text:
    Alton YARBROUGH, James SPENCER and Alonzo ROBINS v. STATE of Arkansas
    CR 74-51
    520 S.W. 2d 227
    Opinion delivered March 3, 1975

      Appellants Pro Se.

      Jim Guy Tucker, Atty. Gen., by: Gary Isbell, Asst. Atty. Gen., for appellee.
   J. Fred Jones, Justice.

The appellants Yarbrough, Spencer and Robins were convicted at a jury trial on three separate counts of possessing forged instruments. Spencer was sentenced to the penitentiary for three years on each of the three counts. Yarbrough and Robins were sentenced to the penitentiary for seven and one-half years on each count. The sentences as to each appellant were to run consecutively, with one-third of the time to be served before parole. The court appointed attorneys did an excellent job in representing the appellants in the trial court but the evidence as to the appellants’ guilt was overwhelming.

On appeal to this court the appellants have refused the services of the court appointed counsel and have attempted to represent themselves pro se and, in doing so, they have submitted separate handwritten or handprinted briefs which tax to the limit our visual endurance. Each appellant has separately designated several points on which he relies for reversal and in several instances the same point is designated by each appellant. Their designated points of assigned error will be discussed in order following statement of the facts as evidenced by the record.

The facts as revealed by the record are simply these: On July 12, 1973, the appellant Spencer, representing himself to be Donald E. Kelly, presented for payment at a branch of the Worthen Bank and Trust Company a printed check form No. 671 on the property account of Harry E. McDermott, Jr., and William B. DeYampert. The check was filled in for $500; signed “Wm. B. DeYampert, ” and made payable to Donald , E. Kelly. For identification in cashing the check Spencer produced a temporary Arkansas driving permit made out to Donald E. Kelly, and also produced a Social Security card made out to Donald Edward Kelly. The check was cashed by Worthen but as a matter of precaution on a check in such large amount, the assistant bank manager took two photographs of Spencer and followed him from the bank in an effort to obtain the license number and description of any automobile in which he might leave the premises. Spencer is a black man and was observed to have hesitated beside an automobile occupied by two other black men as he walked by the automobile parked on the parking lot. No one testified to actually seeing Spencer get into an automobile but a call to McDermott’s office verified the forgery and the police were advised of the transaction.

The police officers were given a description of Spencer together with a description and the license number of the automobile in which he was thought to have left the bank premises, and the automobile was soon located on a motel parking lot. The officers learned from the motel clerk that the owner of the automobile was registered under the name of Alonzo Robins in Room 312 of the motel, and that another black male, and possibly a third, were also occupying the room. The officers went to the motel room; heard a television playing inside the room, but obtained no response to their knock on the door. They then obtained a passkey and entered the room in search of the owner of the automobile. No one was in the room but as they returned to the motel lobby, Robins and Spencer were getting on the elevator as the officers got off of it and Yarbrough was standing nearby. The officers ascertained from Robins that he occupied Room 312 and owned the automobile in the parking lot; they ascertained from Spencer that he was occupying the room with Robins and also ascertained from Yarbrough that he also had a key to Room 312.

All three appellants were placed under arrest. Robins gave consent to a search of the motel room and also his automobile. A search of the room revealed a typewriter and in a suitcase in the room the officers found a check protecting device; and, in a brown envelope in the suitcase, they found nine consecutively numbered Worthen Bank and Trust Company printed check forms on the property account of Harry E. McDermott, Jr., and William B. DeYampert, and three of these check forms were filled out. All three checks were dated July 12, 1973. They were made payable to Donald E. Kelly in the amounts of $500, $360 and $500 respectively, and were checks identified as having come from the back part of a checkbook kept in the Little Rock office of Harry E. McDer-mott, Jr., and William B. DeYampert. They were signed “Wm. B. DeYampert” and the fact of forgery as to the three checks filled out is not questioned. Each of the three appellants had on his person a temporary Arkansas driving permit made out to “Kelly, Donald Edward” and signed, in space for signature of permitee, “Donald E. Kelly.” As already stated, the one Social Security card made to “Donald Edward Kelly” and signed “Donald E. Kelly” was found on the person of Spencer.

One felony information containing three counts was filed against the three appellants and as to form and substance, it reads as follows:

“Comes Lee A. Munson, Prosecuting Attorney within and for the Sixth Judicial District of Arkansas, and in the name, by the authority, and on behalf of the State of Arkansas information gives accusing ALTON YARBROUGH, JAMES L. SPENCER, and ALONZO ROBINS A/K/A EDWARD L. HILTON of the crime of violating Ark. Stat. Ann. § 41-1811, POSSESSION OF COUNTERFEIT INSTRUMENTS, committed as follows, to-wit: The said defendants did in Pulaski County, Arkansas, unlawfully, feloniously, and fraudulently:
POSSESSION OF COUNTERFEIT INSTRUMENT: On or about the 12th day of July, 1973, have in their possession an altered check, said check being No. 680, drawn on Worthen Bank and Trust Company on the property account of Harry E. McDermott, Jr. and Wm. B. DeYampert in the amount of $500.00, said alteration being that the check was forged, with the unlawful and felonious intent then and there to pass or utter said check as true and genuine.”

Separate counts two and three were in the identical language of count one except as to check numbers and the $360 face amount of the check in count two. The information concluded as follows:

“The said ALTON YARBROUGH has previously been convicted of at least one felony, and consequently his sentence should be increased pursuant to Ark. Stat. Ann. § 43-2328.
The said ALONZO ROBINS A/K/A EDWARD L. HILTON has previously been convicted of at least two felonies, and consequently his sentence should be increased pursuant to Ark. Stat. Ann. § 43-2328.”

Ark. Stat. Ann. § 41-1811 (Repl. 1964), under which the three counts were laid, reads as follows:

“Whoever shall fraudulently keep in his possession or conceal the counterfeit resemblance or imitation of any bank bill, note, check, or draft, or any instrument which circulates as currency, of any corporation, company or person that exists, or may exist, whether such bill, note, check, draft or instrument be complete and filled up, or otherwise, or shall fraudulently keep in possession or conceal any fictitious instrument, purporting to be a bank bill, note, check or draft of any corporation, company or person, whether the same be filled up and complete or not, though no such corporation, company or person exist, or shall fraudulently alter or erase any genuine bill, note, draft, check or instrument that circulates as currency, of any corporation, company or person, or shall fraudulently keep in possession or conceal any such bill, note, draft, check or instrument that shall be so altered or erased, or shall fraudulently buy, pay or tender in payment, alter or offer to alter, pass or offer to pass, or assist, or be concerned in fraudulently buying, paying, or tendering in payment, altering or passing any such bill, note, draft, check or instrument that may be so altered or erased, on conviction, shall be imprisoned in the penitentiary not less than three [3] nor more than ten [10] years.”

The jury returned separate verdicts of guilty as to each of the three counts and as to each of the appellants. The trial court instructed the jury that the state had failed to prove previous convictions as alleged in the information. The jury then returned its verdicts assessing separate penalties on each count for each appellant upon which the judgment was entered as already stated. As to Spencer, the jury recommended that the three sentences run concurrently but the trial court did not follow the jury’s recommendation.

We now turn to the points relied on, most of which merit little discussion. All three appellants contend that the arresting officer, Ronnie Gatewood, committed perjury in testifying to the legality of the arrest. This assignment is apparently directed at conflict in the testimony of Detective Gatewood and that of the branch manager Tollett, as to who gave the description and license number of the automobile to Detective Gatewood by telephone. We consider it immaterial whether Mr. Tollett or some other person gave Detective Gatewood the description and license number of the automobile involved. Furthermore, if such conflict in testimony had been material, it would have been a question for the jury to determine which witness was telling the truth. We find no merit to this contention.

Spencer and Robins contend that the trial court erred when it failed to excuse the jury panel because of a prejudicial statement by Mr. Sommers, one of the panel members, during voir dire examination in the presence of the other members. Mr. Sommers stated on voir dire that he did his banking at the branch bank involved and that he was well acquainted with the teller and officers of the bank. He was excused from jury service and we find no prejudicial error in this assignment.

Spencer contends that the trial court erred when it failed to grant his motion to suppress as evidence the identification taken from his billford. The appellant’s billfold was searched incidental to his arrest and the identification he used in uttering the forged check was found therein. We find no merit to this contention.

Spencer contends that the trial court erred when it admitted into evidence the statement taken from the appellant. The only statement taken from the appellant pertained to his identity and the fact that he was occupying the same motel room with the appellant Robins. We find no merit to this contention.

Spencer and Yarbrough contend that the trial court erred when it admitted into evidence testimony of the alleged felony at the Worthen Bank and the paper taken from the automobile. Spencer was the one who cashed the forged check at the bank and he was charged with possession of almost identical forged checks all out of the same checkbook. No competent attorney would have made such contention. We find no merit to this contention for more reasons than we care to enumerate. As to the paper taken from the automobile, that was a blank piece of white paper lying on the dashboard of the automobile and it bore the sample imprint from a check protector later identified as the same one used in forging the checks. As already stated, Robins owned the automobile and the paper was taken from it after he gave his consent to search his room and the automobile. Furthermore, the officers testified that the paper was lying on the dashboard of the automobile in full view; that it bore markings similar to other samples they had in their possession and, that they observed it from outside the automobile even before it was taken therefrom under the consent granted by Robins. We find no merit to this contention.

All three appellants contend that the evidence is insufficient to support the verdict of the jury. Again, no competent attorney would pursue such contention in the face of the record in this case. The evidence is not only sufficient to support the verdict of the jury, it is overwhelming as to the guilt of the appellants on the possession of the forged instruments involved; it is overwhelming as to their design, intent, and the course of their conduct, in embarking upon the usually short career of obtaining money by forgery. We find no merit to this contention.

Yarbrough contends that the trial court erred in admitting into evidence a motel key and statements attributed to him because he was illegally arrested and interrogated without being advised of his right to remain silent. Yar-brough’s only statements pertained to his identity and association with the other two appellants in the motel and there was undenied testimony that he was advised of his constitutional right to remain silent. The motel key was to Robins’ room at the motel, it was taken from Yarbrough incidental to his arrest, and we conclude it was admissible in evidence.

