author: Eugene T. Kelley, Special Justice. George Rose Smith, Justice, Webb Hubbell, Chief Justice,

text:
    Ralph A. CARTER v. MISSOURI PACIFIC RAILROAD COMPANY and D. C. KOLB
    84-114
    681 S.W.2d 314
    Supreme Court of Arkansas
    Opinion delivered December 17, 1984

      Roy A. Waters, Jr. and William R. Wilson, Jr., for appellant.

      Herschel H. Friday and Frederick S. Ursery, by: Frederick S. Ursery, for appellee.
   Eugene T. Kelley, Special Justice.

The appellant, Ralph Carter, appeals from a jury defendant’s verdict in favor of the appellee, Missouri Pacific Railroad. On October 22, 1982, at about 8:15 a.m., appellant was driving his pickup truck east on U. S. Highway 64 near Wynne, Arkansas. Mr. Carter’s pickup truck was struck by a northbound train as he attempted to cross the tracks on a clear morning. At the time of the accident, the crossing’s flashing light signal device was against a backdrop of a brilliant rising sun. Mr. Garter’s view of the tracks was obstructed by a large building to the south, the direction from which the train was approaching.

The appellant questions three rulings on the admissibility of evidence made by the trial court. Appellee contends that the three evidentiary rulings were within the sound discretion of the trial judge.

The first issue raised by appellant is that the trial judge erred in admitting into evidence a film produced by the appellee that showed the crossing signals against a backdrop of dark clouds. The court in admitting this film into evidence instructed the jury that the film should not be considered as a re-creation film but only as the site appeared on the morning the film was taken. The film was made on a cloudy day with the sun behind a dark cloud and the sun could not be seen. This court recently considered another case which involved the introduction into evidence of a film which was characterized as a re-creation film that was found to be misleading and prejudicial. Carr v. Suzuki Motor Co., 280 Ark. 1, 655 S.W.2d 364 (1983)..

Both the appellant and the appellee cite Carr in support of their respective contentions. The appellee contends that Carr establishes a strict standard for only those films which attempt a re-creation of the original happening. In a recreation film the essential elements must be substantially similar to those existing at the time of the accident. The appellee further urges a more lenient standard for those films where no re-creation is attempted. In support of admitting this film, three (3) cases have been cited. Rayner v. Stauffer Chemical Company, 120 Ariz. App. 328, 585 P.2d 1240 (1978); Wagner v. International Harvester Co., 611 F.2d 224 (8th Cir. 1979), and Collins v. B. F. Goodrich Co., 558 F.2d 908 (8th Cir. 1977). These cases deal with films of experimental evidence which tends to show general traits or characteristics of a scientific nature. The appellant relies primarily on Carr to exclude this motion picture as a recreation film.

A review of the facts surrounding the making of the film is in order. Mr. John Orville Thomas, a professional photographer, filmed the crossing at Wynne on September 26, 1983, at approximately 8:17 in the morning. A camera was placed inside a truck and driven down the highway toward the crossing in an easterly direction. The camera started filming approximately 1,500 feet west of the crossing and went straight to the crossing. The vehicle was driven at about 35 miles per hour. The lights at the crossing were activated by the railroad company. Other pictures were taken on the side of the road at various distances. On cross-examination the photographer admitted that the sun was behind a dark hanging cloud and could not be seen. In the film the crossing lights appeared bright against the dark background.

The court is persuaded that this film is an attempted re-creation of. the accident scene by the appellee railroad company. The undisputed testimony indicates that the film was taken at approximately the same time of day of the accident; that a camera was placed in a truck and driven at the rate of 35 miles per hour through the crossing; and that the appellee arranged to activate the flashing crossing lights. The appellee contends that the film was useful and necessary and within the sound discretion of the trial judge in order to help the jury to understand the general characteristics of the intersection. The record indicates that there were numerous diagrams, charts, and testimony all of which were available to the jury for its consideration. The most important issue before the jury was why the appellant failed to see the lights at the crossing. This issue was central to the appellant’s claim of negligence. We find that the film depicted the lights in operation under circumstances which were substantially dissimilar to those testified to by the eyewitnesses. The unfair prejudice that arises as a result of the jury seeing the bright crossing lights in operation far outweighs the usefulness to the jury to better understand the scene. This court finds that the film did not fairly and accurately reflect the scene at the time of the accident and should not have been admitted into evidence. We have stated in Carr v. Suzuki:

It is well settled that when a test or experiment is an attempt to reenact the original happening, the essential elements of the experiement must be substantially similar to those existing at the time of the accident. Hubbard v. McDonough Power Equipment, 83 Ill. App. 3d 272, 38 Ill. Dec. 887, 404 N.E.2d 311 (1980); Payne v. M. Greenberg Construction, 130 Ariz. 338, 636 P.2d 116 (1981). We applied this same rule in Dritt v. Morris, 235 Ark. 40, 357 S.W.2d 13 (1962) where we held that although it was not necessary that conditions of an experiment be identical to those existing at the time of the occurrence, there must be a substantial similarity, and the variation must not be likely to confuse and mislead the jury.”

Other cases have held that if a film is misleading, it should be excluded. See Wagner v. International Harvester, 611 F.2d 224, 233 (8th Cir. 1979); Collins v. B. F. Goodrich Co., 558 F.2d 908, 910 (8th Cir. 1977).

The second issue involves the trial judge’s refusal to admit evidence of two prior accidents and two prior near misses. The record indicates that the accidents and the near misses all occurred in the afternoon when the sun was in a different location. The flashing lights at the crossing were changed after the two prior accidents and after the two near misses from eight inch diameter lights to twelve inch lights which were in place at the time of the accident. Because of the changed conditions evidence of the prior accidents and near misses was properly refused.

The general rule with regard to the admissibility of evidence of similar occurrences is that such evidence is admissible only upon a showing that the events arose out of the same or substantially similar circumstances and the burden rests on the party offering such evidence to prove that the necessary similarity of conditions exists. Fulwider v. Woods, 249 Ark. 776, 461 S.W.2d 581 (1971); See also - St. Louis S.R. Co. v. Jackson, 242 Ark. 858, 416 S.W.2d 273, later app 246 Ark. 168, 438 S.W.2d 41 (1967); Chicago, R.I. & P.R. Co. v. Lynch, 246 Ark. 1281, 441 S.W.2d 793 (1969); Oates v. St. Louis S.R. Co., 266 Ark. 527, 587 S.W.2d 10 (1979).

The final issued raised on appeal is based on an agreed stipulation to exclude evidence that Mr. Carter had been divorced twice. The parties had agreed that there would be no voir dire of the jury on the issue of divorce. The parties had agreed that unless the issue of divorce was raised by the appellant, the appellee would not bring the matter up. On direct examination, appellant was asked if he was “single” he answered yes. At the end of direct examination, appellee counsel moved that he be allowed to inquire concerning appellant’s marital status. The trial court permitted one question on cross-examination. The very first question on cross-examination of Mr. Carter was:

Question: Mr. Carter, you testified that you are single. Is it not correct that you have been divorced twice?
Answer: Well, that is correct.

The appellant argues that the lower court erred by permitting the appellee to question Mr. Carter about his being divorced twice. The appellant also contends that the failure of the trial court to allow the appellant to voir dire the jury at that point in the trial as to their feelings and beliefs concerning divorce was in error.

The parties knew that this was to be a lengthy trial, that the voir dire had been restricted to omit any reference to divorce and that the appellant relied on the motion in limine. The response of the appellant that he was single is the minimum testimony that could be given by the witness concerning his marital status without totally ignoring it. The appellee’s emphasis on the fact that Mr. Carter had been divorced twice is exactly the evidence which the parties and the court had agreed not to admit into evidence.

“We have often held that the scope and extent of cross-examination of a witness is largely discretionary with the trial court, and unless that discretion is abused, no reversible error is committed. King v. State, 106 Ark. 160, 152 S.W. 990; Dawson v. State, 121 Ark. 211, 180 S.W. 761; Peterson v. Jackson, 193 Ark. 880, 103 S.W.2d 640.”

Considering all the surrounding circumstances, it appears that the appellee went too far in calling undue attention to appellant’s prior divorces.

Reversed and remanded.

George Rose Smith, J., concurs in part.

Hubbell, C.J., and Hickman, J., dissent.

Dudley, J., not particiapting.

George Rose Smith, Justice,

concurring. To some people the statement that a man is single implies that he has never been married. For that reason, if the plaintiff again brings that point out on direct examination, I think the question about his divorces will again have been invited.

Webb Hubbell, Chief Justice,

dissenting. Appellant’s attorney admitted in his oral argument that he did not attempt to introduce photographs of the crossing in the morning sun because it would be difficult if not impossible to take a photograph of the crossing looking directly in the sun. Yet appellant objects to the introduction of appellee’s film because he claims it was taken on a cloudy day. The film was introduced with a limiting instruction which stated that the film was not a re-creation, but only to be considered as to what the crossing looked like on the morning the film was taken. Appellant’s attorney had ample opportunity to introduce his own evidence about what the crossing looked like on the morning of the accident, cross examine the photographer, and argue to the jury that the lighting conditions were not similar to the day of the accident.

The crossing had several sets of lights. The overhead lights might be obscured by a bright morning or evening sun, but the crossing also had roadside eye level lights, and a jury should be entitled to view those lights as well as the overhead lights.

Our decision in Carr v. Suzuki Motor Co., 280 Ark. 1, 655 S.W.2d 364 (1983) — and now the majority’s decision in this case — severely limits both plaintiffs and defendants from using demonstrative evidence. Appellant was trying to prove that the entire crossing was dangerous. The location of surrounding buildings, as xvell as the sun, and the lack of crossing arms, were part of his argument. Yet the majority would prevent either side from introducing a film on how the crossing looked from an oncoming vehicle unless the sun is directly in the camera. The majority fails to tell us how such a photograph could be made. I am concerned about where the majority is heading in the area of demonstrative evidence.

