author: John I. Purtle, Justice. John A. Fogleman, Chief Justice, John F. Stroud, Justice,

text:
    Johnny STOVER, By His Mother and Next Friend, Henrietta HOLBERT v. Pat HAMILTON, Acting Commissioner of Mental Health Services
    80-97
    604 S.W. 2d 934
    Supreme Court of Arkansas
    Opinion delivered September 22, 1980
    Rehearing denied October 20, 1980

      Central Arkansas Legal Services, Inc., by: Griffin J. Stockley and James R. Cromwell, Little Rock, for appellant.

      Steve Clark, Atty. Gen., by: Robert R. Ross, Deputy Atty. Gen., Little Rock, for appellee.
   John I. Purtle, Justice.

On February 22, 1980, Henrietta Holbert, as mother and next friend of Johnny Stover, filed a petition for a writ of habeas corpus in the Chancery Court of Pulaski County, Arkansas. She alleged her son was illegally confined in the Arkansas State Hospital in Little Rock, Arkansas. The chancellor ruled petitioner was being legally held pursuant to an order of commitment by the Franklin County Circuit Court under Ark. Stat. Ann. § 41-612 (Repl. 1977).

On appeal, petitioner urges (1) that he could not be held for more than one year under the statute used to commit him if he was mentally unfit to stand trial and (2) that the circuit court had no authority to acquit him by reasons of insanity as long as he remained incompetent to stand trial. We agree with the first argument but disagree on the second.

On December 21, 1977, petitioner was charged with first degree murder and was committed to the state hospital for examination on the same date. On January 17, 1978, the hospital filed a report stating petitioner was suffering from Korsakov’s Psychosis, and he did not have the mental capacity to understand the proceedings against him or to effectively assist in his defense. Basing its decision upon the report of the hospital, the Franklin County Circuit Court committed petitioner to the state hospital until he was cured or was restored to reason. This order was entered on July 7, 1978.

On September 21, 1979, petitioner’s attorney filed a motion for rehearing on sanity. The motion stated that appellant’s condition at the time of the alleged offense had never been determined by the court. The motion sought a speedy disposition of the case, and a hearing was held on October 5, 1979- The Court determined (1) petitioner to be not guilty by reason of mental disease or defect and (2) petitioner presented a danger to himself and others. A written order to this effect was filed on December 12, 1979, and petitioner was committed to the custody of the director of the state hospital pursuant to Ark. Stat. Ann. § 41-612.

On February 22, 1980, a petition for habeas corpus was filed in the Pulaski County Chancery Court seeking the release of petitioner. The petition challenged the authority of the Franklin County Circuit Court to acquit him while he was still suffering from mental disease, and it was argued that the criminal statutes could not be used to confine him to the state hospital for a period in excess of one year.

The chancellor entered an order on March 19, 1980, which concluded that the Franklin County Circuit Court had jurisdiction of the person and subject matter and found the order of the circuit court to be proper pursuant to Ark. Stat. Ann. § 41-609 (Repl. 1977). The chancellor further held that the constitutionality of the committing statute has not been challenged and there were no other reasons presented pursuant to Ark. Stat. Ann. § 34-1733 (Repl. 1962) which required release of petitioner.

There is no dispute that the Pulaski County Chancery Court had jurisdiction over the parties and the subject matter. The rule is well established that upon petition for habeas corpus the court only determines whether the commitment is regular on its face and whether the issuing court had jurisdiction. Mitchell v. State, 233 Ark. 578, 346 S.W. 2d 201 (1961).

We now consider whether the Pulaski Chancery Court properly considered the Franklin Circuit Court commitment of December 12, 1979. Appellant-petitioner argues the circuit court is void on its face and relies upon Ark. Stat. Ann. § 41-603 (Repl. 1977), which states:

No person who, as a result of mental disease or defect, lacks capacity to understand the proceedings against him or to assist effectively in his own defense shall be tried, convicted, or sentenced for the commission of an offense so long as such incapacity endures.

It is appellant’s contention that the acquittal by the Franklin County Circuit Court amounted to a trial. We agree that the statute prevented the court from having a trial for the appellant so long as his disability existed. We think it is important to concurrently consider Ark. Stat. Ann. § 41-609 (Repl. 1977), which states:

On the basis of the report filed pursuant to § 605 (§ 41-605), the court may, after a hearing if a hearing is requested, enter judgment of acquittal on the ground of mental disease or defect if it is satisfied that, at the time of the conduct charged, the defendant lacked capacity, as a result of mental disease or defect, to conform his conduct to the requirements of law or to appreciate the criminality of his conduct.

The Commentary following this statute indicates that in cases of extreme mental disease or defect, where the lack of responsibility on the part of the defendant is clear, a trial can be avoided and defendant can be hospitalized under the provisions of Ark. Stat. Ann. § 41-612.

We are also concerned with the provisions of Ark. Stat. Ann. § 41-612 which in substance holds that if a defendant is acquitted on the grounds of mental disease or defect and the court finds that he presents a risk of danger to himself or the person or property of others, the court shall order the defendant committed to the custody of the director of the state hospital to be placed in an appropriate institution. If a person is committed pursuant to the provisions of § 41-612, which does not define the duration of the commitment, his rights to application for release are governed by Ark. Stat. Ann. § 41-613 (Repl. 1977). Application for release or discharge may be presented no sooner than 90 days from the date of the commitment, and subsequent applications for discharge may be made after the expiration of one year from disposition of the previous application. Therefore, neither § 41-612 nor § 41-613 sets a limit upon the time a person may be held in the state hospital. Both of these statutes place the decisional process in the hands of the court instituting the commitment. To this point in the proceedings, the statutes have been followed.

The constitutionality of the commitment statute is not challenged; however, it it argued that it is unconstitutional as applied to this appellant. For this reason it was proper for the chancellor to consider the prior court order.

The motion to determine the sanity of appellant was presented on his behalf to the trial court. The motion seemed to request a determination of appellant’s capacity to stand trial. The court, acting upon the motion with evidence of appellant’s mental condition, found him not guilty by reason of lack of mental capacity at the time of the offense. The court acquitted him and ordered commitment pursuant to Ark. Stat. Ann. § 41-612.

Appellant argues vigorously that Ark. Stat. Ann. §41-607 (2) (d) (Repl. 1977) requires the director of the state hospital to institute civil commitment proceedings against a party who is unfit to proceed to trial if he presents a danger to himself or the person or property of others. He also argues that such commitment cannot exceed a period of one year. This statute concerns an accused who is being held on a pending charge but is “unfit to proceed.” In the present case, the appellant is no longer being held in such a status. There are no criminal charges pending against the appellant nor can there ever be any criminal charges brought against him for this particular offense. Therefore, this statute would be inapplicable. His original commitment was in compliance with this statute, and there is a one year limitation after which the accused must be committed pursuant to Ark. Stat. Ann. § 59-408 (Repl. 1971) if it is found he is a danger to himself or the person or property of others.

