text:
    RUSSELLVILLE WATER COMPANY, INC. v. ARKANSAS PUBLIC SERVICE COMMISSION
    80-131
    606 S.W. 2d 552
    Supreme Court of Arkansas
    Opinion delivered October 6, 1980
    Rehearing denied November 17, 1980

      House, Holmes & Jewell, by; E. B. Dillon, Jr., for appellant and cross-appellee.

      Jeff Broadwater, for appellee and cross-appellant.
   Frank Holt, Justice.

In October, 1978, the Russellville Water Co., Inc., requested the Arkansas Public Service Commission’s approval of increased rates and charges in the amount of $397,807. In September, 1979, the Commission found that the Company was entitled to an increase of only $133,294. Upon the Commission’s denial of the Company’s petition for a rehearing, except as to one issue, the Company filed in the Pulaski Circuit Court a petition to review the Commission’s orders.

The circuit court reversed the Commission on its failure to include in the Company’s rate base $422,293 for construction work in progress (CWIP). However, the court affirmed the Commission on the issue of tax computation and also on the Commission’s refusal to make a downward revenue adjustment for the loss of a large industrial customer during the test year. The Company appeals from the court’s affirmance of the Commission on the last two mentioned issues. The Commission cross-appeals from the court’s reversal as to the CWIP issue.

We first consider and agree with the Company’s contention that the Commission erred in the method used to compute income taxes and tax-related deductions of certain extraordinary deferred expenses. A public utility’s taxes are a proper item to include in its operating expenses which the utility is entitled to recover from its customers. Georgia Railway & Power Co. v. Railroad Commission, 262 U.S. 625, 43 S.Ct. 680, 67 L.Ed. 1144 (1923). Here the test period chosen by the Company and; used by it and the Commission was June 30, 1977, to June 30, 1978. During this year appellant had several unusually high and nonrecurring annual expenses which it was able to claim as deductions for income tax purposes during the taxable year. These nontypical annual expenses, totaling $100,954, consisted of rate case expenditures, a depreciation study, tank painting, a settling basin, and a management audit. The amount of these underlying expenses was amortized or normalized by the Commission over several years. To this the Company does not object. It does, however, object to the Commission’s treatment of the tax related deductions on these expenditures; i.e., the Commission’s refusal to similarly amortize or normalize the tax credits generated by these expenses. The extraordinary expenses and tax deductions thereon during the test year resulted in the Company’s having a negative tax liability of several thousand dollars for that taxable year. The savings to the Company in taxes, $48,456, was deducted by the Commission in its entirety from the test year expenses, rather than being amortized, for the purpose of determining the test year expenses to be recovered in the new rates. The Commission based the Company’s tax liability during the test year on the amount of taxes actually paid by the Company for the taxable year. The Commission’s position is that normalizing the tax liabilities, as it did the underlying expenses, would lower the test year credits which would result in higher test year taxes and greater operating expenses passed on to the consumers; the actual amount of taxes paid during the test year is a reasonable index to future tax liabilities; and although the Company’s future tax liabilities could be more than that actually paid during the test year, it is impossible to know to what extent. The Company, however, contends the test year tax credits or savings generated by these extraordinary nonrecurring expenses should have been normalized (spread over the same period of years) as were these underlying expenses, rather than being used by the Commission as an indication of future tax liability. Further, these nonrecurring deferred expenses used for computing the tax deductions will not be available in the future for tax purposes or benefits and, thus, the Company will incur a greater future tax liability than that provided for in the rates. Also, the actual tax saved or negative tax during the year as a result of deductions for the extraordinary expenses during that time is not a reasonable index to potential future tax liabilities. The result of the negative taxes during the test year, it argues, will be a revenue shortfall in the years following the test year, because no provision has been made in the rate base for the increased taxes in those years; and a basic regulatory principle requires that extraordinary expenses, which properly are normalized as here, should also require normalization of tax savings resulting from these tax deductions during the test year. In other words, a tax refund or savings during a test year, like extraordinary expenses, is non-representative of a test year. Therefore, the Commission’s action in normalizing the abnormal expenses and refusing to similarly normalize the resulting tax deductions is inconsistent and unreasonable. In effect the Commission is properly allowing l/5th (on a 5 year amortization) of the unusual expenses incurred during the test year for rate making purposes and improperly charging appellant with 100% of the tax deductions.

This court’s scope of review of an order of the Commission was recently discussed in Southwestern Bell Telephone Company v. Arkansas Public Service Comm’n, 267 Ark. 550, 593 S.W. 2d 434 (1979). Pursuant to Ark. Stat. Ann. § 73-229.1 (Repl. 1979), the courts can only determine whether (1) the Commission’s findings as to the facts are supported by substantial evidence; (2) the Commission has regularly pursued its authority; and (2a) the order or decision under review violated any right of the petitioner under the laws or Constitution of the United States or the State of Arkansas. It is only the findings of fact that are tested by the standard of substantial evidence, which is a question of law. The courts may not pass upon the wisdom of the Commission’s actions or say whether the Commission has appropriately exercised its discretion. However, it is for the courts to say whether there has been an arbitrary or unwarranted abuse of discretion, even though considerable judicial restraint should be observed in finding such an abuse. The question of reasonableness of the Commission’s actions relates only to its findings of fact and to a determination of whether its action was arbitrary.

Here it is undisputed that the amortized expenses were unusual and not the type which occur annually. On cross-examination, one of the Commission’s staff witnesses recognized “there is an argument that says that’s one way to do it,” referring to treating the taxes and the expenses the same, amortizing both. In computing the income tax and tax benefits he used “some rather significant and unusual expenses in 1978,” which reduced taxes and expenses and therefore revenue requirements. He agreed that if those expenditures did not occur in the future, it would be impossible for the tax benefit to reoccur. He continued, “[Y]ou know, this is just the way the numbers fall. If this Commission allows the normalization of deferrals, due to excess depreciations and does not allow normalization for any other expenses, well, it just fell that way.”

In. AP&L v. Ark. Publ. Service Comm’n, 261 Ark. 184, 546 S.W. 2d 720 (1977), the Commission had excluded construction work in progress from the rate base. However, it included the tax benefits associated with interest on the funds invested in this construction work in progress for rate-making purposes. We held there was no substantial evidence in the record to support the Commission’s failure to exclude, for rate-making purposes, these tax benefits. We noted that the result of the Commission’s action was that present customers were not paying any return on the investment of the Company in CWIP and were therefore not contributing revenues needed to cover the cost of providing service. In so holding we quoted with approval from Pennsylvania Public Utility Commission v. Pennsylvania Electric Company 1 PUR 4th 272 (Penn. Puc. 1973), in which that Commission agreed with the Company that if present customers are not providing a return on CWIP, which is not included in the rate base, they should not receive the tax benefit of the reduced income taxes resulting from such construction. Here, by the same reasoning, if the Company is not receiving the benefit of the entire amount of expenses each year, neither should it have charged against its expenses the entire amount of the tax deductions generated by these expenses. In the circumstances, we hold the Commission’s normalizing or amortizing the extraordinary expenses over a period of years and not similarly treating the tax benefits or savings generated by these expenses to be inconsistent, unreasonable and arbitrary. We therefore reverse the trial court on this issue.

We next consider the Company’s contention that the Commission erred in refusing to make an adjustment to test year revenues related to the permanent loss of revenues from a large industrial customer. The Company requested the Commission to make a downward adjustment on its test period revenues to reflect the loss of revenues from a large industrial customer whose facilities suffered a loss by fire. There were no plans to rebuild. During approximately the first half of the test year, the Company sold this customer 57,-786,000 gallons of water. Following the loss, the level of consumption was only 7,598,000. Based on these figures, the requested adjustment was in the amount of $18,547. This adjustment is contrary to the Commission’s policy which is to adjust revenues for changes in consumption by entire classes of users. To single out one customer’s consumption is improper, impracticable, and is an imprecise criterion. Here there is no evidence that the entire class of industrial customers experienced a decline in water use. The evidence shows, however, that the Company’s revenues increased from 1977 to 1978. Thus, it appears that the decreased sales to the one industrial customer during the test year were offset by increased sales elsewhere. It appears the Commission’s policy, in focusing on changes in classes of customers rather than individual customers, follows traditional regulatory procedure. The Company cites no authority to the contrary. In the circumstances, we hold, as did the trial court, that the commission’s methodology is not arbitrary nor an unwarranted abuse of discretion.

By cross-appeal, the Commission contends that the trial court erred in reversing its decision to exclude from the rate base the CWIP not scheduled at the end of the test year (June 30, 1978) for completion within one year of the end of the test year (June 30, 1979). It is undisputed that CWIP, totaling $720,204, was completed within one year (actually 7 months) of the end of the test year. However, the Commission included only $297,911 of this amount in the rate base and, therefore, excluded a balance or $422,293. The Commission contended in the trial court and here, however, that because the disputed items were not posted to the Company’s general ledger by June 30, 1978, the end of the test year, it did not have to consider them. The Company successfully argued to the circuit court that under the Commission’s guidelines all of the cost of this construction work should have been includ: ed. The Commission appeals the court’s reversal of its order on this issue, pointing out that traditionally a Public Utility Company’s CWIP will not be included in the rate base on which the Company may receive a return. However, the Commission has' modified its policy regarding treatment of CWIP and now includes it in the rate base if it is scheduled in the Company’s records and posted to the general ledger at the end of the test year to go into operation within the next twelve months.

