult males. Such language is unjustified and unfounded. Sexual contact is defined in Ark. Stat. Ann. § 41-1801(8) (Repl. 1977) as follows: “Any act of sexual gratification involving the touching of the sex organs or anus of a person, or the breast of a female.” I do not understand how any sound thinking person could say the touching of the buttock by a hand through the clothing is expressly included in the foregoing statute. Since it is admitted by the dissent that we strictly construe criminal statutes, I cannot understand the position of the dissent. Perhaps it is a matter which should be taken up with the legislature. It is not our duty or prerogative to construe laws in the manner in which we think they ought to be written. It is the function of the legislative branch of the government to enact laws in the manner in which they deem proper. It is the responsibility of the people to keep the legislative branch informed on such matters. The judicial branch is not given the authority to re-write the laws to its own liking. Perhaps appellant violated some other statute but he clearly did not conduct himself in a manner which is prohibited by Ark. Stat. Ann. § 41-1808( 1 )(c) (Repl. 1977).

Darrell Hickman, Justice,

dissenting. As I understand the majority’s decision, it is not a crime in Arkansas for an adult male to fondle the buttocks of a twelve year old female. The facts are not in dispute. The victim in this case testified that a stranger approached her when she was in a Walmart store and touched her buttocks three times. He placed his hand on her buttocks when she was in line to get a soft drink, as she was walking, and then again as she was getting ice for her drink. He asked her how old she was and when she told him, he asked if she had a boyfriend. She answered, “No, sir.” He said, “Oh, you’re still a virgin.” That evidence would support a finding that the appellant’s act was an intentional one of sexual gratification and meets the statutory definition of sexual abuse in the first degree.

I share in the majority’s concern that the statute in question, if strictly construed, might exclude this type of conduct. Ark. Stat. Ann. § 41-1808 (l)(c) (Repl. 1977). The question is how strictly should it be construed. I believe that when the statute is construed with a measure of reasonableness, and the commentary is considered, the facts of this case allow the conclusion that the appellant is indeed guilty of the statute’s proscriptions.

The critical statutory language in this case is the definition of “sexual contact.” There is no doubt that the appellant engaged in sexual contact with another person less than fourteen years old, as the statute requires, if one interprets the words “sexual contact” in their ordinary sense. The problem lies with the legislature’s definition of “sexual contact.” Under that definition, sexual contact “means any act of sexual gratification involving the touching of the sex organs or anus of a person, or the breast of a female.” Ark. Stat. Ann. § 41-1801 (8). Taken literally, that language would indicate that the majority’s interpretation is correct. The commentary to § 41-1801, however, makes it clear that what the legislature meant by sexual abuse in the first degree was not a rigid, literal definition. Is sexual organ limited to the vagina or clitoris, or does it include the pubic area? Is anus limited to only the orifice itself, or does it include the surrounding area? If not, then the purpose of the law is meaningless, because a sexual assault rather than sexual contact must be committed to violate the law.

In the commentary it is stated that “sexual contact” “subsumes a broad array of sexual intimacies that fall short of sexual intercourse or deviate sexual activity.” (Italics supplied.) It further states that “sexual contact” and “fondling” are synonyms. The prior law, Ark. Stat. Ann. § 41-1128 (Repl. 1964), was captioned “UNLAWFUL FONDLING OF CHILD.” Everyone knows fondling means caressing just as everyone knows that the buttocks of a child are off limits to an adult stranger. The prior code defined fondling as “to intentionally place . . . hands upon or against a sexual part of a male or female or . . . upon the breast of a female. . . .” If that were still the definition I believe the majority would find sufficient evidence to affirm the conviction. If so, the case should be affirmed since, according to the commentary, “sexual contact” and “fondling” are meant to be synonymous within the meaning of the statute although “sexual part” has been replaced by “sexual organs.”

Furthermore, under prior law, even if the appellant’s act did not amount to fondling, it would have been an assault and battery. Formerly, an assault and battery was the unlawful striking of another. Ark. Stat. Ann. § 41-603 (Repl.) 1964). Under that statute where a man took the arm of a woman and tried to kiss her, a charge of assault and battery was sustained. Moreland v. State, 125 Ark. 24, 188 S.W. 1 (1916). In the new criminal code assault and battery both require physical injury or risk thereof. See Ark. Stat. Ann. §§ 41-1601 — 1607 (Repl. 1977). Neither is the appellant’s conduct sexual abuse in the second degree nor sexual solicitation of a child. See Ark. Stat. Ann. §§ 41-1809 and 1810. So, under the majority’s approach, the appellant’s conduct is simply not a crime. The only conclusion is that it is no longe illegal to fondle a young girl as long as the anus, breast, or othe" sexual organ, as defined in a medical dictionary, is not touched. Under that approach a parent would not be justified in using force against a man to prevent him from doing what the appellant did because the appellant did not use unlawful force against the child. See Ark. Stat. Ann. § 41-506. I cannot believe the legislature intended such a result; I do not think it intended to abolish the crime of fondling. Indeed, references to fondling in the commentary confirm that position.

