author: George Rose Smith, Justice. John I. Purtle, Justice,

text:
    Earnest HOUFF v. STATE of Arkansas
    CR 79-203
    593 S.W. 2d 39
    Supreme Court of Arkansas
    Opinion delivered February 4, 1980

      Christopher Thomas, for appellant.

      Steve Clark, Atty. Gen., by: Catherine Anderson, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

Houff was charged with having committed burglary on March 13, 1974. After a conviction and a reversal by this court (in an unpublished opinion), a negotiated plea of guilty was entered while Houff was being represented by a deputy public defender. At a hearing on March 3, 1978, the late Judge Kirby accepted the plea of guilty and imposed the recommended 20-year sentence, to run concurrently with a sentence that Houff was already serving in the Department of Correction. The judgment directed that at least one third of the sentence be served before Houff would be eligible for parole.

Ten months later Houff filed the present petition for postconviction relief under Rule 37. His pleading and proof assert that his plea was involuntary in that he was assured by the judge, the prosecutor, and his own counsel that he would be required to serve only a third of his sentence before parole eligibility. He alleged, however, that the Department of Correction was requiring him to serve half his sentence before such eligibility. The question is whether the plea of guilty was voluntary and not the result of ineffective assistance of counsel, those being the only issues presented by this record. See Irons v. State, 267 Ark. 469, 591 S.W. 2d 650 (1980).

At the hearing below, the petitioner introduced the transcript of the hearing before Judge Kirby when he accepted Houfffs plea of guilty. That transcript contains statements made by the court, by counsel, and by Houff, but it does not support HoufFs contention that he was assured that he would have to serve only a third of his sentence before being eligible for parole. Houff testified at the Rule 37 hearing, however, that when his plea of guilty was accepted an unreported discussion took place in Judge Kirby’s chambers. He said that the judge and the prosecuting attorney promised him that he would have to serve only a third of his sentence. HoufFs most favorable statement of his position is set forth in this excerpt from his testimony at the Rule 37 hearing:

Well, after they read the law—I didn’t get a chance to read it. They read it. But Judge Kirby said it wasn’t no way possible for me to be made to do one half of my sentence because he sentenced me to do one third. I said, Well, if this is the truth and you will guarantee me this will happen, then I will cop out to the plea bargain.

The trial judge, of course, was not compelled to accept HoufFs version of what happened at the in-chambers hearing, and he did not accept it. In addition to the inherent unlikelihood that a circuit judge of Judge Kirby’s experience would “guarantee” that Houff would not have to serve half his sentence (which, incidentally, is quite a differennt thing from serving until parole eligibility), there are many circumstances indicating that no such assurance was given to Houff.

To begin with, HoufFs verified petition mentions only the “Glover Act,” which his testimony shows to be a reference to Act 93 of 1977. Ark. Stat. Ann. §§ 43-2828 to - 2830 (Repl. 1977). That act provides (§ 43-2830) that it applies to felonies committed after April 1, 1977. Since the Houff burglary occurred in 1974, Judge Kirby could not have been in error if he said the Glover Act did not apply to HoufFs sentence.

At the Rule 37 hearing Houff had with him an Inmate Manual printed by the Department of Correction. Houff referred to the manual in testifying. He implied, without saying so, that the court and counsel also looked at Act 1161 of 1975 during the in-chambers hearing. That act (§ 43-2807 [c]) provides that a person who has previously been confined to the state penitentiary two or more times shall be eligible for parole after having served half his sentence. Houff, however, did not testify that he knew anything about Act 1161 when he pleaded guilty pursuant to the plea bargain, or that he told Judge Kirby that he had two or more previous confinements (a matter not reflected by the present record), or that Act 1161 was the reason he might be required to serve half his sentence to qualify for parole.

Thus there was an issue of fact whether Act 1161 was considered by Judge Kirby when he accepted HoufFs plea of guilty and specified in his order that Houff should serve a third of the sentence before being eligible for parole. On this point the trial judge’s oral finding at the conclusion of the Rule 37 hearing is supported by ample evidence:

[T]he Court finds absolutely no difference between what the Defendant wants done and what the Court did. The question of whether or not one of these parole statutes applies is absent in the record. It was absent to the Defendant at the time. It was absent to the Court at the time. The Court, the lawyers and the Defendant were not privy to it. The Court, the lawyers and the Defendant did not take it into consideration, either one of them or both of them. And the Defendant got a twenty-year sentence which he bargained for and the Court ordered him to serve one-third of it. And the Court finds as a matter of fact that if there is any difference with what the Defendant got it is merely the way the Department of Correction is computing it and his cause of action is against the Department of Correction and not in this proceeding under Rule 37.

(Rule 37 requires that the court’s findings be in writing, but there was no objection to the absence of written findings. It would be pointless to send the case back to allow the judge to reduce to writing the very findings that are contained in the transcript. See Cunningham v. Chamblin, 227 Ark. 389, 299 S.W. 2d 89 [1957].)

The appellant also argues a subordinate second point for reversal, that the court should have allowed appellant’s attorney to obtain and file the affidavits of three bystanders to corroborate Houffs testimony about what happened at the in-chambers hearing before Judge Kirby. We find no abuse of discretion for either of the reasons stated by the trial judge in denying the request: First, Houff was not diligent in preparing for the Rule 37 hearing; and second, the testimony of Houffs mother, his wife, and another bystander, all of whom knew nothing about “the technicalities of the law” (Judge Lofton’s words) with regard to parole, would have been of no value.

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. The majority opinion states for the purpose of appeal it may be assumed that appellant’s versions of the unreported discussion concerning the length of time he would serve are correct. With this I agree, In fact, I interpret the state’s brief to admit the truth of this allegation. I would reach a different result from the majority because it is quite obvious that the sentencing judge, as much as the appellant, the prosecuting attorney and the defense attorney, all understood appellant would be eligible to be considered for parole upon completion of one third of his sentence. The trial court went to a great deal of trouble in looking up the law and explaining it to the appellant before pronouncing sentence. In my opinion, the court would have considered a lesser sentence if there was any thought that appellant would be required to serve one half of his time before becoming eligible for parole.

In my opinion, this amounts to a critical error in sentencing. It is quite clear that the court had in mind appellant would be required to serve about six years before being considered for parole. Had he known the Department of Correction would cause the appellant to serve ten years before being considered for parole, he would simply have cut the sentence to twelve years. In my opinion, the appellant did not voluntarily, knowingly and intelligently enter a guilty plea to a sentence which would require him to serve ten years. There is no doubt that the court and all parties before it considered the appellant was being sentenced to a term which would cause him to serve about six years before having his eligibility for parole considered. Although I have been unable to find any Arkansas case deciding this particular question, there are literally hundreds of federal cases which I interpret to hold relief should be granted under these circumstances. This amounts to allowing the Department of Correction to determine the length of a sentence to be served rather than the sentencing court.

There is no question in my mind but that the sentencing judge’s probable expectations in the imposition of this sentence have been frustrated. His intentions were clearly stated at the time of the sentencing when he told appellant there was no way he could be forced to serve one half of his time under the sentence being imposed. In Addonizio v. United States, 573 F.2d 147 (3d Cir. 1978), the Court stated:

“The intent and expectations of the district court judge who sentences ... are controlling and . . . must be searched out to determine if relief may be ordered ... in our judgment, there can be no better evidence of a sentencing judge’s expectation or intent that his own statement of those facts . . .

Moral and legal principle have been woven together in forming a right of a prisoner to relief upon proof that the sentencing judge’s intentions and expectations regarding the prisoner’s incarceration have been frustrated by a postsentencing change in criteria governing parole determination. Addonizio v. United States, supra. See also United States v. Somers, 552 F.2d 108 (3d Cir. 1977); and United States v. Solly, 559 F. 2d 230 (3d Cir. 1977).

Since our own statutes in this regard are patterned after the federal statute, I feel our interpretation should be guided, at least to some extent, by the decisions of the federal courts.

It is possible to grant the relief under the circumstances presented, in my opinion. However, if relief cannot be granted in a Rule 37 proceeding, it seems logical that such relief could be granted by way of habeas corpus proceedings against the Department of Correction.


source: Caselaw Access Project

author: Darrell Hickman, Justice.

license: Public Domain

text:
    Winston HOLLOWAY v. STATE of Arkansas
    CR 79-186
    594 S.W. 2d 2
    Supreme Court of Arkansas
    Opinion delivered February 4, 1980
    Rehearing denied March 10, 1980

      William H. Craig, for appellant.

      Steve Clark, Atty. Gen., by: Catherine Anderson, Asst. A.tty. Gen., for appellee.
   Darrell Hickman, Justice.

Winston Holloway was tried with two co-defendants and convicted of several offenses in connection with the robbery of the Leather Bottle Restaurant in Little Rock. We affirmed their convictions but our judgment was reversed by the United States Supreme Court, which ruled that since one lawyer had represented’all three defendants, a conflict of interest preventing a fair trial existed. Holloway v. State, 260 Ark. 250, 539 S.W. 2d 435 (1976); rev’d, 435 U.S. 475, 98 S. Ct. 1173, 55 L.Ed. 2d 426 (1978).

Holloway, in a separate retrial in the Pulaski County Circuit Court, was convicted of one count of robbery, two counts of rape and three counts of using a firearm in the commission of a felony. He was sentenced to life plus 116 years imprisonment. Holloway argues on appeal that the trial court improperly allowed a doctor’s testimony from the first trial to be read as evidence and that the prosecuting attorney’s closing remarks were so prejudicial they mandated a mistrial.

The evidence of Holloway’s guilt was substantial. He was identified by two male employees of the Leather Bottle. Two female employees testified that Holloway raped them. Holloway’s defense was that he could not have done it because he was somewhere else at the time.

The first allegation of error is two-fold. First, the appellant asserts it was error to read into the record a doctor’s testimony given at the first trial since the doctor was not unavailable within the meaning of Uniform Rules of Evidence, Rule 804(a)(5). Second, he argues it was improper under Uniform Rules of Evidence, Rule 804(b)(1) to admit the former testimony since, when it was given, the appellant’s lawyer was representing two other co-defendants and could not properly cross-examine the doctor. For both reasons, the appellant also alleges his Sixth Amendment right to counsel was violated.