It is true the petitioner-appellant is being deprived of his liberty, but this confinement is not a result of any crimnal proceeding. His detention is a result of his mental condition.

Since there asre no criminal proceedings pending against the appellant, it is only logical that he be held pursuant to civil commitment provided in Ark. Stat. An. § 59-408 (now Acts of 1979, No. 817) and as mandated by Ark. Stat. Ann. § 41-607 (2) (d) in case he is still being held for trail after one year but represents a danger to himself or the person or property of others. Certainly, it cannot be argued the accused is entitled to be absolutely released as long as he presents a danger to himself or the person or property of others.

We hold that when the court terminated all proceedings against the appellant by its order of acquittal he was no longer subject to the sanctions of any criminal statute. He has been effectively removed from the category of “unfit to proceed.” His status is as if he had never been charged with the crime upon which those proceedings were instituted. Therefore, confinement, after acquittal, should have been ordered pursuant to Ark. Stat. Ann. § 59-408. The trial court simply employed the wrong statute to do what it had the right to do under another statute. We do not interpret Baird v. State, 266 Ark. 250, 583 S.W. 2d 60 (1979), to contradict our present holding. Baird argued that she should be committed, and we directed the trial court to have her committed. However, we did not specify which statute would be used, and we presume she was committed, if at all, pursuant to civil commitment which is exactly what we are doing in the present case.

We do not find that Ark. Stat. Ann. § 41-603, which precludes trial, conviction, or sentencing of a person who lacks capacity to understand the proceedings or assist in his defense, conflicts with Ark. Stat. Ann. § 41-609 which specifically provides for a judgment of acquittal of such person. It is our understanding that Drope v. Missouri, 420 U.S. 162 (1975), held that a person such as appellant could not be tried. There was no trial in the present case; therefore, Drope is inapplicable.

The Commentary following Ark. Stat. Ann. § 41-607 indicates the holding in Jackson v. Indiana, 406 U.S. 715 (1972), is to the effect that a person may not be held in confinement for a period in excess of one year on an incompetency commitment in a criminal proceeding. The Commentary indicates the Commission felt the state should not incarcerate a person, who has never been tried for or convicted of a criminal offense, for a period in excess of one year. The Commission felt that confinement for longer periods should be by traditional civil commitment. We think this is sound logic. We must necessarily read into Ark. Stat. Ann. § 41-612 a limitation which prevents a person from being held indefinitely to the extent he is deprived of due process of law. The present law relating to involuntary civil commitment is Ark. Stat. Ann. § 59-1401 et seq.

Therefore, the case is remanded to the Pulaski Chancery Court with directions to order the director of the state hospital, or his representative, to make a determination whether the appellant presently presents a danger to himself or the person or property of others. If the director or his representative finds the petitioner presents such danger, he will immediately institute civil commitment proceedings. If it is found that the appellant does not present a danger to himself or the person or property of others, the director will notify the trial court of his findings and will release the petitioner from custody.

Reversed and remanded.

Fogleman, C J., and Hickman and Stroud, JJ., concur in part, dissent in part.

John A. Fogleman, Chief Justice,

concurring in part, dissenting in part. I agree partially with the result reached in the majority opinion, but I cannot agree with its means of reaching the result or its disposition of the case.

Appellant Stover, by his next friend, complains that the order of the Circuit Court of Franklin County committing him to the Arkansas State Hospital was beyond the jurisdiction of that court and is, therefore, invalid on its face. If this is true, habeas corpus was the proper remedy, and the court in which the application was made had jurisdiction to grant the relief against officers of the state in charge of a facility in Pulaski County in which Stover is held.

Habeas corpus, generally speaking, is a legal, not an equitable remedy. 39 CJS 461, Habeas Corpus, § 3. The jurisdiction of equity, however, may be utilized in connection with its general supervisory authority over the persons of individuals under legal disability to the extent it has not been transferred to probate courts. 30 CJS 884, Equity, § 51; 27 Am. Jur. 2d 592, Equity, § 69. The writ was properly returned to the Chancery Court of Pulaski County, the county in which Stover was held in custody. State Dept. of Public Welfare v. Lipe, 257 Ark. 1015, 521 S.W. 2d 526.

The response of the appellee to the writ was that Stover was lawfully committed pursuant to Ark. Stat. Ann. § 41-612 (Repl. 1977) on December 12, 1979- It was asserted that, by this order, Stover was acquitted of the charge of murder, which had been pending when Stover was committed to the state hopital for observation on December 21, 1977, and for diagnosis, treatment and custody on July 7, 1978. The Commissioner of Mental Health Services contends that Stover’s only remedy is by petition under Ark. Stat. Ann. § 41-613 (Repl. 1977). The chancery court held that the order of acquittal was proper, that the constitutionality of Ark. Stat. Ann. § 41-609 (Repl. 1977) had not been raised and that no reason for an order of release of Stover under Ark. Stat. Ann. § 34-1733 (Repl. 1962) had been shown to exist. The chancery court was in error. Even if the process committing Stover was in proper form, there was reason for the court to grant relief to him, if the process was issued under circumstances not authorized by law. Rowland v. Rogers, 199 Ark. 1041, 137 S.W. 2d 246.

Appellant contends that the trial court had no power under § 41-609 (Repl. 1977) to acquit him. It seems that there had been full compliance with the requirements of Ark. Stat. Ann. §§ 41-605 and 41-606 (Repl. 1977). The reports required by Ark. Stat. Ann. § 41-607 (Repl. 1977) were filed and the circuit court found that Stover was unfit to proceed, but did not release him, as it might have done had it found that he did not present a danger to himself or others. Ark. Stat. Ann. § 41-607 (2) (c) (Repl. 1977).

The problem presented here arose when the circuit court entered a judgment of acquittal under § 41-609 on the ground of Stover’s mental disease or defect, having been satisfied that, at the time of the conduct on which the charge against him was based, he lacked capacity to conform his conduct to the requirements of law or to appreciate the criminality of his conduct. Thereafter, the court committed Stover pursuant to Ark. Stat. Ann. § 41-612 (1) (a). There is nothing in § 41-609 that indicates that it is properly applicable to one, such as Stover, who lacks fitness to proceed. The circuit court’s jurisdiction as to one who lacks fitness to proceed is set out in Ark. Stat. Ann. § 41-607 (Repl. 1977).

At the time of the order of which appellant now complains, the court had before it a report filed under § 41-607 (2) (a). The report indicated that Stover was not fit to proceed. The court had jurisdiction, upon finding that Stover was unfit to proceed, to either release Stover upon conditions prescribed in its order or order the Director of the State Hospital to proceed under Ark. Stat. Ann. § 59-408 (Repl. 1971). The criminal proceeding could only be resumed under conditions set out in § 41-607 (3). No judgment, even of acquittal, could be entered without a presumption of the criminal proceedings.