Yarbrough and Robins contend that the trial court erred by admitting into evidence counterfeit checks obtained from motel Room 312 because they were the illegal fruit of a warrantless search and, as Yarbrough contends, on the alleged consent of a codefendant. From what we have already said, we find no merit to this contention.

Robins contends that he was deprived of the adequate and effective assistance of counsel. It is difficult to understand this contention. As already stated, the defense counsel did an excellent job of defending the appellants and preserving the record in this case. It is difficult to understand just how effective the appellants could expect their counsel to be in the light of the forged checks found in their possession, their forged instruments of identity to conform to the forged checks and vice versa, and the excellent pictures of Spencer as he appeared to pocket the proceeds from one of the forged checks he had just uttered. We find no merit to this contention.

Robins also contends that the search of the automobile was illegal. We have already covered this point and find no merit in it. Robins also contends that he was not given credit for time spent in pretrial confinement. The evidence is to the effect that Robins was indigent and an attorney was appointed for him on that account, but there is no evidence that his indigency was the reason for his failure to make bond. The bond was set at only $1,500 and the record suggests that the reason he was unable to make bond was because of inability to get bondsmen to take a chance on him appearing for trial since he was an out of state resident and a number of detainers from other jurisdictions had been lodged against him. We find no merit to this assignment.

We now come to two assignments which we feel do merit more discussion. Robins contends that the lower court erred in not declaring a mistrial when the state offered proof of appellant’s prior convictions which fail to show that appellant was represented by counsel, or that he waived counsel; ánd, Yarbrough contends that the trial court erred in presenting appellant’s prior convictions at the punishment stage of the trial, and that it had a prejudicial effect upon the jury.

From the record before us it appears the state’s requested instruction No. 7 recited the law as set out in §41-1811, supra, and ended with the words “on conviction, shall be imprisoned in the penitentiary not less than three (3) years nor more than ten (10) years.” At this point the record appears as follows:

“MR. ACHOR: Your Honor, will No. 7 be amended to eliminate ‘shall be imprisoned in the penitentiary not less than three nor-’
THE COURT: (Interposing) You’re right. Eliminate, ‘on conviction shall be imprisoned, ’ this will be guilty or not guilty. All right.”

The court then gave instruction No. 7, as amended, setting forth the statute eliminating the penalty provision and then the court gave the court’s instruction No. 10 as follows:

“As to each count in the Information previously read to you and as to each defendant,
if you find the defendant guilty, you will say: ‘We, the jury, find the defendant Guilty as charged in the Information. ’
On the other hand, if you find the defendant, as to each count, not guilty, or have a reasonable doubt as to his guilt, you will say: ‘We, the Jury, find the defendant not Guilty.’
In any event, your verdict must be unanimous and signed by one of your members as foreman.”

Apparently after the jury returned its verdict of guilty on all counts, the court dismissed the jury to return at a quarter of two. When the jury returned, the court instructed the jury as follows:

“The Information further alleges that the defendant Alton Yarbrough, has previously been convicted of at least one felony and, consequently, his sentence should be increased pursuant to Arkansas Stats. Annotated 43-2328. It further alleged that the said Alonzo Robins, also known as Edward L. Hilton, has previously been convicted of at least two felonies and, consequently, his sentence should be increased pursuant to Ark. Stats. Annotated 43-2328, which is the Arkanaas Habitual Criminal Act.”

The trial judge then directed the prosecuting attorney to proceed, but then requested the attorneys to approach the bench where a conference was had out of the hearing of the jury or the reporter. Detective Gatewood was then called by the state and identified a Michigan driver’s license found in the motel room. It had been issued to Edward L. Hilton and was signed “Edward L. Hilton” but it bore the photograph of the appellant Robins.

Certificates of prior convictions of “Edward Lee Hilton” and Alton Yarbrough in the State of Michigan were then offered in evidence, but were objected to on the ground that they did not show representation by an attorney or waivers of attorney. The trial court refused the certificates in evidence and denied the appellants’ motions for mistrial. The court then instructed the jury as follows:

“There has been a failure of proof in regard to the Habitual Offender Act. You’re not to consider the allegation. You’re to presume that — You’re instructed that for the purpose of this trial and for any other purpose, none of these defendants have been convicted of a prior offense. That’s a question that’s not in issue. You have previously found the defendants guilty of the offense, now it only remains for you to set the punishment . . . . ”

The court then directed the reporter to write up the penalty instructions.

As we view the record, the trial court simply directed a verdict for the appellants Yarbrough and Robins on the habitual offender charges. The record is not perfectly clear as to how much of the bar-side discussion pertaining to the certificates of prior convictions was within the hearing of the jury, but the appellants argue that prejudice was shown by the jury verdict of seven and one-half years for Yarbrough and Robins and only three years on each count for Spencer, with the recommendation that his sentences run concurrently. We are unable to say as a matter of law that prejudice was demonstrated in this case. In the first place the evidence would have sustained the maximum sentence of 10 years in each case.

It must be remembered that Robins owned the automobile and had rented the motel room in his name, and he and Yarbrough carried the keys to the room. It is true that Spencer uttered the forged check, but the jury had an opportunity of observing the three appellants as they sat in the courtroom throughout the trial. It is entirely possible the jury could have concluded that Spencer was not as smart as the other two appellants and that he was a mere “dupe” or “fall guy” in the service, or under the influence and directions, of smarter operators. After all, Spencer cashed a forged check for |500 on the account of a well-known attorney and a well-known planter and did so under the operating lens of a bank camera, and no money was found on his person when he was searched incidental to his arrest. For some reason not apparent in the record, the jury recommended that Spencer’s three year sentences run concurrently. We conclude that the trial court did not err in refusing the motions for a mistrial.

All three appellants contend that they were convicted and sentenced three times for the same offense. We are forced to the conclusion that there is merit in this contention. Throughout the entire trial of this case the appellants’ attorneys vigorously objected to the trial for three separate violations based on the possession of the three separate checks charged as separate counts in the single information filed in this case. It will only lengthen this opinion to recite the objections and rulings thereon but they were continuous throughout the trial. There is no question that the appellants were charged, tried, and convicted of three separate offenses of possessing the three separate checks involved in this case.

Ark. Stat. Ann. § 43=1009 (Repl. 1964) provides r. follows:

“An indictment, except in the cases mentioned is?, ihe next section, must charge but one offense, but, if it may have been committed in different modes, and by different means, the indictment may allege the modes and means in the alternative.”

The next section, § 43-1010, provides for joinder of ©iferenm and the possession of counterfeits, or of separate counterfeits, is not among the offenses that may be joined. Section 43-4 010 provides that the offense named in each of the subdivisions may be charged in one indictment, and the nearest it cosak.o to the charges in this case is:

“Third. Forgery and uttering forged instruments, or several acts of forgery and uttering forged instruments, when such forgery and the uttering of such forged « struments grow out of the same matter, business or transaction, or when done in a series of transactions relating: to the same matter of business.
Fourth. Passing, or attempting to pass, counterfeit money or bank notes, knowing them to be such, and having in possession counterfeit money or bank miss, knowing them to be such, with the intention of of culating same.” (Our emphasis).

In Wharton’s Criminal Law and Procedure, voi 2, y 65':,, is found the following:

“The simultaneous possession of several forged bank notes is but a single offense. The defendant cannot be prosecuted separately for each bank note.”

Citing State v. Benham, 7 Conn. 414; State v. Egglesht, 41 Iowa 574, 20 Am. Rep. 612; People v. Van Keuren, 5 Park. Crim. Rep. (N.Y.) 66. See also Wharton’s Criminal Pleading and Practice, § 468, et seq.

In the Iowa case of State v. Egglesht, supra, the defendant delivered at the same time and by the same act, to the teller of a bank, four forged checks which purported to have been drawn on four different parties. The court held that this con» stituted but one offense of uttering forged checks, and that a conviction for uttering one of the checks was a bar to a conviction for uttering the others. In doing so, the Iowa Supreme Court said:

“When the defendant uttered, at the Davenport National Bank, four forged checks, the character of his act became fixed. He either committed one crime, or he committed four. It is not competent for the State, at its election, by the form of the indictment, to give to defendant’s act the quality of one crime or of four at pleasure. The act partakes wholly of the one character or wholly of the other.
We think the decided weight of reason and of authority supports the position that when defendant by one muscular action and one volition passed to the bank in question four forged checks, and procured them to be placed to his credit, he committed one crime, and not four.”

In Wharton’s, Criminal Pleading and Practice, 8th ed., § 470, at p. 327, pertaining to theft, is found the following:

“[T]he weight of authority now is that the prosecution, wherever it is at liberty to join in one indictment all articles simultaneously stolen, may be treated, when it selects only one of them for trial, as barring itself from indicting for the others.”

See State v. Clark, 32 Ark. 231, where it was held that stealing several articles simultaneously from the same owner forms but one offense and after one conviction for stealing a part, no further prosecution can be pursued for the rest.

In the case of Bine v. United States, 331 F. 2d 390 (1964), 5th Cir., the defendant was convicted on three counts of making false statements to the Federal Housing Administration in violation of 18 U.S.C.A. §§ 1001, 1010, and although the court held that there were two separate crimes committed in that particular case, the court stated the rule as follows:

“[I]t is well settled that the test for determining whether several offenses are involved is whether identical evidence will support each of them, and if any dissimilar facts must be proved, there is more than one offense. Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932); Morgan v. Devine, 237 U.S. 632, 35 S. Ct. 712, 59 L. Ed. 1153 (1915). * * * Whether a continuous transaction results in the commission of but a single offense or separate offenses is not dependent on the number of unlawful motives in the mind of the accused, but is determined by whether separate and distinct prohibited acts, made punishable by law, have been committed. Caballero v. Hudspeth, 114 F. 2d 545, 547 (10th Cir. 1940).”