I also disagree that appellee’s one question about marital status during a two day trial warrants a reversal of a jury verdict. Appellant did open the door to the inquiry, and I would not reverse on that point alone.

Hickman, J., joins in this dissent.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Jesse James WOODS v. STATE of Arkansas
    CR 84-129
    680 S.W.2d 711
    Supreme Court of Arkansas
    Opinion delivered December 17, 1984
    [Substituted Opinion delivered January 21, 1985.]
    No Response Filed.

      Steve Clark, Att’y Gen., by: Patricia G. Cherry, Asst. Att’y Gen., for appellee.
   Per Curiam.

The attorney general has filed a motion asking that the state be allowed to file a belated brief. The motion states that the attorney general received incorrect information as to when the brief was due. Our records show the attorney general’s office was, in fact, properly notified. Apparently, the assistant attorney general, who is now handling the case, did not personally receive that notice. We grant the motion but point out that we are not required to give the individual assistant attorney general assigned to a case notice. One reason is that those individuals sometimes change, as in this instance. It is the responsibility of the attorney general’s office to see that the person assigned to the case is aware of the briefing schedule of the particular case to which he or she is assigned.


author: Webb Hubbell, Chief Justice.

text:
    Juanita HARBOUR v. NORTHWEST LAND COMPANY, INC., et al
    84-175
    681 S.W.2d 384
    Supreme Court of Arkansas
    Opinion delivered December 21, 1984

      Plegge ir Church, by: Beresford L. Church, Jr., for appellant.
    No brief filed for appellee.
   Webb Hubbell, Chief Justice.

The question to us is the enforceability of a restrictive covenant incorporated by reference in a deed. Appellant, Juanita Harbour, paid off the balance owing on a Purchase Agreement between Northwest Land Co., Inc. as seller and her brother as buyer. Appellant was living in Houston, Texas at the time of the purchase and received the deed when she moved to Arkansas. The deed conveying the unplatted property recites: “Subject to restrictions and easements set forth in Plat and Bill of Assurance of Berthe Acres in Deed Record Book 714, Page 555, Records of Pulaski County, Arkansas.” Among the restrictions in the Bill of Assurance for Berthe Acres, a subdivision north of appellant’s property, is a provisions stating: "No structure of a temporary character, trailer,. . . shall be at any time used for human habitation. . . nor shall any structure of a temporary character be used for human habitation.”

Three of the deeds to other parcels in the same quarter section contain the same restrictions as appellant’s. Four other deeds contain various restrictions but are not subject to the Berthe Acres Bill of Assurance. One deed contains no restrictions. Five other lots under contract for sale have no restrictions because no deeds have as yet been conveyed.

Appellant placed a mobile home on her property. Because of objections raised, appellant sought a declaratory judgment declaring the prohibition ineffective, but the chancellor found a general plan of development and granted appellees’ cross claim for the enforcement of the restrictive covenant. The issues on appeal are whether the restrictions in the Berthe Acres Bill of Assurance, incorporated by reference in the deed to appellant’s property, are valid, and whether a mobile home constitutes a temporary structure.

Courts do not favor restriction upon the use of land, and if there is to be a restriction it must be clearly apparent. It is not always essential that there be a bill of assurance filed with the plat of a subdivision; the restricted use may be annexed to the conveyances of the land. Moore v. Adams, 200 Ark. 810, 141 S.W.2d 46(1940). One taking title to land with notice that it is subject to an agreement restricting its use will not, in equity and good conscience, be permitted to violate its terms. Rickman, et al., v. Mobbs et ux., 253 Ark. 969, 490 S.W.2d 129 (1973). Moore v. Adams, supra. Thus, where a general plan of development exists, restrictive convenants are enforceable. Jones v. Cook, 271 Ark. 870, 611 S.W.2d 506 (1981).

The test for a general plan of development is whether substantially common restrictions apply to lots of like character or similarly situated. Jones v. Cook, supra. In this case some of the deeds were subject to the Berthe Acres Bill of Assurance; others were not. Some deeds recited a minimum construction cost of $8,500.00, and some had a different minimum. Some deeds had a minimum square footage requirements of 750 square feet, and others had no minimum. Some deeds had restrictions against dog raising. A few deeds contained a heating requirement. One deed contained no restrictions whatsoever. There is simply no substantial evidence to support a finding of a uniform development plan. Under these facts and circumstances, we must conclude that because of the many inconsistencies in the restrictions to the various deeds that no general plan of development exists. This finding precludes any need to reach the other issues raised on appeal.

Reversed.

Hays, J., not participating.


text:
    Barry Lee FAIRCHILD v. STATE of Arkansas
    CR 83-145
    681 S.W.2d 380
    Supreme Court of Arkansas
    Opinion delivered December 21, 1984

      Thompson, O’Bryan ir Martin, by: Joe O’Bryan, for appellant.

      Steve Clark, Att’y Gen., by: Jack Gillean, Asst. Att’y Gen., for appellee.
   Webb Hubbell, Chief Justice.

Barry Lee Fairchild was tried and convicted of the capital murder of Marjorie Mason and was sentenced to death. For reversal appellant argues: 1) appellant was denied a neutral tribunal; 2) venue should have been in Pulaski County; 3) the Arkansas death penalty is unconstitutional; 4) sixteen photographs of victim should not have been admitted into evidence; and 5) eighteen additional points for reversal. We have carefully reviewed all issues raised, all other objections of appellant which were overruled, all rulings adverse to appellant, and the entire record for errors prejudicial to the rights of appellant. A.R.Cr.P. Rule 36.24 and Rule 11 (f)of the Rules of the Supreme Court. We affirm the conviction and the sentence imposed.

In the evening of February 26, 1983, an Arkansas State Trooper pursued two black males who were traveling at a high rate of speed in a vehicle belonging to Marjorie Mason, but the occupants were able to escape on foot. The following day Marjorie Mason’s body was found behind an abandoned farmhouse in Lonoke County. Ms. Mason had been kidnapped, robbed, raped, and then shot twice in the head. On March 4, 1985, Barry Lee Fairchild was apprehended in Pope County, Arkansas. Appellant was first taken to the local hospital for treatment of a head laceration, then taken to the Pope County sheriff’s department, and finally transported to the Pulaski County jail.

The following day appellant gave a video taped statement implicating himself in the kidnapping, robbery, rape and shooting of Marjorie Mason. Appellant then went with police and sheriff’s authorities on a tour of the crime scene and to his sister’s home where a watch, later identified as belonging to Marjorie Mason, was obtained. Appellant was returned to the Pulaski County jail where he gave a second video taped statement.

Appellant’s first arguments for reversal center around the jury selection process. Appellant complains that a question posed by the prosecutor to three jurors (one struck for cause, one excluded by a peremptory challenge, and one seated) was confusing and was used to exclude blacks from the jury. The prosecutor asked each of the three jurors if she would require the prosecutor to prove more elements than the law requires because of the severity of the death penalty. The first juror answered yes, she might require more evidence of defendant’s guilt. After an attempt at rehabilitation by the trial court, the court found that the juror would still require more proof than was required by law. She was thus properly excused for cause. Allen v. State, 281 Ark. 1, 660 S. W.2d 922 (1983). It is not error for the court to strike for cause persons who cannot carry out the law. Henderson v. State, 279 Ark. 414, 652 S.W.2d 26 (1983). As to the juror excused by the use of a peremptory challenge, no explanation is necessary, and no error by the court is demonstrated. Hill v. State, 275 Ark. 71, 628 S.W.2d 285 (1982). As to the third juror, she was seated even though she answered affirmatively the prosecutor’s question, so appellant’s complaint of exclusion cannot apply to this juror.

Appellant also contends that potential jurors were improperly excluded in violation of the Witherspoon rule that a jury culled of all jurors who harbor doubts about capital punishment is “a tribunal organized to return a verdict of death.” Witherspoon v. Illinois, 391 U.S. 510 (1968). In essence appellant is challenging the death qualification of prospective jurors. We clearly rejected this argument in Rector v. State, 280 Ark. 385, 659 S.W.2d 168 (1983).

Appellant also argues error in the jury selection process concerning a juror who should have been excused for cause because she told the court she would probably vote with the majority even though she might have reasonable doubt, and a juror who stated he had formed an opinion as to defendant’s guilt. Appellant excused both of these jurors peremptorily. Appellant used all twelve of his peremptory challenges; however, no challenges for cause were made or denied after all his peremptory challenges were used. Therefore, appellant cannot show that he would have struck any juror who actually sat on the trial had he had a peremptory challenge remaining. Appellant failed to demonstrate prejudice since he is unable to show an objectionable juror was forced upon him without his having the privilege of exercising a peremptory challenge. Singleton v. State, 274 Ark. 126, 623 S.W.2d 180 (1981); Conley v. State, 270 Ark. 886, 607 S.W.2d 328 (1980).

Appellant next argues that venue should have been in Pulaski County, not Lonoke County, and relies on Ark. Stat. Ann. § 43-1417 (Repl. 1977) which provides: “Whenever two [2] or more counties, by the foregoing provision, have jurisdiction of the same offense, the county in which the defendant is first arrested shall proceed to try the offense to the exclusion of the other.” One of the “foregoing provisions” is Ark. Stat. Ann. 43-1416 (Repl. 1977) which confers jurisdiction in a kidnapping to the county where it began, to all counties where it continued, and to the county where it terminated. Since Marjorie Mason was abducted in Pulaski County and then driven to Lonoke County, appellant’s argument might have some merit were appellant tried for capital murder; venue, therefore, was proper where the murder occurred, Lonoke County.