I agree with appellant that the order of the Circuit Court of Franklin County acquitting him is void because it was beyond the jursidiction of that court. The jurisdiction of circuit courts over mentally incompetent persons is very limited. The Constitution of Arkansas vests jurisdiction of persons of unsound mind in the probate court by Art. 7 § 34 and Amendment 24. Consequently, the exercise of jurisdiction over a mentally incompetent person must be incident to the exercise of criminal jurisdiction. Baker v. Young, 121 Ark. 537, 182 S.W. 279. In that case, the court had before it another statute, which, on its face, required the superitendent of the state insane asylum to admit, upon the certificate of the judge of the court before whom the charge was pending, any person acquitted of a criminal charge upon a plea of insanity and to hold such person until he was restored to reason. This court held, because of the limited jurisdiction of the circuit court, that the circuit judge’s certificate was only a means for admission of the acquitted person to the asylum and not an adjudication of insanity, and was merely prima facie evidence upon which the accused could be held until there was an adjudication by the probate court, the court having exclusive jurisdiction, which may be invoked at any time. It was said that the statute then questioned was a valid enactment when viewed in that light. We must also view the current statute in the same light; otherwise, it is unconstitutional. Baker, like this case, was a review of the denial of habeas corpus by the Chancery Court of Pulaski County. This court said that the petitioner’s proper remedy was to apply to the probate court for an adjudication of the question of his sanity.

The circuit court’s order in this case is not and cannot be authority for Stover to be held by the appellee, if there are no criminal proceedings pending against him. If the acquittal is valid, he can be held by the state hospital only for such period of time as may be required to an adjudication by the probate court. If the acquittal is invalid, then the circuit court could only have directed appellee to apply to the probate court for commitment under Ark. Stat. Ann. § 59-408 (Repl. 1971). See § 41-607 (2) (d).

The majority has not bothered to explain the difference between this case and Baker, probably because there is none. If there is, it should be demonstrated. Baker cannot properly be ignored. It is certainly sound under our constitution. Even if recognized, a proper result could be reached under its holding, if the acquittal had been valid. The majority says that Stover is not deprived of his liberty as the result of a criminal proceeding. How else could the circuit court have possibly committed him?

It has been suggested that appellant through his next friend, is in no position to complain of his acquittal, however adverse to him the ultimate consequences may be, because his attorney moved that the order be made. A basic premise of unfitness to proceed is the defendant’s capacity to understand the proceedings against him and to assist effectively in his own defense. Ark. Stat. Ann. § 41-603 (Repl. 1977).

The test was most thoroughly stated in Dusby v. United States, 362 U.S. 402, 80 S. Ct. 788, 4 L. Ed. 2d 824 (1960). According to that case, the “test must be whether he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and whether he has a rational as well as factual understanding of the proceedings against him.” We applied that test in Deason v. State, 263 Ark. 56, 562 S.W. 2d 79, cert. den. 439 U.S. 839, 99 S. Ct. 126, 58 L. Ed. 2d 136. The question is essentially a jurisdictional one. Rogers v. State, 264 Ark. 258, 570 S.W. 2d 268.

Appellant is not barred from questioning the court’s action in “acquitting” him, if that action is detrimental to him, unless it can be said that he has either waived the right through his attorney’s action or he is estopped by it. But neither waiver nor estoppel should be applied if Stover did not have a rational and factual understanding of the proceedings or the ability to consult with his attorney in a meaningful manner.

I cannot agree with the majority’s disposition of this case. It is not the province of appellee to make any determination whether Stover is a danger to himself or society. That finding can only be made by the Circuit Court of Franklin County, in the first instance, and it has been made. That finding only authorizes the holding of Stover until the probate court makes a determination. In my opinion, appellee should apply within 30 days to the circuit court for authorization to proceed under § 59-408 and hold Stover until such proceedings can be concluded, or Stover should be released by a court having jurisdiction.

John F. Stroud, Justice,

concurring in part, dissenting in part. I agree with that portion of the majority opinion that held the circuit court did have authority to acquit appellant even though he was at that time incompetent to stand trial. Ark. Stat. Ann. § 41-609 (Repl. 1977) authorizes the acquittal of an accused without a trial if the court feels the psychiatric report sufficiently indicates the accused lacked the capacity at the time of the alleged offense to conform his conduct to the requirements of law or to appreciate the criminality of his conduct. I find no conflict between this provision and Ark. Stat. Ann. § 41-603 (Repl. 1977) which prohibits a trial, conviction, or sentence so long as an accused lacks the capacity to understand the proceedings against him or to assist effectively in his own defense. The two statutes are part of the same act and were adopted simultaneously. In such instances, we always try to give effect to both statutes rather than to declare one void. Furthermore, an acquittal without a trial is simply not a trial, conviction or sentence.

The majority opinion acknowledges that after acquittal, appellant was properly committed by the Franklin County Circuit Court to the Arkansas State Hospital pursuant to Ark. Stat. Ann. § 41-612 (Repl. 1977) and that his release is governed by Ark. Stat. Ann. § 41-613 (Repl. 1977). I depart from the majority when they depart from the provisions of § 41-613 by “reading into it” a requirement that due process requires a civil commitment pursuant to Ark. Stat. Ann. § 59-1401, et seq (Repl. 1971). The trial court found that the constitutionality of the committing statute had not been challenged. It is my belief that in the absence of declaring it' unconstitutional, the provisions of § 41-613 should be followed. Rather than remanding to the chancery court with directions involving a possible civil commitment, I would affirm the action of the chancellor denying the writ of habeas corpus. Such affirmance should, however, be without prejudice to appellant or his mother as his next friend to petition the Franklin County Circuit Court pursuant to § 41-613 to determine if he still presents a danger to himself or to the person or property of others. If he still does present such danger, he should remain in the Arkansas State Hospital. Sufficient “due process” is afforded appellant by § 41-613(2) which authorizes unlimited petitions to the committing court so long as such petitions are filed no sooner than one year following the disposition of the previous application.

Hickman, J., joins in this opinion.

      It does not appear that probate courts have habeas corpus jurisdiction.


source: Caselaw Access Project

author: John I. Purtle, Justice. John F. Stroud, Justice,

license: Public Domain

text:
    James Earl THRASHER, a/k/a Charles L. HYATT v. STATE of Arkansas
    CR 80-70
    604 S.W. 2d 931
    Supreme Court of Arkansas
    Opinion delivered September 22, 1980

      E. Alvin Schay, State Appellate Defender, Little Rock, for appellant.

      Steve Clark, Atty. Gen., by: James P. Dowden, Asst. Atty. Gen., Little Rock, for apellee.
   John I. Purtle, Justice.

Upon convicting appellant of burglary and theft of property, the jury fixed his punishment in the Department of Correction at 20 years for burglary and 10 years for theft of property.