In Keese and Pilgreen v. State, 223 Ark. 261, 265 S.W. 2d 543, the information charged that the defendants did:

. . unlawfully, wilfully and feloniously, falsely and fraudulently have and keep in their possession divers false, forged and counterfeited checks and drafts and fictitious instruments purporting to be checks, etc.”

The state proved that the appellants had two checks in their possession. They were each sentenced to three years for the single violation and we affirmed.

In Velasquez v. United States, 244 F. 2d 416, the defendant was charged and convicted of receiving, concealing and facilitating the transportation of opium, and on a separate count was charged with the sale of opium. The charges referred to separate items of the drug. In affirming the judgment of conviction, the court said:

“The question of double punishment is presented. The substance of the argument is that the first and second counts of the indictment were predicated upon a single transaction, and that the imposition of separate sentences upon the two counts with provision that the
eeatieimces should run consecutively amounted to double punishment for a single offense. The accepted test to be applied in determining the identity of offenses charged in two or more indictments or in two or more counts in a :.mgk indictment is whether the same evidence is required to establish the several indictments or the several counts. If so, there is identity of offenses. But if each indictment or each count requires proof of a fact or element not required by the others, the charges are separate. Gavieres v. United States, 220 U.S. 338, 31 S. Ct. 421, 55 L. Ed. 489; Morgan v. Devine, 237 U.S. 632, 35 S. Ct. 712, 59 L. Ed. 1153; Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306; Pereira v. United States, 347 U.S. 1, 74 S. Ct. 358, 98 L. Ed. 435; Mills v. Aderhold, 10 Cir., 110 F. 2d 765; Beacham v. United States, 10 Cir., 218 F. 2d 528.”

In Wilburn v. United States, 326 F. 2d 903 (1964), the cYfoudant was charged with unlawfully possessing stolen 3'; tcrs. He was convicted on two counts which accused hirn, another charged jointly, with the possession on or about September 4, 1959, of a stolen letter addressed to Stewart Title Company. Under count four he was charged alone with possession of a letter on or about September 9, 1959, ad-biexed to Ray L. Ryan. The record showed that each letter umine ¿ram a mail depository located in a Houston office building and established that the theft from the depository occurred on one occasion. In upholding the conviction, the United States Court of Appeals, Fifth Circuit, said:

“The usual test to distinguish separate offenses from elements of a single offense is whether each purported offense would require the proof of a fact not essential to Fie other. If the record showed that appellant stole or secured possession of a mail bag with the letters therein, then the proof of one fact would prove the other. Such is not the case. The conviction on count 2 is based on the testimony of an accomplice that appellant approached him about passing some stolen checks and gave him a group of checks which included one taken from the letter described in count 2. The evidence relating to count 4 is entirely different. Appellant was identified as the man who burned some papers in a trash can. Among the partially burned papers was the letter mentioned in count 4. Thus, we have two separate acts relating to two separate items on two different days. The proof under one count does not prove an offense under the other count. The only unity is that the letters were mailed on the same day in the same depository. The circumstances of how the theft occurred and how the appellant obtained possession are left to speculation.”

In the United States Supreme Court decision in Bell v. United States, 349 U.S. 81 (1955), Bell was charged on two counts with violation of the Mann Act under provisions of the Act which provide as follows:

“Whosoever knowingly transports in interstate or foreign commerce . . . any woman or girl for the purpose of prostitution or debauchery, or for any other immoral purpose. . . .
Shall be fined not more than S5,000 or imprisoned not more than five years, or both.”

Bell was charged with having transported two women in violation of the Act and the charge was laid in separate counts for each woman. Both women were transported in the same automobile and on the same trip. Bell was convicted on each count in the district court and the sentences were affirmed by the circuit court of appeals, holding that two separate offenses were committed. In reversing the decision on certiorari, the Supreme Court said:

“Congress could no doubt make the simultaneous transportation of more than one woman in violation of the Mann Act liable to cumulative punishment for each woman so transported. The question is: did it do so? It has not done so in words in the provisions defining crime and fixing its punishment.
* # #
[I]f Congress does not fix the punishment for a federal offense clearly and without ambiguity, doubt will be resolved against turning a single transaction into multiple offenses, when we have no more to go on than the present case furnishes.”

In the case of Castle v. United States, 287 F. 2d 657 (1961), the defendant was convicted of knowingly transporting with fraudulent intent five falsely made money orders in interstate commerce. He was tried and convicted on all five counts of the indictment. On petition for rehearing he contended, among other things, that he was convicted of five offenses, one for each of the money orders although there was only one transportation. By per curiam opinion on petition for rehearing, the trial court said:

“Since the transportation of each of the money orders was a separate offense, the contention that there were multiple sentences for a single transportation cannot prevail.”

And the petition for rehearing was denied. Certiorari was granted by the United States Supreme Court and by per curiam opinion dated October 16, 1961 (368 U.S. 13), the Supreme Court said:

“We are in agreement with the representations of the Solicitor General that, under the principles announced in Bell v. United States, 349 U.S. 81, the petitioner was guilty of but a single offense under 18 U.S.C. § 2314. In light of such representations and upon consideration of the entire record, the judgment is vacated and the case is remanded to the Court of Appeals with instructions to remit to the District Court for resentencing in accordance with this opinion.”

In the case at bar not only was different evidence not necessary to the proof of each count — the same evidence was necessary to the proof of each count and the same evidence, and only the same evidence, was actually used in the proof of the separate counts. Had all nine check forms been filled in by forgery in the case at bar, according to the state’s theory the appellants would have been subject to minimum sentences totaling 27 years and maximum sentences totaling 90 years. We do not believe that the Legislature intended such results. To Paraphrase the language of the United States Supreme Court in the Bell case, supra: The Legislature could no doubt make the simultaneous possession of more than one counterfeit check in violation of § 41-1811 liable to cumulative punishment for each check so possessed, but we conclude that the Legislature did not do so.

We do not reach the question that might have been presented had it been necessary that different evidence be offered to sustain each of the separate counts, such as might have been the case if the purported signatures were of different persons or the forgers had been different persons. We only say that in this case the identical evidence supported each count in the information.

The judgment is reversed as to the two additional counts in each case. The judgment is affirmed as to the single three year sentence for Spencer and the single seven and one-half year sentence for Yarbrough and Robins.

Affirmed in part; reversed in part.


source: Caselaw Access Project

author: Conley Byrd, Justice.

license: Public Domain

text:
    James E. BENTLEY et ux v. Thomas W. PARKER et al
    74-266
    525 S.W. 2d 460
    Opinion delivered March 3, 1975

      James R. Howard, for appellants.

      Rose, Nash, Williamson, Carroll & Clay- by: Stanley E. Price, for appellees.
   Conley Byrd, Justice.

The only issue here is the right of the mortgagors, appellants James E. Bentley, et ux, to redeem from a foreclosure decree sale to a third party at any time prior to an order of confirmation of the sale. The particular foreclosure decree here involved gave the mortgagors ten days from the date of the foreclosure decree to redeem the property — after the expiration of the ten day period the commissioner in chancery was directed to advertise and sell the property.

On the date of sale appellees Thomas W. Parker and Nell Parker, his wife and Jack B. Carter and Martha G. Carter, his wife were the successful bidders in the amount of $24,500.00. The total judgment of Capital Savings & Loan Association was for only $21,713.91. Before the sgle was submitted to the court for confirmation, the mortgagors tendered the total amount of the judgment and court costs into the registry of the court and asked to redeem the property. The trial court reluctantly denied the redemption and hence this appeal. We agree with the trial court.

In Martin v. Ward, 60 Ark. 510, 30 S.W. 1041 (1895), we stated the matter in this language:

“The only question in this case is whether a right of redemption remains to the mortgagor of real estate after a decree of foreclosure and a sale of the mortgaged property thereunder. In the absence of a statute giving this right to the mortgagor, his equity of redemption is barred by the decree and sale. The object of the proceeding to foreclose is to cut off the equity of redemption which exists in the mortgagor, and a sale under a valid decree of foreclosure must have this effect unless the legislature has extended the right of the mortgagor, so that he may redeem after sale.”

We there held that the Act of March 17, 1879, did not extend the right of redemption to a mortgagor under a foreclosure decree. It was there pointed out, however, that a “...court in its decree may, and usually does, allow a reasonable time for the mortgagor to pay the amount adjudged against him and redeem the property.”

The cases of Pope v. Wylds, 167 Ark. 40, 266 S.W. 458 (1924) and Jermany v. Hartsell, 214 Ark. 407, 216 S.W. 2d 381 (1949), involved cases in which the foreclosure decree had provided that the redemption could be made at any time before confirmation. Of course such cases are not controlling under the decree here which allowed only ten days for redemption after the foreclosure decree.

Obviously the time for redemption must be left to the sound discretion of the trial court. If the redemption is cut off before sale date, it tends to give credence to judicial sales and to prevent collusion between the mortgagors and unsuccessful bidders at the sale who have second thoughts on the value of the property. However, if the redemption is permitted at any time before confirmation of the sale, then there may be some lack of incentive for competitive bidding at the sale.

Affirmed.


text:
    Alexander CRAIG, Adm’r. v. STATE FARM AUTO INSURANCE CO
    74-279
    519 S.W. 2d 741
    Opinion delivered March 3, 1975
    [Rehearing denied March 31, 1975.]

      Daggett, Daggett & Van Dover by: Jesse B. Daggett, for appellant.

      Laser, Sharp, Haley, Young & Boswell, P.A., for appellee.
   Conley Byrd, Justice.

At issue in this action by appellant Alexander Craig, Administrator of the Estate of Jeff Craig, deceased, against appellee State Farm Auto insurance Company, is whether the driver of an uninsured vehicle was responsible in any manner for the acts of his passenger in tossing a sack of cans into the path of a Volkswagen driven by Dianne Birdsong. Jeff Craig was a passenger in the Volkswagen. The trial court granted a directed verdict in favor of State Farm at the close of appellant’s evidence.