We have had difficulty before with sexual offenses defined in the new criminal code. In Hice v. State, 268 Ark. 57, 593 S.W.2d 169 (1980), we dealt with a situation where the vagina was perhaps not actually penetrated in a rape case. The victim was nine years old. The statute defined intercourse as requiring penetration, however slight, of the vagina by a penis. Ark. Stat. Ann. § 41-1801 (9). We concluded that to find that the victim had not been raped would be ridiculous under the facts and that it was not the intention of the legislature to make a drastic change in the law of rape. In his concurrence Justice Fogleman emphasized that such words as “vagina” and “sexual intercourse” should be given their commonly accepted meaning.

In Clayborn v. State, 278 Ark. 533, 647 S.W.2d 433 (1983), the majority used the same rigid approach it uses today and found a rapist not guilty of rape although the evidence indicated the victim was raped, simply because he did not rape her precisely as charged. Either the legislature made serious mistakes in adopting the new criminal code provisions for sexual crimes or we are being too unreasonable in our decisions — or both.

The Court of Appeals apparently has not had the problem we have had in interpreting the code provisions. In Green v. State, 7 Ark. App. 175, 646 S.W.2d 20 (1980), an eight year old girl testified that the appellant had put his finger up her bathing suit. The conviction for sexual abuse in the first degree was upheld.

The requirement of strict construction of criminal statutes does not mean that we should find a way to exonerate criminal conduct. The question in such cases as these is whether the language of the statute puts a person of ordinary intelligence on notice of the prohibited conduct. Jordan v. State, 274 Ark. 572, 626 S.W.2d 947 (1983). In my judgment there is no doubt that a person or ordinary intelligence, who acted as the appellant did in this case, would know that he had committed sexual abuse as defined in the statute. Therefore, I would affirm appellant’s conviction.

Hays, J., joins in this dissent.


text:
    Nell Tarwater RICKNER v. ESTATE OF Charles A. RICKNER, Deceased
    84-51
    670 S.W.2d 450
    Supreme Court of Arkansas
    Opinion delivered June 18, 1984

      Guy H. “Mutt” Jones, Sr., Phil Stratton, and Casey Jones, by: Phil Stratton, for appellant.

      Stephen E. James, P.A., for appellee.
   George Rose Smith, Justice.

Section 23'of the Probate Code states what has long been the law in Arkansas: “If after making a will the testator is divorced or the marriage of the testator is annulled, all provisions in the will in favor of the testator’s spouse are thereby revoked.” Ark. Stat. Ann. § 60-407 (Supp. 1983). The question in this case, as argued by the appellant, is whether the statute is applicable when the testator’s marriage was void for bigamy. The probate judge held that, on the facts, the divorced wife of the testator is estopped to take advantage of the statute. We agree with that decision.

The testator, Charles A. Rickner, and the appellant, Nell Tarwater Rickner, were married in Mississippi in 1950, although Rickner was riot divorced from his first wife until 1952. In 1978 Rickner executed his will, naming his wife, the appellant, as his residuary beneficiary, with the property to be held in trust for the testator’s grandchildren if his wife predeceased him. In 1979 Rickner obtained a divorce from the appellant. The decree approved a property settlement agreement by which Mrs. Rickner received about $80,000 in cash or promissory notes, seven shares of stock, a car, and assorted household goods and furniture. Rickner died in 1980 without having revoked his will.

On the foregoing facts the case was submitted to the probate judge on briefs in September 1981. After an unexplained delay of two years the court entered a judgment holding that the decree of divorce was not void on its face and that the appellant, having received her share of the marital property, is estopped to claim that there was no valid marriage. The appeal comes to us under Rule 29 (1) (c).