Only one point is argued for reversal. Appellant contends the court erred in requiring appellant to go to trial when the state had not complied with the request for discovery pursuant to Rules of Criminal Procedure, Rule 19-7 (Repl. 1977).

Appellant and a codefendant were charged with burglary and theft of property in violation of Ark. Stat. Ann. § 41-2002 and § 41-2203 (Repl. 1977). They allegedly broke into the Lake Village Drug Store and took a quantity of controlled substances valued at approximately $250. James Barker was appointed to defend appellant. Thrasher, and another attorney defended codefendant Schwindling.

On July 26, 1979, appellant moved for discovery; and, the court entered an order on August 1, 1979, requiring the state to furnish the information by August 14, 1979- The discovery information was to be furnished to appellant’s attorney, and a copy was to be filed with the circuit clerk. On September 11, 1979, the date of the trial, appellant filed a motion in limine in which he sought to prohibit the state from using any evidence against him which was required to be disclosed by the court’s order granting discovery. The court overruled the motion in limine and allowed the case - to proceed to trial as scheduled.

The prosecuting attorney insisted that he had sent a copy of the requested material to counsel for the codedendant and thought that the codefendant’s attorney would furnish a copy to appellant’s counsel. However, appellant’s counsel never received a copy of the requested material, but he did discover three days before the trial that he did not have the requested material. The court overruled the motion in limine on the grounds that appellant’s attorney did not show due diligence pursuing the motion for discovery.

After the court overruled the motion in limine, the appellant moved for a continuance, and the court overruled the motion.

We are primarily concerned here with Rules of Criminal Procedure, Rule 19-7 (Repl. 1977), which states:

(a) If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with an applicable discovery rule or with an order issued pursuant thereto, the court may order such party to permit the discovery or inspection of materials not previously disclosed, grant a continuance, prohibit the party from introducing in evidence the material not disclosed, or enter such other order as it deems proper under the circumstances.

We have dealt with a similar situation in Williamson v. State, 263 Ark. 401, 565 S.W. 2d 415 (1978); and Williams v. State, 267 Ark. 527, 593 S.W. 2d 8 (1979). In Williamson the prosecuting attorney deliberately failed to make full disclosure under the motion for discovery on the theory that the defendant was not entitled to some of the material until the witnesses had testified on direct examination. The prosecutor also refused to furnish a tape recording of a conversation or a transcription of that recording. The trial court agreed with the prosecuting attorney and, at a hearing before the trial, refused to require disclosure of these items. In reversing the case, we stated:

We are persuaded that Rule 17.1 imposes a duty upon the state to disclose the defense counsel, upon a timely request, all material and information to which a party is entitled in sufficient time to permit his counsel to make beneficial use thereof. Any interpretation of Rule 17.1 to the contrary would indeed make a farce of a rule which has as its purpose to deduce delays during trial and taken as a whole lending more conclusiveness and completeness in the disposition of criminal cases and disclosure, indeed, alleviates docket congestion and permits a more economical use of judicial resources. It seems clear that disclosure in advance of the trial does not create any risks for the state inasmuch as any improper use of the disclosed material is virtually impossible.

In Williams v. State, supra, we clearly stated that the failure of the prosecuting attorney to timely furnish requested evidence pursuant to a discovery motion required the exclusion of the evidence or a continuance.

In the case of Hughes v. State, 264 Ark. 723, 574 S.W. 2d 888 (1978), we held it was not error for the trial court to grant a recess in order for the defense attorney to question witnesses.

We recognize that the appellant’s counsel discovered he had not received the requested information three days before the trial. We feel he had a duty to come forward as soon as possible with a request to obtain the information. However, this duty is not as great as the duty of the prosecuting attorney to furnish the information as required by Rules of Criminal Procedure, Rule 17.1 (Repl. 1977), which states that the prosecutor shall disclose to the defendant the information requested in the present case. We are unaware of the last provisions of Rule 19.7 which states that the court may enter such other order as it deems proper under the circumstances. Taking the over-all meaning of this rule, we do not find that the court was authorized to overrule the appellant’s objection to the prosecuting attorney’s complete failure to produce the evidence as required by the rule and the order of the court. In doing so, we are not holding that there are no circumstances under which the court would not be justified in ordering the trial to proceed. In fact, Martinez v. State, 269 Ark. 231, 601 S.W. 2d 576 (1980), was such a case. In Martinez, we found that the accused had in fact obtained a requested photography through other sources, had been able to interview one of the witnesses called by the state, and had himself called the other witness whose name and address had not been disclosed.

Under the circumstances of this case we feel it was improper to force the appellant into a joint trial without the benefit of any of the information which had been sought through discovery. Therefore, we must remand the case for a new trial.

Reversed and remanded.

Fogleman, C.J., and Stroud, J., dissent.

John F. Stroud, Justice,

dissenting. I respectfully dissent with the majority of this court because I cannot say the trial court abused its discretion in denying appellant’s motion in limine to exclude any evidence not disclosed to appellant’s attorney prior to the day of trial. The testimony of the attorneys in chambers indicates that the prosecuting attorney was under the honest but mistaken belief that by furnishing a copy of the requested information and witness list to the attorney for appellant’s codefendant, a copy would be given by him to appellant’s attorney. I do not excuse the prosecuting attorney from strict compliance with the discovery order entered by the court, but the attorney for appellant also has some responsibility in the matter.

The order of the court directed the prosecuting attorney to furnish the discovery information to appellant’s attorney by August 14, 1979, but when this was not done, appellant’s attorney did nothing about it until the date of trial on September 11, 1979. A phone call or letter to the prosecuting attorney, the court, or the attorney for the codefendant would undoubtedly have resulted in immediate delivery of the discovery information. Appellant’s attorney did not interview the arresting officers who obviously would be called as witnesses, but instead elected to wait in silence for the date of trial in hopes of excluding certain evidence and testimony or obtaining a continuance.

The majority opinion cites Williamson v. State, 263 Ark. 401, 565 S.W. 2d 415 (1978) and Williams v. State, 267 Ark. 527, 593 S.W. 2d 8 (1980), as being factually similar to this case, but I strongly disagree. In Williamson, supra, the conviction was reversed because the prosecuting attorney deliberately failed to make full disclosure, but there is absolutely no suggestion that the prosecuting attorney deliberately withheld discovery information in the case now on appeal. The facts in Williams v. State, supra, are also distinguishable because there the prosecuting attorney failed to disclose some critical information to the defendant’s attorney until the voir dire of the jury had been completed. The record in this case fails to disclose how the discovery information was critical to appellant’s defense or that he was prejudiced by the late disclosure. As appellant’s defense was that he was not at the scene of the burglary, it is difficult to see how pictures of the hole in the wall or a list of the officers who would testify would affect his posture at trial. Also in that case there was no evidence of dilatoriness on the part of the attorney for the defendant, as there was no way he could have known the undisclosed comment had occurred. Because I believe the trial court in this case acted within the discretion afforded him by Rule 19.7 of the Arkansas Rules of Criminal Procedure, I would affirm the conviction.