The record shows that Dianne Birdsong was driving a Volkswagen on Interstate 55 toward Memphis, Tennessee. While driving along she noticed a white Chevrolet truck with two men in it that was slowing down traffic. After the traffic would get by the truck it would speed up and pass the traffic arid then repeat the slowing down process. Dianne stayed behind the truck until it kept getting slower and slower. When she finally pulled into the left lane of traffic to pass the truck the driver of the truck looked at her as she got even with the truck and speeded up and got in front of the Volkswagen. The passenger in the truck turned around and looked at the Volkswagen. The truck passenger then held a sack of cans out the window on the passenger’s side of the truck and at the appropriate moment, gave it a toss so that the cans rolled under the Volkswagen with the sack hitting the windshield. As a result of the tossing of the sack of cans, the Volkswagen went off the road causing the death of Jeff Craig. The white Chevrolet truck did not stop but left the scene of the accident.

State Farm points out that their uninsured motorist policy only covers the “owner or operator” of the uninsured vehicle. To support the action of the trial court it then argues that unless one is to engage in a guessing game, there is simply no evidence that the driver participated in any manner in throwing the sack from the truck or indeed knew that the passenger was throwing the sack from the truck.

Had not the two men in the truck been slowing down, jamming up traffic to the rear and then accelerating the truck rapidly to pass everyone only to repeat the slowing and jamming of traffic, there might be some merit to State Farm’s contention. But when we consider the previous conduct of the driver of the uninsured vehicle in slowing and jamming traffic together with his conduct in leaving the scene of the accident after the sack throwing incident, we find that there is substantial evidence to go to the jury on the issue of his participation in the hazardous traffic game that was being played. See Restatement of Torts § 877(b).

Reversed and remanded.


author: Frank Holt, Justice. Conley Byrd, Justice,

text:
    Wade Earl STEWART and Tommy MCGHEE v. STATE of Arkansas
    CR 74-121
    519 S.W. 2d 733
    Opinion delivered March 3, 1975
    [Rehearing denied March 17, 1975.]

      Harold L. Hall, Public Defender, for appellants.

      Jim Guy Tucker, Atty. Gen., by: 0. H. Hargraves, Dep. Atty. Gen.; Lee A. Munson, Pros. Atty., by. John Wesley Hall Jr., Dep. Pros. Atty., for appellee.
   Frank Holt, Justice.

Appellants were charged by information with murder in perpetration of an attempt to commit robbery. Ark. Stat. Ann. § 41-2205 (Repl. 1964). The jury found them guilty of murder in the first degree and assessed their punishment at life imprisonment in the Department of Correction. Appellants first assert for reversal that the evidence is insufficient because there is no substantial evidence from which the jury could find that murder resulted from an attempt to perpetrate robbery. Upon appellate review, it is firmly established that we consider that evidence which is most favorable to the appellee, with all reasonable inferences deducible therefrom, and affirm if any substantial evidence exists to support the jury verdict. Miller v. State, 253 Ark. 1060, 490 S.W.2d 445 (1973).

A witness for the state, Bullock, testified that he met the appellants at a party. Later that evening, he, appellants, and others went to the victim’s apartment “ [T]o take some dope” and we would get it with a gun “[I]f it was necessary.” Appellant McGhee was armed with a .38 caliber pistol and appellant Stewart carried a sawed-off shotgun. The state’s witness testified that he saw McGhee pull his pistol on the victim who then put his hands up. Thereupon, Stewart was observed jumping over a porch railing and the shotgun he was carrying discharged. The witness then heard several small caliber shots. Another witness for the state, who was living with the victim, testified that she heard “a loud shot and then three other shots.” The victim fled to their apartment where she observed him “covered with blood.” He spontaneously told her “that as soon as he [the victim] opened the door this one kid was standing there and flashed this money in his face for some reason, and then this other one, this little one, jumped onto the porch with a shotgun and shot him and he turned to run up the stairs and then the other one shot him three times with the pistol.”

Appellants Stewart and McGhee made separate written statements which were read to the jury subsequent to Bullock’s testimony. Neither testified. Stewart admitted in his statement that he was armed with a shotgun and accompanied his codefendant, McGhee, and others in furtherance of the plan to rob the victim. McGhee admitted in his statement that he accompanied his codefendant, Stewart, and others to the victim’s apartment and that he, McGhee, was armed with a .38 caliber pistol. As soon as the victim opened the door, he, McGhee told him he wanted to buy some dope and that “Danny” had sent him. During the discussion, one of the group said “if he won’t sell it to us we’ll just take it.” A blast from a shotgun followed and thereupon “he [McGhee] grabbed the pistol from my rear pocket and struck Lenoris [a companion] in the face, so he wouldn’t shoot. As I slapped at Lenoris, the pistol did go off, but I’m not sure when it struck.”

Certainly the state adduced ample substantial evidence that would justify the jury in finding the appellants committed murder in an attempt to perpetrate robbery. They went heavily armed to the victim’s residence where they confronted him at the door. When the victim “throwed his hands up,” he was wounded by a shotgun blast into the right side of his chest and wounded in other areas of his body from two pistol shots. The “transaction had gone beyond intent and preparation and had passed into acts which amounted to an attempt at robbery.” Turnage v. State, 182 Ark. 74, 30 S.W.2d 865 (1930).

Appellants next contend that the court erred in admitting evidence of an autopsy not performed by the state medical examiner or one of his authorized assistants in violation of the defendants’ state and federal constitutional rights. Ark. Stat. Ann. § 42-611, el seq, establishes the office of state medical examiner and prescribes the duties and the stringent qualification required of that individual. The present medical examiner meets the statutory requirement and is a forensic pathologist based upon specialized training. § 42-623 provides that records and reports made under authority of the act “shall be received as competent evidence .... upon being properly attested.” § 42-615 requires that the state medical examiner be notified whenever a person dies from violence or under unusual circumstances. Appellants assert that the purpose of this statute is to give the state medical examiner, a medico-legal expert, the exclusive authority, here, to conduct the postmortem examination. Therefore, an autopsy performed without this authority is inadmissible evidence.

We do not construe the statute to absolutely prohibit another doctor, who is competent to do so, from performing an autopsy and then testifying. The purpose of the act, and properly so, was to create a scientific and uniform method of investigating violent and unusual deaths. In State v. Ruggiero, 93 R.I. 241, 174 A.2d 555 (1961), the proper statutory procedure was not followed and the court said:

These contentions lack merit. A careful reading of Chap. 23-4 shows clearly that it does not apply to matters affecting the admissibility of evidence. It has no bearing on the question of the admissibility of the testimony of a medical expert who is otherwise qualified to perform an autopsy, or on the admissibility of the autopsy report prepared by such medical expert.

In the case at bar, the victim was taken to a local hospital suffering from a shotgun blast to the right chest and pistol wounds to the wrist and kriee. Following removal of the right lung by his personal physician, the victim was placed in intensive care. Five days later additional surgery was required to remove several ribs to curtail infection. Five days later while still in intensive care, the victim suddenly died. Without notifying the state medical examiner, the victim was partially embalmed and then an autopsy was performed by an anatomical pathologist at the hospital in the regular course of his duties there. His training does not meet the strict statutory standard required of a state medical examiner. However, he has performed over 300 autopsies in addition to testifying in court. This pathologist testified that the victim died from a blood clot in the pulmonary artery and that the blood clot resulted from either the surgery or the gunshot wound which required the surgery. Needle marks were found in the victim’s legs which appellants assert indicate he was a drug user. The doctor testified that an improper injection of drugs could have caused death and the, embalming procedure could have nullified the presence of drugs. Regardless, we perceive no prejudice to the appellants based upon this pathologist’s testimony. Furthermore, it was cumulative to the testimony of the victim’s attending physician, who observed the victim each day. He testified:

Q. What in your opinion, was the cause of death of Nicholas Papadoplas?
A. Nicholas Papadoplas died of a pulmonary embolism, which is secondary to the gunshot wound of the chest.

The surgeon who operates on and attends the victim may give an opinion as to the cause of death without reference to an autopsy. McClendon v. State, 197 Ark. 1135, 126 S.W.2d 928 (1939).

From what we have previously indicated, suffice it to say that the court did not err in refusing appellants’ requested instruction for a directed verdict of acquittal; their requested instruction that “where substantial evidence alone is relied upon to establish the cause of death and their requested instruction that the sheriff and the state medical examiner must be notified in the circumstances here.

Appellants assert that the court erred in admitting into evidence the cross-implicating confessions of appellants. Each confession was read to the jury with only the codefen-dant’s name deleted and replaced by a blank line. As previously indicated, neither of the appellants testified. Appellants assert that a cross-implicating confession by a nontestifying codefendant, as here, denied them their constitutional right to be confronted by that witness and, therefore, was in violation of Bruton v. United States, 391 U.S. 123 (1968). We cannot agree with appellants that Bruton or our own subsequent cases dictate a reversal in the case at bar. In Bruton, the cross-implicating confession of a codefendant who did not testify, was admitted into evidence against Bruton, who had made no admissions or confession. Neither did he testify. There it was held that this denied Bruton his constitutional right to be confronted by the witness against him. Thereafter, in Mosby and Williamson v. State, 246 Ark. 963, 440 S.W.2d 230 (1969), we reversed the trial court because it gave an instruction, unrequested by the defendant, stating that his failure to testify could not be considered as evidence of guilt. However, in view of a retrial, we deemed it necessary to observe, since cross-implicating confessions were permitted there, that:

The answer to the problem [in Bruton] seems to be to delete any offending portions of the admissions with reference to a codefendant, if such deletion is feasible and can be done without prejudice, or to grant separate trials.

The progeny of that case is Miller v. State, 250 Ark. 199, 464 S.W.2d 594 (1971); Byrd v. State, 251 Ark. 149, 471 S.W.2d 350 (1971); Grooms v. State, 251 Ark. 374, 472 S.W.2d 724 (1971); and Patrick v. State, 255 Ark. 10, 498 S.W.2d 337 (1973). In the case at bar, as indicated, the codefendant’s name in each cross-implicating confession was deleted and replaced by a blank line in an effort to comply with our decisions.