The trial court found that the CWÍP during the base year was completed when the Commission’s staff made its audit (December, 1978) of the Company and that verification of the costs of the work were readily available to the examiner; the costs were of such magnitude that it would necessarily affect the rate to be determined; the finished work products were immediately utilized in furnishing water to current consumers; and the Commission ignored this undisputed evidence and assigned the construction costs entirely to subsequent consumers. The court rejected the argument that verification was too burdensome; the data was available at the time of the audit but not inspected merely because it had not been posted on the Company’s ledger books by June 30, 1978, the cutoff date of the test year. The trial court held this was arbitrary and unreasonable.

We agree with the circuit court’s view. The Commission had notice, by the Company’s application, that the utility was including these items in its CWIP which is planned to complete by June 30, 1979, or one year following the test year. The Commission’s staff, at the time of the audit, had available to it, at its request, a list of these pertinent work orders, subject to verification by ledger cards and source documents. In other words, $720,204 of plant facilities were completed and serving the public at the time of the December, 1978, audit or the March, 1979, hearing, or well within the 12 months following the test year.

Although the Commission has wide discretion, we also said in Southwestern Bell v. Arkansas PSC, supra, that “the Commission should consider complete and accurate information with respect to a later period of time, when available, as a check on the continuing validity of the test year experience in a period of rapid change.” In the circumstances here, the Commission’s failure to examine and consider these available items for inclusion in the rate base is unjustified. Therefore, we affirm the circuit court on the cross-appeal.

Affirmed in part and reversed in part on direct appeal. Affirmed on cross-appeal.

      This is the cost on the Company’s books as of December, 1978. This is $48,579 in excess of the estimated $671,625 used in the original application.


source: Caselaw Access Project

author: Darrell Hickman, Justice.

license: Public Domain

text:
    Homer Lloyd MOORE v. STATE of Arkansas
    CR 79-227
    605 S.W. 2d 445
    Supreme Court of Arkansas
    Opinion delivered October 6, 1980

      Skillman & Durrett by: Vincent E. Skillman, Jr., for ' appellant.

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

Homer Lloyd Moore was convicted of killing Sammy L. Jones outside the Shaneyfelt Clinic in Blytheville, Arkansas, about 1:00 a.m. on September 11, 1977. Moore was charged with first degree murder but was convicted of manslaughter. He was sentenced by the Mississippi County Circuit Court to eight years imprisonment and an $8,000.00 fine.

Moore alleges that three errors occurred during his trial: A tape recording of a phone call to the police station was admitted that had not been authenticated; Moore was not allowed to call as witnesses the police officers who found a pistol in Sammy Jones’ truck; and, the court permitted Moore’s wife to testify. All of these arguments are without merit and we affirm his conviction.

Moore, a long haul truck driver out of Memphis, Tennessee, came in late on the night of September 11, 1977, arriving home about 12:40 a.m. One of his daughters was not at home and, being concerned about her, he went to look for her. His wife was also not at home but Moore said that he thought his wife was out looking for the daughter. Moore testified that he took his pistol because he feared that he might encounter trouble at that late hour. While searching for his daughter, he saw his wife’s automobile parked outside the Shaneyfelt Clinic. Jones was in the car with Mrs. Moore. Moore approached his wife’s car on the passenger side and spoke with his wife. When he turned to leave, Jones got out of the car and called “Hey, Dad.” Three people testified concerning the events that followed. There were slight variations in their testimony, but none of the differences were critical. All agreed that Moore shot at Jones after Jones yelled to him; Jones ran off and his body was found about 100 to 150 feet from his truck. Two witnesses testified that Jones did not have a gun in his hand. There was no testimony that Jones ever had a gun or had access to a gun. Moore said that he did not see a gun but fired because Jones was coming toward him. After the shooting, Moore took the keys from Jones’ truck and drove home.

At 2:45 a.m., less than two hours after the shooting a call was made to the Blytheville police department. The call was routinely taped and a copy of the tape was admitted as evidence at the trial. The tape went as follows:

1st voice: Police Department, Harrison.
2nd voice: Hello, this is H. L. Moore, 1008 Logan Lane
1st voice: Yes, sir.
2nd voice: — have you all got a report of Sammy Jones got shot?
1st voice: Where .do you live at, sir?
2nd voice: He lives over there on East Street. He’s a nigger over there. I shot him awhile ago. I shot him. I don’t know whether I killed the sonovabitch or not.
1st voice: What is your name, sir?
2nd voice: H. L. Moore.
1st voice: What did he do, sir?
2nd voice: Him and my wife was sitting together in a car over there at 1:30 in the morning.
1st voice: 1008 Logan Lane?
2nd voice: Yeah. I just got a call. Somebody said he was dead.
1st voice: I’ll check on it and if he is —
2nd voice: I hope he is.
1st voice: What is your phone number? I will call you back and let you know.
2nd voice: 763-1932.
1st voice: Okay, sir. I’ll check and let you know.
2nd voice: All right.

Moore’s first allegation of error is that the cassette tape recording of the telephone call was not authenticated. A police cadet took that call and testified regarding the cassette tape which was a copy made from a master tape kept on all incoming calls. The cassette tape was made by another officer but, according to the cadet, it represented exactly the telephone conversation that morning. The objection is that the copy was not properly authenticated because nobody made a comparison between the master tape and the cassette. The judge held that it was properly authenticated and we find that he was correct. We held the same in almost exactly the same situation in Williamson v. State, 267 Ark. 46, 590 S.W. 2d 847 (1979).

The second argument relates to a gun found in Sammy Jones’ truck. At first the State moved that the defense not be allowed tó mention this gun since there was no evidence that Jones had a weapon of any kind or had access to the truck before he was shot. The trial judge agreed with the State and granted the motion. The appellant argues that this was error. However, this argument is virtually moot since during the trial the defense questioned two of the three police officers who searched Sammy Jones’ truck and knew of the gun in Jones’ truck. There was no objection to this questioning by the State and the gun was, in fact, admitted into evidence. We think the trial court was correct in ruling that the gun was not relevant evidence in this case. Even if it were not correct, the appellant’s argument would fail because the error was harmless and was cured for the reasons we have indicated.

Finally, the appellant argues that it was wrong to permit Moore’s wife to testify against him since this violated the privilege that exists regarding communications between husband and wife. The appellant concedes that the law in this regard has been changed by Rule 504, Rules of Evidence. Ark. Stat. Ann. § 28-1001 (Repl. 1979). No longer is the privilege absolute but only relates to confidential communications between husband and wife. There is no indication at all that the wife testified regarding any such confidential communications between her and her husband. She simply testified as to what she saw that night. Parenthetically, the appellant argues that the wife’s testimony exceeded the extent of allowable rebuttal testimony, but we find no objection in the record regarding this issue and we do not consider it on appeal. Bobo v. State, 179 Ark. 207, 14 S.W. 2d 115 (1929).

Affirmed.


author: John I. Purtle, Justice.

text:
    Eugene JAMES and Archie ELLIOTT v. STATE of Arkansas
    CR 80-126
    605 S.W. 2d 448
    Supreme Court of Arkansas
    Opinion delivered October 6, 1980

      E. Alvin Schay, State Appellate Defender, by: Jack Kearney, Deputy Defender, for appellants.

      Steve Clark, Atty. Gen., by: Victra L. Fewell, Asst. Atty. Gen., for appellee.
   John I. Purtle, Justice.

Appellants were convicted of aggravated robbery, and the jury sentenced each of them to 25 years in the Department of Correction. On appeal they urge: (1) the court erred in admitting evidence based upon pretrial “show up” identification; (2) the trial judge made improper remarks relating to the Arkansas parole system; (3) the conduct of the prosecuting attorney and the trial judge was prejudicial.

We do not agree with any of the appellants’ contentions and affirm the sentence imposed by the trial court.

The facts reveal two black males entered and robbed the Highway Liquor Store in Brinkley, Arkansas, on December 20, 1978. The robbers threatened the store manager and a young lady who was visiting in the store at the time. A handgun was used in perpetrating the crime; and, the robbers, after taking the money, threatened to shoot the manager and her guest if they did not stay on the floor as ordered.

During the robbery Richard Jordan entered the store while the robbery was in progress. He observed the robber’s use of the handgun and heard part of the conversation. He reentered the store after the robbers left and tried to buy a drink or a bottle of liquor, and informed the manager he knew the robbers.

The police were called; and, upon their arrival at the store, the manager told them there was an eyewitness named Jordan who could identify the robbers. The Chief of Police, George Bethell, happened to know Richard Jordan. The officers went immediately to Jordan’s home and contacted him. He informed the officers he knew the robbers and stated their names were Archie Elliott and Eugene James. Within two hours of the robbery, the appellants were taken into custody. Neither the weapon nor the money was ever found.

The next day Chief Bethell took eight photographs, including those of the appellants, to the victim, Marjorie Vandenberg, to see if she could identify the robbers. She picked out the photographs of appellants and stated “they looked mighty like these two.” The eight photographs were spread in a line, and the appellant’s photos were on each end. According to Chief Bethell, he picked the eight photographs because they all had a similar appearance and were of similar age and size. The following day the chief called Mrs. Vanderberg to the station to see if she could identify the appellants as the robbers. They were the only two black males present in the chief s office when Mrs. Vanderberg came by and stated the two looked like the robbers.

During !the trial witness Vanderberg was asked if she could identify the appellants who were in the courtroom. When she replied in the affirmative, the appellant’s counsel objected on the grounds that the in-court identification was tainted by the prior out of court procedures which included the photograph display and the “show up” identification. After an in camera hearing, the court overruled the objection. Later in the trial Richard Jordan and Lena Garris both positively identified the appellants as the robbers. Lena Garris was absolutely positive in her identification of the man with the gun but not as positive to the other one. Jordan expressed no doubt about the identity of either of the appellants.