Fogleman, C.J., joins in this dissent.


author: John I. Purtle, Justice.

text:
    Ricky JONES v. STATE of Arkansas
    CR 80-86
    605 S.W. 2d 7
    Supreme Court of Arkansas
    Opinion delivered September 22, 1980

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

      Steve Clark, Atty. Gen., by: Jack W. Dickerson, Asst. Atty. Gen., Little Rock, for appellee.
   John I. Purtle, Justice.

Appellant was convicted of Breaking or Entering in violation of Ark. Stat. Ann. § 41-2003 (Repl. 1977) and Theft of Property with a value less than $100, a violation of Ark. Stat. Ann. § 41-2203 (2) (c) (Repl. 1977). The jury also found he had been convicted of two or more prior felonies. He was sentenced to 30 days on the misdemeanor of Theft of Property and five years for Breaking or Entering. The court further entered a notation on the judgment that he was not to be considered for parole.

The only point argued on appeal is that appellant was improperly sentenced as an habitual offender and was denied eligibility for parole.

Only the pleadings, instructions, verdict, sentencing and proceedings by the court are questioned; therefore, the facts of the case wil not otherwise be included in this opinion.

On August 21, 1979, an information was filed charging appellant with Breaking or Entering and misdemeanor Theft of Property. An amended information was filed on September 7, 1979, in which appellant was charged as an habitual offender pursuant to Ark. Stat. Ann. § 41-1001 (Repl. 1977). The amended information listed three prior alleged felony convictions.

At the bifurcated trial appellant was found guilty of Theft of Property and Breaking or Entering. The jury also found he had been convicted of two or more prior felonies. His punishment was assessed at 30 days on the misdemeanor theft and five years on breaking or entering.

During the sentencing phase of the trial, the state entered the three prior convictions without objection. Two of the convictions were obviously felony convictions, and the third was a judgment in the circuit court on a guilty plea for which he was sentenced to one year in the Department of Correction for the crime of theft. The judgment failed to state that the conviction was a felony. However, the judgment did show on its face the appellant was represented by counsel and was sentenced to the Department of Correction for the period of one year.

Appellant argues there is no proof that the disputed judgment was a felony. As previously stated, it was a circuit court judgment and the sentence was one year in the Department of Correction. We take judicial notice of the fact that a sentence to the Department of Correction is only ordered in felony cases. The defense attorney in the trial of the present case was the attorney on all three of the prior convictions. He had knowledge of the three alleged felonies that the state intended to prove from the date of the amended information. He made no objection to their introduction, and he did not take advantage of the opportunity to challenge or rebut the state’s contention that all three were felony convictions. It is too late to raise the question on appeal. Garner v. Holland, 264 Ark. 536, 572 S.W. 2d 589 (1978). Regardless, he was only found to have been convicted of two or more prior felonies; thus, no prejudice resulted to appellant even if the disputed judgment had been a misdemeanor.

The maximum sentence for Breaking or Entering is five years because it is a class D felony. Had he been sentenced as an habitual offender, pursuant to Ark. Stat. Ann. § 41-1001, he could have received up to seven years, considering the fact that the jury found he had been convicted of two prior felonies. We cannot say from the sentence he received that he was even convicted as an habitual offender.

The court gave credit for jail time and allowed the sentences to run concurrently; however, a provision was added to the judgment that appellant would not be eligible for parole.

Ark. Stat. Ann. §§ 43-2801 thru 2834 (Repl. 1977) are for the use of the Department of Correction in determining parole eligibility. The court has no authority to determine the manner in which the Board of Pardons and Paroles exercises their prerogative under Acts 1968 (1st Ex. Sess.), No. 50. See Stevens v. State, 262 Ark. 216, 555 S.W. 2d 229 (1977); and Elliott v. State, 268 Ark. 454, 597 S.W. 2d 76 (1980).

Therefore, the case is remanded for the purpose of correcting the sentence by deleting the reference to appellant’s eligibility for parole. Otherwise, the case is affirmed.

Affirmed as modified.


author: John F. Stroud, Justice.

text:
    Dickie SPEARS v. STATE of Arkansas
    CR 80-88
    605 S.W. 2d 9
    Supreme Court of Arkansas
    Opinion delivered September 22, 1980

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

      Steve Clark, Atty. Gen., by:Joseph H. Purvis, Deputy Atty. Gen., Little Rock, for appellee.
   John F. Stroud, Justice.

Appellant was convicted by a jury of two counts of burglary and three counts of theft of property He was sentenced to three years’ imprisonment on both burglary charges and two years on two of the theft convictions. No time was given on the third theft conviction, but appellant was fined $500. Finding no error in the denial of appellant’s motion to suppress the evidence, we affirm the conviction.

The stolen property consisted of jewelry and jewelry boxes taken from a residence, binoculars and six guns taken from a place other than an occupiable structure. All of the crimes were alleged to have been committed by appellant and two companions on the 30th and 31st of May, 1979-

While still at the scene of the burglary and theft of the guns, the Sheriff of Washington County received a call that some boys had just been seen unloading guns at a house just off Parsons Road. The sheriff and other officers went to the house described in the tip and saw a car stop there and three boys exit. The three were separated and questioned. One of appellant’s codefendants broke down and said the guns were in the house in the first bedroom on the right. The boys were placed under arrest just as Mary Martin approached the officers from her home next door. Based on the verbal and written consent of Mrs. Martin, who claimed to be the overseer of the house for her son, the house was searched and the stolen property recovered.

Appellant filed a pretrial motion to suppress the evidence seized without a warrant from the house near Springdale, Arkansas, owned by A. E. Morgan, in which appellant claimed to be living with Lisa Morgan, the owner’s daughter. The State sought to justify the warrantless search upon the ground that consent to search was given the investigating officers by Morgan’s mother, Mrs. Martin, who told them she was looking after the house in her son’s absence, while appellant claimed Mrs. Martin lacked the requisite authority to consent to such a search. After hearing the testimony at the pretrial hearing, the trial court denied appellant’s motion. Following trial and conviction on all charges on August 23, 1979, with the sentences to run concurrently, appellant brings this appeal alleging as the sole error that the trial court erred in denying his motion to suppress the stolen property from introduction into evidence.

The only issue for consideration on this appeal is whether the search of A. E. Morgan’s house was constitutionally permissible. The trial court sustained the search on two grounds — that appellant, having no proprietary or possessory interest in the premises, lacked standing to question the validity of the search, and that the search was based upon the voluntary consent of a person with apparent authority over the premises. As we agree with the trial court that the search was properly based on the voluntary consent of one with apparent authority or control over the premises, we need not address the question of standing.