Appellant next argues that the trial court erred in admitting various photographs which appellant claims were inflammatory. The photographs included those of the exposed body of the victim at the crime scene depicting the nature and extent of the wounds and the condition of her clothing which had been torn during the rape. We have held many times that the decision to admit photographs lies within the sound discretion of the trial court and that decision will not be reversed absent a showing of clear abuse of discretion. Fuller v. State, 278 Ark. 450, 646 S.W.2d 700 (1983); Gruzen v. State, 267 Ark. 380, 591 S.W.2d 342 (1979). It does not matter that the photographs are cumulative to other evidence. Perry v. State, 277 Ark. 357, 642 S.W.2d 865 (1982). Even inflammatory photographs are admissible in the sound discretion of the trial judge if they tend to shed light on any issue or are useful to enable the jury to better understand the testimony or to corroborate the testimony. Prunty v. State, 271 Ark. 77, 607 S.W.2d 374 (1980); Williams v. State, 250 Ark. 859, 467 S.W.2d 740 (1971). We have reviewed each of the photographs and have determined that they could have been helpful to the jury in understanding the testimony of the witnesses in describing the scene as they found it after the murder. Although the photographs were somewhat graphic, we find no abuse of discretion.

Appellant next argues that Ark. Stat. Ann. § 41-1501 (Repl. 1977) is unconstitutional as applied in this case because it establishes an affirmative defense which impermissibly shifts the burden of proof to the defendant with respect to an essential element of the offense of capital murder. Ark. Stat. Ann. § 41-1501(2) (Repl. 1977) provides in pertinent part: “It is an affirmative defense to any prosecution under subsection (l)(a) for an offense in which defendant was not the only participant that the defendant did not commit the homicide act or in any way solicit, command, induce, procure, counsel, or aid its commission.” We reviewed the constitutionality of Ark. Stat. Ann. § 41-1501(2) in Moss v. State, 280 Ark. 27, 655 S.W.2d 375 (1983) where we said that the statute in question does not absolve the state of the duty of proving the elements of capital felony murder beyond a reasonable doubt. The burden on the defendant to prove an affirmative defense does not arise until the state has met its burden of proof as to the elements of the offense. Moss v. State, 280 Ark. 27, 655 S.W.2d 375 (1983). The defendant must then prove an affirmative defense by a preponderance of the evidence. Ark. Stat. Ann. § 41-110 (4) (Repl. 1977).

One of the appellant’s 18 “other” points on appeal is that the death penalty constitutes cruel and unusual punishment in violation of the Eighth Amendment. This challenge was specifically rejected in Ford v. State, 276 Ark. 98, 102, 633 S.W.2d 3 (1982). However, we must always be willing to review this challenge in light of maturing standards of civilized society. We have previously noted in Rector v. State, supra, that the Arkansas General Assembly, in common with the legislatures in at least two thirds of the other states, reenacted a death penalty statute after the United States Supreme Court struck down all such laws in 1972. We said then that as judges we are under a duty to respect and give effect to the laws made by the people no matter what our personal beliefs might be. Our judicial commission is not a license to read our own reasoned values, however deeply felt, into the Constitution’s clauses and impose them on the people of the State of Arkansas. Thus, after careful constitutional review we conclude that the Arkansas death penalty statute as a matter of law, as opposed to as a matter of personal conscience, does not violate the Eighth Amendment.

We have carefully reviewed appellant’s other 17 points and find that none warrant reversal.

Affirmed.

Hickman, J., not participating.

Purtle and Hollingsworth, JJ., dissent. See dissent in Linell v. State, 283 Ark. 162, 671 S.W.2d 741 (1984).


author: George Rose Smith, Justice.

text:
    LITTLE ROCK CRATE & BASKET COMPANY v. Herman E. YOUNG d/b/a HERMAN YOUNG LUMBER COMPANY
    84-189
    681 S.W.2d 588
    Supreme Court of Arkansas
    Opinion delivered December 21, 1984

      Barber, McCaskill, Amsler, Jones & Hal, P.A., for appellant.

      W. Frank Mor ledge, P.A., for appellee.
   George Rose Smith, Justice.

When a plaintiff brings suit upon a claim arising from a certain transaction, may the defendant successfully assert a setoff that arose from a different transaction and was barred by limitations when the plaintiff’s cause of action accrued? The trial judge construed the controlling statute to mean that such a setoff cannot be allowed in reduction of the plaintiff’s claim. We disagree. Our jurisdiction is under Rule 29 (1) (c).

In 1981 the appellee as plaintiff filed his complaint to recover $7,207.20 as the purchase price of logs he sold to the defendant-appellant in 1979. The defendant’s answer denied the plaintiff’s claim and asserted a $5,000 setoff arising from the defendant’s sale of a core chipper to the plaintiff in 1972, a claim apparently barred by limitations. On the plaintiff’s motion for summary judgment the trial judge disallowed the setoff, entered judgment for the plaintiff for $6,537.06 upon a finding that defendant admitted liability in that amount, and refused to allow prejudgment interest. The defendant appeals as to the setoff; the plaintiff cross-appeals as to the interest..

First, the setoff. In our view, the answer to the question posed in our first paragraph is discoverable from the language and legislative history of the statute, now compiled as Ark. Stat. Ann. § 37-233 (Repl. 1962). The original statute was enacted in 1838 as Section 33 of Chapter 91 of the Revised Statutes. The preceding 32 sections of that chapter had covered most aspects of the law of limitations, but had not mentioned setoffs. Section 33 treated that subject, as follows:

The provision of this act shall be deemed and taken to apply to the case of any debt or simple contract alleged by way of set-off, on the part of any defendant, either by plea, notice, or otherwise.

Under the Civil Code of 1868, § 117, a counterclaim was defined and had to arise from the same transaction that was the basis for the plaintiff’s claim. That restriction was removed by Act 267 of 1917, which provided that a counterclaim could be any cause of action, in contract or tort, in favor of the defendant against the plaintiff. Ark. Stat. Ann. § 27-1123 (Repl. 1962); Huggins v. Smith, 141 Ark. 87, 216 S.W. 1, 16 A.L.R. 323 (1919); Coats v. Miller, 134 Ark. 311, 203 S.W. 701 (1918). As to the statute of limitations, however, the distinction based on whether the counterclaim or setoff arose from the same transaction as that giving rise to the plaintiff’s demand was not made clear until our decision in Missouri & North Ark. Ry. v. Bridwell, 178 Ark. 37, 9 S.W. 2d 781 (1928). There we drew a clear distinction:

If a counterclaim or set-off is interposed as a defense merely, and no affirmative relief is asked, and when it grows out of the transaction which is the basis of plaintiff’s cause of action, there is no reason why this defense might not be available as long as plaintiff’s cause of action exists.
^ ^ ^ ^
Where, however, a counterclaim or set-off has no connection with plaintiff’s cause of action, but is an independent claim against the plaintiff, it will be barred as a defense and not available to the defendant if the right of action on such counterclaim was already barred before plaintiff’s cause of action accrued.

It was with this background of case law that the legislature saw fit, by Act 398 of 1939, to amend the original section of the Revised Statutes in two respects. First, the existing language was enlarged to encompass not merely contractual debts but also “any demand,” without restriction. That change is not material to the case at bar, which involves two matters of contract.

But, second, the legislature added this additional proviso to the ancient statute governing the assertion of setoffs: “[Provided however that any demand, right or cause of action, regardless of how same may have arisen [emphasis supplied], may be asserted by way of set-off in any action to the extent of the plaintiff’s demand.” Ark. Stat. Ann. § 37-233. The necessary intent of the italicized clause was to set aside the distinction made in the Bridwell case, supra, for otherwise the clause would have no effect whatever. The appellee suggests that the purpose of the amendment was to make it clear that for a setoff to be claimed (if timely brought), it need not have arisen from the same transaction as the plaintiff’s demand. But that has been the law ever since the 1917 amendment to the Civil Code and in fact has been carried forward in Civil Procedure Rule 13 (a) and (b). We must give the 1939 proviso some meaning, for in the language of Karl N. Llewellyn which we have quoted in an earlier case: “If a statute is to make sense, it must be read in the light of some assumed purpose. A statute merely declaring a rule, with no purpose or objective, is nonsense.” Davis v. Johnston, 251 Ark. 1078, 479 S.W.2d 525 (1972). Since the 1989 proviso had no visible effect except to allow any demand to be asserted as a defensive setoff, regardless of whether it arose from the same transaction as that relied on by the plaintiff, we hold that the trial court was mistaken in its disallowance of the $5,000 setoff by summary judgment. The merits of that claim may be decided on remand.

Second, by cross appeal the appellee seeks an allowance of prejudgment interest. Although as plaintiff the appellee originally sought to recover $7,207.20, he reduced his demand to conform to the defendant’s answer to an interrogatory, admitting that it owes $6,537.06 as the balance due on its purchase of logs from the plaintiff. Insomuch as the precise extent of the defendant’s liability seems to have been readily determinable, the appellee is apparently entitled to interest from the date on which suit was brought. Loomis v. Loomis, 221 Ark. 743, 255 S.W.2d 671 (1953). That matter, however, will also be open on remand.

Reversed on direct and cross appeal and remanded.


author: George Rose Smith, Justice. P.A.Hollingsworth, Justice,

text:
    Don GOSNELL v. STATE of Arkansas
    CR 84-143
    681 S.W.2d 385
    Supreme Court of Arkansas
    Opinion delivered December 21, 1984

      Dale Varner, for appellant.

      Steve Clark, Att’y Gen., by: LeslieM. Powell, Asst. Att’y Gen., for appellee.
   George Rose Smith, Justice.

Under the Youthful Offender Alternative Service Act of 1975, a felony conviction of a person under 26 years of age may be expunged. Ark. Stat. Ann. §§ 43-2339 et seq. (Repl. 1977). The only question here is whether, when such a person later commits another felony, the expunged conviction may be used to enhance his sentence as an habitual offender. Our jurisdiction is under Rule 29 (1) (c). We agree with the circuit court’s ruling that the expunged conviction may be considered.

In February, 1980, the appellant, Don Gosnell, was convicted of two felonies and was sentenced to concurrent three-year sentences under the youthful offender act. In January, 1982, he successfully completed the rehabilitation program, and his convictions were expunged. In 1983, however, he committed a third felony, for which he was convicted in the case at bar, in January, 1984. The trial judge, sitting without a jury, considered the two expunged convictions in sentencing Gosnell as an habitual offender.