The appellants relied upon an alibi as a defense. While one of the appellants’ witnesses, Geraldine Valentine, was being cross-examined by the prosecuting attorney, she was asked about her drinking habits, health, employment, and several questions relating to her receiving welfare benefits. The prosecutor dwelled upon her being physically able to work while she was receiving welfare benefits for herself and /or her children. Objections were made to this line of questioning.

During deliberation the jury returned to the courtoom and asked the judge to explain the parole system in Arkansas. The court replied:

Madam, I am not permitted to do that under the law. I don’t know why because I think you ought to know, but it’s against the law for me to tell you anything about the parole system. That’s strange, but that’s the law. I think you ought to know anything about a case, but I just can’t do it.

We first consider the argument that the in-court identification was tainted by the photographs and the “show up” identification. The in-court identification will be suppressed only if the procedure was unconstitutionally defective to the extent it violated appellants’ due process rights. Appellants argue the photo identification procedure was improper. As far as the photographs were concerned, it does not appear that they were unduly suggestive. According to Chief Bethell, the eight people represented in the photographs were of similar age and size and were all dressed in street clothing. We know of no rule requiring the photographs used in such procedure to be produced as exhibits as argued by appellants. There is no showing that appellants ever requested the photos be produced for inspection or brought to court. Chief Bethell testified that there was nothing suggestive about them, and the witness readily identified the two without any prompting whatsoever. We do not find the record anything which would indicate to us the photograph identification was improper.

It is the likelihood of misidentification that taints the out of court identification process. In determining whether an in-court identification is tainted by pretrial occurrences, we consider the totality of the circumstances. In doing so, we consider the opportunity of the identifying witness to observe the accused at the time of the criminal act; the lapse of time between the occurrences and the identification; any inconsistencies of the description given by the witness; whether there was prior misidentification; the facts surrounding the identification; and all matters relating to the identification process. Mayes v. State, 264 Ark. 283, 571 S.W. 2d 420 (1978). We have stated reliability is the linchpin in determining the admissibility of identification testimony. In the determination of the admissibility we consider the totality of the circumstances. Lindsey & Jackson v. State, 264 Ark. 430, 572 S.W. 2d 145 (1978). In Neil v. Biggers, 409 U.S. 188 (1973), it was held that a “show up” rather than a line-up does not violate a defendant’s constitutional right unless there are other circumstances rendering the identification unreliable.

In the present case Mrs. Vanderburg testified she saw the men clearly and at close range when they robbed her. The next day she picked their photographs from among a group of eight. The following day she was called to the station and again identified them in what we term as a “show up.” The appellants were the only people she observed who could possibly be the robbers. We recognize there is a real danger of undue suggestiveness in a “show up” identification, and such method should not ordinarily be arranged. We cannot say from the totality of the circumstances here involved that the “show up” tainted the in-court identification sufficiently to render it inadmissible. So far as the photograph identification is concerned, we see nothing wrong with it. Certainly, we do not feel it in any manner tainted the in-court identification by this witness. Additionally, there were two other eyewitnesses who made positive identification in court, and neither had been subjected to the photograph or “show up” process. Therefore, even without the testimony of witness Vanderburg, there is sufficient identification to support the verdict in this case.

Appellants argue the court erred in its comment to the jury regarding the Arkansas parole system. We have set out the entire statement of the trial court in the factual portion of this opinion. It probably would have been better for the court to have stopped after completing the first sentence of the statement; however, we do not see anything in the balance of the statement which even closely resembles the factual situation in Bell v. State, 223 Ark. 304, 265 S.W. 2d 709 (1954); Andrews v. State, 251 Ark. 279, 472 S.W. 2d 86 (1971); or in the other cases cited by appellants. In the cases relied upon by the appellants the trial court actually commented on the effect of the parole system and the sentence itself or upon the authority of the Governor to grant clemency or pardon. There was no error in the remarks made by the court in this case.

Finally, we .consider the argument that the combined conduct of the presiding judge and the prosecuting attorney created a prejudicial atmosphere against the appellants. The only other argument relating to the trial court was a statement made during the in camera hearing when the trial court stated:

From the time you walked into the whiskey store and saw these two boys in there tell exactly in detail what you saw.

This remark was made in chambers and was not heard by the jury. Also, the witness had already made positive identifícation of the appellants as the robbers. We cannot conceive of any prejudice from this remark.

It is true the prosecuting attorney wandered far afield in his cross-examination of witness Geraldine Valentine. A wide latitude is usually given in matters of cross-examination. We do not believe the social security and welfare payments were proper matters for cross-examination in this particular case. The prosecutor was attempting to discredit the witness, but these matters did not really go to proper cross-examination. It may be that some members of the jury did not think well of able-bodied adults who drew welfare rather than worked. Although it was error for the prosecutor to ask such questions, the error is not one which rises to the level of prejudice to the appellants. Therefore, we do not find the remarks of the trial court and the improper cross-examination by the prosecuting attorney to be reversible error.

Affirmed.


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

text:
    Annie Rose NOBLE v. Isom J. NOBLE, Jr.
    80-177
    605 S.W. 2d 453
    Supreme Court of Arkansas
    Opinion delivered October 6, 1980

      Howell & Price, P.A., for appellant.

      Boyett & Morgan, P.A., for appellee.
   John F. Stroud, Justice.

This is an appeal from a divorce decree urging that the applicable property division statute should be the one in effect at the time the divorce complaint was filed. We reject that contention and affirm the chancéllor’s application of Act 705 of 1979 as it was in effect at the time the divorce decree was granted.

Appellant and appellee were married May 30, 1978, in White County, Arkansas, and lived together intermittently until their final separation less than two months later on July 21, 1978. Appellant filed an action for separate maintenance, alleging general indignities, and after a hearing on August 31, 1978, appellee was ordered to pay her maintenance of $400 per month. On October 20, 1978, appellant amended her initial complaint to seek an absolute divorce, alleging grounds of adultery, as well as general indignities. Appellee denied the allegations of the amended complaint and filed a counterclaim for divorce on the ground of general indignities. After appellant denied the allegations of the counterclaim, appellee amended his claim to include an action for annulment on the grounds that his consent was obtained by fraud and alternatively that he was incapable of consent due to unsound mind. Appellee also sought judgment in the amount of $2,000 as reimbursement of attorney’s fees incurred by him. On May 21, 1979, just two weeks after this court handed down its decision in Hatcher v. Hatcher, 265 Ark. 681, 580 S.W. 2d 475 (1979), appellee filed a motion to revoke the Temporary Order of the court previously entered ordering appellee to pay $400 per month to appellant as temporary support, pointing out that Hatcher declared the statute authorizing temporary maintenance to be gender-based and therefore unconstitutional. Although not reflected by the record, the briefs indicate that the court granted appellee’s motion and terminated the temporary support payments several months prior to the granting of the divorce.

The decree was rendered on November 6, 1979, and the trial court ruled as follows:

(1) Appellant had proven her grounds of general indignities and adultery and was entitled to a divorce from appellee;
(2) Appellee’s suit for annulment and divorce was denied and dismissed;
(3) Appellant was not entitled to dowery [dower] nor any other property belonging to appellee, nor to alimony;
(4) Appellee’s prayer for recoupment of monies paid to appellant during pending of action was denied;
(5) Appellee ordered to pay $300 to appellant for medical expenses incurred by her;
(6) Appellee ordered to pay appellant’s attorney reasonable attorney’s fee in the amount of $2,500.

Appellant brings this appeal from the judgment of the trial court, alleging six points of error. Appellee cross-appeals from those portions of the decree requiring appellee to pay a fee to appellant’s attorney and denying appellee’s counterclaim against appellant for $4,000 sought by appellee as reimbursement of the 10 months of payments made by appellee to appellant as temporary support.

Appellant’s first and primary contention is that Ark. Stat. Ann. § 34-1214 (Repl. 1962), the statute in effect at the time she filed the divorce action, should be applied in determining the statutory division of property. She also urges that appellee did not plead the unconstitutionality of the statute, but we reject this argument as he did allege that both the alimony and property division statutes were unconstitutional in his answer to appellant’s complaint for temporary maintenance. We find that the issue was properly raised at trial without appellee repleading that issue in his answer to appellant’s amended complaint seeking an absolute divorce.

When appellant amended her complaint on October 20, 1978, seeking an absolute divorce, the property division statute then in effect provided that upon the granting of a divorce to the wife she is entitled to one-third of her husband’s personal property absolutely and a life estate in one-third of his real property. Thereafter, but prior to trial of this cause, Orr v. Orr, 440 U.S. 268, 99 S. Ct. 1102, 59 L. Ed. 2d 306 (1979), was decided by the United States Supreme Court, and Hatcher v. Hatcher, supra, was decided by this court. In Orr, the Alabama statutes dealing with alimony and division of property were struck down as unconstitutional inasmuch as they were gender-based, and this court applied the same rationale in Hatcher to our maintenance and attorney’s fees statute. Although the constitutionality of our alimony and division of property statutes was not in issue in Hatcher, it was obvious that they were also unconstitutional, being similarly gender-based. Therefore, the Arkansas General Assembly adopted Act 705 of 1979 which removed the gender distinctions for maintenance and attorney’s fees, alimony, and division of property as well as for several other divorce related statutes Although this act did not have an emergency clause, the parties both acknowledge it had an effective date some four months prior to the trial of this cause. The new act provides that all property shall be returned to the party who owned it prior to the marriage, and only property acquired after the marriage is divided between the spouses.

Appellant argues that the retroactive application of Act 705 is a violation of her due process rights and a violtaion of Ark. Stat. Ann. § 1-104 (Repl. 1976) which provides that no action pending at the time any statutory provision is repealed shall be affected by such repeal. We hold that § 1-104 is not applicable here as the adoption of Ark. Stat. Ann. § 34-1214 (Suppl. 1979) did not repeal the prior statute, but replaced a statute already clearly void for unconstitutionality. Appellant cites Sweeney v. Sweeney, 267 Ark. 595, 593 S.W. 2d 21 (1980), as holding that Act 705 should be given prospective application only. While this is true, it applies to the date of the order and not the date the divorce complaint.was filed. We said in Sweeney.