In Schneckloth v. Bustamonte, 412 U.S. 218, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973), it was again recognized that the search of property, absent a warrant and probable cause, but with proper consent voluntarily given, is valid under the Fourth Amendment to the United States Constitution. In the present case, we must determine the validity of the consent to search given by a third party rather than the defendant, when both are in some degree of control over the premises sought to be searched. In addressing this question, the United States Supreme Court, in United States v. Matlock, 415 U.S. 164, 171, 94 S. Ct. 988, 39 L. Ed. 2d 242 (1974), stated:

. . . When the prosecution seeks to justify a warrantless search by proof of voluntary consent, it is not limited to proof that consent was given by the defendant, but may show that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be searched.

This court has also recognized on numerous occasions that a warrantless search is nonetheless valid where voluntary consent has been given by a third party with sufficient control or authority over the premises. Grant v. State, 267 Ark. 50, 589 S.W. 2d 11 (1979Y, King v. State, 262 Ark. 342, 557 S.W. 2d 386 (1977 ); Asher & Bradford v. City of Little Rock, 248 Ark. 96, 449 S.W. 2d 933 (1970). Furthermore, under Rule 11-.2(c), Arkansas Rules of Criminal Procedure, consent to a search of premises may be given by a person who, by ownership or otherwise, is apparently entitled to give or withhold consent. We noted in Grant, supra, that although Rule 11.2 does not, standing alone, govern admissibility of things seized during the search, the apperance of authority to give consent and the good faith of the officers are significant factors in determining the validity of the consent to search.

The testimony of Mrs. Martin at the pretrial hearing substantially corroborated the testimony of the officers. It is also pertinent that prior to the search, one of the officers made two trips into the living room of the house at the request of appellants to look for his cigarettes. Finding the living room unfurnished and finding that the electricity was turned off to the house gave credence to the representatives of Mrs. Martin of the minimal occupancy of the house by her minor granddaughter.

The investigating officers at the pretrial hearing related the information relied upon by them in determining that Mary Martin was entitled to give consent to the search. They testified she told them the house belonged to her son, who hads moved away, and that “she was taking care of it and was the overseer.” When asked if she would consent to a search, she replied, “Yes you can. No one lives in there.” Further, they stated she told them “if anything stolen is in the house, I want it out.” In light of the totality of the circumstances, it was not unreasonable for the officers to believe Mrs. Martin was vested with sufficient control over the premises, and in fact she did possess sufficient authority over the premises, to give a valid consent to a search without the issuance of a search warrant.

Affirmed.


author: Richard L. Mays, Justice.

text:
    Lowell Wayne GEORGE v. STATE of Arkansas
    CR 80-105
    604 S.W. 2d 940
    Supreme Court of Arkansas
    Opinion delivered September 22, 1980

      Holloway & Haddock, by: Bill R. Holloway, Lake Village, for appellant.

      Steve Clark, Atty. Gen., by: Victra L. Fewell, Asst. Atty. Gen., Little Rock, for appellee.
   Richard L. Mays, Justice.

During a jury trial of appellant for first degree murder, the state introduced a prior consistent handwritten statement of a prosecuting witness to bolster her testimony after she testified in court. The jury convicted appellant of second degree murder and imposed a sentence of 10 years imprisonment and a $10,000 fine. For reversal, appellant contends that the trial court erred in admitting the witness’ prior consistent statement. We agree and, accordingly, reverse.

In the early morning hours of July 1, 1979, appellant, Lowell Wayne George, shot Jerry French in his chest with a 22 rifle, killing him. The shooting occurred in the yard of Jerry French’s house trailer in the presence of four witnesses, Keith Millerd, Betty Westmoreland, Frankie King and Becky Hogg. At the trial, Keith Millerd testified that Wayne George threatened Jerry French after a brief argument and then shot him in the chest. Betty Westmoreland testified that she heard George threaten to kill French but did not actually see George shoot French. However, the appellant and his girlfriend, Frankie King, testified that the gun went off accidentally when French grabbed it. During the cross-examination of Betty Westmoreland, appellant’s counsel pointed out that a profane reference was included in her testimony concerning appellant’s threat to kill Jerry French which was not contained in a prior written statement which she had given to police officers. Ms. Westmoreland explained that she had not thought about writing down “all the bad words that were said” when she provided the written statement. Although no further references were made to Ms. Westmoreland’s statement, the state subsequently recalled the police investigator who had taken the statement and introduced it over the objections of appellant’s counsel. With the exception of the profane reference, Ms. Westmoreland’s prior written statement was in harmony with her testimony in court.

The general rule is that prior consistent statements of a witness are not admissible to corroborate or sustain his testimony given in court. Rogers v. State, 88 Ark. 451, 115 S.W. 156 (1908). Such statements are self-serving and cumulative, and their admission would simply suggest that credibility depends upon the number of times the witness has repeated the same story rather than the inherent trustworthiness of the story. 4 Wigmore on Evidence (Chandbourne Rev.) §§ 1122-1124. Moreover, such statements may be easily fabricated to achieve the same purpose for which they are primarily excluded.

The rule of exclusion of prior consistent statements is relaxed, however, where the statement is offered to rebut an express or implied charge of recent fabrication or improper influence or motive. See, U.R.E. 801(d)(1)(h), Ark. Stat. Ann. § 28-1001 (Repl. 1979). The state contends that this exception is applicable to support the admissibility of Ms. Westmoreland’s prior written statement here. We disagree. For a prior consistent statement to be admissible under this exception, the statement must predate the motive to fabricate. See, e.g., Brown v. State, 262 Ark. 298, 556 S.W. 2d 418 (1977). Any improper motive attributable to Ms. Westmoreland would likely flow from her close relationship with the decedent, Jerry French. Since that relationship predates the prior written statement as well as her testimony under oath at trial, the statement would be no more trustworthy than her in court testimony.

The state contends that .Ms. Westmoreland’s prior consistent statement was admissible under Rule 106 of the Uniform Rules of Evidence, Ark. Stat. Ann. § 28-1001 (Repl. 1979), which provides:

Whenever a writing or recorded statement, or part thereof is introduced by a party, an adverse party may require him at that time to introduce any other part . . . which in fairness ought to be considered contemporaneously with if.

The state argues that since appellant’s defense counsel quoted a part of Ms. Westmoreland’s statement, it was only fair to admit the rest of it to explain away any implication that the witness had changed her story. We have held, however, that where the omitted portion of the statement is not explanatory of the part referred to on cross-examination, it is error to admit the entire statement. Derrick v. Rock, 218 Ark. 339, 236 S.W. 2d 726 (1951). Not only was the remainder of Ms. Westmoreland’s prior statement unrelated to the issue raised by appellant’s counsel on cross-examination, but she fully explained the reason for omitting profane words in her written statement when she testified.