Broadly speaking, the statute gives a youthful offender an opportunity to mend his ways and return to free society without the disadvantages of a criminal conviction. Three provisions in the statute are pertinent to the question now before us:

A person who has had two or more previous felony convictions is not an “Eligible Offender” under this Act, and the fact that a felony conviction has been “expunged” shall not render the person an “Eligible Offender.” [§ 43-2340 (f).]
“Expunge” means an entry upon the official records . . . that such records shall be sealed, sequestered, treated as confidential and only available to law enforcement and judicial officials; and further signifying that the defendant was completely exonerated of any criminal purpose and said disposition shall not affect any civil right or liberties of said defendant. The term “expunge” shall not mean the physical destruction of any official records of law enforcement agencies or judicial officials. [§ 43-2340 (g)-]
Upon the expungement of such record, as to that conviction, the person whose record was expunged may thereafter state in any application for employment, license, civil right, or privilege, or in appearance as a witness that he has not been convicted of the offense for which he was convicted and sentenced or placed on probation under the provisions of this Act. [§ 43-2344.]

We think it clear that an expungement does not exempt a youthful offender from responsibility for that offense under the habitual criminal laws. The first section we have quoted carries that implication, for it provides that a youth who has had two or more previous felony convictions is not even eligible for the benefits of the statute and that one who commits a crime after one expungement cannot again qualify for similar clemency.

More important, it is a familiar rule, rooted in common sense, that the legislature’s affirmative statement of the effect of a statute is an implied denial of its having some other effect. The Latin maxim is expressio unius est exclusio alterius. Cook v. Ark.-Mo. Power Corp., 209 Ark. 750, 192 S.W.2d 210 (1946).

The rule applies here. The statute in question provides that (a) an expunged conviction shall not affect any civil rights or liberties of the defendant and (b) he may state in any application for employment, license, civil right, or privilege or in any appearance as a witness that he has not been convicted of the offense. Ark. Stat. Ann. §§ 43-2340 (g) and -2344 (Repl. 1977). It does not state that he is free to commit more felonies without accountability as an habitual criminal.

There is good reason to follow the basic rule of statutory interpretation in this instance. Every benefit extended by this statute is of the type to encourage the offender’s progress toward rehabilitation. That is, a reformed convict should be encouraged to apply for a job, to assert his civil rights, as by registering to vote or running for office, and to discharge a good citizen’s duty to appear as a witness without fear of unnecessary embarrassment. But there is no reason either to encourage him to commit another crime or to believe that the legislature intended to do so. The trial judge was right in refusing to read into the statute a provision that is simply not there and that would actually be contrary to the over-all legislative intent.

Affirmed.

Hickman, Purtle, and Hollingsworth, dissent.

P.A.Hollingsworth, Justice,

dissenting. When we interpret legislative acts there is a rule of law to be found which will serve any view. The majority has found one to justify its position.

However, that rule is not the rule of construction which we apply in interpretingcriminal or punitive statutes. They must be strictly construed with all doubts resolved in favor of the accused. Knapp v. State, 283 Ark. 346, 676 S.W.2d 729 (1984); Clayborn v. State, 278 Ark. 533, 647 S.W.2d 433 (1983); Breakfield v. State, 263 Ark. 398, 566 S.W.2d 729 (1978).

The reason a prior conviction under the Youthful Offender Alternative Service Act of 1975 cannot be used to enhance a sentence is simple: the prior conviction no longer exists. The act is plain in its language: “‘Expunge’. . . further signifies] that the defendant was completely exonerated of any criminal purpose and said disposition shall not affect any civil right or liberties of said defendant.” Ark. Stat. Ann. § 43-2344 (Repl. 1977). (emphasis added)

The act is a discretionary sentencing device available to a trial judge in deserving cases. The purpose of the act is to give offenders sentenced under the act the extra support of an expunged record in the hope that that support will lessen the chance of repeat offenses and simply to give some people a second chance. The use of the act reflects a willingness by the state to gamble that the accused will not fail society again.

The majority ignores the real purpose of the act. They find that the act only offers a false promise, to be reneged upon in circumstances not specified by the act. I would rather the state make a mistake than dishonor its word. We are holding that the slate is not wiped clean — when the act says it is.

In this case, the purpose of the act was not fulfilled but that does not justify the action taken by the trial court. The act has already been applied to Gosnell, and the effect of that application is that his prior conviction under the act no longer exists except for purposes of determining whether the act can be applied to Gosnell again. The language from the act seized upon by the majority only dictates that a judge cannot apply the act to Gosnell because he is no longer an “eligible offender.”

Furthermore, the Latin maxim cited by the majority supports my view. Expressio unius est exclusio alterius means that the expression of one thing implies the exclusion of another. The act clearly states that expunged felonies can be used to render one who appears to be an eligible offender ineligible for application of the act. It does not state that the expunged convictions may be used to enhance a subsequent sentence. Thus, the act gives an affirmative statement regarding for what purposes expunged convictions may be used and thereby impliedly denies any other use.

I would reverse.

Hickman, J. and Purtle, JJ., join in this dissent.


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

text:
    Andy DOYLE v. JACKSON COUNTY NATIONAL BANK and Rickey GARDNER
    84-182
    681 S.W.2d 371
    Supreme Court of Arkansas
    Opinion delivered December 21, 1984
    [Rehearing denied January 21, 1985.]

      Pickens, Boyce, McLarty & Watson, by: James A. McLarty, for appellant.

      Wright, Lindsey & Jennings, for appellees.
   John I. Purtle, Justice.

The Jackson County Chancery Court dismissed Andy Doyle’s complaint against Jackson County National Bank based upon the bank’s financing a crop for Rickey Gardner who sub-rented from Doyle. On appeal Doyle argues the court erred in holding that he did not have a landlord’s lien which attached to the proceeds of the loan commitment to Gardner. We agree with the chancellor.

Appellant cash rented a farm and agreed to sub-rent a portion of it to Gardner for the sum of $18,750. The rentals were for crop year 1982. The appellee bank agreed to finance Gardner’s farming operation in the amount of $75,000. Appellee bank advanced to appellant, from Gardner’s loan funds, the amount of $9,375. Subsequently, Gardner asked the bank to advance the balance of the rent to appellant. The appellee bank insisted on waiting until the crops were harvested before it would consider paying the other half of the rent due from Gardner. The 1982 crop was short. After applying all crop proceeds and insurance indemnity payments, Gardner’s loan was still not satisfied and the bank refused to pay the appellant. The bank did not notify the appellant that the balance of Gardner’s rent would not be paid.

In order to understand this case we have to look to the history of the relationship between Doyle and Gardner. The appellant rented these same lands for the 1981 crop year. He also sub-rented the same portion to Gardner. The original lease between the land owner [Parsley] and appellant provided for rental payments to be made on March 1 and December 1. The oral agreement between Gardner and appellant provides that the final rent payment for the year was to be made on December 1, 1982. Gardner had arranged a loan for his 1981 crop from the Farmers Home Administration. His 1981 loan was not satisfied in full. The FmHA agreed to subordinate its past due account to the 1982 crop loan by appellee. The FmHA required Gardner and Doyle to execute a pro forma lease in order to comply with its rules and regulations. The written pro forma lease did not have a rent due date. The 1981 pro forma lease between Doyle and Gardner was for a peroid of 3 years. This agreement required cash rent to be paid by Gardner in October and November of 1981.

The bank reduced its lending commitment to Gardner by about $7,500. Appellant tried to get the bank to pay the balance of the rent due from Gardner during the fall of 1982. They failed or refused to do so and appellant filed suit against the bank and Gardner on June 13, 1983.

Doyle claimed a landlord’s lien in the amount of $9,375, the second installment of the annual rent. The trial court held that the complaint was not timely filed and dismissed it.

Appellant’s claim was founded upon theory that he held a valid landlord’s lien. In presenting his claim he relies on Ark. Stat. Ann. § 51-201 (Repl. 1971) which reads as follows:

Every landlord shall have a lien upon the crop grown upon the demised premises in any year for rent that shall accrue for such year, and such lien shall continue for six (6) months after such rent shall become due and payable, and no longer.

In defense the bank claimed that appellant was not a landlord but in the event he was determined to'be a landlord that the claim was not timely filed. Appellee bank further argued that appellarit had no right to collect from Gardner until appellant had paid Parsley.

In view of the fact that appellant relies upon the landlord’s lien statute we find that his complaint was untimely. Admittedly, the pro forma lease did not contain specific dates for payment of the rent. The undisputed testimony was that the oral agreement between Doyle and Gardner required the last rent payment to be paid by December 1, 1982. The statute relied upon continues the lien for a period of six months after the rent becomes due and payable, and no longer. We certainly cannot say that the trial court’s finding that the suit was not commenced within six months from the date the last rent was due was clearly erroneous.

Appellant also argues that as the primary renter he had the right to collect from Gardner and the bank from the proceeds from Gardner’s crops. A lessee does have the right to collect from a sub-tenant after the lessee has made payments to the landlord. Arkansas Stat. Ann. § 50-521 (Repl. 1971). This particular issue was decided in King v. Wilkerson, 149 Ark. 670, 235 S.W. 803 (1921). Although the statute under consideration in King was Crawford and Moses digest section 6894, the same statute is now part of Ark. Stat. Ann. § 50-521. Doyle had not paid Parsley the second half of Gardner’s rent when he filed suit. In any event appellant obtained a judgment against Gardner and there was no appeal. Therefore, if the appellant stood in the shoes of the landlord he was too late. If he sought to collect as a tenant from a sub-tenant pursuant to Ark. Stat. Ann. § 50-521, he had not met the requirements and had no right to file the suit.

Affirmed.

Hays, J.; and Hollingsworth, J. dissent.