Dr. David Freuh had examined both females shortly after the incident. He testified at the first trial that both females had had sexual intercourse within the prior six hours. That was the substance of his testimony. He found no bruises or trauma and he did not testify that the women had been raped.

After the first trial, Dr. Freuh moved from Arkansas to Texas. The prosecuting attorney’s office did not know this until shortly before the second trial. The State moved to permit the admission of the doctor’s prior testimony as an exception to the hearsay rule because the witness was “unavailable.” Uniform Rules of Evidence, Rule 804(b)(1), provides for such an exception if a witness is unavailable and if his presence cannot be secured by “process or other reasonable means.” The use of such testimony brings into play two constitutional rights of a defendant. The confrontation clause of the Sixth Amendment to the United States Constitution gives the defendant the right to face the witness against him. Barber v. Page, 390 U.S. 719, 88 S. Ct. 1318, 20 L. Ed. 2d 255 (1968). The due process clause of the Fourteenth Amendment to the United States Constitution requires that a defendant be given a fair trial. Compare Dutton v. Evans, 400 U.S. 74, 91 S. Ct. 210, 27 L. Ed. 2d 213 (1970) (Harlan, J., concurring) and McCormick, Evidence 2d ed. (1972) §§ 252-253.

The question on appeal is whether the trial court abused its discretion in finding that the State was unable to secure the doctor’s presence by “process or other reasonable means.” An investigator with the prosecuting attorney’s office, Ed Outlaw, testified that the summons to Dr. Freuh was issued on March 15, 1979. It was received by Outlaw March 19, 1979. On the 21st he contacted a person who worked for the Medical Center and who regularly saw that subpoenas for Medical Center witnesses were served. That person did not inform the prosecutor’s office that Dr. Freuh was out of state until March 28th. Outlaw assumed the doctor had been served until he was informed otherwise. On the 29th and 30th Outlaw made at least three telephone calls to Beaumont, Texas to both the office and home of Dr. Freuh in an effort to reach him. He was unable to do so. Outlaw testified he was familiar with the Interstate Rendition of Witnesses Act, Ark. Stat. Ann. § 43-2006 (Repl. 1977), but that is required about two weeks to get the necessary papers to secure a witness from out of state under that Act.

Were the efforts by the State reasonable? We do not believe they were. They did not meet the standards of good faith we require. See, Satterfield v. State, 248 Ark. 395, 451 S.W. 2d 730 (1970). The State knew on May 15, 1978, when the United States Supreme Court reversed Holloway’s conviction, that a new trial would be necessary, but did not obtain a subpoena until March 15, 1979. Then the State waited on the Medical Center to find the witness until it was too late to obtain him under the Interstate Rendition Act. This was inexcusable.

The doctor’s testimony was, however, not critical. The State’s misconduct was, therefore, harmless error. He only testified the women had recently had sex. A rape victim’s testimony need not be corroborated. See, Spencer v. State, 255 Ark. 258, 499 S.W. 2d 856 (1973). Satterfield, supra, does not demand reversal. There, the missing witness was a suspected accomplice and his presence particularly important. We find no prejudice here. The witness had already said all he could be expected to say.

The same holds true regarding the argument that the testimony from the first trial was not admissible because the witness had not been properly and fully cross-examined. Holloway’s defense was he did not rob the Leather Bottle, nor rape the women. What more could have been asked of the doctor who said the women had had sexual intercourse within six hours?

Just as we believe there was no violation of the Uniform Rules of Evidence, we also believe there was no violation of the confrontation clause of the Sixth Amendment. That clause is not absolute. It does not require that every criminal defendant be allowed to confront every witness against him every time he is tried. McCormick, supra § 252. Neither was due process violated.

During his closing remarks the prosecutor made a statement which Holloway argues was prejudicial. Those remarks are as follows:

. . . We’ve reached that point in the criminal justice system where the action is. Where the question is decided as to what is going to be done. You are the ones who determine what kind of criminal justice system we have. In this case the victims have done their job. They have come in here and testified despite the humiliation and the embarrassment of that. They’ve come in here and they have testified. The police have done theirs and we have done ours, Mr. Haynes and I. And now, it is your turn to do yours. What happens is all in your hands now. You’ve got a man here that has told you that he has already committed felonies in three different states and you’ve got more than ample evidence here to convince you beyond any reasonable doubt that he is the person who robbed the Leather Bottle, took all this money. He is the person that first raped . . . and he is guilty of all the charges because of his participation. Now, you’ve got to go out in that jury room and decide his guilt or innocence and you must assess punishment for each of these offenses. And, I couldn’t be more serious or sincere when I tell you that this is a case where I honestly do not see how you can consider anything other than the maximum punishment given you in the instructions for each and every offense listed. I think that justice demands it. I think that it will be a travesty if we get anything less. And, I think you need to show people involved in this the firmness of your convictions how you feel by doing this quickly. Ladies and gentlemen, we’ve done our part. It’s your turn now and I trust and pray that justice will be done in this case. Thank you.

The court had, of course, instructed the jury to disregard opening and closing arguments by the attorneys as not being evidence. It is not improper for a state’s attorney to argue, as it did, for the maximum punishment. See House v. State, 192 Ark. 476, 92 S.W. 2d 868 (1936). It is a matter of discretion with the trial court as to whether a mistrial should be granted and that discretion will not be disturbed on appeal unless it is shown to have been abused. See generally Hill v. State, 253 Ark. 512, 487 S.W. 2d 624 (1972). We do not find the remarks improper as a matter of law. Nor do we find they were unjustified or unwarranted. The State may argue for the maximum punishment in sensible language just as a defendant may argue for the minimum punishment. This defendant was charged and convicted of serious crimes and the State was warranted in asking for the maximum punishment.

Because the appellant received life imprisonment, we must examine the record for other errors which may have been preserved at the trial level but not argued on appeal. Rules of Crim. Proc., Rule 36.24. We found none which would require us to reverse the judgment of the trial court.

Affirmed.


text:
    Roger MEARS, Judge, et al v. LITTLE ROCK SCHOOL DISTRICT et al
    79-298
    593 S.W. 2d 42
    Opinion delivered February 4, 1980

      Wilbur C. Bentley, Pros. Atty., by: Larry D. Vaught and Hugh L. Brown, Deputy Pros. Attys., for appellants.

      Friday, Eldredge & Clark, by: Robert V. Light, for appellees.

      Cearley, Gitchell, Bogará, Mitchell & Bryant, for amicus curiae, Arkansas Education Association.
   Darrell Hickman, Justice.

The Pulaski County Quorum Court passed an ordinance in April, 1977, authorizing the county collector to deposit into the County General Fund all interest earned on tax monies held by the county collector prior to transfer of these funds to the county treasurer. In effect, the ordinance provided that the county could, use the tax money to earn money for the county—the interest earned not being passed on to the school districts.

The appellees, Little Rock School District and North Little Rock School District, as well as other legal entities, not parties to this appeal, filed a law suit to enjoin this practice and to have the ordinance declared illegal. The appellants, Roger Mears, the county judge, and other county officials responded and counterclaimed defending the legality of the ordinance. In addition, they asked that the school districts pay a pro rata share of certain expenses incurred for the collection of the taxes. In the case of the county assessor a claim was made for $37,700 for “rentals and other contracts” and $38,000 was claimed for ten vehicles used by the assessor’s office. Over $24,000 was claimed on behalf of the collector for “rentals and other contracts” and over $9,000 on behalf of the treasurer for the same expense. The proof showed that the appellants’ claim for these rentals was largely based on what the rental value would be of the space occupied in the Pulaski County Courthouse by these various county offices.

The chancellor held that the ordinance was illegal, that the interest earned on such tax money belonged to the legal entities for which it was collected. The chancellor also declared that the law provided that only the assessor’s office could charge these entities its expenses and that no other county officer was authorized to collect for his expenses. Therefore, the chancellor denied all requests for charges claimed by county officers other than the assessor’s. The total amounts claimed by the assessor, which covered automobiles and the rental value of space, were allowed.

Mears and the other appellants appeal the judgment of the chancellor and argue that the use of the tax money to earn interest is not prohibited by law and that the chancellor should have allowed the other county officials to collect for their expenses. There was no cross appeal filed by the appellees.

We affirm the decree entered by the chancellor.

First, Article 16, Section 11 of the Arkansas Constitution requires that tax money be used only for the purpose for which it is raised. It reads:

No tax shall be levied except in pursuance of law, and every law imposing a tax shall state distinctly the object of the same; and no moneys arising from a tax levied for one purpose shall be used for any other purpose.

Clearly on point is Pomona City School Dist. v. Payne, 9 Cal. App. 2d 510, 50 P.2d 822 (1935), which held that interest on school taxes was part of the principal and belonged to the schools absent legislative action. We relied on Pomona in Miles v. Gordon, 234 Ark. 525, 353 S.W. 2d 157 (1962), when we held that Article 16, Section 12 of the Constitution, which prohibits taking money out of the state treasury without an appropriation, did not apply to interest on tax money when the two were separated by legislation. In view of Article 16, Section 11, our reasoning in Miles, and the absence of legislative action, there is no doubt the interest belongs to the school districts.

The appellants’ response is that the county ordinance was, under Miles, a legislative action which separated the interest and the principal. Miles, however, applied Article 16, Section 12, not Section 11. Furthermore, there was no statute here, only an ordinance. Whether the General Assembly could do what the quorum court attempted to do is not an issue before us and, following a practice which invariably proves sound, one which we do not decide. It is enough to point out that the county is prohibited by Act 742, § 73(c) of 1977 from passing any legislation “affecting the public school system,” which this ordinance surely does.

The chancellor was essentially correct in holding that the claim of the county and its officials for certain expenses was permitted by Arkansas statute, although the chancellor incorrectly based a part of his order on Ark. Stat. Ann. § 12-809 (Supp. 1975), which has been repealed. Ark. Stat. Ann. § 12-806 does provide that the assessor’s office can recover for its “salaries and necessary expenses” on a pro rata basis from taxing units it services for the collection of taxes. That is the only legal charge that can be made against the units.