There were numerous other participants whose names were not deleted. The statement of one of the nontestifying appellants, Stewart, was that his shotgun discharged accidentally when he jumped off a porch rail and that _, who had a pistol, started shooting at the victim. A statement of the other nontestifying appellant, McGhee, was that he had a pistol as did another named companion. Also when he “was talking to the pusher, -and Lenoris Ball came up on the side of the porch” and “both had sawed off shotguns.” He denied shooting the victim and struck Ball to prevent him from using his shotgun. When he did so his, McGhee’s, pistol went “off.” Ball’s gun was never fired. Consequently, each of the declarants admitted their presence and purpose at the scene of the crime, though contradicting each other in some aspects with respect to the extent of their complicity. Furthermore, Bullock, a participant and the state’s witness, had previously testified that he saw McGhee at the door with a pistol on the victim and that he observed Stewart, who had a shotgun, jump “over a post, and the shotgun discharged” shooting the victim.

Since Bruton various U. S. Circuit Courts of Appeal and state courts have found Bruton inapplicable in factual situations somewhat similar to the case at bar on the premise that interlocking confessions, which are assertively corroborative of each other, as here, are not violative of Bruton when admitted into evidence. The first case in which the rule as to interlocking confessions was expounded is U. S. ex rel, Catanzaro v. Mancusi, 404 F.2d 296 (2d Cir. 1968), cert. den. 397 U. S. 942, 90 S.Ct. 956, 25 L.Ed.2d 123. There the court held that the admission into evidence of a confession of a codefendant, which interlocked with and was supported by Catanzaro’s own confession, did not prejudice Catanzaro’s right to a fair trial. The court said:

Where the jury has heard not only a codefendant’s confession but the defendant’s own confession no such ‘devastating’ risk attends the lack of confrontation as was thought to be involved in Bruton.

This case was decided only six months after Bruton. Cf. Harrington v. California, 395 U.S. 250 (1969); and Nelson v. O'Neil, 402 U.S. 622 (1971).

Then came United States ex rel Duff v. Zelker, 452 F.2d 1009 (2nd Cir. 1971), cert. den. 406 U.S. 932, 92 S.Ct. 1807, 3 L.Ed.2d 134, where the court again applied the rule on in» terlocking confessions. There the court said:

We reject appellant’s claim that the admission of the written statements of Ferguson and Hill violated the rule of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). The statements were similar to Duff’s own confessions, written and oral, which placed him at the scene with a fair implication of knowing participation. When the defendant’s ‘confession interlocks with and supports the confession of’ the codefendant, there is no violation of the Bruton rule.
******
As far as Ferguson’s statement is concerned, it should be noted also that Duff had the opportunity to cross-examine Ferguson at the Huntley hearing. [Denno hearing.] See California v. Green, 399 U.S. 149, 165, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970); People v. Moll, 26 N.Y.2d 1, 307 NYS 2d 876, 256 N.E.2d 185 (1970).

The rule was applied reluctantly by a different panel of the same court in United States ex rel Ortiz v. Fritz, 476 F.2d 37 (2nd Cir. 1973), cert. den. 414 U.S. 1075, 94 S.Ct. 591, 38 L.Ed. 2d 482. The court considered itself bound by the Catan-zaro rule. The court resolved the question whether the confessions there were sufficiently interlocking because discrepancies in them were such as to make one or more erroneous or false, by saying that as to motive, plot and execution they were (as here) essentially the same. The court then said that it was uncomfortable with the implications of Catanzaro, but found it to be the law of the circuit, having been followed in two subsequent cases. The court then said:

.... If it is to be overruled, it will have to be by the Supreme Court, absent the requisite en banc vote which — through prior circulation of this opinion — has not ensued.

In spite of the open invitation, certiorari was again denied. The court found Catanzaro expressive of the law in United States v. DeBerry, 487 F. 2d 448 (2d. Cir. 1973). To the same effect are United States ex rel Long v. Pate, 418 F. 2d 1028 (7th Cir. 1969); Metropolis v. Turner, 437 F. 2d 207 (10th Cir. 1971), where the Harrington harmless error rule and the Cantanzaro rule were both held applicable, and United States v. Spinks, 470 F. 2d 64 (7th Cir. 1972).

Bruton has been distinguished also in state courts on the difference between the situation here and the situation where a defendant who has remained silent at all times is inculpated by a codefendant’s confession. State v. Hall, 185 Neb. 653, 178 N.W. 2d 268 (1970); State v. Aiken, 75 Wash. 2d 421, 452 P. 2d 232 (1969); State v. Hopper, 253 La. 439, 218 So. 2d 551 (1969); and Commonwealth v. Scott, 355 Mass. 471, 245 N.E. 2d 415 (1968).

In the case at bar, each defendant has, by his own statement, implicated himself in active participation in a robbery which resulted in the killing of the victim. Each participant is equally as guilty, under these circumstances as is the other. Turnage v. State, 182 Ark. 74, 30 S.W. 2d 865 (1930). Ark. Stat. Ann. § 41-118 (Repl. 1964). Stewart said he wanted to go along on the robbery of the dope pusher, went up to the house, cocked his shotgun and climbed upon the porch rail. The fact that he claimed that his shotgun went off accidentally made him no less guilty of the crime with which he was charged, particularly when this happened because he jumped off the porch rail thinking that his unnamed confederate, who was talking to the “dude”, was waiting on Stewart to “make his move.”

McGhee’s statement was that he had a .38 pistol in his hip pocket when he went to the “pusher’s” door and that two others had sawed off shotguns. One of them, Lenoris, said “if he won’t sell it to us, we’ll just take it.” About this time, said McGhee, the pusher opened the screen door and an unnamed companion’s shotgun went off as he jumped off the wooden rail. McGhee admitted that the pistol he had went off and that when he was back in the car in which he came to the scene, three shells had been fired. Also each statement is corroborative of the testimony of their accomplice, Bullock.

We did not actually hold in Mosby and Williamson v. State, supra, that Bruton required reversal of their convictions. Our reversal was predicated upon an erroneous instruction. We did little more than the Massachusetts Supreme Judicial Court did in Commonwealth v. Scott, supra, i.e., alert the courts and prosecutors to the risks inherent in the introduction of confessions of individual defendants in the joint trial of multiple defendants. We merely called attention to Bruton and the case of Roberts v. Russell, 392 U.S. 293 (1972). In addition, we pointed out that a separate trial was mandatory in a capital case, as Mosby was, so that the “problem” of cross-implicating confessions would not arise if a separate trial were requested. See Sims v. State, 253 Ark. 1119, 491 S.W. 2d 583 (1973). Furthermore, the only evidence other than the confessions in the Mosby case was the fact that the crime had been committed. In Miller v. State, supra, we simply held that no problem of confrontation contrary to Bruton arose when the trial court struck all portions of confessions of codefen-dants relating to other defendants. In Byrd v. State, supra, we did say that we had held, in Mosby, that it was prejudicial error to admit cross-implicating confessions in a joint trial, again suggesting that an answer to the problem would be deletion of offending portions referring to a codefendant, if feasible. However, we emphasized the fact that the appellant testified and denied any complicity in the alleged crime. So the case now before us is readily distinguishable from Byrd.

In Grooms v. State, 251 Ark. 374, 472 S.W. 2d 724 (1971), there was no confession by the appellant in whose trial the confession of a codefendant implicating appellant was narrated without any apparent deletion. In Patrick v. State, supra, the cross-implicating confessions of all three codefen-dants were introduced “in toto.” There is nothing to indicate what other evidence was offered to show their complicity in the burglary and grand larceny with which they were charged.

In short, in our post-Burton cases, we have not foreclosed the treatment of cross-implicating confessions as approved in Catanzaro and kindred cases. Significantly, it has not been foreclosed by the U.S. Supreme Court in spite of an undisguised plea for it to do so by the court in which it was first ennunciated. United States, ex rel Ortiz v. Fritz, supra. This is the first time that our state has urged its applicability.

In the case at bar, appellants’ motives, plots and participation in the crime are essentially the same. Unlike Bruton, both appellants made interlocking and corroborative confessions, the voluntariness of which is not in issue. As codefendants, their names were deleted. It does not appear that a severance was requested. Also their confessions are corroborative of one of their accomplices, who was subjected to a lengthy cross-examination. It does not appear in the factual situation here that harm is being done to individual rights by holding, as we do, that Bruton is inapplicable.

Affirmed.

Byrd, J., dissents.

Conley Byrd, Justice,

dissenting. It sounds logical to tell the jury that they should not consider the confession of one codefendant against another jointly tried codefendant, but the logic becomes absurd when on appeal we compare one with another to determine if there was any prejudicial error in admitting the confessions. If we do what we tell the jury not to do, then I can find no practical reason why the jury ought to disregard the confession of one defendant when considering the guilt or innocence of the other.

The Constitution prohibits the conviction of an individual without confronting him with the witnesses against him. When the confession of the codefendant is introduced through an officer, the other codefendant has no right to cross-examine the codefendant as to the truth and veracity of the facts therein recited.

Like Justice Marshall in his dissent in Nelson v. O’Neil, 402 U.S. 622, 635, 91 S. Ct. 1723, 1729, 29 L. ed. 2d 222 (1971), I think we should follow the procedure suggested by The American Bar Association’s Project on Standards for Criminal Justice. He there stated:

“The American Bar Association’s Project on Standards for Criminal Justice, Advisory Committee on the Criminal Trial, suggested that if a defendant in a joint trial moves for a severance because the prosecutor intends to introduce an out-of-court statement by his codefendant that is inadmissible against the moving defendant, then the trial court should require the prosecutor to elect between a joint trial in which the statement is excluded; a joint trial at which the statement is admitted but the portion that refers to the moving defendant is effectively deleted; and severance. I believe that the adoption of such a practice is the only way in which the recurring problems of confrontation and equal protection can be eliminated.”


author: Carleton Harris, Chief Justice.

text:
    Edward POOLE v. Noah BATES and Pate PEARSON d/b/a BATES-PEARSON AUTO SALES
    74-285
    520 S.W. 2d 273
    Opinion delivered March 10, 1975

      Hodges, Hodges & Hodges, for appellant.