Steele Hays, Justice,

dissenting. It might be possible to agree that appellant’s claim for rent under our statute pertaining to landlord’s liens was not timely but for the fact that the bank had actual knowledge that half the annual rent remained unpaid. The bank agreed to lend the tenant $75,000 of the cost of the year’s farming operation and advanced one-half of the rent according to the terms of the lease. Had the lease provided for the full amount in advance, doubtless the bank would have paid the entire amount, as without a farm to rent the tenant would not have needed a farm loan.

Moreover, the undisputed proof was: the bank agreed to lend the full $75,000, yet did not disburse more than about $67,500 (the exact amount is not clear); the bank knew the balance of the rent was due and knew the landlord and tenant were both expecting the bank to pay the balance of the rent, yet the bank never disavowed that obligation to either of them until the timeliness of the claim was subject to question. The appellant is entitled to his rent on the proof in this case.

Hollingsworth, J., joins this dissent.


author: John I. Purtle, Justice. Steele Hays, Justice, P.A. Hollingsworth, Justice,

text:
    Patrick Wayne FLEMING v. STATE of Arkansas
    CR 84-105
    681 S.W.2d 390
    Supreme Court of Arkansas
    Opinion delivered December 21, 1984

      John M. Byrum, for appellant.

      Steve Clark, Att’y Gen., by: Marci L. Talbot, Asst. Att’y Gen., for appellee.
   John I. Purtle, Justice.

Appellant was convicted of first degree murder and sentenced to life in prison. On appeal, he argues that the court erred: 1) in excusing a prospective juror for cause; 2) in admitting appellant’s two custodial statements in the absence of an effective waiver of his right to remain silent; and 3) in admitting the statements in the absence of proof that they were voluntarily made. We think the trial court was correct in all three instances and affirm.

The prospective juror, a Ms. Black, was challenged by the state for bias. Voir dire examination revealed that Ms. Black had been a defense witness in a recent criminal case in the same court and had been cross examined by the same prosecutor who tried the case at bar. Ms. Black had lived with the defendant in that case before his imprisonment, and she still considered herself his girlfriend. She felt that her boyfriend had been treated unfairly. She had visited her boyfriend in jail, and on two occasions, had spoken with the appellant there. Ms. Black’s sister regularly called the appellant and visited him in jail. There was no response to the court’s question to the entire panel of whether anyone was acquainted with the appellant, but it is fairly clear from the record that Ms. Black was not then in the courtroom.

Ms. Black did say that she could disregard her feeling that her boyfriend had been treated unfairly. She said that her sister’s relationship with the appellant would cause her no problem or embarrassment at home in the event appellant was convicted. She said that she was not prejudiced against the state and that she could render an unbiased verdict and consider the full range of punishments.

Ms. Black did not have “implied bias” as our statute defines the term. Ark. Stat. Ann. § 43-1920 (Repl. 1977). In cases of actual bias, the ruling is discretionary with the trial court. Ark. Stat. Ann. § 43-1919; Allen v. State, 281 Ark. 1, 660 S.W.2d 922 (1983). We will not reverse a ruling on juror qualifications absent an abuse of discretion. Henslee v. State, 251 Ark. 125, 471 S.W.2d 352 (1971).

Arkansas Stat. Ann. § 43-1919 defines actual bias as “the existence of such a state of mind on the part of the juror, in regard to the case or to either party, as satisfies the court, in the exercise of a sound discretion, that he can not try the case impartially, and without prejudice to the substantial rights of the party challenging.” Jurors are presumed unbiased and the burden of proving actual bias is on the party challenging the juror. Linell v. State, 283 Ark. 162, 671 S.W.2d 741 (1984).

In Linell, and in Allen, supra, we stressed the trial court’s superior opportunity to observe the prospective j uror and assess his demeanor. We recognize that the trial court’s discretion is not unlimited. We also recognize that these facts do not present as clear a case of actual bias as some we have considered before. See, e.g., Grigsby v. State, 260 Ark. 499, 542 S. W.2d 275 (1976). We are not prepared to hold, however, that a prospective juror must admit his bias before the trial court may excuse him. In Conley v. State, 270 Ark. 886, 607 S.W.2d 328 (1980),- we held that a juror’s candid answers indicating bias could not be overcome by routine statements to the effect that he would be fair. We see no abuse of discretion in the trial court’s decision to excuse the juror. We do not mean to imply that the state has the right to a jury of its own choosing because it does not.

The appellant made two custodial statements, each preceded by his execution of a “rights form.” The forms are used by the police to ascertain that an accused understands his rights under the law. They enumerate an accused’s rights to remain silent and to have the aid of an attorney. The last question on the forms at issue reads: “Do you understand, that you may waive the right to advice of counsel and your right to remain silent, and you may answer questions or make a statement without consulting a lawyer if you so desire?” Appellant answered this question in the affirmative before making each statement.

Appellant argues that since the forms contain no express waiver of his rights, none can be inferred from the forms. We agree with that proposition, but hold that there was sufficient independent evidence which, when considered with the forms, supports the trial court’s finding of a valid waiver.

We strongly feel that a form used to support the state’s contention that an accused knew and waived his rights should contain express language to that effect. See Conti v. State, 10 Ark. App. 352, 664 S.W.2d 502 (1984). On the other hand, it is clear that such a form is not a prerequisite to a finding that the statement is voluntary. North Carolina v. Butler, 441 U.S. 369 (1979); Cagle v. State, 267 Ark. 1145, 594 S.W.2d 573 (Ark. App. 1980). The issue on appeal is whether the trial court properly found, based on the totality of the circumstances, that the statements were voluntary. In this context, the statements were voluntary if the accused made a knowing and intelligent waiver of his right to remain silent. Cagle, supra.

Appellant was familiar with the criminal justice system. He had previously been arrested between 10 and 25 times and he repeatedly stated that he fully understood his rights. The last question on the forms, quoted above, carries a clear implication that one who proceeds to make a statement will have waived his rights. The statements in question were made immediately following execution of the forms and additional questioning by the police to ensure that appellant understood his rights. Appellant’s answers to those questions indicated that he knew the difference between understanding his rights and waiving them. The totality of the circumstances clearly supports the trial court’s ruling. The trial court did not err in admitting the statements into evidence. We agree with the trial court that the written form would be stronger evidence if an express waiver was included.

The appellant’s final argument is that the statements should not have been admitted into evidence because he was coerced and threatened into making them.

Custodial statements are presumed to be involuntary. The state has the burden to prove otherwise. This court makes an independent review of the totality of circumstances on the issue, and will reverse only if the trial court’s finding is clearly against the preponderance of the evidence. Williams v. State, 281 Ark. 91, 663 S.W.2d 700 (supplemental opinion, 1984); Fuller v. State, 278 Ark. 450, 646 S.W.2d 700 (1983); Freeman v. State, 258 Ark. 617, 527 S.W.2d 909 (1975).

The testimony is in conflict on the issue of voluntariness. Appellant testified that he was struck on the head and threatened. Appellant’s mother testified that appellant had knots on his head and that appellant told her that he had been beaten. Appellant also testified that he was told that he was not waiving his rights by signing the forms.

Three police officers, on the other hand, testified generally, that the appellant was not threatened, beaten, enticed or coerced into making the statements. One officer testified that appellant and all officers who had come in contact with him had been treated for lice and that the medicine stuck to the hair and was difficult to wash out. A psychiatrist testified that appellant was of low average intelligence. Appellant had been arrested and read his rights many times before.

The conflicting testimony presented issues of credibility to be resolvéd by the trial court. State v. Graham, 277 Ark. 465, 642 S.W.2d 880 (1982).

The “totality of the circumstances” approach consists basically of two components: the statements of the officer and the vulnerability of the accused. Graham, supra. In this case, the statements of the officers were nothing unusual or illegal, at least according to their testimony. There were no promises, threats or coercive tactics. This accused was perhaps more vulnerable than some in one way, and less so in another. Appellant was of low average intelligence, suggesting some vulnerability, but he had been arrested many times, suggesting some sophistication in these matters. The trial court’s decision was hot clearly against the preponderance of the evidence on this issue.

Affirmed.

Hickman, J. concurs.

Hubbell, C.J., Hays and Hollingsworth, JJ., dissent, dissent.

Steele Hays, Justice,

dissenting. The law imposes on this court the responsibility of making an independent review of the circumstances surrounding confessions made by suspects while held in custody, the presumption being that incriminating statements are involuntary. The totality of the circumstances in this case leads me to the conclusion the state has failed to overcome the presumption against this confession.

Charges of physical abuse are commonly raised and, necessarily, we depend on the trial judge to determine whose version is credible, but in the end the burden rests here. The appellant insists he was physically abused by the officers and his mother gives rather graphic support to those claims. The opposing testimony by two officers is plainly equivocal: “I don’t recall [appellant] being intimidated or pressured by anyone” (T. 141), “I don’t recall seeing anyone strike or' threaten [appellant]” (T. 146), and, “So far as I know there were no promises or threats made to [appellant] before or during the taking of either statement” (T. 152) (The emphasis is supplied). Under these circumstances the state’s proof is less than convincing against evidence to the contrary, not implausible on its face. Consequently I would suppress the confession.

Hubbell, .C.J., joins this dissent.

P.A. Hollingsworth, Justice,

dissenting. I dissent from the majority’s holding that the appellant knowlingly waived his fifth and sixth amendment rights. An individual’s right to remain silent and to have the opportunity to confer with counsel is well established in Arkansas law. Tucker v. State, 261 Ark. 505, 549 S.W.2d 285 (1977). Before any statement made by a defendant can be admitted into evidence, it must be shown that the defendant knowingly, voluntarily, and intelligently waived his rights to remain silent and to counsel. Miranda v. Arizona, 384 U.S. 436 (1966); Hickerson v. State, 282 Ark. 217, 667 S.W.2d 654 (1984); Hunes v. State, 274 Ark. 268, 623 S.W.2d 835 (1981). I do not believe the appellant knowingly waived his constitutional rights in this case.