More importantly, in 1977 the General Assembly denied certain powers to the quorum court. In Section 73(c) of Act 742, which was passed that year, the General Assembly prohibited the quorum courts from passing:

(c) any legislative act that applies to or affects the public school system except that a county government may impose an assessment where established by the General Assembly, reasonably related to the cost of any service or specific benefit provided by county government. . . .

The General Assembly has not passed any legislation establishing an “assessment,” so none except that by the assessor’s office can be made.

The appellees, as well as the Arkansas Education Association which filed an amicus curiae brief in this case, argue that the chancellor was wrong in allowing the assessor any expenses. Specifically, it is argued that the expenses are illegal and unreasonable. Whether the formula used by the county in creating as expense figures based on what the rental charge would be for the assessor’s office is legal, or whether the charge for ten automobiles is reasonable, is not before us. The appellees did not cross appeal from this part of the chancellor’s decision and the AEA lacks power to raise this issue; One coming before this court in the posture of amicus curiae is bound by the questions which are properly before us. See, Equilease Corp. v. U.S.F. & G. Co., et al, 262 Ark. 689, 565 S.W. 2d 125 (1978). See also, Giles v. State, 261 Ark. 413, 549 S.W. 2d 479 (1977), cert. den. 434 U.S. 894, 98 S. Ct. 272, 54 L. Ed. 2d 120 (1977).

Since the question is not properly before us, we do not rule on it. The proper method of obtaining review was not followed. See, Rules of Appellate Procedure, Rule 3.

Affirmed.


author: John I. Purtle, Justice.

text:
    William Roger WINKLE and Janie WINKLE v. Milton RHODES and Mary RHODES et al
    79-177
    594 S.W. 2d 5
    Supreme Court of Arkansas
    Opinion delivered February 4, 1980
    Rehearing denied March 10, 1980

      Roger & Janie Winkle, for appellants.

      R. Scott Campbell, Wallace, Hilburn, Clayton, May & Calhoun, Ltd., and Wright, Lindsey & Jennings, for appellees.
   John I. Purtle, Justice.

William Roger Winkle and Janie Winkle appeal from the order of the Garland Chancery Court dated January 17, 1979. This order was only one in a myriad of items involving the Winkles and other parties in Garland County. The order appealed from here related to a petition for writ of possession by Milton Rhodes and Mary Rhodes against the Winkles; interrogatories propounded by Winkles to Rhodes; exemption of property possessed by the Winkles from execution; and garnishment of wages by Rhodes against Winkle. The grounds urged on appeal appear to relate primarily to prior decrees or decisions by the various courts. We affirm the judgment of the chancellor.

It is necessary to refer to at least some of the prior actions in order to understand what the present appeal is about. Due to a series of unfortunate circumstances the Winkles are presenting the case pro se. It is almost always unfortunate when a party represents himself in a legal proceeding involving complex legal matters such as are present in this case. We realize the Winkles have done everything they can to present to this Court their views on all past proceedings relating to the purchase of property, option to purchase other property and the foreclosure and sale of their home and business.

This particular case arose indirectly from a complaint filed in the Garland Chancery Court on October 6, 1977, wherein the Winkles sued the Rhodes and the Flemings, as well as the First Federal Savings & Loan Association. The Winkles charged breach of contract, usury and several other matters. The court ruled against them on most, if not all, allegations. They filed timely notice of appeal to this Court and the case was docketed No. 79-38. This Court granted appellees’ motion to dismiss the appeal on May 21, 1979, for reasons not relevant to the present appeal.

This appeal was docketed as No. 79-177. It relates to the order of the Garland Chancery Court dated January 17, 1979. The only matters decided by that order were whether certain property taken from the home occupied by the Winkles and sold pursuant to prior order of the court belonged to the Rhodes or the Winkles; whether Winkle’s wages were subject to garnishment as a result of a deficiency judgment obtained by Rhodes against the Winkles in Case No. 79-38; and matters relating to exemption from the earlier judgment.

During the hearing from which the present appeal results, the Winkles repeatedly referred to matters which were decided in the trial of the former case. They also made many references to matters which may have been proper in the first trial but were not relevant to the matters then under consideration by the chancellor. However, the trial court rejected all efforts to reopen the former trial because it had been appealed to this Court, which appeal was subsequently dismissed.

As is always the case, there were a number of things which the Winkles could have properly done in the first trial but failed to do. They desired to relitigate the issues but the court held the former trial was res judicata. No doubt the Winkles do not understand the legal principles involved and, of course, are not well learned in court procedures. No doubt they feel they have been denied justice. However, the present appeal cannot be used to review the prior decrees and opinions which have been acted upon by the courts. It is simply too late for these matters argued by appellants to be considered in this appeal.

The only issue properly before this Court at this time is the argument that the chancellor was prejudiced. We cannot find any evidence whatsoever in the record before us to indicate the chancellor was prejudicial in any manner against the Winkles. Therefore, we must affirm the trial court in this matter.

Affirmed.


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

text:
    Hugh CLARK et al v. Nick MAHAN et al
    79-299
    594 S.W. 2d 7
    Supreme Court of Arkansas
    Opinion delivered February 4, 1980
    Rehearing denied March 10, 1980

      Clark & McNeil, for appellants.

      Allen Gordon, for appellees.
   John I. Purtle, Justice.

Harry Snowden was elected marshal of the city of Greenbrier in the 1978 general election. He was sworn in as marshal on January 1, 1979. On January 18, 1979, the city of Greenbrier enacted Ordinance No. 79-2 which established the city marshal’s office as appointive. On February 8, 1979, Jackie Griffin was appointed by the council as the marshal. The eligibility of each of the men who claimed to be marshal was contested in the Faulkner Chancery Court which ruled that the city had the right to change the office to an appointed one. However, the court held that the emergency clause on Ordinance No. 79-2 was ineffective and Griffin’s appointment would be effective 90 days after the passage of the ordinance. Both parties appealed.

On appeal Snowden’s supporters argue that Ordinance No. 79-2 was invalid, and Griffin’s supporters argue that Ordinance No. 78-2 was invalid. Each claims the right to serve as Greenbrier City Marshal. We agree with the appellant as to the election of city marshal. We also agree with the appellee and cross-appellant on the right of the council to create an appointive office.

The 1970 census qualified the town of Greenbrier to be reclassified as a city of the second class. Notification of this qualification was mailed by the State Board of Municipal Corporations to the mayor of Greenbrier on April 30, 1971. However, if this letter were ever received by the city of Green-brier it failed to act upon it. On April 12, 1973, the municipality of Greenbrier adopted Ordinance No. 205 providing for the appointment of the marshal. The ordinance was styled as an ordinace of the Town Council of Green-brier. Pursuant to this ordinance, Harry Snowden was appointed and continued to serve by appointment through December 31, 1978.

In late 1973 or early 1974 Greenbrier was in the process of issuing some bonds and discovered they were listed with the State Board of Municipal Corporations as a city of the second class. An immediate request was made to the State Board for reduction in classification to an incorporated town. The reduction was approved on May 21, 1974. February 9, 1978, the town council adopted a resolution requesting reclassification as a city of the second class. The State Board accepted this resolution on February 15, 1978, and reclassified Greenbrier as a city of the second class. September 14, 1978, the city adopted Ordinance No. 78-2 purporting to make the marshal’s office elective. This ordinance was not published as required by law, and we agree with the chancellor that it was void. Snowden qualified as a candidate for city marshal and was elected in the general election held in November 1978. He was certified by the Faulkner County Board of Election Commissioners and sworn in as marshal on January 1, 1979. He received his salary for the month of January but the mayor refused to sign his check for the February salary.

January 18, 1979, the council adopted Ordinance No. 79-2 making the marshal’s office appointive. February 8, 1979, Jackie Griffin was nominated by the mayor and approved by the council as city marshal. Both 1979 ordinances were passed with the vote of two of the four councilmen and the vote of the mayor.

Beginning in February, both men claimed to be city marshal and each attempted to act as such. Suits on behalf of Snowden and Griffin were filed contesting the other’s eligibility to serve. The two suits were consolidated, and the chancellor ruled that Ordinance No. 78-2 was invalid and Ordinance No. 79-2 was valid except for the emergency clause. The appointment of Griffin was upheld but his appointment was deferred until the effective date of the ordinance which would be 90 days after passage.

On appeal appellants urge that Ark. Stat. Ann. § 19-1103.2 (Repl. 1968) requires that the office of marshal for the city of Greenbrier to be elective; that Snowden’s status could not be terminated as he had never relinquished the office nor had he been discharged; and that Ordinance No. 79-2 was invalid because it did not receive a majority vote of the city council. On cross-appeal it is urged the chancellor erred in holding the emergency clause on Ordinance No. 79-2 was invalid.

Ark. Stat. Ann. § 19-209 (Repl. 1968) requires reclassification of cities when they attain the necessary number of inhabitants. The statute further states the mayor will be notified of such change of classification.

Ark. Stat. Ann. § 19-210 (Repl. 1968) requires as soon as the above statement has been received by the mayor it shall be the duty of the proper corporate authority to make and publish such bylaws and ordinances as shall be necessary to perfect such organization in respect to elections, duties and compensation of such officers, etc. There is no evidence that the city of Greenbrier took any such action following notification, if ever received, of the reclassification attempt in 1971. In fact, they continued to operate as a town and upon discovering they were classified as a city of the second class they immediately applied for reduction to the status of an incorporated town. They were elevated to a city of the second class at their own request in 1978. Several statutes are involved in this matter and we will set some of them out below.

Ark. Stat. Ann. § 19-1101 (Repl. 1968):

The qualified voters of cities of the second class shall, on the first Tuesday in April, in the year eighteen hundred and eighty-eight (1888), and on the same day (on the Tuesday following the first Monday in November) every two (2) years thereafter, elect one (1) Mayor, one (1) City Marshal, one (1) Recorder, one (1) city Treasurer, and for each of the wards of any such cities two (2) aldermen, which aldermen together with the Mayor shall compose the City Council. (Act Feb. 15, 1887, No. 10).