Here no emergency clause was enacted and neither is there express language regarding retroactive applicability. The act, therefore, is prospective in its application. Since the statute, § 34-1211, in effect when the chancellor’s order was entered, is unconstitutional and since Act 705, subsequent to the order, is prospective in its application, no statutory law exists to apply on remand. (Emphasis added.)

Appellant’s next three points of error all deal with her contention that appellee attempted to defraud her of property rights in a house purchased during the pendency of this case. Appellee apparently cashed in a life insurance policy owned by him on his son’s life and used the proceeds to make a $6,000 down payment on a house conveyed to his son, with the balance of the purchase price evidenced by a loan made to his son and not guaranteed or cosigned by appellee. It is undisputed, however, that appellee has lived in the house since its purchase and has made the house payments which appellee contends are equivalent to rent. Appellee failed to disclose in his deposition that he had made the $6,000 down payment, but prior to trial his counsel advised the court of his misstatement.

Appellant contends that she has a vested dower right in the house and that due to the fraud of appellee, either a resulting trust should be recognized or a constructive trust imposed. The evidence is clear that at least appellee concealed a $6,000 gift to his son, but that fact was made known to the chancellor. The trial court made no specific finding as to the $6,000, but the decree did hold that appellant was not entitled to dower nor to any property belonging to appellee. It would be reasonable to conclude that the $6,000 reflected a change in the form of an asset, rather than being property acquired during the marriage. In view of appellee’s admission prior to trial, we cannot say that the record supports a finding of fraud or that the facts justify the recognition of a resulting trust. And, clearly, there is no evidence of an oral promise by appellee’s son to consider the imposition of a constructive trust. Although appellant also surmises in her brief that appellee surely has acquired other proprety subsequent to the marriage, we find no substantiation in the record on our review of the record de novo to find the chancellor was in error.

Appellant also urges as a point for error that if we determine that Act 705 applies to the property division in this case, the chancellor failed to apply the act properly, as the decree did not state in writing the reasons for not dividing the marital property equally. A reading of § 34-1214 in its present form clearly indicates that the requirement of the court to set forth in writing the reasons for not dividing the marital property equally between the parties applies only “when property is divided pursuant” to the statute. In this case, the chancellor found no marital property and made no division.

Appellant’s final contention is that the trial court erred in terminating her temporary support payments. The record on appeal fails to show a hearing on appellee’s motion for revocation, but it does reflect that a hearing was set for August 22, 1979- Both parties acknowledge in their briefs that a hearing was held and that the court did terminate the temporary support of $400 per month. As the new statute had been in effect for over a month when the hearing was held on the motion to revoke, the court could have relied on the new act at the hearing and continued the temporary maintenance payments. Ark. Stat. Ann. § 34-1210 (Supp. 1979). It was appellant’s responsibility to furnish this court with a complete record, and in the absence of a transcript or abstract of the hearing or order, we will not presume that the chancellor terminated the temporary order without realizing that the new act was in effect and applicable. The chancellor did apply this same statute less than three months later on trial of the case when appellee was ordered to pay an attorney’s fee to appellant’s attorney.

We find no merit in appellee’s contention on cross-appeal that appellant should be required to repay the $4,000 received by her for maintenance, nor to his contention that the portion of the divorce decree directing him to pay $2,500 to appellant’s attorney should be reversed. Although Sweeney, supra, applied only to permanent alimony, we now extend that holding to also cover temporary maintenance. The temporary maintenance payments that were made pursuant to the order of the trial court during the brief void of statutory law between the decision in Hatcher and the effective date of the new act are, therefore, valid. As to the attorney’s fee, the new act was clearly in effect at the time the divorce decree was rendered, and the chancellor was, therefore, authorized to allow a reasonable fee to the attorney of appellant or appellee. We find no abuse of discretion in the award made.

The judgment is affirmed on appeal and cross-appeal.

Fogleman, C.J., and Mays, J., dissent in part.

Hickman, J., not participating.

John A. Fogleman, Chief Justice,

dissenting in part. I dissent as to the majority’s holding on temporary alimony and the holding that the house in which appellee is living is not marital property. As to the house, the only thing appellee’s son has contributed is his name. If it were personal property, we could not possibly hold it to be a gift, because of the lack of delivery and retention of control by the donor. Appellee paid $6,000 as the down payment on a $69,000 purchase price. He and appellant had looked at the house and were going to buy it for their home. Appellant testified that appellee said that he had her in mind when he bought the home. His testimony and actions tend to corroborate her.

Appellee has lived in the house since the property was purchased. The son lived there not more than three weeks. This son was first employed in December, 1978. His annual salary is $11,800.

Appellee says that he meets all the payments of $490 per month and pays the utility bills and does all the repair and upkeep but would not want anything in his name. He said that his son, 23 years of age, did not have a cent “in the house,” does not have a dime, and has never paid anything on the house and never would.

Insofar as the temporary “alimony,” which was described as temporary support in the order allowing it, I concur on the basis of the view I expressed in Hatcher v. Hatcher, 265 Ark. 681, 580 S.W. 2d 475. I do not join in the extension of Sweeney v. Sweeney, 267 Ark. 595, 593 S.W. 2d 21, to apply to temporary maintenance. I am still of the view I expressed in my dissenting opinion in that case.

I am authorized to state that Mr. Justice Mays joins in this opinion.


author: John F. Stroud, Justice.

text:
    Phillip Eugene SCISNEY v. STATE of Arkansas
    CR 80-124
    605 S.W. 2d 451
    Supreme Court of Arkansas
    Opinion delivered October 6, 1980

      W. H. "Dub” Arnold, for appellant.

      Steve Clark, Atty. Gen., by: Mary Davies Scott, Asst. Atty. Gen., for appellee.
   John F. Stroud, Justice.

On July 6, 1979, while driving on Interstate 30 near Arkadelphia, appellant was stopped by troopers of the Arkansas State Police around 11:30 p.m. when they noted his license plate light was out and observed his vehicle weave several times across the center line. The troopers testified that both appellant and his passenger, Marshall Williams, smelled of alcohol and marijuana. After appellant performed very poorly on four dexterity sobriety tests given by him by Trooper Jim Jenkins, he was placed in custody at the rear of his vehicle. About this same time, Williams was removed from the vehicle by Trooper Glen .Owens, and he was also placed in custody at the rear of the vehicle. Trooper Jenkins testified that at this point he had every intention of placing appellant under arrest for driving while under the influence of alcohol or drugs, but he had not yet done so. With both appellant and Williams in custody, and the vehicle within the exclusive control of the officers, Trooper Jenkins decided to look inside the vehicle for weapons. He did not then find a weapon, but he did find several hand-rolled cigarettes in two separate places in the vehicle which he suspected contained marijuana, and he proceeded to search the rest of the vehicle. The trooper removed the keys from the ignition and, without the consent of appellant, opened the trunk to inspect its contents. He discovered two suitcases which he later described as being “very old” and “secured by masking tape.” After removing the masking tape, he opened the suitcases and found 27 bricks of what was later determined to be marijuana. At this point appellant was arrested, informed of his rights, and transported to the Clark County jail where he was charged with possession of a controlled substance with intent to deliver. Appellant filed a motion to suppress the marijuana from evidence, alleging that it had been seized in a warrantless and, thus, illegal search. A pretrial hearing was held on the motion and it was denied by the trial court without comment insofar as the record reflects. Appellant was tried before a jury on January 29, 1980, convicted and sentenced to imprisonment for five years and fined $10,000. Appellant brings this appeal, alleging as his sole point of error that the trial court erred in denying his motion to suppress.

The only issue on this appeal is whether the warrantless search of the suitcases found in the trunk of appellant’s automobile was violative of the Fourth Amendment to the United States Constitution. This court has upheld the warrantless search of a bank bag and a closed, but unlocked, briefcase, both discovered within the passenger compartment of an automobile. Berry v. State, 263 Ark. 446, 565 S.W. 2d 418 (1978). We have also recently upheld the warrantless search of a purse found between the two front seats of an automobile. Daigger & Taylor v. State, 268 Ark. 249, 595 S.W. 2d 653 (1980).

However, in Sanders v. State, 262 Ark. 595, 559 S.W. 2d 704 (1977), aff'd 442 U.S. 753, 99 S. Ct. 2586, 61 L. Ed. 2d 235 (1979), we held that the warrantless search of a suitcase removed from the trunk of a taxicab by police officers who reasonably believed it contained marijuana was nonetheless unconstitutional in the absence of any exigent circumstances. The United States Supreme Court has also often held that, absent exigent circumstances, a lawful search of luggage may be performed only pursuant to a warrant, for “luggage is a common repository for one’s personal effects and therefore is inevitably associated with the expectation of privacy.” Arkansas v. Sanders, 442 U.S. 753, 99 S. Ct. 2586, 61 L. Ed. 2d 235 (1979); United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L. Ed. 2d 538 (1977); Torres v. Puerto Rico, 442 U.S. 465, 99 S. Ct. 2425, 61 L. Ed. 2d 1 (1979). Appellant urges this line of authority and contends that the search of the suitcases was unlawful as there were no exigent circumstances present at the time of the search sufficient to excuse the warrant requirement of the Fourth Amendment. While not disputing the authority cited by appellant, appellee contends that certain characteristics of the suitcases stripped them of the protection of the “suitcase doctrine” established by United States v. Chadwick, supra. Appellee relies on footnote 13 of Arkansas v. Sanders, supra, as authority for this proposition, in which the Court noted:

Not all containers and packages found by police during the course of a search will deserve the full protection of the Fourth Amendment. Thus, some containers (for example a kit of burglar tools or a gun case) by their very nature cannot support any reasonable expectation of privacy because their contents can be inferred from their outward appearance. . . . 442 U.S. at 764.