The state finally contends that the prior consistent statement was admissible because of the impeachment efforts of appellant’s counsel on cross-examination. The state argues that the trial judge had discretion to permit the introduction of the prior statement to rehabilitate Ms. Westmoreland. This argument is not materially different from the others relied upon by the state. Basically, the state asserts that it should be allowed to introduce the prior consistent statement to corroborate any particular testimony which the defense sought to discredit on cross-examination. Although we perceive that the breadth of the exception which the state seeks to invoke would consume the general rule of exclusion of prior consistent statements, a prospect which causes us some trepidation, we need not reach that issue here since we do not find evidence of sufficient impeachment of Ms. Westmoreland on cross-examination to justify any rehabilitation.

Although the admission of the prior consistent statement was merely cumulative and corroborative of competent testimony properly admitted, we cannot say its admission was harmless. Appellant’s conviction of second degree murder depends upon the credibility of the prosecution witnesses as opposed to those of the defense. We cannot say that Ms. Westmoreland’s credibility was not enhanced by the admission of her prior written statement and that such enhancement did not shift the scales of justice against the cause of the appellant.

Reversed and remanded.

Fogleman, C.J., and Stroud, dissent.


author: John R. Elrod, Special Justice.

text:
    MOORE FORD COMPANY v. Gladys Hurley SMITH
    80-68
    604 S.W. 2d 943
    Supreme Court of Arkansas
    Opinion delivered September 22, 1980

      Hoofman & Bingham, P.A., by: John Biscoe Bingham, North Little Rock, for appellant.

      J. R. Nash, North Little Rock, for appellee.
   John R. Elrod, Special Justice.

This is an action for misrepresentation.

In March, 1977, appellee purchased a new 1977 Mustang automobile from Moore Ford Company. She executed a conditional sales contract, assigned by Moore Ford Company to Ford Motor Credit Corporation, consistently made her monthly payments thereon, and drove the car for approximately sixteen months before she discovered that it had prior body work performed on the hood and one fender. Thereupon, she brought this cause of action, alleging that the car had been represented as a new car at the time of purchase when in fact it was something less because of the repaired body damage.

The jury returned a plaintiffs verdict, awarding $1,250 compensatory damages and $15,000 punitive damages, from which Moore Ford appeals, citing eight points for reversal, consolidated into five for purposes of this discussion.

I.

First, appellant argues that the trial court erred in refusing its proffered instruction defining a new and unused automobile. The requested instruction was:

In determining whether a vehicle is a new vehicle factors which you may consider in determining whether a vehicle is a new vehicle include:
(1) Time elapsed since manufacture;
(2) Extent of use incident to dealer’s business before sale to customer;
(3) Whether the customer is the first one to buy the car at retail.

Appellant cites Relyea v. Pacific Fire Ins. Co., 124 Conn. 654, 2 A. 2d 377 (1938) as its authority. Appellee, however, correctly points out that the Relyea court included a fourth factor — that of “accident experience”, or prior exposure to accidents, in its approved test of newness. A party which fails to offer a correct instruction cannot complain on appeal of its rejection. New Empire Ins. Co. v. Taylor, 235 Ark. 758, 362 S.W. 2d 4 (1962).

Furthermore, it was unnecessary to the resolution of the issues of the case that the jury be instructed in any manner on the definition of a “new” car. It was uncontroverted that the appellee believed she had purchased a new car. It was uncontroverted that the appellant represented the vehicle as a new car in the generally accepted sense of those words as they apply in the retail marketplace. The odometer showed six miles at the time of purchase.

II.

Appellant next asserts that reversal should occur because the trial court erred by refusing to give a requested instruction regarding its defense of waiver, and that the court erred in refusing to grant appellant’s motion for directed verdict, contending the appellee’s continuation of her monthly payment obligations to Ford Motor Credit subsequent to her discovery of the misrepresentation constituted waiver as a matter of law.

The requested instruction was:

If, from a preponderance of the evidence, you should find that after the plaintiff discovered that the automobile in question was not a new vehicle, that she knowingly continued to make her monthly payments as they fell due, then you are told that this constituted a waiver by the plaintiff of her right to maintain this action, and your verdict should be for the defendant, Moore Ford Company.

This instruction would require a defendant’s verdict because it was an uncontroverted fact that Mrs. Smith continued making her monthly payments to Ford Motor Credit following her discovery of prior damage. The trial court properly rejected the instruction and the motion. Continuation of payments, by itself, does not necessarily constitute a waiver as a matter of law.

We defined the defense of waiver in Ray Dodge, Inc. v. Moore, 251 Ark. 1036, 479 S.W. 2d 518 (1972):

Waiver is the voluntary abandonment or surrender by a capable person of a right known to him to exist, with the intent that he shall forever be deprived of its benefits. It may occur when one, with full knowledge of the material fact, does something which is inconsistent with the right or his intention to rely upon it. ... (I)t is essential that it be shown that the defrauded party intentionally condoned the fraud, affirmed the contract, and abandoned his right to recover damages for the loss resulting from the fraud.

Appellant cites Union Mtr. Co. v. Turbiville, 223 Ark. 92, 264 S.W. 2d 592 (1954) to support its position, and it is correct that in Union this court gave its approval to an instruction which may appear to conflict with the Ray Dodge definition of waiver:

If . . . you . . . find that after the Plaintiff discovered the automobile . . . was not a new car . . . she knowingly continued making her monthly payments . . ., this constituted a waiver by the Plaintiff of her right to maintain the action, and your verdict should be for ... Union Motor Company.

However, in the Union Motor case the specific fact question being decided by the jury, on controverted evidence, was whether the plaintiff had continued making her payments after she knew the car was not a new car, for at some point in time, after consultation with an attorney, she ceased making payments. The above instruction properly framed the issue for a general verdict based on the specific facts of that case.

Here, Mrs. Smith learned of the repaired damage in June or July, 1978, and filed suit in October, 1978. She could not have waived her right to maintain suit by making payments on the purchase money note prior to her knowledge of the misrepresentation because up until that moment there was not a right known by her. The payments made by her following institution of suit were certainly made under protest and, therefore, no waiver could have occurred after October, 1978. Thus, the fact question presented at trial was whether payments for July, August, and September, at the most, constituted a waiver. The Union Motor instruction under these facts would not have been appropriate.

In most cases the question of waiver will be one of fact, and the Ray Dodge instruction will be proper. It is unrealistic to expect a layperson plaintiff to be aware that he is automatically, as a matter of law, waiving a cause of action otherwise existing, simply by the act of making monthly payment on an installment contract after discovery of a misrepresentation by the seller. That is not to say that there could never come a time when long continued payments, coupled with knowledge of material facts, could constitute waiver as a matter of law. The facts of each case will control the instruction given.

It being unnecessary to do so, we will not discuss the ramifications of the fact that the payments here were made to a third party assignee and not directly to the tortfeasor.

III.