Ark. Stat. Ann. § 19-1103 (Repl. 1968):

(The qualified voters of each city of the second class shall, at the same time, elect a city marshall (marshal), city recorder and treasurer.) Each of said officers shall continue in office until his successor is elected and qualified, and shall have such powers and perform such duties as are prescribed in this act, or as may be prescribed by any ordinance of such city, not inconsistent with the provisions of this act. (Act, Mar. 9, 1875, No. 1.)

Ark. Stat. Ann. § 19-1103.2 (Repl. 1968):

The City Marshal of cities of the Second Class shall be elected by the voters as now or may hereafter be provided by law; provided, however the City Council of any city of the Second Class, if they deem it to be to the best interest of the city, and upon passage of an ordinance by a majority of the City Council, may provide that the Marshal shall be appointed by the Mayor with the approval of the City Council. (Acts 1953, No. 172.)

Ark. Stat. Ann. § 19-1202 (Repl. 1968):

The council of any incorporated town shall have power to provide by law or ordinance for the election of a treasurer, marshal and such subordinate officers as they may think necessary for the good government of the corporations; to prescribe their duties and compensation, or the fees they shall be entitled to receive for their services; to require of them an oath of office, and bond with surety for the faithful discharge of their duty. The period for the election of any officer shall be fixed at the time of the regular biennial election, and no appointment of any officer shall endure beyond the period of the term of office of the council making the appointment, and one (1) week after the qualification of the members of the succeeding council. (Act Mar. 9, 1875, No. 1.)

Thus we see that whether Greenbrier was a town or city the marshal was required by state law to be elected. However, if it were a city of the second class it could, pursuant to Ark. Stat. Ann. § 19-1103.2, provide for appointment of the marshal. We have held that an appointed marshal, serving when the office was supposed to be elective, amounted to a de facto marshal. Thomas v. Sitton, 213 Ark. 816, 212 S.W.2d 710 (1948). We have also held a city had no power to pass an ordinance abolishing the elective office of marshal. City of Augusta v. Angelo, 225 Ark. 884, 286 S.W.2d 321 (1956). The above cases were decided prior to enactment of Ark. Stat. Ann. § 19-1103.2. There has been no legislation granting authority to an incorporated town to provide for the appointment of a town marshal. He must be elected. A town is not required to have a marshal but if it does he must be elected. Therefore, while Greenbrier was a town it was required to elect a marshal if it had one at all. It is apparent the town only had a de facto marshal until the election in 1978.

Greenbrier had been an incorporated town for many years prior to becoming a second class city in 1978. When it became a city the laws of the state of Arkansas required it to have an elected city marshal. The fact that that city attempted to enact an ordinance which failed for lack of publication is of no consequence. The statute still prevails. We must conclude that Snowden was duly elected according to Ark. Stat. Ann. § 19-1103.2 and will hold office for the elective period unless removed according to Ark. Stat. Ann. § 19-919 (Repl. 1968), or other appropriate law. Ark. Stat. Ann. § 19-907.1 (Supp. 1979) provides that the salary of an elected official shall not decrease during the term for which he was elected.

We now consider the validity of the two 1979 ordinances. Ark. Stat. Ann. § 19-901 (Repl. 1968) states:

The corporate authority of cities organized, or to be organized, shall be vested in one (1) principal officer, to be styled the Mayor, one (1) Board of Aldermen, to be styled the City Council, together with such other officers as are mentioned in this act, or may be created under its authority. (Act Mar. 9, 1875, No. 1.)

Ark. Stat. Ann. § 19-902 (Repl. 1968) provides for the election of the members of the city council or the mayor. Ark. Stat. Ann. § 19-2403 (Repl. 1968) states:

On the passage of every by-law or ordinance, resolution or order, to enter into a contract, by any Council of any municipal corporation, the yeas and nays shall be called and recorded; and to pass any by-law or ordinance, resolution or order, a concurrence of a majority of a whole number of members elected to the Council shall be required. (Act Mar. 9, 1875, No. 1.)

We recognize this statute requires the affirmative vote of a majority of all members elected to the municipal council before an ordinance may be enacted. In Newbold v. Stuttgart, 145 Ark. 544, 224 S.W. 993 (1920), we held that a 3 to 1 vote of a 6-member council was not sufficient to enact an ordinance. In reading Ark. Stat. Ann. § 19-901 and § 19-1101 we conclude the mayor is a member of the council of a second class city and thereby entitled to vote. These two statutes appear to be in conflict. We give § 19-1101 priority because it was the latest of the two acts on the subject.

The holding that Snowden was elected for a two-year term necessarily delays the effectiveness of Ordinance No. 79-2 until the term for which Snowden was elected terminates. Thereafter the office of marshal for the city of Greenbrier will be appointive, unless changed prior to such date. The case is remanded to the chancery court with directions to proceed in a manner consistent with this opinion.

Reversed on direct appeal, affirmed on cross-appeal, and remanded.

Hickman, J., dissents.

Darrell Hickman, Justice,

dissenting. I would affirm the chancellor’s decree.

A valid ordinance, No. 205, provided that the marshal’s office of Greenbrier was an appointive one. That ordinance was passed when Greenbrier was a second class city. To me, it is insignificant whether Greenbrier knew it was a second class city.

It was not until shortly before the general election of 1978 that the Greenbrier City Council, then knowing for certain that it was a second class city, passed Ordinance No. 78-2, providing that the office of marshal would be an elective one. The parties agree that this ordinance was invalid. But it was pursuant to this invalid ordinance that Harry Snowden was elected city marshal. He ran as an independent, was the only qualified candidate and was certified the winner.

The majority finds the valid ordinance, No. 205, is without effect , because it was passed before Greenbrier knew it was a second class city. A city of the second class must elect its marshal, unless an ordinance provides otherwise. That, of course, is the case we have before us. There was a valid ordinance that provided otherwise.

The chancellor held that since the ordinance passed in September was invalid, the City of Greenbrier was where it had been before—with an ordinance which provided for the marshal be appointed. I agree with that decision. How can an election, based on an invalid law, be legal? Furthermore, all valid ordinances of a town remain in effect when a town is reclassified as a city. Otherwise, there would be chaos and no law. I have no doubt that we would have upheld the ordinance which provided for the marshal to be appointive, if that question was presented to us. That leads me to conclude that the chancellor was correct.

There is really no similarity between this case and the case of City of Augusta v. Angelo, 225 Ark. 884, 286 S.W.2d 321 (1956). In the Angelo case the City of Augusta tried to abolish an existing office.


author: John A. Fogleman, Chief Justice.

text:
    Taylor LANDTHRIP v. CITY OF BEEBE et al
    79-284
    593 S.W. 2d 458
    Supreme Court of Arkansas
    Opinion delivered February 11, 1980

      Hughes & Hughes, for appellant.

      William P. Mills, for appellees.
   John A. Fogleman, Chief Justice.

This is a strange case. The purported holder of a purported judicial office is contending that the office was not validly created and that his acts were invalid. Appellant, Taylor Landthrip, who has been acting as Judge of the Police Court of Beebe, brought this action against the City of Beebe for a declaratory judgment as to the legal status of the court of which he purported to be the presiding judge. The city, acting through its Mayor and City Council answered Landthrip’s complaint, alleging that he was elected judge by the voters of the City of Beebe, a city of the first class, and praying that the complaint be dismissed.

The circuit court heard the case upon the pleadings, an exhibit, a stipulation between the parties, and briefs submitted by them. That court found that: the Police Court of the City of Beebe was purportedly established by action of the Beebe City Council on March 2, 1971, according to minutes of its meeting on that date, which reflected that the Mayor appointed a designated person as police court judge and fixed the compensation to be paid to him, and that this action was approved by the council; and no ordinance creating the court had ever been published as required by Ark. Stat. Ann. § 19-2404 (Repl. 1968). Based on these findings, the court held that: even though the city council of a city of the second class may provide, by ordinance, for the creation of a police court under Ark. Stat. Ann. § 22-808 (Repl. 1962), and the mayor of a city of the second class may select the person who is to sit in the mayor’s stead as judge of that court, the council’s action in creating such a court was an act of general and permanent nature; and the action of the city council was legally insufficient to establish the court, because no ordinance to create the court had been adopted or published. The court held, however, that the purported creation of the police court and the subsequent operation of the court were sufficient basis to declare it a de facto court to the extent that all previous actions and judgments of the court were as valid as they would be had the court been properly and legally created.

In his complaint, Landthrip had alleged that the City of Beebe was elevated from a city of the second class to a city of the first class as a result of the 1970 federal census and, as such, was authorized by Ark. Stat. Ann. § 22-811 (Supp. 1979) to create a police court by ordinance of general and permanent nature, but the city had never published any ordinance, by-law or other act creating such a court, and that, since Beebe had been a city of the first class for eight years, it then had no authority to create a police court. The justiciable controversy alleged was based upon Landthrip’s contention that the legal status of the Beebe Police Court was uncertain, but that the mayor and city council refused to provide for any change in the existing court system, because of their contention that the court was validly created.

Appellees admitted all factual allegations of appellant’s complaint, but asserted that, under Ark. Stat. Ann. § 22-811, which authorizes a city, upon reaching first class status, to establish a police court, in lieu of a municipal court, until such time as the governing body of the city determines that the city has sufficient funds to pay its cost of a municipal court, the action of the city council would not be of a general and permanent nature and publication of that action not required. It was stipulated that on March 2, 1971, at a meeting of the City Council of Beebe, Mayor Jessie Lay purported to appoint Ray Ostergrant as Beebe Police Court Judge and that a motion was passed by the council accepting Ostergrant as Beebe Police Court Judge. It is admitted that Landthrip was elected to the office of police court judge by the voters of Beebe in November, 1976, and that he has been holding himself out as such since January 1, 1977.