Appellee submits that because the suitcases were old and secured by masking tape, Trooper Jenkins was able to reasonably infer that they contained contraband drugs. The state directs us to the trooper’s testimony wherein he stated that “In the different drug schools that I have been to, I have seen these type suitcases before and normally know what is used in them, although other things can be, too.” We are not prepared to extend the dictum of the United States Supreme Court as expressed in Arkansas v. Sanders to the facts of the case now on appeal. The reasonableness of the search was a closer question in Sanders than in this case because there the officers acted on a tip from a reliable source that the suitcase contained marijuana, but here there was no tip or other information to give the trooper probable cause to believe marijuana was located in the trunk of the automobile. Certainly, several marijuana cigarettes found in the passenger compartment of the vehicle do not supply the probable cause required for a search of two sealed suitcases in the locked trunk of the car, nor do they provide the reasonable belief required for such a search by Rule 12.4 of the Arkansas Rules of Criminal Procedure. It is also significant that appellant and his companion had both been removed from the vehicle and there simply were no exigent circumstances, as the vehicle was already under the complete control of the troopers. Certainly, appellant would not be allowed to drive the vehicle to the station while under arrest for D.W.I., and, in fact, the vehicle was towed to the police station by a wrecker. There was ample opportunity for the troopers to obtain a search warrant to search the trunk and suitcases after the vehicle was impounded, and in this case it was unreasonable and reversible error not to have done so. Appellant’s motion to suppress should have been granted, and the judgment of the trial court is accordingly reversed and remanded.

Reversed and remanded.


author: Richard L. Mays, Justice.

text:
    Emmit BODEN v. STATE of Arkansas
    CR 80-96
    605 S.W. 2d 429
    Supreme Court of Arkansas
    Opinion delivered October 6, 1980

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

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

As appellant, Emmit Boden, was leaving a Little Rock hotel in which a fire had mysteriously erupted, he was detained on suspicion of arson and subsequently questioned by police officials. During the questioning, appellant not only admitted that he had feloniously set the fire at the hotel but confessed to feloniously starting fires at five other locations in Little Rock. Appellant was charged with six counts of arson and, after a non-jury trial, was convicted and sentenced to 10 years on each count, the sentences to run consecutively. Appellant now brings this appeal, challenging the sufficiency of the evidence as to four of the six counts.

Appellant relies upon Ark. Stat. Ann. § 43-2115 (Repl. 1977), which provides that a confession, unless made in open court, will not sustain a conviction unless accompanied with proof that such an offense was committed. This statute reflects a well established doctrine of American jurisprudence which is grounded in an inherent distrust of confessions. Its justification wás artfully expressed by Judge Davidson of the Court of Criminal Appeals of Texas in East v. State, 146 Tex. Crim. 396, 175 S.W. 2d 603, 605 (1943):

The wisdom of this rule lies in the fact that no man should be convicted of a crime, the commission of which he confesses, unless the State shows, by other testimony that the confessed crime was in fact committed by someone. The contrary would authorize a return of conditions that existed in the days of the inquisition.

Appellant argues that, except for his confession, no evidence of arson was presented at his trial. In this argument, appellant is not only assisted by an old common law rule establishing a presumption against arson in the instance of an unexplained fire, but by our judicial policy requiring evidence of a “substantial character” to rebut this presumption. Johnson v. State, 198 Ark. 871, 131 S.W. 2d 934 (1939).

Appellant challenges the evidentiary support for arson convictions in connection with fires at the Leake Building (KATV), the Holiday Inn at 6th and Broadway, and certain apartment buildings located at 504 East 6th and 308 East 7th in Little Rock. Although the evidence establishes that fires occurred on the dates in question at these locations, the fire marshal testified that the causes were undetermined. With the exception of the apartment building at 308 East 7 th, no one testified that appellant was ever seen near the locations in question. At 308 East 7th, a tenant testified that he saw two men, one of whom looked like appellant, walking in front of the building talking suspiciously the morning after the fire, but that testimony could hardly be considered substantial. The only other evidence which connects the appellant to the fire locations is a bus schedule which was found on him, on the back of which is written “Night Terror Strikes Again!” On another page of the schedule is written: “Holiday Inn,” “Sam Peck,” “Sheraton,” and “Marriott” with an “X” written to the right of each. Although this evidence does independently connect appellant with the locations, it is not of sufficient character to rebut the legal presumption that the fires were not purposely started.

We, therefore, are obliged to hold that there is insufficient evidence, independent of the confession, to support the convictions of the four counts of arson which appellant challenges. The conviction of the remaining two counts will, of course, remain unchanged.

Reversed.

Stroud, J., dissents.


author: Steele Hays, Judge.

text:
    NATIONAL INVESTORS LIFE AND CASUALTY INSURANCE COMPANY and AMERICAN NATIONAL PROPERTY AND CASUALTY COMPANY v. James ARROWOOD and Sandra ARROWOOD
    CA 80-164
    606 S.W. 2d 97
    Court of Appeals of Arkansas
    Opinion delivered October 8, 1980

      Wright, Lindsey & Jennings, for appellants.

      Ray Baxter and Hall, Tucker, Lovell, Alsohrook & Moudy, for appellees.
   Steele Hays, Judge.

The interpretation of two homeowner’s insurance policies is the basis of this appeal. The questions presented are: whether bodily injury to Sandra Arrowood caused by James Arrowood, her former husband, comes within the coverage of the two policies, and secondly, whether the home where the injury occurred is covered under one of the policies.

The insuring companies contend that Sandra Arrowood’s injury was intentionally caused and, therefore, liability coverage is excluded under either policy. Additionally, the language of one of the policies is such that the insuring company contends that coverage of the home where the injury occurred is excluded under that policy.

These issues were asserted in a suit for declaratory judgment and resulted in a judgment by the trial court that the insurance companies had failed to meet the burden of proving that the exclusions were applicable to the case at bar. We believe the judgment of the trial court was clearly against the preponderance of the evidence.

On September 5, 1979, Sandra Arrowood was struck by a bullet fired from a .38 caliber pistol held by James Arrowood. The wound was to the thigh of her left leg, midway and posterior. The incident occurred at 2911 Pamela Drive, a home owned by James Arrowood but occupied by Sandra Arrowood, pursuant to divorce decree between the parties. The parties married in 1976, each having been married previously.

Unquestionably, James Arrowood is given to outbursts of violent temper. He had struck Sandra on numerous occasions and had administered a severe beating in March of 1979- As a consequence, the marriage had been disrupted by several divorce suits with ensuing reconciliations. The March incident was of such a degree that Sandra had cause to fear for her life and she brought criminal charges and a divorce action which this time she pursued to finality. James was placed on probation as a result of the criminal charges. The divorce decree awarded possession of the house at 2911 Pamela Drive to Sandra. James resided with his parents at 1016 Watson Place in Benton.

The parties appear to have maintained a relationship of some sort, and James would occasionally spend the night at 2911 Pamela Drive, most recently a week or so prior to the shooting incident. James wanted to get back together; Sandra was “leery” of such a prospect.

James did not like for Sandra to date other men; which she attributed to jealousy, and there seem to have been problems over one individual in particular.

A careful and thorough recitation of the circumstances surrounding the events of September 5 are in order. On the night of September 4, at around midnight, Sandra came home from a date and observed James’ truck in her driveway, the motor running and the radio on. James was in the backyard with a partially consumed eight-pack of beer. She turned off the ignition of the truck, went inside and started preparing for bed. James followed her in to talk about getting back together and about Sandra seeing other men. She told him she was tired and was going to bed. James said he would finish his beer and leave. For no apparent reason, James appears to have called his father to come and get him. Albert Arrowood’s testimony is that James called him shortly after midnight and asked him to come and get him, which he did. When he arrived at Sandra’s home and knocked, James came to the door; Mr. Arrowood said, “I’ve come to get you.” James answered, “Okay,” and then proceeded to get in his own truck and each man drove to the Watson dwelling in their separate vehicles. Mr. Arrowood offered no explanation for his behavior and James professed no recollection of it.

The next morning James returned while Sandra was dressing and renewed the conversation of the night before. By her account, he was not drunk, angry or upset, and spoke in a calm, quiet manner, in contrast to the previous occasions when he had hurt her. As the two were standing in the bedroom, Sandra turned to pick up her jeans, and while so doing she heard a pistol shot. Not immediately aware that she had been struck, she turned to see James holding a pistol, which she at first thought to be a toy. She described James as appearing startled and surprised and saying, in effect, that he was sorry, he had not meant to do it. Realizing that she had been struck, she sat on the bed, and asked James to bring a towel to stem the blood. Sandra called her sister to come and stay with her daughter and James called his parents. James and Sandra then proceeded to go to the hospital in James’ truck. As they were about to leave, James’ parents arrived and at Sandra’s suggestion James handed the pistol to his father.

James’ account of the incident is of little help: he did not remember going to Sandra’s house on the morning of September 5, nor any part of the night before. He did not remember calling his father. In short, he had no recall of the events surrounding the shooting, including carrying the pistol into the house or what caused the pistol to fire. His explanation for his loss of memory is that he had taken “a bunch of Valium.” Some circumstances were supplied by his testimony: he had owned the pistol three or four years and had kept it in the side pocket of the door of his truck; that the pistol had a double action and would not discharge without pulling the trigger or pulling the hammer back. He stated he had no reason to shoot or kill Sandra.