It is conceded that a bigamous marriage is void. We need not decide, however, whether our implied revocation statute would apply to Rickner’s will if there were no basis for the trial court’s finding of an estoppel. There is a solid basis for that finding. The appellant recognized the validity of her marriage in obtaining her share of the marital property in the divorce proceeding. Without offering to return that property, she now seeks to obtain the bulk of her former husband’s remaining property on the ground that the marriage was void. The contradiction is undeniable. A party cannot invoke a court’s jurisdiction to obtain a benefit and then complain, in order to obtain an additional benefit, that the court had no jurisdiction. See Davis v. Adams, 231 Ark. 197, 328 S.W.2d 851 (1959). Nothingwould be gained by our discussing the issue in further detail.

Affirmed.


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

text:
    THE KROGER COMPANY v. Sam STANDARD, Jr.
    84-10
    670 S.W.2d 803
    Supreme Court of Arkansas
    Opinion delivered June 18, 1984
    [Rehearing denied July 16, 1984.]

      Owens, McHaney ir Calhoun, by: John C. Calhoun, Jr. and James M. McHaney, Jr., for appellant.

      Hulen & Cuffman, by: Phillip Cuffman, for appellee.

      Purtle, J., would grant rehearing.

   Robert H. Dudley, Justice.

The manager of the Kroger store on Camp Robinson Road in North Little Rock gave the police an affidavit stating that appellee had concealed a boneless ham in a sack and attempted to leave the store without paying for it. The police arrested appellee pursuant to Ark. Stat. Ann. §41-2251 (b)(Repl. 1977), which provides that a merchant’s affidavit is sufficient probable cause for making an arrest. Appellee was acquitted and subsequently filed this suit for malicious prosecution. A jury awarded appellee $7,000 compensatory damages and $36,000 punitive damages. Appellant then filed a motion for judgment n.o.v. or, in the alternative, for a new trial or remittitur. The trial court denied the motion for judgment n.o.v. and a new trial on the condition that appellee consent to a remittitur to $7,000 compensatory and $18,000 punitive damages. Appellee consented to the remittitur, and appellant Kroger filed a notice of appeal. Appellee filed a notice of cross-appeal for reinstatement of the j ury punitive damage award. We reverse and dismiss on direct appeal. Jurisdiction is in this court under Rule 29 (l)(o).

We first address appellee’s motion to dismiss the direct appeal. Although we have never had the issue presented, the general rule is that, when the trial court has ruled that the amount of the verdict is excessive, but has permitted the plaintiff to elect between consenting to a reduction of his verdict or a new trial, and the plaintiff selects remittitur, he is bound thereby and may not appeal. 4 Am. Jur. 2d, Appeal and Error § 245 (1962) citing Fulton v. Ewing, 336 Mich. 51, 57 N.W.2d 441 (1953); Sergeant v. Watson Bros. Transp. Co., 224 Iowa 185, 52 N.W.2d 86 (1952), and Florida East Coast Ry. Co. v. Buckles, 83 Fla. 599, 92 So. 159 (1922). See also Annotation, 16 A.L.R.3d 1327, Party’s Acceptance of Remittitur in Lower Court As Affecting His Right to Complain in Appellate Court As To Amount of Damages for Personal Injury. Here, the defendant sought either a remittitur or a new trial. The trial court ordered a remittitur if the plaintiff consented, or alternatively, if he did not consent, a new trial. The plaintiff chose to consent to the reduced j udgment and, under the general rule, cannot appeal. However, in this case it is the defendant who seeks to appeal. The plaintiff contends that the defendant impliedly consented to the reduced judgment and barred itself from appeal, and a defendant should be barred from appeal just the same as the plaintiff is barred. Although this is the rule in some states, we think the fairer procedure is to allow a defendant to appeal. We agree with the reasoning of the Kansas Supreme Court which held that when a party against whom the verdict was entered makes a motion to reduce the verdict and the motion is granted and the judgment entered for the residue, that party has neither acquiesced nor consented in the new judgment, and is not barred from appeal. Garden City v. Commercial Turf Irrigation, 230 Kan. 272, 634 P.2d 1067 (1981); overruling Anstaett v. Christesen, 192 Kan. 572, 389 P.2d 773, and Hawkins v. Wilson, 174 Kan. 602, 257 P.2d 1110. Here, as in the Kansas case, the defendant did not formally consent to the judgment as did plaintiff. Moreover, the defendant never had a chance to accept or reject the amount of reduced judgment, as did the plaintiff. Thus, in this matter of first impression, we hold that a defendant may appeal, even though he had previously moved in the alternative that a judgment against him be reduced or that he be granted a new trial and the plalintiff consented to the alternatively ordered remittitur. However, when the defendant appeals, the plaintiff will be allowed to file a cross-appeal. Morrison v. Lowe, 274 Ark. 358, 625 S.W.2d 452 (1981). Since the appeal and cross-appeal are allowed in this case, we discuss the merits of the appeal.