Appellant asserts that the circuit court erred in holding that the Police Court of the City of Beebe was a de facto court prior to June 6, 1979. He contends that, upon the authority of Howell v. Howell, 213 Ark. 298, 208 S.W. 2d 22, of Justice McFaddin’s dissenting opinion in that case, and of Pope v. Pope, 213 Ark. 321, 210 S.W. 2d 319, there cannot be a de facto officer without a de jure or de facto court, and that the elements of a de facto court do not exist here. According to him, the missing elements are the organization of the court under an act of the state legislature believed to be valid and a determination, after creation of the court, that the act was invalid. He says that, because of the failure to publish the action of the council, the court was not organized in accordance with the procedures required by law at the time of its creation and that the act (98 of 1967) has never been determined to be invalid. Appellant then says that our statements in Caldwell v. Barrett & Turner, 71 Ark. 310, 74 S.W. 748, where we held that the attempted election of a special judge of a circuit court was invalid and not authorized by Art. 7, § 21 of the Constitution of Arkansas, were invalid because the purported judge was elected under circumstances not contemplated by that constitutional provision. We did hold in that case that, in order for there to be a de facto judge, there must be a regularly constituted office and a vacancy therein before one elected to fill such office can be denominated a de facto officer. In doing so, we said:

***[I]t is true that when there is an office, and no de jure officer to exercise its functions, then one appointed under the form of law would be a de facto officer at least, and his acts are not to be called in question collaterally. The question is quite different where there is no de jure office, if it is proper to so speak, for the foundation of the proceeding must be, as in this case, a lawfully created court, or there is a total want of jurisdiction in the court itself to hear and determine the cause, and this jurisdictional infirmity will annul any proceedings therein on mere suggestion to the proper court. It would be beyond all precedent to term the judge presiding in a court which is not a court at all a de facto judge.

Before proceeding to answer the only question before us on appeal, we will consider an argument advanced by appellees. Even though they did not take a cross-appeal from that portion of the judgment holding that the Police Court of the City of Beebe was illegally constituted, they argue in their brief here that the trial court did not err in holding that the purported creation of the court and its actual operation constituted the court a de facto court because, under Act 1 of 1875, cities of the first class were all intended to have police courts without the necessity of council action. Be that as it may, the General Assembly has provided for a Municipal Court in every city of the first class having a population of 2,-400 or more by Act 60 of 1927, as amended, [Ark. Stat. Ann. § 22-701, et seq (Repl. 1962)] but by Act 98 of 1967 [Ark. Stat. Ann. § 22-811 (Supp. 1979)], a city elevated from a city of the second class to a city of the first class may, by act of its governing body, provide for the establishment of a police court, in lieu of a municipal court, until the city has sufficient funds to support a municipal court, “which would otherwise be established in said city.” We do not agree with appellees’ argument that no ordinance was necessary because the General Assembly created the court. The “act of its governing body” requires the enactment of an ordinance by the city council, board of managers or board of commissioners of the city involved. Even though the circuit court may have erroneously applied statutes relating to cities of the second class, appellees have not shown that the judgment of the circuit court holding that the police court was not validly created was erroneous, much less a nullity. We cannot answer the question before us on the basis of appellees’ argument, although we agree that our statutes, beginning with Act 1 of 1875, contemplate the existence of a mayor’s court, police court or municipal court in every municipal corporation.

Only one question is presented on this appeal. It is unlike any we have treated before. It is possible, under some circumstances, to have a de facto court, to the extent that its acts are valid, when the court is authorized by law but is defectively organized. The situation presented here is vastly different from that presented to us in Caldwell, where there was no authority in law for the holding of a circuit court when a special judge was elected to preside over an adjourned session of that court in one county while the regular judge was presiding over the circuit court of another county in the same judicial district. Here there was ample authority in law for the creation of a police court in Beebe and the statutes plainly contemplate that there be some type of corporation court in every municipal corporation.

There are exceptions to the rule that there can be no de facto officer unless there is a de jure office, where the office may be said to exist under color of law. State v. Bailey, 106 Minn. 138, 118 N.W. 676, 130 Am. St. Rep. 592, 19 LRA N.S. 775, 16 Ann. Cas. 338 (1908). It has been aptly said that great public mischief might well arise if the rule pertaining to de facto officers were not applied to recognize that there may also be de facto courts. Burt v. Winona & St. P. R. Co., 31 Minn. 472, 18 N.W. 285 (1884). When a court is organized under color of law, e.g., when its creation is authorized by law, but the proceedings creating it are irregular or defective, it is a de facto court, and its judgments and proceedings are not open to collateral attack. State v. Bailey, supra. See also, People v. Hanley, 106 Misc. 625, 37 N.Y.Cr. 430, 176 N.Y.S. 392 (1919); Marckel Co. v. Zitzow, 218 Minn. 305, 15 N.W. 2d 111 (1944).

The rule governing validation of acts of a de facto officer is based upon public policy and its origin and history show that it is founded in comparative necessity. Adams v. Lindell, 5 Mo. App. 197 (1878). The doctrine rests upon the principle of protection of the public and third parties. It was engrafted upon the law as a matter of policy and necessity to protect the interest of the public and individuals involved in the acts of persons performing the duties of an officer without actually being one in law. 63 Am. Jur. 2d 939, Public Officers & Employees, § 493; Matthews v. Bailey, 198 Ark. 830, 131 S.W. 2d 425. See also, Howell v. Howell, 213 Ark. 298, 208 S.W. 2d 22 (McHaney, J., dissenting). The reasons for introduction of the doctrine into the law are sufficient basis for extending it to courts whose creation is authorized by law, but defectively done.

The situation with which we are now faced is somewhat like that treated by the Supreme Court of New Mexico when the constitutionality of the act creating a juvenile court in that state was attacked. See In re Santillanes, 47 N.M. 140, 138 P. 2d 503 (1943). That court, facing the possibility of invalidating hundreds of judgments in the juvenile courts by a declaration that there was no juvenile court, and never had been, if the condition that there must be a de jure office before there can be a de facto officer were rigidly adhered to in every case, pointed out that it had previously held that, where uncertainty, chaos and confusion would result if the condition were rigidly adhered to, public policy forbids upholding that condition. We face a similar situation here. No doubt there have been hundreds of judgments rendered by the Police Court of the City of Beebe during the eight years intervening between the appointment of a judge and the judgment now being considered on appeal. Apparently the validity of the organization of that court has not heretofore been questioned. There was statutory authority for the creation of the court. We feel that public policy requires that we sustain the trial court’s holding that there was a de facto court until the date of the circuit court’s judgment.

The judgment is affirmed.

Hickman and Mays, JJ., not participating.


author: George Rose Smith, Justice.

text:
    Nella Faulk McDONALD v. Marcella TREAT et al
    79-271
    593 S.W. 2d 462
    Supreme Court of Arkansas
    Opinion delivered February 11, 1980

      Barrett, Wheatley, Smith & Deacon, by: Stephen M. Reasoner, for appellant.

      Alfred F. Holland, by: Michael E. Todd, for appellees.
   George Rose Smith, Justice.

Mrs. Ollie A. Horne, 84 died in October, 1978. At her death she had a savings account, No. 1410571, amounting to $13,061.44, in the First Federal Savings & Loan Association of Paragould. As the proof in this case later showed, First Federal did not have in its possession any document signed by Mrs. Horne stating how the account was to be payable on her death. Nevertheless, First Federal paid the amount in the account to Mrs. Horne’s niece, the appellant Nella Faulk McDonald, in the belief that the account was payable to her upon Mrs. Horne’s death. The appellee Marcella Treat, another niece, protested the payment. After a hearing the probate court held that the payment was improper and directed Mrs. McDonald, who is also the executrix of Mrs. Horne’s will, to restore the money to the estate. This appeal is from that order.

In order for a savings account in a bank or savings and loan association to be payable on the depositor’s death to a third person, the depositor must designate in writing that the account is so payable. Ark. Stat. Ann. §§ 67-552 and 67-1838 (Repl. 1966). The requirement of a written designation means that the depositor must affix his signature to an instrument stating his intention. Cook v. Bevill, 246 Ark. 805, 440 S.W. 2d 570 (1969), where we also pointed out that the two statutes are similar. Thus the question before the probate court was whether Mrs. Horne had designated in a signed document how account No. 1410571 was to be payable on her death. The burden of proof was on Mrs. McDonald to show her right to property owned by Mrs. Horne at her death. The issue on appeal is simply whether the probate court’s decision is clearly against the preponderance of the evidence.

At the outset we stress the desirability of certainty with regard to payable-on-death bank accounts and certificates of deposit. Such a disposition of money is similar to a will in that it may be changed by the property owner during his lifetime and does not take effect until his death. The law carefully safeguards the integrity of wills, but under the earlier statutes there was a regrettable degree of laxity with respect to payable-on-death accounts. We summarized the situation in Cook v. Bevill, supra, in construing new statutes applicable to bank deposits:

It is a mild statement to say that Act 260 of 1937 created a maze of problems in the handling of joint bank deposits and certificates. Much litigation over those deposits has reached this Court. Many decisions had to be made by ascertaining the intent of the depositor from. parol evidence and “after death had sealed the lips of the person principally concerned.” Ratliff v. Ratliff, Adm’x., 237 Ark. 191, 372 S.W. 2d 216 (1963). Act 260 had minimal written requirements which fell far short of being sufficient. In that situation the Legislature and the banking interests turned to the comprehensive act under which the building and loan associations had been operating for years.

Thus what the new statutes did was to correct the earlier state of uncertainty by requiring that persons who resort to payable-on-death accounts or certificates designate in writing, over their signatures, just who is to receive the money at their death.

In this case the appellant could produce nothing signed by Mrs. Horne stating that account No. 1410571 was to be payable on her death to the appellant. The appellant argues, instead, either that what Mrs. Horne signed with respect to two other accounts was sufficient or that she actually signed the necessary document, but it was lost by First Federal; We cannot say that the probate judge’s rejection of those two theories is clearly against the weight of the evidence.

First Federal, in connection with its savings accounts, issues to the depositor a “certificate book,” in the front of which is a page entitled Certificate of Deposit. This does not purport to be a negotiable or non-negotiable instrument. It simply certifies, over the signature of an officer of the association, that the named depositor has an account in First Federal which will bear interest at a certain rate for a certain period if withdrawals do not reduce the account below a specified amount.