The appellant was read his rights at the time of his arrest. He was handed a standard rights form which he read and to which he wrote a response. The last question on the form was “Do you understand you may waive the right to advice of counsel and your right to remain silent? You may answer questions or make a statement without consulting a lawyer if you so desire.” Appellant answered “Yes” to this question. This form does not clearly show that appellant waived his rights. It only asked if he understood his rights.

We have held a rights form to be defective due to the fact that it implied that an attorney could not be appointed before the accused’s case came up in court. Moore v. State, 251 Ark. 436, 472 S.W.2d 940 (1971). In this case the standard rights form should also be held defective since the appellant may not have realized that he was waiving his rights when he answered yes to the last question on the form. The form does not contain a specific waiver of rights statement. The trial judge noted this in his ruling when he said:

There is nothing showing a positive waiver by the defendant. A waiver is a giving up of a right. And there is nothing showing he did that other than the fact that he answered after he was advised of his rights. I can see instances when a person might not realize he’s waiving anything when he answers those questions. But if he were asked to sign a statement stating he did, in fact, understand these rights and that he wished to waive them and a waiver was explained to him, I think it would lend a little more effect to it . . .

I agree with the trial court’s statement that the rights form does not show a positive waiver by the appellant. As such, the appellant could not have knowingly waived his rights. Thus, the requirements of Miranda were not met. I would suppress the appellant’s statements.


author: John I. Purtle, Justice.

text:
    John A. SPICER v. CITY OF FAYETTEVILLE
    CR 84-144
    681 S.W.2d 369
    Supreme Court of Arkansas
    Opinion delivered December 21, 1984

      Darrell E. Baker, Jr., for appellant.

      Steve Clark, Att’y Gen., by: Randel Miller, Asst. Att’y Gen., for appellee.
   John I. Purtle, Justice.

Appellant was convicted under the “Omnibus DWI Act” [Ark. Stat. Ann. §§ 75-1031.1; 75-1045; 75-2501 through 75-2514 (Supp. 1983)]. On appeal he challenges the Act and the evidence in this case. The four points argued on appeal are: (1) the Act violates the separation of powers doctrine; (2) the Act violates due process by failure to give notice of proscribed conduct; (3) the evidence was insufficient; and (4) the court erred in allowing the breathalyzer test results to be introduced. We do not reach the separation of powers argument and the other three points have been recently decided adversely to the appellant.

On May 7, 1983, the appellant was stopped by a city officer because he was speeding. After the officer talked with the appellant he decided the appellant had been drinking. According to the officer the appellant failed two of the three field tests given. The officer testified that appellánt was “moderately” intoxicated. Therefore, appellant was taken to the Fayetteville Police Department where he was given a breath test. The test sample was not preserved. The indicated blood alcohol content (BAC) was 0.21%. Prior to the breath test the appellant had been under the combined observation of officers for more than 30 minutes. He was informed he could take a different type test if he disagreed with the result of the one administered. The officer agreed to assist him in obtaining another test. No request for a different test was made.

We first take up the statement that Act 549 is violative of the separation of powers doctrine as established by the Constitutions of Arkansas and the United States. It is stated by the appellant that the various sections of this Act amount to legislative encroachment upon the functions of the judicial department. The briefs contain no convincing argument or citation of authorities on this issue. An issue of such vital importance should be developed at the trial court and fully briefed and argued before we write an opinion. Under the authority of Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977), we decline to decide the issue in this case.

Appellant next argues the statute is too vague to give notice of proscribed conduct. We recently decided this issue adversely to appellant. Lovell v. State, 283 Ark. 425, 678 S.W.2d 318 (1984); Long v. State, 284 Ark. 21, 680 S.W.2d 686 (1984). The reasons, definitions and authorities applied in Lovell and Long are equally applicable to the present case and will not be repeated here.

The evidence was sufficient to sustain the conviction in the present case. The proof revealed appellant’s BAC registered 0.21%. The officer first stopped him for speeding and thereafter notice he had symptons of being under the influence of alcohol or intoxicated. No one officer observed him for 30 minutes before the test was administered but collectively he was observed by the officers for at least 30 minutes. There was the usual testimony about appellant’s being under the influence and no good purpose would be served by repeating it here.

The final argument is that the breathalyzer test was improperly admitted. Although the notice to appellant by the officers that he had the right, to have a subsequent or different test was not as complete as it should have been, we do not find error in allowing the test result to be introduced. He was notified he could request a test of a different type but he made no such request. Arkansas Stat. Ann. § 75-1045 (c) (3) does not require the police to administer the test more than once but the testimony here was that it was department policy to give a second test if requested. The statute provides that the accused may have a physician, qualified technician, registered nurse or other qualified person of his own choice administer a complete chemical test or tests in addition to the one administered at the direction of the law enforcement officer. The officer is required to advise the accused of this right. Appellant was notified that he had the right to request a test of a different type. We do not believe the notice precluded the appellant from requesting another breathalyzer test and he could have done so but he did not. The statute requires the officers to assist an accused in obtaining other tests but it does not require them to initiate a request for additional tests. There was no showing that the test administered was defective. Therefore, the court did not err in allowing the test results to be admitted.

Affirmed.


author: Robert H. Dudley, Justice.

text:
    Dan WALLACE and Loe Sec KUI d/b/a SARG’S TRUCK STOP v. Albert DUSTIN
    84-185
    681 S.W.2d 375
    Supreme Court of Arkansas
    Opinion delivered December 21, 1984

      Person ¿r Van Winkle, by: Gary D. Person, for appellant.

      Eugene A. Wahl, Jr., for appellee.
   Robert H. Dudley, Justice.

The appellants, Dan Wallace and Loc Sec Kui, are the owners and operator’s of Sarg’s, a tavern and pool hall in Sebastian County. The appellee, Albert Dustin, was injured when appellant, Dan Walace, hit him in the back of the head with three pool cues. The facts surrounding the intentional tort are disputed but may be summarized as follows. The appellee testified that a person of the bar, Carl Fletcher, walked from the bar to the table, put his hands in his pockets, and said to the appellee “I want you.” Appellee perceived a threat from Fletcher’s words and actions and picked up a chair and threw it to one side of Fletcher. Appellant, Dan Wallace, who was tending bar, shouted at the two men to stop, and the potential combatants started walking toward the door. Appellant came around the bar and hit appellee on the back of the head with three pool cues. This version was corroborated by appellee’s daughter.

Appellant Dan Wallace’s account of the event was that he was cleaning the pool tables and picked up some pool cues to return them to the rack when he heard a crash. He turned and saw appellee throwing chairs. He came toward the appellee, who had another chair in his hand, and said “Al, put the chair down, don’t do that.” Appellee looked at appellant and started lifting the chair. When he did, appellant, who intended to strike him on the shoulder, hit him on the back of the head with the pool cues. Appellant Wallace contends that he was justified in taking such action because he was concerned for the safety of his other patrons. This version was corroborated by Fletcher.

The jury returned a verdict for $1,500.00 in compensatory damages and $1,500.00 in punitive damages. We affirm the judgment. Jurisdiction of this tort case is in this court pursuant to Rule 29(1) (o).

Appellants first contend that the trial court erred in •failing to grant the defendant’s motion for a directed verdict on punitive damages. An award of punitive damages is justified only where the evidence indicates that the defendant acted wantonly in causing the injury or with such a conscious indifference to the consequences that malice might be inferred. Freeman v. Anderson, 279 Ark. 282, 651 S.W.2d 450 (1983). “Before punitive damages may be allowed it must be shown that in the absence of proof of malice or willfulness there was a wanton and conscious disregard for the rights and safety of others on the part of the tortfeasor.” Dalrymple v. Fields, 276 Ark. 185, 188, 633 S.W.2d 362, 363 (1982). Negligence alone is not sufficient to support an award of punitive damages. Id.

In reviewing the denial of a motion for directed verdict, this court looks to whether there is any substantial evidence from which the jury could possibly find for the party opposing the motion. The evidence is viewed in the light most favorable to the party opposing the motion. We will affirm if there is any substantial evidence to support the jury’s findings. Lindsey v. Watts, 273 Ark. 478, 621 S.W.2d 679 (1981).

When viewed most favorably to appellee, the proof is that the appellee, in response to a provocative remark by Fletcher, began throwing chairs in Fletcher’s direction. Appellant Wallace told the man to leave. Appellee was on his way out of the bar and had his back turned when Wallace struck him on the head with three pool cues. Wallace admitted hitting appellee on the shoulder and that appellee had not made any move to leave the bar.

This evidence is sufficient to go to the jury on the issue of whether appellant intentionally struck appellee with conscious indifference to the consequences and was subject to an award of punitive damages. See Freeman, supra. The motion for a directed verdict was properly refused, and the trial court’s decision on this point is affirmed.

Appellants next contend that the j ury instructions were erroneous. They argue that the jury should not have been instructed on the definition of negligence when negligence was not alleged in the complaint and was not proven. However, at trial appellants did not object to the instruction which defined negligence. A party’s failure to object to an instruction at trial precludes argument here that the instruction was improper. Baxter v. Grobmyer Bros. Const. Co., 275 Ark. 400, 631 S.W.2d 265 (1982). Appellant argues that the standard for awarding punitive damages was not set out in an instruction for the jury. Again appellants failed to object to the instruction or to proffer one of their own. This failure at trial precludes their agrument on appeal. See Baxter, supra. Appellants next contend that the instructions do not make it clear that the defense of justification may be used to mitigate an award of punitive damages as well as compensatory damages. Again, this argument was not raised below and will not be considered on appeal. See Baxter, supra.

Appellants assert in their final point that there was no substantial evidence to support the verdict for compensatory damages. Appellants point to inconsistencies in the appellee’s proof and to appellant Wallace’s defense of justification and argue that there is no substantial evidence to support the verdict. They argue that the state of the evidence indicates that the jury was prejudiced against them.