      Boyelt and Morgan, P. A., for appellees.
   Carleton Harris, Chief Justice.

Appellees, Noah Bates and Pate Pearson d/b/a Bates-Pearson Auto Sales, sold an automobile to Edward Poole, appellant, Poole signing an installment contract. As typed, the contract called for 24 equal payments of $84.47, which would make a total payment of $2,072.28. Included in the figures was a charge for $55.94 for credit life insurance. The interest charged was 10%. Appellees instituted suit in August, 1972 alleging that after allowance of credits, Poole was indebted to appellees in the sum of $1,489.11, for which judgment was sought, together with an attorney’s fee and costs of the collection. Poole answered alleging that the contract was in violation of the usury provision of the Arkansas Constitution; other defenses were interposed, but on appeal, only the usury defense is argued. On trial, the court held that the contract was not usurious, and judgment was entered for the amount sought, together with an attorney’s fee, and costs of the suit. From the judgment so entered, appellant brings this appeal.

The principal contention for reversal is based upon the credit life insurance premium. The premium was $55.94, and appellees placed this insurance with an insurance agency; appellees, however, received 35% of the credit life insurance premium as a commission, this amount being in addition to the other moneys under the contract, i.e., the premium was included in the total prior to determining the monthly amount of payments. Accordingly, interest on the commission received by appellees was called for in the monthly payments, and it is appellant’s contention that appellees were not entitled to receive interest on that portion of the premium constituting a commission, and since the payments under the contract called for a full 10% interest, that instrument is therefore usurious.

Admittedly, this court has not passed directly on this question, though appellant argues that certain of our cases indicate that the interest charged on the commission made the contract usurious. Universal CIT Credit Corp. v. Lackey, 228 Ark. 101, 305 S.W.2d 858, United Bill Homes v. Knapp, 239 Ark. 940, 396 S.W.2d 40, Ragge v. Bryan, 249 Ark. 164, 458 S.W.2d 403.

Appellant cites the Annotation at 91 ALR2d 1344, “Usury: requiring borrower to pay for insurance as condition of loan”, as follows:

“In determining the usurious nature of a loan contract containing a provision whereby the lender, which was not an insurance company, required the borrower as a condition of the loan to pay for insurance in addition to the full legal interest, the fact that the lender retained as a commission a portion of the insurance payment made by the borrower or that it in some other respect made a profit by means of the insurance provision has been considered in many cases as a factor supporting a finding of the lender’s intent or device to cover usury. ”

Of course, in all of our cases since Hare v. General Contract Purchase Corp., 220 Ark. 601, 249 S.W.2d 973, the court has particularly scrutinized every phase of a transaction that might conceivably be a cloak for usury, and it is true that the manner of the insurance charge has been closely examined, for any violation of standards set out in our cases would necessarily involve an unlawful charge and/or an unlawful profit. But we do not agree that the commission herein involved, though, as pointed out in the annotation, a factor to be considered, makes this particular contract usurious. In the first place, this is not a case where the purchaser was compelled to purchase insurance before appellees would finance the purchase of the car; i.e., it was not a charge made for the purpose of allowing them more interest. Rather, it appears that appellant requested this insurance. In the next place, there is no contention that the insurance charge was excessive. In other words, it was a bona fide transaction. The charge for insurance was paid and appellant received the benefit requested. The rebate itself was not illegal, nor is there any reason, since appellant asked for the insurance and received exactly what he requested, why such should be illegal. After all, there could be no difference to appellant in purchasing the insurance through appellees, and purchasing it from some company across the street or elsewhere, i.e., there is no showing that the premium would have been less. So long as there is no element of fraud, nor duress or compulsion upon the borrower to take the insurance from the lender, we see no reason why the automobile agent is not as entitled to represent the insurance company, and accordingly receive a commission, as anyone else. In other words, no unlawful charge or profit is involved.

Appellant also argues that the figure on the face of the contract ($2,772.28) reflects a usurious charge. While this figure is actually incorrect, as will be mentioned hereafter, neither the $2,772.28 nor the correct figure, $2,072.28, has any bearing on this case. The figure mentioned reflects the sale price of the automobile, but an allowance of $700.00 was given for a trade-in and the finance charges are not at all based on this figure. Using the first figure and deducting $700.00 leaves the sum of $2,072.28, reflecting an unpaid balance of $1,830.94 and finance charge of $196.34. The installment sales contract and note reflect that both the typewritten $2,-772.28 figure and the $2,072.28 typewritten figure were stricken and the figures $2,727.28 and $2,027.28 were respectively inserted by hand. The evidence does not reflect when this was done, whether in the presence of Poole or after he had left the company office. Mr. Pearson stated that he did • not remember but that the figure was changed upon observing it was incorrect. Poole did not testify. Of course, the burden is upon appellant to establish usury. Knox v. Goodyear Stores, 252 Ark. 530, 479 S.W.2d 875.

As stated, the total price for the automobile including the trade-in is not involved, for the finance charge is only added to the balance due on the automobile after allowing for such trade-in. It seems very clear that a typographical error was made for the installment sales contract calls for 24 payments of $84.47 and this totals $2,027.28, so that it is only necessary that the 24 payments be totaled in order to determine the correct figure. Actually, it appears that the typist, in each instance, transposed the figures 7 and 2. This does not constitute usury.

Affirmed.

      Arkansas Constitution, Art. 19, § 13.


author: George Rose Smith, Justice.

text:
    Clarence BAUGH Jr. v. City of PINE BLUFF
    74-287
    520 S.W. 2d 275
    Opinion delivered March 10, 1975

      Reinberger, Eilbotl, Smith & Staten, for appellant.

      Tim Boe, City Atty., for appellee.
   George Rose Smith, Justice.

On June 14, 1972, the appellant was fined $10 in the Pine Bluff municipal court, upon a charge of “driving left of center.” Within two weeks he appealed to the circuit court, apparently remaining at liberty on bond. On June 24, 1974, the circuit court set the case for trial on July 18. On July 9 the appellant filed a motion to dismiss the case, on the broad ground that he had been denied a speedy trial as guaranteed by the federal constitution and the state constitution and statutes. On the date set for trial, July 18, the circuit court entered an order dismissing the appeal from the municipal court and directing that a capias issue against the defendant to enforce the municipal court’s judgment. The defendant filed a notice of appeal from that order.

In this court the appellant argues that the trial court should have granted his motion to dismiss the charge, because the case was not brought to trial in the circuit within three terms of court, as required by Ark. Stat. Ann. § 43-1709 (Repl. 1964). To support his argument the appellant relies upon our holding in Holland v. State, 252 Ark. 730, 480 S.W. 2d 597 (1972).

' Upon the meager record before us we cannot sustain the appellant’s contention. In Holland the appellant showed by stipulation and apparently by other proof that three terms of court had elapsed since her arrest and that the delay had not happened upon her application. In the case at bar there is no similar proof. The appellant, as the moving party, had the burden of proving facts to support his motion to dismiss, but there is actually no proof in the record. If a hearing was held, we have no transcript of the proceedings. Apart from the pleadings and the judgment the record contains only a copy of the court’s docket sheet, which contains notations of the order setting the case for trial, of the denial of the motion to dismiss, and of the dismissal of the appeal. There is no showing that the docket sheet was introduced in evidence. A docket notation is not the entry of a judgment and cannot be used to supply a deficiency in the record. Hollaway v. Berenzen, 208 Ark. 849, 188 S.W. 2d 298 (1945). Hence there is no proof that the delay did not happen upon the appellant’s application.

Affirmed.


author: J. Fred Jones, Justice. John A. Fogleman, Justice.

text:
    ARKANSAS STATE HIGHWAY COMMISSION v. Bessie W. COFFELT
    74-218
    520 S.W. 2d 294
    Opinion delivered March 10, 1975
    [Supplemental Opinion on Denial of Rehearing June 2, 1975, p. 780-A.]

      Thomas B. Keys and Kenneth R. Brock, for appellant.

      Kenneth Coffelt and Carl Langston, for appellee.
   J. Fred Jones, Justice.

This is an appeal by the Arkansas State Highway Commission from a decree of the Pulaski County Chancery Court enjoining the Highway Commission from closing so-called Coffelt Road where it crosses Highway No. 67 in connection with improvements on Highway 67.

On appeal to this court the Highway Commission relies on the following points for reversal:

“The trial court erred in finding that there was no notice of the county court order.
The trial court erred in finding that appellee was the title holder in fee of at least 20 feet of the south part of Coffelt Road, which crosses U. S. Highway #67.
The trial court erred in finding that appellant had never entered or attempted to stop the flow of traffic across Coffelt Road to the extent that such entry would amount of [sic] notice that the appellant was claiming said road in fee.”

The appellee, Bessie W. Coffelt, has cross-appealed and for reversal of the chancellor’s decree on cross-appeal she relies on the following points:

“The trial court erred in dissolving the Temporary Injunction entered August 23, 1972, without the Arkansas Highway Commission affirmatively requesting permission to make a deposit and comply with Per Curiam Order of September 25, 1972.
To comply with Per Curiam Order of Supreme Court of September 25, 1972, Highway Commission must request affirmative relief.
With respect to compensation due process requires that the landowner be given reasonable notice of, and an opportunity to be heard in the proceedings.”

The facts, as they appear from the record in this case, are as follows: On July 12, 1955, Horace D’Angelo and his wife owned the land involved in this case and through which the then proposed Highway 67 would run. On that date Pulaski County purchased from the D’Angelos a perpetual easement for Highway 67 over the right-of-way area here involved. The granting clause in the deed from the D’Angelos provided:

. . do hereby grant and convey unto the said Pulaski County, Arkansas, and unto its successors and assigns forever, a perpetual and exclusive easement for the right of way of State and U. S. Highway No. 67 through and over the following described lands lying in Pulaski County, Arkansas as shown on attached sketch marked Exhibit ‘A’.”