William J. Block, chairman of the board of First Federal, was the only witness who testified about Mrs. Horne’s accounts. Mrs. Horne first opened a 5% interest account in 1967 by depositing $9,000 in her own name, but payable to Marcella Faulk Treat upon her death. In 1969 Mrs. Horne transferred the money, with accrued interest, to a 5 Va% Certificate Account payable on her death to Mrs. Treat or Mrs. McDonald. In 1970 Mrs. Horne transferred the money to a new Certificate Account, apparently bearing a still higher interest rate, payable on her death to Mrs. McDonald. Block produced a mimeographed withdrawal request form, signed by Mrs. Horne, transferring $10,145.45 to the new account and reciting that it was payable on Mrs. Horne’s death to Mrs. McDonald. In 1971 Mrs. Horne transferred $10,685.08 to still a fourth account. Block also produced that withdrawal request form, which referred to the previous account, recited that the new account was payable to “Same,” and was signed by Mrs. Horne. Thus in a period of less than four years Mrs. Horne left her money in three different ways.

Finally, on June 30, 1975, Mrs. Horne transferred $13,-000 to account No. 1410571, now in dispute. Block produced the certificate book, which had been turned in when Mrs. McDonald withdrew the money after her aunt’s death. The certificate in the front of the book recites that “Mrs. Ollie Horne as sole owner but payable to Nella Faulk McDonald upon death of Mrs. Ollie Horne holds a Certificate of Deposit of $13,000.00,” bearing 7 1/2% interest. The certificate is signed only by Block.

With respect to the account now in issue Block could not produce a transfer form such as those used in 1970 and 1971. On direct examination he testified that if the association had proceeded in accordance with its usual practice, a signature from Mrs. Horne would have been required. But he went on to say: “We went on the computer system about 1975, and that form is no longer used. Frankly, we didn’t think about it until yesterday afternoon. ... We can’t seem to find any of our records for 1974 or ’75. By any records, I am talking about that type of record, the withdrawal requests. Not only Mrs. Horne’s, we can’t find anybody’s. ... We have not yet located them; we are still looking.”

On cross examination Block testified that the association had not used the forms “for three and a half or four years.” Block himself knew Mrs. Horne only slightly and doubted very seriously if he had taken part in any of the actual transactions, which would have been handled by the tellers. He recognized the writing on one of the forms as being that of Mrs. Grace Early.

The appellant first argues that it was not necessary for Mrs. Horne to sign anything when she opened account No. 1410571, because she had signed forms in 1970 and 1971 with respect to earlier accounts containing the same money. Such a holding would disregard Cook v. Bevill and go back to our former state of uncertainty, when the courts had to determine the depositor’s intention. Moreover, on the very certificate now in issue the typewritten name, Nella Faulk McDonald, was stricken out, with the following words substituted in longhand: “Rebecca Rainey Clark and Dorothy Lloyd 10-6-77.” Thus it would be arguable, if intention were controlling, that Mrs. Horne changed her mind again a year before her death. We refuse to revive the uncertainties that were eliminated by the present statutes.

Second, the appellant argues that Mrs. Horne actually signed a form, which was misplaced. That argument is supported by only one statement, Block’s assertion that if the association had proceeded in accordance with its usual practice, Mrs. Horne’s signature would have been required. But Block’s own testimony indicates that the former “usual practice” had probably been discontinued. The trial was held on February 6,1979. Block said the form had not been used for three and a half to four years, which would go back to the six months between February 6 and August 6, 1975. The certificate is dated June 30, 1975, which was within that period of uncertainty. Block said that the association went on the computer in “about 1975,” again leaving the date uncertain. He also testified that they could find no records clear back through 1974, strongly suggesting that the computer operation began then, because the 1970 and 1971 forms were apparently found the preceding afternoon without difficulty.

Finally, the appellant had the burden of proof and doubtless could have supplied exact information. Data within the computer itself should show exactly when it was first used to store the information. A diligent search for the records should have been started before the afternoon preceding the trial. In similar circumstances we have pointed out that such a search can continue during the time allowed for a motion for a new trial (about 40 days here, as the decree was not entered until a month after the hearing). Mitchell v. State, 258 Ark. 562, 528 S.W.2d 368 (1975); ARCP, Rule 59. Block was apparently an interested witness, because the association was not free from responsibility in keeping records essential to the validity of transactions it supervised. The probate judge did not have to accept his testimony at face value. No explanation is offered to account for the appellant’s failure to call as witnesses the tellers who had first-hand knowledge about the matter. In the face of such persuasive reasons supporting the probate court’s decision, we certainly cannot say that it is clearly against the preponderance of the evidence.

Affirmed.


author: George Rose Smith, Justice. John A. Fogleman, Chief Justice, John I. Purtle, Justice,

text:
    James HICE v. STATE of Arkansas
    CR 79-181
    593 S.W. 2d 169
    Supreme Court of Arkansas
    Opinion delivered February 11, 1980

      Ralph E. Wilson, Sr., for appellant.

      Steve Clark, Atty. Gen., by: Catherine Anderson, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

The appellant, 20, was convicted of the rape of a 9-year-old girl and was sentenced to serve 50 years’ imprisonment. His brief questions only the sufficiency of the evidence.

It is argued that there is no proof of penetration of the labia, as required by our earlier cases. Gardner v. State, 263 Ark. 739, 569 S.W.2d 74 (1978); Poe v. State, 95 Ark. 172, 129 S.W. 292 (1910). The child’s testimony, which we need not narrate, was sufficient to identify the accused and establish penetration. The examining physician testified that there were signs of irritation, reddening, and tenderness into the inner surfaces of the labia, “to the opening into the vagina at the hymen. There was really no evidence of penetration past the hymen, but certainly within the labia up to as far as the hymen, there was evidence of irritation.” The proof is essentially the same as that in the Poe case, supra, and is sufficient under our earlier cases to support the conviction.

In our discussions of the case, however, the question has been raised that the proof may not be sufficient under the new Criminal Code, in which the definition of rape includes “sexual intercourse” with a person less than 11 years old. Ark. Stat. Ann. § 41-1803 (Repl. 1977). Sexual intercourse in turn is defined as “penetration, however slight, of a vagina by a penis.” § 41-1801(9). According to medical textbooks and to dictionaries, the female sexual organs consist of the vulva, comprising the outer and inner labia, and the vagina, which is the canal extending inward to the uterus. The hymen is at the entrance to the vagina. Thus there is a possibility that the legislature, in referring to the slightest penetration of the vagina, meant to change the crime of rape by requiring a deeper penetration into the body than was formerly necessary. We appreciate the force of this argument, which is supported by the medical definition of “vagina” and by the rule of strict construction of penal statutes; but we are firmly convinced that the legislature did not intend any such drastic change in the law.

The basic rule of statutory construction, to which all other interpretative guides are really subordinate, is to give effect to the legislative intention. Holt v. Howard, 206 Ark. 337, 175 S.W.2d 384 (1943). Penal statutes are not to be so strictly construed as to exclude cases which the words, in their common and ordinary acceptation, would apply to. St. Louis, I.M. & S. Ry. v. Freeman, 95 Ark. 218, 128 S.W. 1024 (1910). And a literal application of a statute which would lead to absurd consequences should be discarded in favor of a more reasonable interpretation. Merritt v. No Fence Dist. No. 2, Jefferson County, 205 Ark. 1129, 172 S.W.2d 684 (1943).

We have two basic reasons for our conviction that the suggested change was not envisioned by members of the legislature. First, the consequences would verge on the ridiculous. As far as we know, Arkansas would be the only state in the nation having such a nebulous and impractical definition of rape. The Code definition requires penetration, “however slight,” of the vagina. In the case of married women, with the hymen gone, it would often be utterly impossible for the victim to say whether the required depth of penetration had occurred, despite the essential immateriality of that particular fact. Certainly the Commentary prepared by the draftsmen of the Criminal Code gave no hint whatever to the General Assembly that such a far-reaching change in the law was to come about.

In the second place, the selection of the word “vagina” is perfectly understandable in view of the task confronting the draftsmen of the Code. They were, as they explain in the Commentary to Section 41-1801 (where sexual intercourse is defined), attempting “to foreclose any contention that the offenses defined by this Chapter are vague in scope.” But in modernizing the criminal law, the draftsmen said specifically, in the last paragraph of the Commentary to that Section: “ ‘Sexual intercourse’ is defined in a fashion that restates the common law doctrine that any penetration suffices to constitute the act.” And the Poe case, supra, which held that penetration of the labia is sufficient, was cited in support of that statement.

It must be remembered that the Code was designed to update language that had not been touched since the Revised Statutes were adopted in 1838. Only ten years earlier Noah Webster had published, in two big volumes, the first edition of his magnificent dictionary. Even though that dictionary defined 70,000 words, it did not contain such entries as anus, penis, or vagina—all Latin words that had precisely the same spelling in ancient Rome. But such words simply were not used in print. Indeed, Webster perhaps went to the limit of propriety in his distinction between the sexes: “The male sex is usually characterized by muscular strength, boldness and firmness. The female sex is characterized by softness, sensibility and modesty.” Nothing more. Webster’s Dictionary (1st ed., 1828), Sex.

So with the General Assembly in 1838. Rape, almost in Webster’s words, was defined in the Revised Statutes as “the carnal knowledge of a female, forcibly, and against her will.” Ark. Stat. Ann. § 41-3401 (Repl. 1964). Sodomy was not even defined, being referred to simply as the crime against nature, which was Webster’s entire definition. And as to penetration the statute merely stated: “Proof of actual penetration into the body shall be sufficient to sustain an indictment for a rape, or for the crime against nature.” §§ 41-814 and 41-3402 and Compiler’s Notes (Repl. 1964).

However, times change. By the 1970’s the draftsmen of the Code preferred to use more forthright language. Sexual intercourse was defined as the penetration of a vagina (no better word comes to mind) by a penis. § 41-1801(9). That distinguishes rape from “deviate sexual activity,” which includes the penetration, however slight, of the anus or mouth of one person by the penis of another. § 41-1801(2). Thus the word “vagina” was selected not to change the definition of rape but to add precision to the definitions of rape and of deviate sexual activity, which includes what was formerly known as sodomy. There is no tenable basis for supposing that the suggested far-reaching change in the fundamental conception of the crime of rape ever crossed the minds of those who wrote or enacted the 1975 Criminal Code.

Affirmed.

Fogleman, C.J., and Holt and Stoud, JJ., concur.

Purtle and Mays, JJ., dissent.