Next, appellant urges that the trial court erred in refusing its requested instruction regarding the quality of circumstantial evidence necessary to prove fraud which read as follows:

Fraud or misrepresentation . . . may be proven by direct or circumstantial evidence. If proved by circumstantial evidence, the circumstantial evidence must be so strong and well connected as to clearly show fraud.

Appellee correctly points out that all of the Arkansas cases cited by appellant in support of its assertion involved the reformation or cancellation of written instruments. [DuFresne v. Paul, 144 Ark. 87, 221 S.W. 485 (1920); Stringer v. Georgia State Savings Association of Savannah, 218 Ark. 683, 238 S.W. 2d 629 (1951); Harris v. Shaw, 224 Ark. 150, 272 S.W. 2d 53 (1954)].

The jury was instructed in accordance with AMI 104 which defines circumstantial evidence. Certainly circumstantial evidence can serve as a basis for the jury to infer fraud just as to infer any other fact. Ray Dodge, supra. We hold there was no error.

IV.

Appellant ■ contends reversal should occur because appellee failed to provide substantial evidence that appellant knew or should have known of the alleged misrepresentation, and that she failed to produce substantial evidence of the amount of the compensatory damages awarded to her, $1,-250. At trial these issues were raised by motions for directed verdict and by a motion for a new trial. These issues present a close question which we resolve in favor of the appellee.

The test of when the trial court may direct a verdict without abusing its discretion has often been stated by this court. The evidence and all reasonable inferences deducible therefrom must be viewed in the light most favorable to the party against whom the verdict is directed, and if there is any conflict in the evidence or the evidence is not in dispute but is in such a state that fair-minded men might draw different conclusions therefrom, a jury question is presented. See Williams v. Curtis, 256 Ark. 237, 506 S.W. 2d 563 (1974).

Here, there was evidence in the form of business records presented by a Ford Motor Company representative that the Mustang was in undamaged condition when it arrived at Moore Ford. Likewise, there was testimony from a representative of Moore Ford that its records showed no damage occurring to the vehicle while it was in Moore Ford’s possession prior to sale. Mrs. Smith testified that the automobile suffered no damage while in her possession other than damage to a part of the automobile unrelated to that involved in this case resulting from her involvement in a minor collision. That damage was present at the time trial witnesses inspected the vehicle, and it is not seriously contended that the damages the vehicle suffered in Mrs. Smith’s minor collision were related in any way to those underlying the misrepresentation. Therefore, the plaintiff produced evidence that the vehicle was undamaged at the time it was delivered to Moore Ford, and that it was not damaged in the area of controversy during Mrs. Smith’s ownership. It was left for the jury to infer from those basic elemental facts that the car was damaged while in the posssesion of Moore Ford prior to sale. It should also be pointed out that a representative of Moore Ford testified that on occasions customers unknowingly purchased vehicles which have been damaged in some degree, either in transit or while on the lot. Moore Ford’s policy is that it will exercise its own discretion, on a case by case basis, in notifying a customer of prior damage to a vehicle he is purchasing as new. Finally, there was evidence presented that experienced automobile retail salesmen are trained to identify automobiles which have been damaged and repaired. We hold that there was sufficient evidence to present a jury question whether Moore Ford knew or should have known that the vehicle had been damaged prior to its sale to Mrs. Smith.

Regarding the issue of substantial evidence to support the jury verdict of $1,250, Charles Brush, Jr., an expert witness with knowledge of the business of buying, repairing and selling wrecked automobiles, testified that the value of the vehicle at the time of purchase was reduced $1,000 to $1,-500 because of the damages alleged to have occurred prior to the time of purchase. Mrs. Smith testified that in her opinion the vehicle she paid $4,624 for was actually worth only $2,300 at the time of purchase because of the repaired damage. An owner of property may testify as to its value. Garrett v. Trimune, 254 Ark. 79, 491 S.W. 2d 586 (1973). We hold that there was sufficient evidence as to damages to present a jury question and to support the jury’s verdict of $1,250.

V.

By objection to a jury instruction of punitive damages and by allegation that the court erred in refusing to grant the appellant’s motion for directed verdict on the issue of punitive damages, the appellant raises the question of both the award of punitive damages and the amount of the award.

We agree that punitive damages are appropriate in this case. Once the jury made its award of compensatory damages and, therefore, determined by general verdict that the alleged misrepresentation did in fact occur, all of the criteria this court enunciated in Ray Dodge were met. That case involved the deliberate setting back of the odometer of a used car prior to sale, and we recognized that the far-reaching consequences of that type of commercial fraud required punishment as a deterrent, and that if there was evidence tending to show that the tortfeasor intentionally performed a deliberate act with the intention of misleading a prospective purchaser about a material matter to his injury, it was proper to permit the jury to consider the award of exemplary damages.

Appellant argues that this case is closer to Satterfield v. Rebsamen Ford, Inc., 253 Ark. 181, 485 S.W. 2d 192 (1972), a contention with which we disagree. In Satterfield the used car sold to the plaintiff had been damaged and repaired by its prior owner before Rebsamen Ford had possession of the car, and there was little or no evidence tending to show that Rebsamen Ford had knowledge of the prior damage.

Alternatively, appellant requests of the court a reduction in the amount of punitive damages, $15,000, contending that the amount bears no reasonable relationship to the amount of compensatory damages, $1,250. Justice George Rose Smith, Justice Mays, and the writer would affirm the $15,000 judgment for the following reasons: It is impossible to create purely objective standards to determine the reasonableness of jury awarded punitive damage amounts. However, we found in Ray Dodge that the punitive damage award of $5,000, compared to $350 compensatory damages, was not so great as to shock the conscience of the court or to indicate passion and prejudice on the part of the jury. Furthermore, in Ray Dodge, we specifically avoided declaring that our law required a reasonable relationship between compensatory and exemplary damages. The amount of punitive damages awarded in this case is justified because this is a commercial fraud, and the deterrent effect of a substantial punitive award on others inclined to engage in the same practices is of importance. A Moore Ford manager testified that sometimes customers were informed of damage to a new car and sometimes they were not, depending on the nature and extent of the repaired damage. Appellant has the right to exercise that discretion, and in a case involving a new car which has suffered a minor lot dent having no effect whatsoever on the value of the car, it is clear that appellant would be justified in withholding that information from the purchaser. However, it should be made known to appellant and others finding themselves in similar positions as vendors that they exercise that discretion at their own risk. The most direct way that can be accomplished in our system of justice is by permitting a jury, in the appropriate circumstances, to award exemplary damages, and this is such an appropriate case.

Justice Purtle would reduce the award of punitive damage from $15,000 to $5,000. Since a majority of four is required for a decision, the judgment will therefore be modified by reducing the award of punitive damages to $5,-000.

Affirmed as modified.

The Chief Justice, Justice Stroud and Special Justice Charles Roscopf dissent as to the allowance of punitive damages.

Holt and Hickman, JJ., disqualified and not participating.