On September 10, a damage suit was brought by Sandra Arrowood against James Arrowood and criminal charges were filed as well, both of which are pending: James called upon appellant, National Investors Life and Casualty Insurance Company, to defend him under the homeowner’s policy covering 2911 Pamela Drive. Under reservation of rights, the companies undertook the defense and then brought the declaratory judgment suit previously mentioned.

The companies contend that liability coverage is not afforded by either policy under provisions entitled “EXCLUSIONS,” which read:

This policy does not apply:
1. Under Coverage E — Personal Liability . . .
f. To bodily injury or property damage which is either expected or intended from the standpoint of the insured.

Additionally, National Investors takes the further position that liability coverage is not afforded under the “EXCLUSIONS” part of its policy by reason of the following language:

This policy does not apply:
1. Under Coverage E — Personal Liability . . .
e. To bodily injury or property damage arising out of any premises, other than an insured premises, owned, rented or controlled by any Insured.

The trial court, as we have said, held that the exclusions were not applicable' and that the companies had not met the burden of proof in establishing the elements of exclusion. The judgment declared that liability coverage was afforded under the policies and directed the insuring companies to provide a defense and pay any judgment rendered against James Arrowood on behalf of Sandra Arrowood to the extent of the limits of coverage.

Each company has appealed that part of the judgment dealing with Exclusion f, asserting that the court erred in finding that liability coverage was not excluded under the policy for bodily injury which is either expected or intended from the standpoint of the insured. National Investors has also appealed that part of the judgment dealing with Exclusion e, asserting that it was error to find that coverage was not excluded under its policy for bodily injury arising out of any premises (other than the insured premises) owned, rented, or controlled by any Insured.

Appellants urge that the evidence points to only one possible conclusion, namely, that the injury to Sandra Arrowood was expected or intended by James Arrowood. When the facts and circumstances of this case are examined in their entirety, we believe that the scales tip decidedly toward an intentional injury and that no other hypothesis is reasonable. We hold, therefore, that the judgment of the trial court was clearly against the weight of the evidence. Neither side has cited any authority within this jurisdiction and our own research has produced nothing. Many cases from other jurisdictions do exist, wherein the courts have come to grips with whether particular conduct was intended or unintended within the language of insurance policies identical or similar to the language here. Other cases are of some benefit in dealing with the subject, but no two cases are factually identical and the lack of legal precedent in this type of problem is no real handicap. It is essentially a matter of gleaning the intent behind human transactions and the outcome is dependent on the judgment of common sense and experience as applied to human behavior.

A compendium of cases on the subject, except for the more recent decisions, appears in 2 A.L.R. 3d 1238. The general rule is that coverage exists under insuring contracts and exclusion clauses identical or similar to the one involved here for the unintended results of an intentional act, but not for damages assessed because of an injury which was intended to be inflicted.

The decision in Lyons v. Hartford Insurance Group, 125 N.J. Super. 239, 310 A. 2d 485 (1973) points out the distinction made by some courts, that is, even though an intentional act brings on an intentional result, if the injury to the specific individual was unintended, the coverage was held to exist. The case of Smith v. Moran, 61 Ill. App. 2d 157, 209 N.E. 2d 18 (1965) is typical of cases of this type where an insured fired multiple shots, intending to hit one Delores Nelson and in the process struck someone else, coverage was upheld. The decision states:

There are many decisions making this distinction, uniformly holding that there is coverage for unintended results. For example: Jackson v. Lajaunie, 253 So. 2d 540 (La. App. 1971); Marill v. Galliger, 122 N.W. 2d 687 (Mich., 1963); Lumbermen’s Mutual Insurance Company v. Blackburn, 477 P. 2d 62 (Oklahoma, 1919); Smith v. Moran, supra; Putman v. Zeluff, 121 N.W. 2d 374 (Mich., 1964); Walker v. Champion, 21A So. 2d 840 (La. App., 1973).
On the other hand, where the intentional act has resulted in intended injury, even where the injury inflicted is different or more severe than intended, coverage has been denied. [Terito v. McAndrew, 246 So. 2d 235 (La. App. 1971); Mac Donald v. United Pacific Insurance Company, 311 Pac. 2d 425 (Oregon, 1951); Stout v. Grain Dealers Mutual Insuance Company, 307 F. 2d 521 (4 Cir. 1962).]

Some decisions turn on the question of whether the actor intended both the act performed and the exact consequence which followed and under this view if the exact injury which resulted could be said not to have been the one intended, then insurance coverage was upheld.

The more recent cases and, we perceive, the better reasoned cases hold that if the performance of an intentional act causes an injury which may be said to be the natural and probable consequence of such an act, then the injury itself was intentional, even though it was not the injury intended.

Turning to the case at bar, we are not confronted with reconciling an intentional act with an unintended result, as in the case of Smith v. Moran, supra. The correlation between the injury here and the act of firing a pistol at point-blank range is so clear that no uncertainty can be entertained in that respect. The more searching issue centers on whether the initial act itself was intentional. Did James Arrowood intend to fire the pistol? If so, it is beyond any real dispute that the injury to Sandra was intentional.

We accept as valid appellant’s argument that an express acknowledgement of intent from James is not required and that view is supported by the dictum of some decisions. Allstate Insurance Company v. Hisely, 465 F. 2d 1243 (10th Cir. 1972). We find no decisions suggesting that any such admission is required.

Thus, it becomes a matter of weighing all the facts and circumstances bearing on the incident in its entirety. Great American Insurance Company v. Ratliff, 242 F. 2d 983 (E.D. Ark. 1965). When that approach is undertaken, it is relevant to note those circumstances which we regard as persuasive of the conclusion we have reached: James did not want Sandra to date other men, whereas she did so and had had a date on the previous evening; James wanted to reconcile, but Sandra was doubtful; the circumstances that James carried a pistol, which he knew tó be loaded, into the house to talk with Sandra about reconciliation and dating; that the pistol could not be fired except by pulling the trigger or pulling the hammer back; the fact that Sandra saw James holding the pistol as she turned around after being shot; the fact that Sandra preferred criminal charges because of the incident; of particular significance is James’ demonstrated propensity for violence toward Sandra, repeated on numerous occasions, the most recent incident reportedly being the most severe. With respect to the March incident, in addition to being beaten, Sandra testified that James choked her and the fair inference to be drawn from her statements is that she was afraid James was going to kill her. It is not for us to try to fathom the forces that move some individuals at times to intentionally harm the objects they esteem, it is enough that the history of this case proves beyond any question that James Arrowood was capable of violent behavior toward Sandra Arrowood and the events of the morning of September 5 are consistent with that history. Further, while no firm conclusions can be founded upon it, even James’ professed inability to remember any part of the incident, which we regard as credible, seems more consistent with a finding that the injury was intentional rather than accidental, as the human mind often obliterates from its memory behavior which it wants to disavow.

Of course, there are circumstances pointing in the other direction. We are mindful of James Arrowood’s testimony that he did not intend to hurt or kill Sandra and appellees argue that there is no evidence that James intended to kill Sandra. As to the latter point, it is of no significance that James may not have intended to kill Sandra, the issue is whether he intended to wound or injure her and the circumstances validating that conclusion have already been listed. Besides, James Arrowood’s testimony is that he has no recollection of any part of the events of the shooting, so how can he say what his intention was at that exact moment if his memory is so lacking?

Of greater counter effect is the testimony of Sandra that James appeared startled and immediately said he was sorry and had not meant to do it. However, the inference to be drawn from these circumstances must yield to the inference to be drawn from those to the contrary and our own view is that the fact itself speaks more loudly than the professed regret. Perhaps James did immediately regret what had occurred, but that cannot erase what so plainly must have been intended at the moment of occurrence. It is pointless for us to try to explain irrational behavior in rational terms.

Without devoting further expression to this issue, it is enough to say that given two opposing interpretations, one accidental, the other intentional, we believe the evidence points convincingly and unerringly away from accidental and towards intentional, so much so, in fact, that the court’s ruling to the contrary we regard as clearly against the evidence.

The decision reached on the first assignment of error renders the second assignment moot.

The case is reversed and remanded with instructions to enter a judgment consistent with this opinion.

Howard, J., dissents.


text:
    Helen Strohl HALL v. Charles CLAYTON and James ROUNSAVALL
    CA 80-189
    606 S.W. 2d 102
    Court of Appeals of Arkansas
    Opinion delivered October 8, 1980

      House, Holmes & Jewell, for appellant.

      Thweatt & Bayne, P.A., for appellees.
   Steele Hays, Judge.

This appeal involves a road which divides two adjacent parcels of real property, one owned by appellee Charles Clayton and the other owned by appellee James Rounsavall. This road had been used for many years by appellant, Helen Strohl Hall, for access to her property. Also, there was evidence in the record to support the contention that the road was used by other farmers, fishermen and hunters.

In the fall of 1978, appellees placed a steel cable across the road. Appellant brought this action seeking a restraining order and injunctive relief. Appellees acknowledge that Helen Strohl Hall and others have a right to use the road, but deny that the public has acquired a prescriptive easement to use the road.

At trial, appellant presented five witnesses to show that the public had had free access to the road for more than 25 years. One witness, apparently knowledgeable, testified that the road had been there as early as 1905. Appellees presented testimony of seven witnesses to show limited use of the road by farmers and also to show that unwanted third parties had used the road to vandalize appellees’ farm equipment. The Chancellor found that appellant failed in her burden of proof to show that the road was a public road, but that plaintiff and others had acquired an easement by prescription to use the roadway.

Appellant now brings this appeal, asserting as her only point for reversal that the trial court erred in finding that the public did not have a prescriptive easement.