John A. Fogleman, Chief Justice,

concurring. I can agree that this judgment should and must be affirmed, regardless of the meaning given the word “vagina.” Reading the collective legislative mind is sometimes a difficult task and occasionally the answer seems to lie in the mind of the interpreter, who, as human beings are prone to do, sees what he would like to see in the legislative language. The really basic rule of legislative construction is that, when the language of a statute is plain and unambiguous, the words are given their plain, usual and ordinary meaning and there is no resort to rules of construction, the crutches upon which the courts must necessarily lean when language is ambiguous or its meaning uncertain. See McClure v. McClure, 205 Ark. 1032, 172 S.W.2d 243, where we held that the word “cohabit” in a statute meant sexual intercourse, using the popular, rather than the literal or derivative, meaning of the words. Resort to a standard, often used dictionary, Webster’s New International Dictionary, 2d. Edition, Unabridged, reveals this definition:

b. Specif., in female mammals, a canal which leads from the Uterus to the external orifice of the genital canal, or to the cloaca.

Webster’s Third New International Dictionary has substantially the same definition, but omits “or to the cloaca.” According to The American Heritage Dictionary of the English language, vagina means “[t]he passage [leading from the external genital orifice to the uterus in female animals.” Genital means “pertaining to or designating the sexual organs.” Webster’s New International Dictionary, 2d. Edition.

An orifice is a mouthlike aperture, as of a tube, pipe, etc.; an opening; vent. Webster’s New International Dictionary, 2d. Edition, Unabridged. External certainly means outward, exterior. Webster’s New International Dictionary, 2d. Edition. Thus the vagina terminates at the outside opening or vent of the genital canal or the outside or exterior sexual organ opening.

In construing any statute, in the absence of any indication of a contrary legislative intent, the courts must give words their ordinary and usually accepted meaning and interpretation in common language, as distinguished from their technical meaning, where the language is plain and unambiguous. City of North Little Rock v. Montgomery, 261 Ark. 16, 546 S.W. 2d 154; Faull v. Heath, 259 Ark. 145, 532 S.W. 2d 164; Kaiserv. Price-Fewell, Inc., 235 Ark. 295, 359 S.W. 2d 449, cert. den. 371 U.S. 955, 83 S. Ct. 511, 9 L. Ed. 2d 501; Terral v. Terral, 212 Ark. 221, 205 S.W. 2d 198; Callv. Wharton, 204 Ark. 544, 162 S.W. 2d 916; Barnsdall Refining Corp. v. Ford, 194 Ark. 658, 109 S.W. 2d 151; Berry v. Sale, 184 Ark. 655, 43 S.W. 2d 225. This principle applies in criminal cases. In Hancock v. State, 97 Ark. 38, 133 S.W. 181, we said:

*** We must construe the terms according to their ‘usually accepted meaning in common language,’ for that is the sense in which they must be supposed to have been used by the Legislature. ***

To me, the most persuasive portion of the Commentary to Ark. Stat. Ann. § 41-1801 (Repl. 1977) is the reference to the statutes of New York and the proposed codes of Michigan and Kentucky. While I think the statement in the Commentary that “sexual intercourse is defined in a fashion that restates the common law doctrine that any penetration suffices to constitute the act” might be consistent with either view of the present statute; because it does not say “penetration of the body,” it could be taken to say “penetration” means the same thing it always has, and not that penetration of the body and penetration of the vagina are the same. Any doubt is eliminated, however, when, by reading the full commentary, we see that the draftsmen of Ark. Stat. Ann. § 41-1801 (Repl. 1977) derived their definitions largely from New York Penal Law § 130.00, and referred to the Proposed Michigan, Kentucky and Texas codes. The definitions in the New York statute included this:

“Sexual intercourse” has its ordinary meaning and occurs upon any penetration, however slight.

In the Practice Commentaries following the cited section of the New York Code in McKinney’s Consolidated Laws of New York, Annotated, some of the background history is given. The commentator said:

This section sets forth and defines eight terms that are used in Article 130. Subdivision one prescribes that the term “sexual intercourse” is to have its ordinary meaning. The statement that it “occurs upon penetration, however slight,” derives from the former Penal Law (§ 2011). Thus, “sexual intercourse” may occur without orgasm or complete penetration of the penis into the vagina.

We do not know the language used in the proposed Michigan Code, but the Michigan statute adopted and published as Mich. Stat. Ann. § 28.788 (1), M.C.L.A. Sec. 750.520a (Supp. 1979-80) included the following definition:

(h) “Sexual penetration” means sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other intrusión, however slight, of any part of a person’s body or of any object into the genital or anal openings of another person’s body, but emission of semen is not required.

The Kentucky statute, Ky. Rev. Stat. § 510.010 has this definition:

(8) “Sexual intercourse” means sexual intercourse in its ordinary sense but is limited to sexual intercourse between persons not married to each other. Sexual intercourse occurs upon any penetration, however slight; emission is not required. (Enact. Acts 1974, ch. 406, § 81)

The Texas code, Vernon’s Tex. Code Ann. § 21-.01 has this definition:

(3) “Sexual intercourse” means any penetration of the female sex organ by the male sex organ.

The references to McDonald v. State, 225 Ark. 38, 279 S.W.2d 44 and Poe v. State, 95 Ark. 172, 129 S.W. 292, when considered with the definitions of sexual intercourse the draftsmen used as a guide in defining the term are a clear indication that they did not consider the use of the word vagina to change the meaning of the rape statute in the manner the dissent urges.

But even if the minority’s definition of vagina is accepted, I cannot accept the premise that there is no slight penetration of the vagina unless the hymen is ruptured. The examining physician testified that there were signs of irritation and reddening and considerable tenderness into the inner surfaces of the labia, but no evidence of penetration past the hymen. He said that there was “slight erythema of the inner labia and introitus, and very tender at the introitus, hymen intact . . .” There was reddening and tenderness, and signs of irritation at the opening of the vagina. The hymen is a mucous membrane, and as such is flexible. The doctor testified that it would require more force to rupture the hymen of a girl of the victim’s age than that of the average adult female. The introitus is the entrance or opening of the vagina by medical definition. 2 Schmidt’s Attorney’s Dictionary of Medicine & Word Finder, I-67 (1978). In Webster’s New International Dictionary, 2d. Edition, it is defined as “Opening; entrance.” The evidence of irritation at the opening of the vagina, using medical definitions, as the doctor probably did, when considered with the testimony of the little girl, is substantial evidence of slight penetration of her vagina, even though the hymen was not ruptured.

I am authorized to state that Mr. Justice Holt and Mr. Justice Stroud join in this opinion.

John I. Purtle, Justice,

dissenting. The majority has obviously decided this case in the manner they feel it ought to be decided in spite of the fact that the law reads quite to the contrary. I do not feel we are authorized to make a decision based upon what we feel the law ought to be when it is clearly stated otherwise. The General Assembly clearly expressed its intent, and I do not feel we are justified in interpreting it in the manner which we believe they ought to have expressed their intent on the subject. I have no reason to think the General Assembly is incapable of expressing its intent in a criminal matter such as we have before us. The statute has been accurately stated in the majority opinion and I have no trouble at all in understanding the words used therein even though Noah Webster did not see fit to use such words in his dictionary in 1828.

It seems the majority decided there was no intent to change the statutes which have been on the books since 1838. If no changes were intended, then why were the statutes rewritten? No doubt, most members of the legislature know the meaning of “penis,” “vagina,” and “intercourse.” These words are not foreign in Arkansas today even though they may have been Latin in origin. I cannot see the consequence of giving these words their ordinary meaning would verge on the ridiculous. Neither do I consider them to be nebulous or impractical.

I understand appellant’s argument to be that the evidence produced at the trial did not prove appellant had violated the law relating to rape. Since the law, as it is clearly expressed, states the penis must penetrate the vagina before a rape has occurred, I think appellant is arguing the evidence does not support a conviction or that the evidence does not support the finding by the jury that his penis entered her vagina. The majority appear to agree with this last statement; however, they go on to state the legislature did not mean what it expressly stated in the statutes. Instead, they say the legislature really meant to say a penis need only penetrate the labia.

A doctor who examined the girl immediately after the incident testified that he found evidence of tenderness into the inner surface of the labia up to the hymen at the opening of the vagina. He found no evidence of penetration past the hymen which was still intact. The doctor stated it was possible that there was penetration into the labia up to the hymen by a penis. He stated:

I cannot tell the jury that that little girl’s vagina had been penetrated. *** I couldn’t find that she had had sex.

Appellant was charged with rape pursuant to 1975 Ark. Acts No. 280, Ark. Stat. Ann. § 41-1803 (Repl. 1977), which reads:

(1) A person commits rape if he engages in sexual intercourse . . . with another person:
(a) . . .
(b) . . .
(c) who is less than eleven (11) years old.

The statute under which the appellant was charged requires that there must have been sexual intercourse. Sexual intercourse is defined in Ark. Stat. Ann. § 41-1801 (Repl. 1977), as follows:

(9) “Sexual intercourse” means penetration, however slight, of a vagina by a penis.

There is a great difference in the present statute and the former statute relating to rape. The statutes prior to § 41-1801 and § 41-1803 were Ark. Stat. Ann. §§ 41-3401 and 41-3402 (Repl. 1964), which read:

41-3401: Rape is the carnal knowledge of a female, forcibly, and against her will.
41-3402: Proof of actual penetration into the body, shall be sufficient to sustain an indictment for rape.

Under the former statutes penetration into the body certainly included penetration into the labia because they are part of the body. There is no need to cite any of the voluminous cases which upheld convictions for rape under the former statute because penetration, however slight, into the body, was sufficient to complete the crime of rape. However, that has been changed by the present statute which became effective in 1976. We have not been required to rule upon the particular issue of penetration as it relates to the present statue. Sexual abuse in the first degree is defined in Ark. Stat. Ann. § 41-1808 (Repl. 1977), as follows:

(1) A person commits sexual abuse in the first degree if:
(a) he engages in sexual contact with another person by forcible compulsion; or
(b) . . .
(c) being eighteen (18) years or older, he engages in sexual contact with a person not his spouse who is less than fourteen (14) years old.