This case hinges on the credibility of various witnesses’ testimony. It is a well settled rule of appellate review that it is not the function of the appellate court to judge the credibility of witnesses; that is the function of the jury. Warren v. State, 272 Ark. 231, 613 S.W.2d 97 (1981). In determining the sufficiency of the evidence, the appellate court reviews the evidence and all reasonable inferences therefrom in the light most favorable to appellee. Taylor v. Terry, 279 Ark. 97, 649 S.W.2d 392 (1983). While it is true that a tavern keeper is under a duty to use reasonable care and vigilance to protect guests or patrons from reasonably foreseeable injury, mistreatment, or annoyance at the hands of other patrons, Ind. Park Bus. Club v. Buck, 252 Ark. 513, 479 S.W.2d 842 (1972), the jury could reasonably have believed that appellant Wallace went beyond “reasonable care and vigilance” when he intentionally struck appellee. Appellee suffered a cut on his head which required eighteen stitches to close; he was out of work for eight days; and there was testimony that he made $425.00 per week. Lastly, he complained of headaches and dizziness for some period of time after the incident. This evidence is sufficient to support an award of compensatory damages.

Affirmed.


author: Robert H. Dudley, Justice. Darrell Hickman, Justice, John I. Purtle, Justice, Steele Hays, Justice,

text:
    Delano COTTON v. CITY OF FAYETTEVILLE, ARKANSAS; Charles RAGLAND, Commissioner of Revenues of the State of Arkansas; and Steve CLARK, Attorney General of the State of Arkansas
    84-250
    682 S.W.2d 453
    Supreme Court of Arkansas
    Opinion delivered December 21, 1984
    [Rehearing denied January 28, 1985.]

      Gary Carson, for appellant.

      Timothy J. Leathers, Joseph V. Svoboda, Kelly S.

      Jennings, John H. Theis, Joe Morphew, and Michael D. Munns, by: Wayne Zakrezewski and Ann Kell, for appellee, Ragland.

      James McCord, City Att’y; and Rose Law Firm, A Professional Association, by: George E. Campbell, H. Watt Gregory, III and David L. Williams, for appellee, City of Fayetteville.

      Hays, J., would grant rehearing.

   Robert H. Dudley, Justice.

The City of Fayetteville proposed to issue $25,000,000.00 in municipal bonds to finance improvements to its wastewater treatment plant and to retire some outstanding bonds which it had previously issued. The city intends to repay the bonds with the proceeds of a one percent local sales and use tax and from revenue collected from the wastewater system. The sales and use tax would be the principal source of repayment. At a special election the voters approved the adoption of the tax, the issuance of the bonds, the pledge of the proceeds from the tax to repay the bonds, and the use of the bond proceeds to finance the improvements. Collection of the local sales and use tax commenced on November 1,1983. The city intends to pay a rate of interest greater than six percent per year.

The appellant, a citizen and taxpayer, filed a class action challenging the validity of the proposed bond issue and the legality of the use tax. The case was submitted to the chancellor on a stipulation of facts and cross motions for summary judgment. The chancellor upheld the proposed bond issue and the use tax. We reverse. Jurisidction to interpret the constitution is in his court. Rule 29 (l)(a). .

The Constitution of Arkansas provides that neither the state nor counties or cites shall ever lend their credit, nor shall cities or counties ever issue interest-bearing bonds unless five requirements are met. The five requirements are:

(1) that the taxpayers vote on the issuance of the bonds, the pledge of the proceeds and the use of the bond proceeds;
(2) that the bond proceeds be for a public project;
(3) that the bond bear no greater rate of interest than six percent per year;
(4) that the bonds be issued for no longer period of time than thirty-five years;
(5) that the bonds be paid by a special property tax not to exceed five mills.

Article 16, Section 1, as amended by Amendment 13.

In 1932 this court created an exception to the constitutional requirements. We held that a city could issue bonds to be paid entirely from revenues, without elective approval, to purchase a water and light plant. McCutchen v. Siloam Springs, 185 Ark. 846, 49 S.W.2d 1037 (1932).

In the landmark case delineating the exception to Amendment 13, Snodgrass v. Pocahontas, 189 Ark. 819, 75 S.W.2d 223 (1934), we stated that compliance with the constitutional provisions was required if the bonded indebtedness for the municipal improvement would place any burden on the taxpayer, but compliance was not required if the bonded indebtedness was to be repaid solely by revenues from the improvement. We have never abandoned the exception. McCutchen v. Siloam Springs, 185 Ark. 846, 49 S.W.2d 1037 (1932); Jernigan v. Harris, 187 Ark. 705, 62 S.W.2d 5 (1933); Hogue v. The Housing Authority of North Little Rock, 201 Ark. 263, 144 S.W.2d 49 (1940); and Boswell v. City of Russellville, 223 Ark. 284, 265 S.W.2d 533 (1954). Purvis v. Hubbell, Mayor, 273 Ark. 284, 620 S.W.2d 282 (1981). The week after Snodgrass was handed down we expanded the exception of “revenues from the improvements witout any burden on the taxpayer” in the consolidated cases of Johnson v. Dermott and Parker v. Little Rock, 189 Ark. 830, 75 S.W.2d 243 (1934). In the Dermott case, we approved a pledge of revenues from the municipal waterworks system to pay a bonded indebtedness incurred to build a municipal hospital, without an election. In the Little Rock case, also without an election, we held that an indebtedness for a municipal airfield could be paid out of revenues from the airport and in a significant move held that, in the event the airport revenues were insufficient to retire the indebtedness, the city could pay the bonds out of its general fund.

In City of Harrison v. Braswell, 209 Ark. 1094, 194 S.W.2d 12 (1946), we held that even though the city’s water and sewer system were technically separate, a surplus in one system might be applied to the retirement of the bonds of the other.

The revenue bond exception was then expanded further in Purvis v. Hubbell, Mayor, supra. There, in addition to revenues from a convention center, high-rise parking deck and hotel complex, the City of Little Rock pledged funds which would be derived from a special two percent sales tax and also pledged funds from any increase in state turnback from the state sales tax revenues. When we decided Purvis v. Hubbell, Mayor, supra, we recognized that the city, the attorneys, the developers, and the bond holders had relied on our past cases in defining the court created exception but a majority felt that we had gone too far with the concept. Still, the majority felt it would be manifestly unfair to restrict the exception without warnings, and so the opinion contained the following caveat:

After carefully considering our previous decisions, it appears there has been a gradual expansion of the concept of revenue producing bonds, which require no popular approval, as was authorized for instance in Snodgrass v. Pocahontas, 189 Ark. 819, 75 S.W.2d 223 (1934). However, a change should not be made retroactively, after public agencies and investors have relied on our decisions; but in other instances we have given notice that an interpretation of the Constitution may or will be changed. Clubb v. State, 230 Ark. 688, 326 S.W.2d 816 (1959); Hare v. General Contract Purchase Corp., 220 Ark. 601, 249 S.W.2d 973 (1952). Accordingly, we give notice of our intention to prospectively reconsider our cases at the next opportunity after the present opinion becomes final.

Purvis v. Hubbell, Mayor, 273 Ark. at 339, 620 S.W.2d at 287.

In the case at bar, the City of Fayetteville does not propose to repay the bonds from revenues generated by improvements, but proposes to repay them out of a local sales and use tax. Consequently, the bonds are outside the court created constitutional exception for revenue bonds. The requirements of the constitution are mandatory, and therefore, since the bonds do not fulfill those requirements, they are invalid.

Reversed.

Hubbell, C.J., not participating.

Hickman and Purtle, JJ., concur.

Hays, J., dissents.

Darrell Hickman, Justice,

concurring. I concur because the bonds are not in compliance with the constitution. An election cannot cure constitutional defects. I will, of course, not deviate from my view expressed in Purvis v. City of Little Rock, 282 Ark. 102, 667 S.W.2d 936 (1984).

John I. Purtle, Justice,

concurring. A municipality does not lend its credit to a bond issue which is payable solely from the revenues generated by the project. There is no constitutional provision allowing or prohibiting the issuance of such bonds. In Purvis v. City of Little Rock, 282 Ark. 102, 667 S.W.2d 936 (1984) we stated: “[Municipalities may issue pure revenue bonds for purely essential public purposes without holding an election. Such bonds are not prohibited by the Constitution and were expressly provided for by the General Assembly.” The bonds in the present care are not pure revenue bonds and do not fit within the framework of Amendment 49 or any other constitutional provision allowing such bonds to be issued.

Steele Hays, Justice,

dissenting. I find no basis in the record for the assertion in the majority opinion that the tax revenues will be “the principal source of repayment” of the bonds. The record tells us only that the sales and use tax revenues and the revenues generated by the wastewater facility will pay the bonds, we are told nothing of their relative size.

Although the majority opinion notes in passing that this entire project (included the bonds and accompanying sales and use tax) was adopted by the Fayetteville City Council and overwhelmingly approved by the voters of that city (4,885 to 435), the opinion then proceeds to ignore that signal fact altogether.

The majority opinion states with emphasis that we have unfailingly held that our Constitution (Article 16, § 1, Amendment 13) must be complied with if the bonded indebtedness for the municipal improvement would place any burden on the taxpayer, but not if the bonded indebtedness is to be repaid solely by revenues from the improvement. Boswell v. City of Russellville, 223 Ark. 30, 620 S.W.2d 282 (1981); Hogue v. The Housing Authority of North Little Rock, 201 Ark. 263, 144 S.W.2d 49 (1940); Snodgrass v. Pocahontas, 189 Ark. 819, 75 S.W.2d 223(1934); Jernigan v. Harris, 187 Ark. 705, 62 S.W.2d 5 (1933); McCutchen v. Siloam Springs, 185 Ark. 846, 49 S.W.2d 1037 (1932). I have no quarrel with that statement of the law, so far as it goes, but it ignores an important element: our constitutional restraints against burdening the taxpayer with bonded indebtedness apply where the burden is imposed by others, not where the taxpayer voluntarily assumes that burden by the elective process.