Following the granting clause and description the deed then provided as follows:

“This conveyance is made for the purposes of a freeway and adjacent frontage road and the grantor hereby releases and relinquishes to the grantee any and all other abutter’s rights including rights appurtenant to grantor’s remaining property in and to said freeway, provided, however, that such remaining property shall abut upon and have access to said frontage road which will be connected to the freeway only at such points as may be established by public authority.
To have and to hold the same unto the said Pulaski County, Arkansas and unto its successors and assigns forever, with all appurtenances thereto belonging.”

On July 25, 1955, the Pulaski County Court entered an order reciting as follows:

“Now on this day there comes on for consideration the matter of right of way damages in connection with the cost of the right of way on the above captioned road project.
And the Court being well and sufficiently advised on all matters of law and fact herein doth find that Pulaski County, Arkansas has entered upon the property of the herein named property owners under authority conveyed by easement deeds executed by the several property owners to said county and that the property acquired and the value thereof expressly including damages to their remaining lands is as follows and said property owners have agreed to accept the following allowance in full settlement of their claims for damages filed in this Court in this matter.”

This court order then set out the various amounts to be paid the landowners, including the D’Angelos, and the order concluded as follows:

“IT IS THEREFORE CONSIDERED, ORDERED AND ADJUDGED BY THE COURT that the above named property owners recover the amounts shown as total damage and that such allowance is to be paid by Pulaski County, Arkansas from funds made available by the Arkansas State Highway Department which allowances expressly include damages to their remaining lands located outside the right of way.”

On September 8, 1955, the D’Angelos sold their entire tract of land consisting of 240 acres, more or less, to Kenneth Coffelt by warranty deed. Following the legal description of the property, this deed provided as follows:

“[S]ubject to an easement for a road designated as Pickthorn Lane that runs across the North side of said property, if said Lane encroaches in any manner upon the above described property;
Also subject to a perpetual easement for a right-of-way for State and U. S. Highway No. 67 through and over said land, which easement and right-of-way is par-
ticularly set forth and described in an instrument described as ‘Easement Deed’ dated the 12th day of July, 1955, executed by Horace D’Angelo and his wife, Eleanor B. D’Angelo, to Pulaski County, Arkansas, which said deed is recorded in Book 578 at Page 437 of the Deed Records of Pulaski County, Arkansas. The highway right-of-way excepted from this conveyance and described in the Easement Deed above referred to contains 27.92 acres more or less in permanent right-of-way and 1.508 acres more or less in temporary right-of-way.” (Emphasis added).

This deed also contains a warranty clause as follows:

“And we hereby covenant with the said Kenneth Coffelt that we will forever warrant and defend the title to said lands against all claims whatsoever except the easements set forth in the granting clause, and the rights of Herman Berkhead, Jr., a tenant by the month, who is now occupying the tenant house on said property.” (Emphasis added).

On December 16, 1955, the Pulaski County Court entered an order finding that for the purpose of constructing, improving and maintaining U.S. Highway No. 67, the highway should be a controlled access facility for the reason that traffic conditions then and those contemplated and forecast for the future justify such special facility, “and therefore the owners or occupants of abutting land shall have no right or easement of existing, future, or potential common law or statutory rights of access, or ingress and egress to, from, or across this facility to or from abutting lands, except at such designated points at which access may be permitted upon such terms and conditions as may be specified from time to time by the Arkansas State Highway Commission.” The county court then found that under the provisions of said Act 383 of 1953 the said right-of-way should be acquired in fee simple. The county court order then provided as follows:

“IT IS THEREFORE CONSIDERED, ORDERED AND ADJUDGED BY THE COURT that:
1. The right of way for the Jacksonville Air Base-North Road, U.S. Highway No. 67, be and the same is hereby condemned, located and changed in accordance with the description hereto attached and as shown on the right of way sketch map hereto attached, and that the title to said lands in fee simple absolute is hereby vested and confirmed in Pulaski County, Arkansas.
2. That the said Jacksonville Air Base-North Road, U. S. Highway No. 67, be and is hereby designated and established a controlled-access facility under the authority of and as provided by Act 383 of the 1953 General Assembly of the State of Arkansas, and that the owners or occupants of abutting and adjoining lands shall have no right or easement of existing, future, or potential common law or statutory rights of access, or ingress and egress to, from, or across this facility to, from, or across abutting lands, except at such designated points and places at which access may be permitted by the rules and regulations of the Arkansas State Highway Commission which Commission is hereby permitted to regulate, control and designate such access, light, air or view and points and places of ingress and egress.
3. That the right of way herein described has been obtained by Pulaski County, Arkansas for the public use and benefit and for this purpose the property rights acquired under this order be and they are hereby transferred to the Arkansas State Highway Commission to construct and maintain said road, being a controlled-access facility.”

Kenneth Coffelt subsequently transferred title by quitclaim deed to the appellee, Bessie W. Coffelt. On August 23, 1972, Mrs. Coffelt filed the present action in chancery court praying that the appellant and its contractors be temporarily restrained from interfering with the existing exit off of U.S. Highway 67 and its east frontage road abutting the property owned by her, and that upon final hearing the order be made permanent, and praying that the Highway Commission be required to deposit estimated damages into the registry of the court if it proposed to condemn the property right of the appellee in the exit in question. The complaint alleged that the appellee’s land had a one-fourth mile frontage along U. S. Highway 67; that the right-of-way was acquired by easement deed to Pulaski County by the appellee’s predecessor in title; that the exit in question was from the two north-bound lanes of traffic on U.S. Highway 67 to a two-lane frontage road running directly in front of appellee’s property, and that the closing or removal of said exit would deprive the appellee of a property right to her damage in the amount of $46,375. The complaint also alleged representations made as to the permanency of the exit. A temporary injunction was entered by the trial court as requested in the complaint.

On September 6, 1972, the appellant filed its answer denying most of the allegations in the complaint; denying the appellee’s fee ownership in the right-of-way, and denying that the appellee would be deprived of access from the main travel portion of the highway to the frontage road upon which the appellee’s property abuts.

On September 18, 1972, the appellee filed a motion asking the court to require the appellant and its contractors to deposit $46,375 before they tore out ramps, exits or entrances to the highway on the access road abutting appellee’s property, or the closing of Pickthorn or Coffelt Road. The motion alleged that to permit the tearing out of the ramps and to close Coffelt Road without making deposit subject only to the orders of the court, was taking her property without compensation in violation of the State and Federal Constitutions.

On September 18, 1972, the chancellor dissolved the temporary injunction previously ordered and recited retention of jurisdiction for determination “upon permanent hearing” of what damages, if any, should be awarded the appellee.

On September 19, 1972, the chancellor denied the appellee’s (motion for deposit of estimated damages, whereupon, the appellee filed notice of appeal to this court and on September 25, 1972, this court entered its order reciting as follows:

“The temporary restraining order entered by the Chancery Court on August 23, 1972, is reinstated and shall remain in effect until this case is disposed of or until the appellees have either filed an eminent domain proceeding or shall have deposited an adequate amount (to be determined by the chancery court) to compensate the appellant for any damages or compensation to which she may be found to be entitled upon final adjudication of the issues between the parties.” (Emphasis added).

On September 29, 1972, the appellee amended her complaint alleging that Coffelt Road intersects Highway 67 and that such crossover constituted a fixed property right of the plaintiff; that she is the owner of the fee title thereto; that said crossover was the only means by which she could get from her property on one side of Highway 67 to the other side; that the Highway Commission was planning to close said Coffelt Road where it crossed Highway 67; that the Highway Commission had agreed to build an overpass at said crossing, and that if the Highway Commission elected to condemn said crossing by eminent domain, it should be required to deposit the sum of $285,000 as just compensation for the taking.

On September 29, 1972, the chancery court entered an order restraining the appellant and its contractors from interfering in any manner with Coffelt Road crossing and setting the matter for hearing on the merits for October 3, 1972. On October 18, 1972, the Highway Commission filed its answer to amendment to the complaint denying the allegations set out in the amendment and stating that the closing of Coffelt Road was for the purpose of diverting and rerouting traffic for the safety of the public, and that such action did not constitute a taking of any compensable property right held by the plaintiff.

On August 22, 1973, the appellee amended her amendment to the complaint alleging that she was the fee owner of the Coffelt Road crossing and also held a prescriptive right of ownership along with all other members of the traveling public to said crossing. She alleged that the Coffelt Road crossing was a county road maintained by the county, being a blacktop road with a 40 foot right-of-way over which school bus and mail routes were being operated and had been operated for a quarter of a century, and that the original and exclusive jurisdiction of said road rests with the County Judge. She alleged that the Highway Commission has no right to interfere with the Coffelt Road crossing under any proceedings because it had not applied to the county court for permission to so interfere with the crossing and, no order had been entered by the county granting such permission. She alleged that the county court is given exclusive jurisdiction of the closing under its exclusive jurisdiction relating to county roads under Section 28 of Article 7 of the State Constitution. The appellee further alleged that “Even the circuit court could not entertain a condemnation plea by the appellant to take the road or crossing.”

On April 17, 1974, the chancellor entered a decree which, among other things, found the appellee to be the holder in fee subject to the easement of Pulaski County, Arkansas, “of at least 20 ft. of the South part of what is known as Coffelt Road, which crosses Highway #67, a four-lane highway.” The court then decreed as follows:

“1. The defendants, Arkansas State Highway Commission and E. C. Rowlett Construction Co., Inc., and each of them are hereby permanently restrained and enjoined from closing or interfering in any manner with the free use of Coffelt Road Crossing or interfering with the flow of traffic on said crossing. The temporary injunction pertaining to said crossing heretofore entered in this cause is hereby made permanent.
2. That the plaintiff, Bessie Coffelt, has suffered no damage nor will the plaintiff, Bessie Coffelt, suffer damage by virtue of any construction or proposed construction of the exit or entry ramps by the Arkansas State Highway Commission within the 300 ft. right-of-way acquired by Pulaski County from D’Angelos on July 12, 1955, and she will not suffer any damages by the defendants tearing out the present existing exit ramp involved in this case and therefore the Temporary Injunction heretofore entered against the defendants pertaining to said ramp is hereby dissolved.”