The Commentary following the last mentioned statute contains the following statement:

This section is intended to proscribe intimate bodily contact under circumstances that would constitute rape or carnal abuse if the participants engaged in sexual intercourse or deviate sexual activity. *** the conduct might, depending on the facts, have been punishable as assault with intent to rape, simple assault, or sodomy.

In the new statute the language is definite. It clearly states there must be a penetration of the vagina by a penis in order to complete the offense of rape. Therefore, we necessarily have to make certain determinations relating to the female genitals before deciding whether a rape has in fact occurred.

The Attorneys’ Textbook of Medicine, Third Edition, Gordy-Gray, Chapter 291, deals with the parts of the anatomy involved in this case. The hymen is described as follows:

The hymen is a thin fold of mucous membrane separating the vulva from the vagina.
The vagina is the muscular tube lined with mucous membrane and extends from the hymen to the cervix uteri.

The textbook further describes the labia as being exterior to the hymen. Therefore, there can be penetration of the labia without penetration of the vagina. Since the uncontradicted facts in this case show this child’s hymen to be still intact and the doctor’s statement clearly shows there was only possible penetration of the labia, there can be no rape as defined by Ark. Stat. Ann. § 41-1803.

Criminal attempt is defined in Ark. Stat. Ann. § 41-701 (Repl. 1977), as follows:

(1) A person attempts to commit an offense if he:
(a) . . .
(b) purposely engages in conduct that constitutes a substantial step in a course of conduct intended to culminate in the commission of an offense whether or not the attendant circumstances are as he believes them to be.

It is obvious an attempt to commit rape is present in the facts and circumstances in the record before us. This “attempt” statute is clearly a replacement for a former attempted rape statute. Penalty under the present statute for attempted rape is from 3 to 20 years. The penalty for sexual abuse in the first degree is up to 5 years.

Since the legislature used the term “sexual intercourse” in one statute and “sexual contact” in another, I have no reason to believe they did not know the difference. Additionally, the two expressions are defined one immediately following the other in Ark. Stat. Ann. § 41-1801 (Repl. 1977). Also, “deviate sexual activity” is defined in a manner that a first year law student would have no trouble understanding. The legislature certainly went to a lot of trouble and expense needlessly if a change or clarification of the statutes were not intended. Perhaps it is not the legislature that does not understand what the statutes clearly express.

In most cases, the female would be able to state she had been penetrated. In such cases such statement would support a conviction for rape. However, here we have a most unusual case as the uncontradicted evidence shows there was no penetration of the vagina. It is not our duty or responsibility to substitute our opinion for that of the legislature when there is no uncertainty or ambiguity. It is not up to us to change the laws so long as they are constitutional. Whether this law should have been changed is for the legislature to decide, not the courts.

Strict statutory construction of penal statutes is perhaps the most formidable rule of law in existence today. It has existed for over a hundred years without interruption. Penal statutes are to be construed strictly in favor of those upon whom the penalty is to be imposed. In construing penal provisions, nothing will be taken as intended which is not clearly expressed, and all doubts must be resolved in favor of the accused. White v. State, 260 Ark. 361, 538 S.W. 2d 550 (1976). We have stated it is a well-settled rule that penal statutes are strictly construed with all doubts resolved in favor of the defendant, and nothing is taken as intended which is not clearly expressed. State v. Scarmardo, 263 Ark. 396, 565 S.W. 2d 414 (1978).

There has never been any attempt to change the strict construction rule. A rule so long in existence has surely found favor by the courts and the legislature. No doubt the legislature acted with due deliberation when enacting the present statutes. Obviously, it had in mind to create several classes of criminal offenses which it defined rape, sexual abuse in the first degree, criminal attempt, and others. The distinction is not without reason. It is manifestly more appropriate that a man who assaults a female to the extent he inserts his penis into her vagina, perhaps destroying the hymen, should receive a more severe sentence than one who intended to accomplish the same act but failed. No doubt justice requires a different sentence in the two types of offenses. No doubt the legislature had in mind the effect it would have on the victim as well as the offender. The stigma attached to a rape victim is great indeed. No doubt the stigma attached to the victim of sexual abuse, or attempted rape, where there is no rape is less severe. The victim in this case is still a virgin in the sense that her hymen is still intact. Had her vagina been penetrated this would no longer be true. We are not unaware of the fact that displacement of the hymen is often accomplished by means other than by sexual intercourse.

It is obvious from the facts of this record that appellant attempted to rape this little girl but, for reasons not know to us, he did not complete the dastardly act. Whether he was unable to do so or changed his mind about it is not for us to decide. However, we should apply the proper law to the case. Therefore, I would reverse and remand for the purpose of having appellant tried pursuant to the appropriate statute.

I am authorized to state that Mays, J., joins me in this dissent.


author: Frank Holt, Justice.

text:
    S. H. & J. DRILLING CORPORATION v. R. L. QUALLS, Director, Department of Finance and Administration, State of Arkansas
    79-326
    593 S.W. 2d 178
    Supreme Court of Arkansas
    Opinion delivered February 11, 1980

      Anderson & Grumpier, for appellant.

      James R. Eads, Jr., Robert G. Brockmann, Joseph V. Svoboda, Barry E. Coplin, Thomas Clark, Jr., Timothy J. Leathers, and Martha S. Stephenson, for appellee.
   Frank Holt, Justice.

Appellant, a driller of oil and gas wells, purchased various items from outside the state to replace existing items of a drilling rig, which is used in its drilling operations in Arkansas. Appellee assessed the Arkansas Compensating Tax, commonly referred to as the “use” tax, on the items pursuant to Ark. Stat. Ann. § 84-3105 (Supp. 1977). Appellant contended that the items are exempt under the “replacement” exemption in Ark. Stat. Ann. § 84-3106 (D)(2)(b) (Supp. 1977) and paid the tax under protest. Following a hearing, appellee’s hearing board found that several of the items were exempt, but that the remaining items were subject to the use tax. Prior to the submission of the case, the parties agreed to the classification of two of these items. Upon a review of the pleadings, stipulations of facts, exhibits and briefs, the chancellor held that the remaining items were not separate “machines,” as asserted by appellant, but component parts of the drilling rig. Their replacement, therefore, did not constitute “machinery purchased to replace existing machinery in its entirety” as required under § 84-3106(D)(2)(b). The court also held that the oil and gas drilling rig is a single machine that must be replaced in its entirety for the exemption to apply.

Appellant reasserts its argument here that a drilling rig is a manufacturing facility composed of many separate machines and each of the items purchased was “machinery purchased to replace existing machinery in its entirety.” Appellee responds that once the parts are assembled, they become components of a single machine, the drilling rig; and, therefore, the rig must be replaced in its entirety for the exemption to apply. It is well established that any exemption provision must be strictly construed against the exemption, and to doubt is to deny the exemption. Arkansas Beverage Co. v. Heath, 257 Ark. 991, 521 S.W. 2d 835 (1975). The appellant has the burden of clearly establishing the exemption beyond a reasonable doubt. Heath v. Westark Poultry Processing Corp., 259 Ark. 141, 531 S.W. 2d 953 (1976). On appeal we review exemption cases de novo and do not reverse the chancellor’s finding of fact unless it is clearly against the preponderance of the evidence. Arkansas Beverage Co. v. Heath, supra.

It appears that the controlling issue on this appeal is whether or not certain items represent “machinery purchased to replace existing machinery in its entirety.” The parties stipulated that a drilling rig is “composed of many different machines and much equipment which is designed to accomplish the unique needs of its operator.” It is impossible to buy a new rig on the market, because no such entity exists due to the particular needs of each drilling contractor. A drilling rig is assembled from various components purchased from many different manufacturers. Several essential components are universally used in the oil drilling industry, and each has a specialized function. Several of the items at issue are described as follows: a crown block which is composed of a base, shaft, five bearing assemblies and sheaves, is located at the top of the drilling derrick and provides support for the drill string, weighing many tons, while allowing the amount of weight or push exerted on the drill bit to be adjusted; a swivel, a steel cylinder attached to three bearing assemblies, which is used primarily to support the drill string in a stationary position while allowing it to rotate on its axis; a drill string, composed of many sections of drill pipes and collars, which exerts force on the drill bit and transmits fluid to it; and a drill bit, composed of several cones and bearings, which rotates and exerts force on the cone assemblies which do the actual digging. In summary, the vertical arrangement of the assembled drill, in ascending order, consists of these components; a drill bit to the swivel is referred to as the drill string; the drill string is attached to the swivel which is attached to the traveling block which is, in turn, attached to the crown block. The crown block is located on the very top of the derrick. Even if we consider each of these items a machine or machinery under the definitions set forth in Heath v. Research Cottrell, 258 Ark. 813, 529 S.W. 2d 336 (1975), once these various machines are assembled into a rig, they become a single unit. All of the machines are interconnected and form a single machine designed to accomplish a single purpose— drilling a hole in the ground. The function of each machine is not complete before the adjacent machine begins to function. See Arkansas Beverage Co. v. Heath, supra. The desired result can be accomplished only if the machines or component parts of the drill rig function simultaneously and as a single unit.

As we stated in Fourco Glass Co. v. Heath, 261 Ark. 192, 547 S.W.2d 121 (1977), “simple repairs or replacements are no longer exempt; the machinery must be replaced in its entirety.” There it was argued that the replacement of small wheels, posts, or swivels, of a glass cutting wheel by new ones constituted a replacement of machinery ‘in its entirety’ “because each little part is a unit in itself.” We said that substituting these items does not constitute replacement of a machine in its entirety. It is true that there is a vast dissimilarity in size, form and function of the replacement items here and those in Fourco. However, we are unable to consider that a controlling distinction here. We doubt, as did the chancellor, that the legislature intended to exempt the replacement of component parts of a single machine which is used for a single purpose. To doubt is to deny.

We now turn to the two remaining items claimed to be exempt; i.e., rotary tongs—used whenever it is necessary to attach and detach the various sections of the drill string, and slips—used to hold the drill string stationary whenever the sections are attached and detached. In our view these two items, component parts of the rig, should be considered as equipment and therefore are not exempt as replacement items under § 84-3106 (D)(2)(b).

Affirmed.