. The majority opinion cites cases wherein this court has approved the use of revenues generated by one facility to pay for a different facility [Johnson v. Dermott, 189 Ark. 830, 75 S.W.2d 243 (1934) and City of Harrison v. Braswell, 209 Ark. 1094, 194 S.W.2d 12 (1946), and where we even approved using the general fund of a city to finance an airport if the revenues produced by the airport proved insufficient to pay for the bonds. Parker v. City of Little Rock, 241 Ark. 381, 407 S.W.2d 921 (1966)].

At that point, and with neither discussion nor citation, the opinion abruptly concludes that residents of Fayetteville cannot impose a one cent sales and use tax upon themselves to help finance a desperately needed wastewater treatment plant, even though the public purpose is beyond question and the project has been approved in all respects by an election. Thus, we are denying the right of the City of Fayetteville to do by an election what we have permitted the City of Little Rock to do without an election, (see Purvis v. Hubbell, 273 Ark. 330, 620 S.W.2d 282 (1981) [Purvis I] and Parker v. City of Little Rock, supra), even though our only criticism of the procedure in Purvis was the absence of an election.

The troubling fact is our recent cases affecting revenue bonds are impossible to reconcile. Every objection to bond issues of this kind since this court began the closer scrutiny suggested by our decision in Purvis I relates either to the lack of an approving election, or a public purpose, neither of which is at issue here . Justice Dudley’s concurring opinion in Purvis v. City of Little Rock, 282 Ark. 102, 667 S.W.2d 536 (1984), [Purvis II] was based on his perceived weakness of the public purpose of the LaQuinta Motel, an understandable concern. Had that issue been otherwise, he would have approved the bonds. (See Purvis v. City of Little Rock, Dudley, J., concurring, supra at 119). Justice Hickman’s dissenting opinion in Purvis I and his concurring opinion in Purvis II state repeatedly (thirteen times by count in Purvis II) that his one objection to the bonds is the absence of an election. Chief Justice Adkisson, Justice Hollingsworth, and I would have approved the bonds in Purvis II notwithstanding the want of an election, because the bonds were payable only from the revenues generated by the motel. So on what basis are we now invalidating bonds overwhelmingly approved by an election of those who alone will pay them? I confess I have no answer and, unfortunately for the litigants and the public, neither does the majority.

       I am not overlooking the statement by Justice Purtle in Purvis v. City of Little Rock, 282 Ark. 102, 667 S.W.2d 936 (1984), that the bonds must not have a greater interest rate than six percent and shall not be issued for a longer period than twenty years, but the concurring opinion of Justice Dudley points out that our cases are to the contrary and that a majority of this court disagrees with that position. That assertion has not been challenged. (See Purvis v. City of Little Rock, Dudley, J., concurring, p. 119).


text:
    Derrick BLAIR v. STATE of Arkansas
    CR 84-135
    681 S.W.2d 374
    Supreme Court of Arkansas
    Opinion delivered December 21, 1984

      Leon N. Jamison, for appellant.

      Steve Clark, Att’y Gen., by: Joyce Rayburn Greene, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

Appellant, Derrick Blair, was convicted of burglary, theft and two counts of theft by receiving. The jury fixed each sentence at eighteen years, and the trial judge ordered them to run consecutively. Appellant assigns three points of error. We affirm. Jurisdiction is in this court under Rule 29(1) (b).

Appellant first contends that the trial court erred in permitting a police officer to testify as a fingerprint expert, when that officer had never previously qualified as an expert. Rule 702, Uniform Rules of Evidence, Ark. Stat. Ann. § 28-1001 (Repl. 1977), which governs the admission of expert testimony, provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

The police officer testified that he had specialized in fingerprint work for six years and that he had 80 hours of training at the FBI Academy in latent fingerprint analysis. He testified that he compared latent fingerprints taken from a window at the burglary site with appellant’s fingerprints and found them to be identical.

The determination of the qualifications of an expert witness lies within the discretion of the trial court, and his decision will not be reversed unless that discretion has been abused. Dixon v. State, 268 Ark. 471, 597 S.W.2d 77 (1980). The trial court did not abuse that discretion simply because he allowed the witness to qualify for the first time as an expert. Even if an abuse of discretion had occurred, it was not prejudicial since an expert with more fingerprint analysis credentials, plus courtroom experience, testified that he had independently determined that the latent fingerprints and appellant’s fingerprints were identical.

Appellant next argues that the trial court erred in refusing to give his requested instruction on criminal trespass. This point is also without merit. The state’s witnesses testified that the appellant was guilty of burglary. The appellant testified that he did not enter the structure. There is no evidence of a violation of the criminal trespass statute. A trial judge does not have to give an instruction where there is no evidence to support the giving of that instruction. Blaney v. State, 280 Ark. 253, 657 S.W.2d 531 (1983).

Appellant’s final argument is that the trial court abused its discretion in running his sentences consecutively rather than concurrently. The trial court has the discretion to make maximum sentences run consecutively. Hinton v. State, 260 Ark. 42, 537 S.W.2d 800 (1976). Ark. Stat. Ann. § 43-2312 (Repl. 1977) states in pertinent part:

(T)he sentencing court shall have the authority to direct that the sentence adjudged shall run concurrently with the other sentence, if it shall be deemed best for society and the'person convicted.

A trial judge may order that sentences be served consecutively if it is in the best interest of society and the person convicted. A trial judge’s exercise of discretion will not be reversed unless it is shown that he abused that discretion. Patton v. State, 281 Ark. 36, 660 S.W.2d 939 (1983). In the case at bar, the appellant has been convicted of a total of six felonies, and the trial judge may well have thought the interests of society demanded consecutive sentencing. No abuse of the exercise of discretion has been shown.

Affirmed.


author: Steele Hays, Justice.

text:
    James Robert COOK v. STATE of Arkansas
    CR 84-108
    681 S.W.2d 378
    Supreme Court of Arkansas
    Opinion delivered December 21, 1984

      William R. Simpson, Jr., Public Defender, by: Deborah R. Sailings, Deputy Public Defender, for appellant.

      Steve Clark, Att’y Gen., by: Velda P. West, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

Appellant was found guilty of kidnapping under Ark. Stat. Ann. § 41-1702 and sentenced as an habitual offender to thirty years imprisonment. § 41-1702 provides:

(1) A person commits the offense of kidnapping if, without consent, he restrains another person so as to interfere substantially with his liberty with the purpose of:
(a) holding him for ransom or reward, or for any other act to be performed or not performed for his return or release . . .

The single argument on appeal is the evidence at trial did not support a charge of kidnapping under § 41-1702, because a substantial interference with the victim’s liberty was lacking and the restraint was of such short duration that it would not be encompassed by the statute.

The facts are: as the victim was getting into her car the appellant appeared at her side. He ordered her into the car at gunpoint and demanded a ride out of town, which she refused. She was threatened and struck several times, but she continued to refuse. At one point the appellant’s pistol discharged, evidently by accident, with the bullet passing through the windshield. After about ten or fifteen minutes the appellant got out of the car and walked away.

We have not previously addressed this element of the kidnapping statute but a review of other jurisdictions leads us to conclude it is the quality and nature of the restraint, rather than the duration, that determines whether a kidnapping charge can be sustained.

This issue often arises in cases where another offense, such as rape or robbery, is accompanied by a greater restraint of the victim than ordinarily occurs in the commission of the other crime. Among these cases a restraint for only ten minutes has been held to be sufficient to constitute kidnapping. See Sinclair v. U.S., 388 A.2d 1201 (D.C. 1978) and cases cited. In Sinclair, the victim was forced to accompany the defendant for about ten minutes, during which the victim was robbed. The court found the evidence sufficient to constitute kidnapping in addition to robbery, reasoning that by removing the victim in a vehicle, the defendant took him out of the view of friends and acquaintances and exposed him to greater danger and lessened the risk of detection.

In two recent cases involving kidnapping alone, the courts found the evidence sufficient to sustain the charges where the restraints involved were less than five minutes. Commonwealth v. Burkett, 370 N.E.2d 1017, 5 Mass. App. 901 (1977); Rodriguez v. State, 646 S.W.2d 524 (Tex. App. 1 Dist. 1982). In Burkett the court declined to find error in the refusal of an instruction for attempted kidnapping. The court said:

As permitted by that section both indictments included an allegation that the defendant ‘without lawful authority, did forcibly . . . confine the victim, with the intent to cause him to be secretly confined against his will.’ On all the relevant evidence both the offenses charged were complete at least as soon as the defendant climbed into the back of the [victim’s] car, pointed his gun at [his] head with an order to drive, and the car began to move, the fact that the car moved only a few hundred feet because a police officer shot out one of the tires is beside the point.

In Rodriguez, the appellant was convicted of kidnapping on almost identical facts under a statute containing similar language to ours, i.e. “substantial interference with the liberty” of the victim. The victim struggled with the defendant after he had forced her into her car at knife point. When other students approached the defendant gave up the attempt and walked away. The court considered whether the evidence of the two to four minute struggle established substantial interference with the victim’s liberty. It cited other cases where brief restraints had occurred and sustained a kidnapping charge, concluding that the word “substantial” did not require a minimum length of restraint, only that the interference be substantial. The court observed, “The intervening event of the approaching crowd, causing the appellant to abandon his ultimate plan and shortening the period of restraint and confinement to a few minutes was not sufficient to allow him to escape the consequences of his conduct.”

It is significant the actions of the would-be kidnappers in these cases confined the victims in such a way that escape, rescue or detection was made difficult or' impossible. Whether or not the actor was able to complete the objective of the kidnapping is immaterial. Once the kidnapper has undertaken the activity and the victim has been exposed to the attendant dangers, the act is complete, as it is the nature of the restraint rather than its duration that tends to govern.

The facts in this case support a finding of substantial interference with the victim’s liberty. She was forced at gunpoint into the car, where the dangers were increased. She was struck several times by her assailant, once by a blow with the gun itself, causing the weapon to discharge. The relatively brief duration of the restraint is not sufficient to remove it from the scope of the statute.

The judgment is affirmed.