Where a highway is used by the public openly, continuously and adversely for a period of seven years, the public acquires an easement by prescription.

Appellant cites Weigel v. Cooper, 245 Ark. 912, 436 S.W. 2d 85 (1969), as the leading case on easement by prescription. In Weigel, plaintiffs instituted an action against defendants to prevent the latter from maintaining a barrier across a disputed road. They contended that the road had been used by the general public for a period of 30 years and presented testimony of different witnesses, generally landowners in the area, to the effect that they had used the road. One person testified that all families living south of the county road had to use the road (commonly known as the Tobe Road) to “get out from the bottoms, because the ‘Wire Road’ was too low and frequently flooded.” The defendant argued that the land was unenclosed and unimproved, and this being true, the presumption was that the use of the roadway was permissive. The Chancellor found that continued use of the roadway was permissive. The Chancellor found that continued use of the roadway established plaintiffs right to use the roadway and created an easement by prescription. The Arkansas Supreme Court affirmed the ruling of the Chancellor, stating that appellees plainly made out a “prima facie case of acquiring an easement by prescription.” The Court looked to the evidence which established that the road was well known and had been used by many different persons for over 30 years. The Court stated:

Certainly, this usage was open, and the length of time with which it was used without objection is potent evidence to show that the use was as a matter of right, and not as matter of permission. Here, too, there is evidence that many of the people who lived in the area and used the road would perform some type of work to improve the roadway.

The opinion recognized the fact that even if use of the road had begun by permission, it would not make any difference under the rule of Fullenwider v. Kitchens, 223 Ark. 442, 266 S.W. 2d 281 (1954):

Where there is usage of a passageway over land, whether it began by permission or otherwise, if that usage continues openly for seven years after the landowner has actual knowledge that the usage is adverse to his interest or where the usage continues for seven years after the facts and circumstances of the prior usage are such that the landowner would be presumed to know the usage was adverse, then usage ripens into an absolute right.

The court in Fullenwider went on to say:

All that has been done. . .and the upkeep of the road would serve to notify any interested person that the common property owners were recognizing a right to a common road.

Appellant also cites Pfeifer v. Dunn, 257 Ark. 863, 520 S.W. 2d 178 (1975) and attempts to distinguish it. In Pfeifer, there was essentially the same factual situation as was present in this case. However, In Pfeifer, the owner of the servient estate and other landowners using the roadway all agreed to put a locked gate across the roadway. Eugene Pfeifer, the successor in title to the servient estate, changed the lock on the gate. The court granted a permanent injunction and ordered appellant to furnish keys to appellees, stating that the latter had acquired a private easement. The Supreme Court affirmed, stating:

There are several factors which, when combined, lead us to the conclusion that the court acted properly in sustaining the private easement. First, although it might be said there was an element of permissiveness in Miss Moreland’s allowing the construction of the gate near the entrace to her land, it was a common gate for a common purpose, namely, to protect against vandalism.
In the case of Fullenwider v. Kitchens, 223 Ark. 442, 266 S.W. 2d 281 (1954), there was no consideration for the use of the passageway. Consequently, the use of the passageway originated strictly as a permissive right. We point up that distinction in Fullenwider because we think it is important to our holding. As just jointed out, it was for the common good of all the landowners to have a common gate to protect against vandalism. Also, it can be said that the new road served as a substitute for a county road which had been washed into the river. The fact that the road had been kept in good condition and the maintenance performed by county employees should have placed any doubtful property owner upon inquiry. All that has been done, including the erection of the gate, the distribution of keys, and the upkeep of the road, would serve to notify any interested person that the common property owners were recognizing a right to a common road, being a private easement.

Appellee argues that appellant failed to prove by a preponderance of the evidence that a public easement had been established by continuous use; only occasional use had been shown except to those who were granted a private easement. Appellees cite as their authority Craig v. O’Bryan, 227 Ark. 681, 301 S.W. 2d 18 (1957). In Craig, the Chancellor had held that appellees had met their burden of showing an easement by prescription for the general public. However, the Supreme Court reversed, stating that no easement by prescription had been proven, notwithstanding testimony that the county had done some work on the road and that fishermen had used the road from time to time. All use of the road by others was deemed to be permissive and, therefore, did not ripen into a prescriptive easement. Even so, as abutting landowners, the appellees were allowed to use and maintain the roadway as they had in the past and appellant was estopped to deny them use of the roadway.

In the instant case, we find that the question of whether the easement in question was a private or a public one is a factual issue. Although an appellate court reviews chancery .cases de novo, the Chancellor’s decision will not be reversed unless it is clearly against the preponderance of the evidence. Rule 52, Rules of Civil Procedure.

The testimony in this case was disputed: appellant presented five witnesses to show that a public easement had been created and appellee offered testimony of seven witnesses to show limited use of the roadway. Where testimony is in conflict or is evenly balanced, the appellate court will be guided by the Chancellor’s findings if he has not erroneously applied the law. Titan Oil and Gas, Inc. v. Shipley, 257 Ark. 278, 517 S.W. 2d 210 (1975).

In this case, we find that the Chancellor’s decision was based on a correct application of the law and was not clearly against a preponderance of the evidence. We do admit to some concern as to how a road existing as long as this one and used regularly by some and sporadically by others, could be held to be a private easement rather than a public easement. However, the testimony as to continuous use, especially in terms of frequency, is susceptible of differing conclusions, and we are willing to abide by the Chancellor’s estimation of the evidence.

In his decree, the Chancellor allowed appellees to maintain the gate placed at the entrance of the easement, requiring that keys be furnished to the landowners and their suppliers who have acquired use of the easement. We find that under the general rule of law concerning obstructions across an easement, this places an undue burden on the use and enjoyment of the easement, accordingly, should be removed. The general rule pertaining to gates across easements acquired by prescription is stated in 28 C.J.S. Easements § 98:

In the case of ways of prescription some of the authorities hold that since the extent of the right is commensurate with, and determined by, the use, the owner of the servient estate cannot erect a gate across a private way acquired by prescription, where no gates were constructed during the time necessary to acquire the right of way. . .
On the other hand, many decisions hold that the nature of the easement gained and not the particular use which created the right should control, and that a gate may be constructed across the way if it is not an unreasonable obstruction to the purposes for which the way has been used.

[Also, in support of this rule, see 52 A.L.R. 3d 9 )1973), particularly § 31, page 70 of the annotation.]

The cases on this particular issue are numerous. Most jurisdictions are in accord with the rule as stated in Corpus Juris Secundum. In Hardin v. Pinello, 518 P. 2d 846 (Colo. App. 1973), it was held that absent any evidence that interference caused by a locked gate would be reasonable across an easement acquired by way of necessity, defendant landowner would not be entitled to maintain such an obstruction, even though the landowners who acquired the benefit of the easement were furnished a key. In Falco v. Minzar, 213 N.Y.S. 2d 625 (1961), it was held that a locked gate across an appurtenant easement was an unreasonable interference with use and enjoyment of the easement, even though a key would be furnished for those persons for whose benefit the easement was» created. [See also, Felton v. Boxer, 414 N.Y.S. 2d 219 (1979); Messer v. Leveson, 259 N.Y.S. 2d 662 (1965); Missionary Society of the Salesian Congregation v. Evrotas, 242 N.Y.S. 122 (1930).] Finally, in Carpenter-Union Hills Cemetery Association v. Camp Zoe, Inc., 547 S.W. 2d 196 (Mo. App. 1977), the court held that the servient owner may not erect gates or bars across a road where the owner of the dominant estate had used the road during the period required for acquiring an easement by prescription without gates or bars. See also McDougal v. Castelli, 501 S.W. 2d 855 (Mo. App. 1973).

Nevertheless, we also recognize the rule of law that the owner of the servient estate “owns the soil and if necessary for his own protection . . . and use and enjoyment of his property may erect at his own expense gates or bars across the way,. . . provided they are so located and maintained as not unreasonably to interfere with the plaintiff s privilege or passage.” Stucchi v. Colonna, 400 N.E. 2d 1272 (Mass. App. 1980); Merry v. Priest, 276 Mass. 592, 177 N.E. 673 (1931). Maintenance of a gate across a right-of-way, if it permits use of the way, does not result in an obstruction. Nichols v. Healy, 194 N.W. 2d 727 (Mich. App. 1972). Cases previously cited from other jurisdictions objected to a locked gate as an unreasonable obstruction across an easement. The owner of the servient estate may erect a gate across an easement if it is located, maintained and constructed so as not unreasonably to interfere with the right of passage. Jordan v. Guinn and Etheridge, 253 Ark. 315, 485 S.W. 2d 715 (1972); Massee v. Schiller, 243 Ark. 572, 420 S.W. 2d 839 (1967). Accordingly, we hold that maintenance of the gate without the lock would not result in an unreasonable interference with use and enjoyment of the easement. The gate itself, particularly if posted as private, would serve to notify the general public that the roadway was not for public use without imposing an undue burden on use of the easement by the interested landowners.

Hence, the Chancellor’s decree is affirmed as modified to the extent that the lock be removed from the gate.


text:
    Ricky Louis HARRIS v. STATE of Arkansas
    CA CR 80-39
    606 S.W. 2d 93
    Court of Appeals of Arkansas
    Opinion delivered October 8, 1980

      Robert S. Blatt, for appellant.

      Steve Clark, Atty. Gen., by: Alice Ann Burns, Asst. Atty. Gen., for appellee.
   Steele Hays, Judge.

In November of 1978, defendant was charged with theft of property, a Class B Felony. In March, 1979, the defendant waived jury trial and entered a plea of nolo contendere. Following the provisions of Ark. Stat. § 43-1232, the trial court deferred all further proceedings and placed the defendant on probation for one year.