Appellant Kroger’s principal argument is that probable cause existed for the prosecution of appellee and therefore it was entitled to a judgment notwithstanding the jury verdict. The test for determining probable cause is an objective one based not upon the accused’s actual guilt, but upon the exsitence of facts or credible information that would induce a person of ordinary caution to believe the accused to be guilty. Malvern Brick and Tile Co. v. Hill, 232 Ark. 1000, 342 S.W.2d 305 (1961). Ordinary caution is a standard of reasonableness which presents an issue for the jury when the proof is in dispute or is subject to reasonable inferences. Parker v. Brush, 276 Ark. 437, 637 S.W.2d 539 (1982). The trial judge may decide, as a matter of law, whether ordinary caution exists only when the facts and the reasonable inferences from those facts are undisputed. Id. A trial judge may grant a judgment n.o.v. if there is no substantial evidence to support the jury verdict, and one party is entitled to judgment as a matter of law. Findley’s Adm’x v. Time Ins. Co., 269 Ark. 257, 599 S.W.2d 736 (1980). The definition and test for substantial evidence are stated in Pickens-Bond Const. Co. v. Case, 266 Ark. 323, 584 S.W.2d 21 (1979):

Substantial evidence has been defined as “evidence that is of sufficient force and character that it will, with reasonable and material certainty and precision, compel a conclusion one way or the other. It must force or induce the mind to pass beyond a suspicion or conjecture.” Ford on Evidence, Vol. 4, § 549, page 2760. Substantial evidence has also been defined as “evidence furnishing a substantial basis of fact from which the fact in issue can reasonably be inferred; and the test is not satisfied by evidence which merely creates a suspicion or which amounts to no more than a scintilla or which gives equal support to inconsistent inferences.” Wigmore on Evidence, Vol. IX, 3rd ed § 2494, footnote at page 300. See also Tigue v. Caddo Minerals Co., 253 Ark. 1140, 491 S.W.2d 574; Goza v. Central Ark. Dev. Council, 254 Ark. 694, 496 S.W.2d 388.

It is the duty of the appellate court to determine whether there was competent substantial evidence to support the jury verdict. Although many facts in this case are disputed, the facts concerning Kroger’s exercise of ordinary caution are not. Kroger had the benefit of Ark. Stat. Ann. § 41-2202 (2) (Repl. 1977) which provides:

Shoplifting Presumption. The knowing concealment, upon his person or the person of another, of unpurchased goods or merchandise offered for sale by any store or other business establishment shall give rise to a presumption that the actor took goods with the purpose of depriving the owner, or another person having an interest therein.

Given this statutory presumption, there was substantial evidence that the appellant exercised ordinary caution. Appellee’s proof only created a suspicion or caused conjecture. Moreover, Rule 301 of the Arkansas Uniform Rules of Evidence provides that “a presumption imposes on the party against whom it is directed the burden of proving that the nonexistence of the presumed fact is more probable than its existence.” Appellee’s testimony, when viewed in light of the shoplifting presumption and Rule 301, is not substantial evidence that Kroger failed to exercise the ordinary caution exhibited by the reasonable prudent merchant. Appellee’s proof thus fails to meet the substantial evidence test. The lack of substantial evidence of Kroger’s failure to exercise ordinary caution leaves us with Kroger’s evidence that it did exercise ordinary caution. It follows that the trial court should have granted a judgment notwithstanding the verdict.