In the posture this case is presenting to us on appeal, the appellant’s second and third points for reversal are really dependent upon the first point. The appellant argues that construction on Highway 67 was begun in 1956 or 1957 following entry of the county court order of December 16, 1955; that the appellee’s husband, Kenneth Coffelt, held title to the property at the time the condemnation order was entered; consequently, the entry in 1956 or 1957 under the county court order was notice to the appellee that the Highway Commission was claiming title under the court order. The appellant argues inferentially that the twelve months statute of limitations under Ark. Stat. Ann. § 76-926 (Supp. 1973) was set in motion by such entry and any claim for damages the appellee might otherwise have had, was barred by limitations when her petition was filed in this case.

Thus, as we understand the contentions of the parties presented under the points the appellant has designated, the question on this appeal is narrowed to whether the statute of limitations has run on any claim for damages the appellee may have for the taking of the fee tille involved under the county court order of December 16, 1955.

In Ark. State Highway Comm'n v. French, 246 Ark. 665, 438 S.W. 2d 276, we reviewed some of our previous decisions pertaining to when the statute of limitations begins running against a claim of the nature here involved and our conclusion as recited in the French case is as follows:

“As we read these decisions the one year statute of limitations does not begin to run against a property owner until he is served with notice by legal process or until an entry is made by the condemning agent.”

It is apparently conceded that the Coffelts were not served with notice by legal process pursuant to the aforesaid county court order. Consequently, the question is whether the entry by the Highway Commission on the land involved constituted such notice as to set in motion the statute of limitations. We are of the opinion that it did not under the facts in this case. The Highway Commission had a perfect right, which no one questions, to enter into possession and construct the highway under the right-of-way easement deed from the D’Angelos to Pulaski County. There is nothing in the record to place the appellee on notice that the appellant, by its entry onto the property involved, was entering the property under a claim of fee title. All of the appellant’s actions were consistent with the rights it acquired under the easement deed from the appellee’s predecessors in title. Whether or not the appellee would be damaged by the taking of the fee, beyond or in addition to the rights the appellant acquired by easement deed, is a matter yet to be determined, but a matter which the appellee has a right to have determined and upon which the statute of limitations has not run in this case.

We do no pass upon the effect of the various deeds on damages claimed in this case, but we are of the opinion the chancellor’s finding that the appellee owns the fee title to at least twenty feet of Coffelt Road is not against the preponderance of the evidence. We conclude, therefore, that the chancellor did not err in granting the injunction until the question of damages, if any, is fully determined.

As to the points relied on by the appellee on cross-appeal, we are of the opinion the chancellor was correct in dissolving the temporary injunction entered on August 23, 1972, without the Arkansas Highway Commission affirmatively requesting permission to make a deposit and comply with this court’s per curiam order dated September 25, 1972. The per curiam order of this court did not hold that the Highway Commission must request affirmative relief as argued by the appellee. We only held in our per curiam order that the restraining order entered by the chancellor on August 23 be reinstated and “remain in effect until this case is disposed of or until the appellees have either filed an eminent domain proceeding or shall have deposited an adequate amount,” etc. (Emphasis added). The chancellor’s findings that “There has been no loss of ingress or egress to the plaintiff by virtue of any construction or proposed construction of the exit or entry ramps on Highway #67, and, therefore, the plaintiff would not be entitled to any damages,” is not against the preponderance of the evidence. Consequently, we affirm the chancellor’s decree on the appeal as well as on cross-appeal.

The decree is affirmed.

Supplemental Opinion on Denial of Rehearing delivered June 2, 1975 522 S.W. 2d 839

John A. Fogleman, Justice.

On petition for rehearing, appellant states the following as one ground:

The Court erred in overruling .principles of law announced in the cases of Arkansas State Highway Commission v. Palmer, 222 Ark. 603, 261 S.W. 2d 772, and The State Life Insurance Company of Indianapolis, Indiana v. Arkansas State Highway Commission, 202 Ark. 12, 148 S.W. 2d 671. The principles of law were (1) that where a county condemns land for highway purposes upon petition of the Arkansas State Highway Commission, the county becomes liable for damages arising from the county court order and not the Arkansas State Highway Commission; (2), where appellees have a remedy at law in that they can pursue their claim against the county for damages arising from the county court order, equity should not grant an injunction.

In argument, appellant says that we held that the statute of limitations had not run against appellee and that appellee still has a right to determination of her damages resulting from the taking of the fee title by the county court order, but complains that we overlooked the fact that appellee’s claim for damages is against the county and not appellant under our holding in Arkansas State Highway Commission v. Palmer, 222 Ark. 603, 261 S.W. 2d 772. Thus, says appellant, appellee had an adequate remedy at law and injunction was improper under our holding in The State Life Insurance Company of Indianapolis, Indiana v. Arkansas State Highway Commission, 202 Ark. 12, 148 S.W. 2d 671.

In spite of the fact that we said in our original opinion that appellee still owns the fee, appellant correctly interprets the effect of our holding in that, regardless of who may be said to be the owner of the fee, appellant cannot proceed to use the area until just compensation has been paid or secured to appellee.

Appellee has asserted rights in the Coffelt Road Crossing at least from September 18, 1972 when she mQved that appellant be required to deposit $46,375 in the registry of the court, saying that closing the road at the intersection with Highway 67, without doing so would constitute a taking of private property without compensation in violation of the constitutions of Arkansas and of the United States. By an amendment to her complaint, she asserted that the first notice to appellee of appellant’s intention to enter upon and close the crossing was on September 13, 1972, and that she would be damaged in the amount of $285,000. Appellant’s answer was that the closing of Coffelt Road was a rerouting of traffic and a valid exercise of its police power. In seeking to have vacated a temporary injunction restraining appellant from interfering with appellee’s use of Coffelt Road crossing until appellant either deposited in the registry of the court a sum of money sufficient to cover the amount of appellee’s damages or filed a condemnation proceeding taking the crossing, appellant again relied only on the police power. In its brief on this motion, appellant first mentioned the county court order, saying that appellee at that time (December 16, 1955) had no standing to seek compensation for any damages resulting from the action proposed by appellant. Appellant again relied upon its police power and asserted that under Arkansas State Highway Commission v. Bingham, 231 Ark. 934, 333 S.W. 2d 728, there was no compensable damage to appellee, since the highway had been designated in the county court order as a controlled access facility. Appellee again amended her complaint to allege fee ownership of the crossing and a prescriptive right of ownership and use of it. Appellant’s answer consisted principally of a denial of these allegations.

In the court’s decree of April 17, 1974, there was a specific finding that there had been neither notice of taking of Coffelt Road crossing nor entry upon it. Appellant’s motion for reconsideration in the trial court was upon these issues principally. Otherwise it amounted to a restatement of positions previously taken by it.

Never at any time did appellant raise the issue it now asserts on petition for rehearing in the trial court. As will be seen from its statement of points, it never raised the issue in its brief on appeal. Neither of the cases now relied upon was cited until the filing of the reply brief. There appellant cited Palmer and asserted for the first time, that Pulaski county and not appellant, was liable for any claim of appellee for just compensation. This was too late. It was an issue raised for the first time on appeal. State Life Insurance Co. v. Arkansas State Highway Commission, supra, was never mentioned. We cannot now consider this issue and we have not overruled either case. Furthermore, we do not perceive any error or conflict with State Life Insurance Co. v. Arkansas State Highway Commission, supra. As a matter of fact, it was recognized in Palmer that the chancery court might do what it did. There we said:

. . . while the property owner may not sue the state or the commission acting in its name for damages, he may restrain the commission from taking his property until the damages have been paid, or provision for payment made.

In Palmer both the county court and the circuit court had rendered judgment against both the county and the highway department.

It was certainly within the jurisdiction of a court of equity to enjoin appellant from trespassing upon or appropriating the property of a landowner when the right to compensation had been denied because the fiscal year in which a county court’s order of condemnation was issued had expired and the revenues exhausted, leaving the landowner without an adequate remedy at law. Arkansas State Highway Commission v. Hammock, 201 Ark. 927, 148 S.W. 2d 324. See also, Arkansas State Highway Commission v. French, 246 Ark. 665, 439 S.W. 2d 276; Arkansas State Highway Commission v. Cook, 236 Ark. 251, 365 S.W. 2d 463. In Hammock, we said that the chancery court erred in holding that the county court order was void, but we affirmed the injunction there issued insofar as it enjoined appellant from taking the land until the landowners were compensated. In French, as here, there had been no entry upon the property before the decree was entered. In Cook, 35 years had elapsed between the county court order and appellant’s undertaking to take possession of a disputed ten foot strip not entered upon at the time of the county court order.

Another case similar to this one is Arkansas State Highway Commission v. Anderson, 234 Ark. 774, 354 S.W. 2d 554, where the county court order was 25 years old at the time appellant sought to enter upon right-of-way beyond the limits of that it had been using. We sustained a decree enjoining the Highway Department from going on the strip involved or attempting to use the same. Although it was clearly proper for the chancery court to enjoin appellants from entering upon the crossing until whatever compensation was due appellee has been paid or secured, it may well be that appellee has recourse to the county court under the authorities hereinabove cited and such cases as Miller County v. Beasley, 203 Ark. 370, 156 S.W. 2d 791 and Arkansas State Highway Commission v. Groom, 225 Ark. 312, 280 S.W. 2d 887. Appellant simply did not raise this question in the trial court and raised it belatedly here. The ownership of the fee is not material; appellee’s right to a day in court on just compensation is. There has not been either legal notice of the taking or entry by appellant, and there will not be as long as the injunction is in effect.

We cannot reverse the decree on an issue not raised.

Smith and Byrd, JJ., concur only in the denial of the rehearing.

Jones, J., would grant the rehearing.

      But see Arkansas State Highway Commission v. Union Planters Bank, 231 Ark. 907, 333 S.W. 2d 904.

      As pointed out in our original opinion in this case, the entry made upon the right-of-way at the time of the original construction was not inconsistent with the easement and thus insufficient to serve as notice of the rights appellant claims.