In September, the State filed a petition to revoke defendant’s probation alleging that defendant possessed marijuana with intent to deliver in violation of Act 590. A hearing was held on the Petition to Revoke, at the end of which the trial court found that the defendant had violated the conditions of probation and found him guilty of theft of property. The defendant was sentenced to four years in the Arkansas Department of Corrections.

Subsequently, defendant filed a motion to reduce sentence, which was denied by the trial court. From the judgment below, appellant brings this appeal.

Appellant’s first point is that the trial court’s finding that defendant had violated his probation is against the preponderance of the evidence. Appellant argues that although marijuana was found in his apartment pursuant to a search made by officers under a warrant, there was no evidence to link the defendant to the controlled substance. Appellant cites Ravellette v. State, 264 Ark. 344, 571 S.W. 2d 433 (1978) and other cases for this point. In Ravellette, appellant and a co-defendant were jointly charged with possession of marijuana with intent to deliver. They were both found guilty. On appeal, appellant contended that he had no knowledge of the marijuana in his apartment and there was no evidence linking him to the drug. The Arkansas Supreme Court held that where marijuana was found in a living room and dining room of a rent house jointly shared, there must be some factor in addition to the joint control of the premises to link the accused with the controlled substance. The State argued that since ziploc bags were found in appellant’s room similar to the ones which held the marijuana that this provided a sufficient link. The Arkansas Supreme Court disagreed and reversed the case.

The State argues that Ravellette v. State is inapplicable to this case because the issue in Ravellette involved guilt or innocence of a criminal offense which requires a finding of guilt beyond a reasonable doubt. We agree with the argument. Only a clear preponderance of the evidence must be established to justify the revocation' of probation. Pearson v. State, 262 Ark. 513, 558 S.W. 2d 149 (1977).

In the instant case, marijuana was found in two places in the apartment where appellant lived: four plastic bags were found on top of the refrigerator and one plastic bag was found under the couch. According to the written conditions of appellant’s probation, he was warned to do and not to do certain things, including:

(1) Not to violate any law;

(2) Not to associate with persons who have criminal recores, or who are known as bad characters;

(3) To stay out of beer joints or other places or parts of town where the wrong kind of people may be found.

Pursuant to Ark. Stat. Ann. § 41-1209(3)(b)(Repl. 1977), the trial court may permit the introduction of any relevant evidence of the alleged violation of the terms of probation. The evidence adduced at trial may not have been sufficient to convict one charged with possession of a controlled substance, but it was sufficient for the trial judge to determine that appellant had violated the terms of his probation. Appellant has failed to show that the decision was against a preponderance of the evidence.

Appellant’s • second point is that the trial court erred in overruling appellant’s motion to suppress the evidence of marijuana. He argues that:

(1) The State has the burden of introducing the written affidavit and search warrant into evidence at the hearing which the State failed to do; [See Schneider v. State, 269 Ark. 245 599 S.W. 2d 730 (1980).]

(2) The affidavit in* support of the search warrant was insufficient under Aguilar v. Texas, 378 U.S. 108 (1964);

(3) There was no factual basis to justify a nighttime search;

(4) The exclusionary rule should apply in probation revocation hearings.

We note that the Supreme Court of Arkansas in Schneider v. State, supra, has shown an inclination not to give the exclusionary rule full impact in these proceedings:

It is true that the United States Supreme Court has not held the exclusionary rule to be applicable to probation revocation proceedings. The state also correctly points out that the court has shown a disinclination to extend the impact of the exclusionary rule. See, e.g., Stone v. Powell, 428 U.S. 465, 96 S. Ct. 3037, 49 L. Ed. 2d 1067 (1976); United States v.Janis, 428 U.S. 433, 96 S. Ct. 3021, 49 L. Ed. 2d 1046 (1976); United States v. Calandra, 414 U.S. 338, 94 S. Ct. 613, 38 L. Ed. 2d 561 (1974). The great majority of jurisdictions that have considered the question have taken the view that evidence obtained as the result of an unreasonable search and seizure is admissible in a probation revocation hearing. See Annot. 77 ALR 3d 636, 30 ALR Fed. 824. The refusal to apply the rule in cases where the search was conducted in a good-faith reliance upon a warrant later proven defective has some appeal as an accommodation of the societal interest in requiring strict compliance with conditions of probation with the deterrence of illegal police action. We have previously indicated that the exclusionary rule might not have full impact in these proceedings. Smith v. State, 241 Ark. 958, 411 S.W. 2d 510.

Neither the Supreme Court of the United States nor the Supreme Court of Arkansas has extended the rule of Mapp v. Ohio to revocation hearings, notwithstanding numerous invitations to do so. We are not disposed to take that step for them, particularly in the light of some outcry for a reexamination of the exclusion rule. As a contribution to clarity, which the dissenting opinion pleads for in the case of Schneider v. State, supra, we adopt the rule which we consider to be consistent whith Ark. Stat. Ann. § 4l-1209(3)(b) (Repl. 1977) and with the holding in Morrissey v. Brewer, 408 U.S. 471 (1972), that the trial court may permit the introduction of any relevant evidence of an alleged violation of the conditions of probation, including evidence that might be subject to a motion to suppress under the doctrine of Mapp v. Ohio, at least where there has been a good-faith effort to comply with the law. This is the rule of the great majority of jurisdictions. 77 ALR 3d 636. People v. Rafter, 41 Cal. App. 3d 557 (Cal. 1974); State v. Keebee, 499 Pac. 2d 49 (Wash. 1972). See also, Morrissey v. Brewer, supra, wherein the United States Supreme Court held that the process in revocation proceedings should be flexible enough to consider evidence that would not be admissible in an adversary criminal trial.

Appellant’s third point for reversal is that the trial court erred in denying appellant’s motion to reduce the sentence, citing Culpepper v. State, 268 Ark. 263, 595 S.W. 2d 220 (1980). Appellant argues that under the rule established by the Culpepper decision he should have been advised in writing that he was subject to imprisonment for more than one year if he violated the conditions of probation.

It is true that the written conditions of probation given the appellant at the hearing did not contain an express warning regarding the possibility of a larger sentence, although paragraph 6 touches on the subject:

You are to understand that until you have appeared before this court and have been officially released that you are under control of this court. If you fail to appear as scheduled, or if at any time you are found to have violated any of the conditions of your probation, the court may then reopen the proceedings, find you guilty as charged, and issue an order to have you picked up and returned for sentencing

It is clear that in the initial' proceedings the trial court was following the procedures contemplated by Ark. Stat. Ann. Section 43-1232:

Probation of defendant —‘Discretion of judge in use of procedure. — Whenever an accused enters a plea of guilty or nolo contendere prior to an adjudication of guilt, the judge of the circuit or minicipal court (criminal or traffic division) may in the case of a defendant who has not been previously convicted of a felony, without entering a judgment of guilt and with the consent of the defendant, defer further proceeding and place the defendant on probation for a period of not less than one (1) year, under such terms and conditions as may be set by the court. Upon violation of a term or condition, the court may enter an adjudication of guilt and proceed as otherwise provided.

Nothing in this section requires that the defendant be informed in writing that he is subject to a sentence greater than the probationary period imposed. As a matter of good practice we think it would be well for the written conditions to contain an express proviso to that effect, but it is not our place to legislate. We note that at the initial hearing the trial court did give plain verbal instructions to the defendant of the possible consequences if he got into trouble:

THE COURT: Do you know that it doesn’t take very much trouble for you to get into for you to be sent to the penitentiary?
MR HARRIS: Yes.
THE COURT: On this charge, you could go for twenty (20) years if you get in trouble. Did you know that?
MR HARRIS: (Nods head in affirmative).

Returning to appellant’s argument that Culpepper interprets Ark. Stat. Ann. Section 4l-1203(4)(Repl. 1977) as requiring that the possibility of an increased sentence be in writing, we take a different view of the Culpepper decision. It is apparent that the statute itself does not make such requirement:

If the court suspends the imposition of sentence on a defendant or places him on probation, the defendant shall be given a written statement explicitly setting forth the conditions under which he is being released.

Nor does Culpepper read such requirement into the statute. The pertinent language of the Culpepper decision reads:

We agree with appellant that he is entitled to know the effect of his sentence. This is clearly the spirit of the Code which now requires in Ark. Stat. Ann. Section 41-1203(4)(Repl. 1977) that the defendant be given a written statement explicitly setting forth the terms of the suspension of imposition of sentence or probation; and whereas trial courts have typically used the phrase “on good behavior” in the past, Section 41-1203(1) requires as an express condition of every suspension or probation that the defendant “not commit an offense punishable by imprisonment during the period of suspension or probation.”

We do not construe the foregoing language as holding that the written statement setting forth in the terms of a suspended sentence or a probation must include a provision warning that a larger sentence might be imposed. The error of the trial court which Culpepper reversed was not the absence of a written provision on sentencing but, rather, because the Supreme Court determined that the trial court had not postponed the imposition of sentence, but merely the execution of sentence, and could not, therefore, enlarge it beyond the sentence originally imposed. The opinion states:

There is a substantial difference between advising a defendant that he is sentenced to 5 years suspended subject to certain behavioral requirements and in advising a defendant that the imposition of sentence will be suspended or postponed for 5 years conditioned on the same behavioral requirements. If the appellant had been sentenced in compliance with Section 41-803 by the suspension of the imposition of sentence, rather than by the suspension of the execution of sentence, the trial court could have sentenced him to 15 years imprisonment upon revocation of the suspension, . , .

As was said, it would be commendable practice to include written provisions regarding sentencing in the written conditions now being supplied in compliance with Section 41-1203(4), but we do not consider it our duty to amend an act of the legislature where the language is not unclear.

Affirmed.