The facts in this case, when viewed most favorably to the appellee, as we are bound to review them, are summarized as follows: Appellee worked as a route salesman for Max Factor and as such regularly serviced several Kroger stores in the Little Rock area. He was servicing his account at the Kroger store on Camp Robinson Road when a Kroger employee asked him for some Toujours Moi, a perfume spray. Appellee took two of Kroger’s bottles of perfume from the shelf and wrote a Max Factor credit slip for $25.00 to pay for the perfume. He routinely did this as a promotion for Max Factor. Appellee then decided to purchase a boneless ham. He wanted to purchase the ham with the Max Factor credit slip but he knew that Max Factor policy prohibited him from writing more than one credit slip a month at each store. He decided he would replace the two bottles of perfume and exchange the credit slip for the ham. He interned to get one of the replacement bottles from the trunk of his car and the other from a pharmacy in North Little Rock, bring them both back to the store, and place them on the shelf. He told one of the regular employees that he wanted to exchange the merchandise but he knew it would require the approval of someone in higher authority at the store. The person he had hoped would authorize the exchange was not at work that day. In plain view of a Kroger employee, he picked up the ham and placed it inside a heavy brown paper bag. The employee reported what she had seen to the manager. Later, appellee was in a back room of the store when the manager came in. He said nothing to the manager about the ham because the manager seemed to be in a hurry. The manager subsequently asked a different employee to verify if appellee still had the ham in the bag. The employee confirmed that appellee still had the ham. Appellee then folded the top of the bag to keep air from getting to the cold ham, placed a claim for credit across the top of the bag and stapled it shut. The claim for credit recited that it was for Max Factor “credit script # 92821.” Max Factor credit script #92821 recited that it was for “Unsalable items nonreturnable.” The claim for credit said nothing about a ham. If the store manager had not known the ham was in the bag, he would have thought it was damaged Max Factor merchandise because Max Factor merchandise is all that appellee was authorized to pick up with a claim for credit. The manager next went to a place in the front area of the store by a railing which was twenty-one feet two inches past the last cash register and six feet six inches from the front door. The appellee observed the store manager and walked past the cash register toward the manager. Appellee testified:

I walked up to this railing. I set the ham on top of the railing and he turned around and he said “What do you have?” I said “I have a credit here I have written for perfume and I have a ham to see if you will authorize an exchange of merchandise for Toujours Moi.”

The store manager then asked appellee to go to the office and discuss the concealed ham. Appellee testified that the store manager said it looked like appellee was going to walk out of the store. Appellee responded by saying, “No way. You don’t even take a paper clip without authorization.” Appellee explained that he intended to exchange merchandise. Appellee was allowed to leave the store and he continued his route. While he was gone the store manager checked with the two employees who had received the perfume and they said the credit slip was for the perfume. Late in the afternoon appellee received a call from the Kroger area manager who asked him to return to the store. Upon returning to the office appellee was informed by both the store manager and area manager that it looked like he was trying to leave the store with the merchandise. Appellee then again stated that he intended to replace the perfume and exchange script for the ham. He had brought the two replacement bottles of pefume with him. The area manager then left the room and the store manager told appellee that he would not authorize an exchange like that. Appellee testified that he told the store manager that all he wanted was an authorization. The area manager stuck his head in five minutes later and said, “Book him.” The arrest and prosecution followed. The jury found Kroger guilty of malicious prosecution and fixed the amounts at $7,000 for compensatory damages and $36,000 for punitive damages. The trial court reduced the punitive damages but refused to grant a judgment for the defendant notwithstanding the verdict.

The evidence which would induce a person of ordinary caution to believe the accused to be guilty is substantial. The appellee placed the ham in a heavy brown paper bag, folded the top of the bag over, placed a claim for credit across the top of the bag and stapled it shut. The ham was concealed in the bag and the claim for credit indicated to Kroger employees that damaged Max Factor merchandise was in the bag. The appellee had the opportunity, in the back room, to ask the store manager if he could exchange merchandise and pay for the ham with the script but he did not do so. The appellee walked twenty-one feet past the cash register without paying for the concealed ham. He got to within six feet six inches of the front door when the manager turned around and faced him. Again, he said nothing about the ham. It was not until after the manager asked, “What do you have?” that appellee offered any explanation of the concealed ham. This constitutes substantial evidence by which a person of ordinary caution would believe appellee was guilty of shoplifting. We are left with the question of whether there was any substantial evidence of lack of ordinary caution so that a jury question was presented.

At common law, if a storekeeper observed someone stealing his goods, he was permitted to use reasonable force to retake the goods. However, there was no room for mistake and if the shopkeeper was wrong, he was liable. See 28 Proof of Fact 2d, Customer’s Concealment, § 1, 47 ALR 3d 998, False Imprisonment — Shoplifters, § 3. At that time most storekeepers had small shops and kept most of their wares stacked on shelves behind glass counters. The customers could not ordinarily touch the goods out of the shopkeeper’s sight and consequently there was little doubt when someone was stealing. Today, modern supermarkets are tens of thousands of square feet in size and display nearly all of their goods on open shelves within easy reach of the customer. The customer picks up the goods and can continue shopping over the entire store area before taking his selections to a check-out stand. This great size and easy accessibility make it very difficult for a merchant to know when someone is shoplifting from the shelves. See 28 Proof of Fact 2d, Customer’s Concealment, supra.

The common law is not sufficient to protect today’s merchants. Many states, including Arkansas, have enacted legislation which is designed to protect merchants who, in good faith and with ordinary caution, detain suspected shoplifters or prosecute them. See Ark. Stat. Ann. § 41-2202 (2) (Repl. 1977), supra.

The facts of this case, coupled with the shoplifting presumption would induce a person of ordinary caution to believe appellee was guilty of shoplifting.

The appellee contends there is a substantial evidence of lack of ordinary caution for three reasons. First, appellee contends he was walking to the store manager to discuss the exchange and not to get out of the store, when the store manager asked him what was in the sack. Second, he explained that he wanted to exchange the merchandise. Third, the store manager did not immediately decide to prosecute. None of the arguments amount to substantial evidence of lack of ordinary caution. Appellee’s subjective intent while walking past the check-out counter is not an overt act which can be observed by a merchant. The refusal of the store manager and area manager to believe an improbable explanation does not amount to substantial evidence of lack of ordinary caution. The fact that the appellant chose to take three or four hours before initiating the prosecution is evidence of more than ordinary caution, not substantial evidence of lack of caution. There simply is no substantial evidence of lack of ordinary caution. Thus, the trial court erred in failing to grant a judgment notwithstanding the jury verdict.

The trial court recognized the lack of substantial evidence to prove lack of ordinary caution when he observed:

I have trouble even finding that they even acted wrongly at all. And that’s my biggest hurdle trying to get over that. I was tempted to say, let’s just set it aside and try it new because I just don’t think that’s a good verdict. I think the testimony your man gave, frankly, was just preposterous. And maybe I should have granted a directed verdict. You know, I gave the benefit of the doubt and let it go to the jury. Maybe we ought to just set it aside and try it again.
# # #
The far more logical story is what Kroger represented. It just doesn’t even compare in logic.
* # *
This guy tried to walk out with a ham without paying for it.

There is no substantial evidence to sustain the verdict on direct appeal. Reversed and dismissed on direct appeal. Consequently, the cross-appeal is moot.

Purtle, J., and Hollingsworth, J., dissent.

John I. Purtle, Justice,

dissenting. I reach a different conclusion because I find there is substantial evidence to sustain the verdict. It is necessary to restate some of the facts to establish the substantial evidence upon which I rely. The appellee wrote a $25.00 credit script, which he was authorized to do, against the Max Factor account at the Kroger store here in question. Subsequently he went to the meat department and selected a ham which he intended to pay for with the credit script. He placed the ham in a bag and placed the claim for credit across the top of the bag and stapled it shut. He stated he intended to discuss the matter with a Kroger employee with whom he was acquainted, but the Kroger employee was not at work that day. He decided to talk with the manager of the store about the exchange. At this time the manager was near the store exit inside the store building. The appellee openly carried the ham to the manager and stated he wanted to get authorization to exchange the credit script for the ham. The first words which were spoken between the two men were: “What do you have?” “I have a credit here I have written for perfume and I have a ham to see if you will authorize an exchange of merchandise for Toujours Moi.” During subsequent conversation the manager stated it looked like appellee was going out of the store with the ham. The appellee’s response was, “No way. You don’t even take a paper clip without authorization.” Other employees of Kroger testified that appellee was open and above board with everything he did in relation to the transaction here in question.

I take exception to the words in the majority opinion referring to the ham as being “concealed.” In the first place a ham is at least partially concealed when it is packaged for sale. However, in this case several employees saw the ham placed in the paper bag. The first thing the appellee said to the manager, was, “I have a ham.” The appellee never attempted in any manner to deny that he had a ham in the bag. In fact I do not think that the majority means to state that he tried to steal the ham. The question was whether there was substantial evidence to support the action taken by appellant. I think not. The appellee explained in detail why he had the ham. His story was backed up by a number of Kroger employees. The manager may possibly have had cause to be suspicious or even to think that appellee was attempting to sneak the ham out. However, after appellee’s explanation and verification by other Kroger employees, there was absolutely no ground upon which the appellant could file valid charges and accuse the man of stealing. This was borne out by the fact that he was acquitted at the trial he was forced to endure because of the vindictive and malicious acts of the appellant’s store manager. I would affirm.

Holllingsowrth, J., joins in this dissent.