author: Mitchell D. Moore, Special Chief Justice. David Newbern, Justice,

text:
    Diana STOVER v. Curtis E. STOVER
    85-50
    696 S.W.2d 750
    Supreme Court of Arkansas
    Opinion delivered October 7, 1985

      Jean M. Madden, for appellant.

      Jack Holt, Jr., for appellee.
   Mitchell D. Moore, Special Chief Justice.

The issue on appeal is the interpretation of Ark. Stat. Ann. § 34-1214 (A) (1) (Supp. 1985). Diana Stover, the appellant, has brought this appeal alleging that she has been deprived of “her vested property rights” which she held with her husband, Curtis E. Stover, a physician specializing in abortions. She was convicted of conspiring to murder the appellee and is serving a sentence in the Arkansas Department of Correction. In November of 1982, the court awarded a decree of divorce to the appellee, Curtis E. Stover, taking under advisement the question of the division of marital property of the parties.

In its supplemental decree on May 4, 1984, the court, in effect, found that the appellant was not entitled to: (1) a significant interest in marital property, (2) alimony, (3) an interest in appellee’s medical practice and pension plan, (4) more than a partial interest in a Mercedes automobile, and (5) attorney’s fees. The question of real and personal property held as tenants by the entirety does not exist in this appeal because such property held by the parties at the commencement of the divorce was levied upon and sold by the Internal Revenue Service, sold at foreclosure, and levied upon and sold by judgment creditors. In its supplemental decree the court stated for its basis and reasons for not dividing the marital property equally:

1. That it would be inequitable to distribute the marital property one-half to each party inasmuch as the Plaintiff, during the latter tenure of the marriage, was tried, convicted, and sentenced on a charge of criminal conspiracy, 1st degree, to cause the murder of the Defendant, Curtis E. Stover.
2. That under the facts and circumstances presented to this Court, the Court considers it fair and equitable, and thereby does order the following division of property:

The court proceeded to make the division.

All the issues raised on appeal by the appellant, Diana Stover, were addressed by the trial court in stating its basis and reasons for not dividing the marital property equally.

The applicable portions of Ark. Stat. Ann. § 34-1214, Division of Property, are:

(A) At the time a divorce decree is entered: (1) All marital property shall be distributed one-half (V2) to each party unless the court finds such a division to be inequitable, in which event the court shall make some other division that the court deems equitable taking into consideration (1) the length of the marriage; (2) age, health and station in life of the parties; (3) occupation of the parties; (4) amount and sources of income; (5) vocational skills; (6) employability; (7) estate, liabilities and needs of each party and opportunity of each for further acquisition of capital assets and income; (8) contribution of each party in acquisition, preservation or appreciation of marital property, including services as a homemaker; and (9) the federal income tax consequences of the Court’s division of property. When property is divided pursuant to the foregoing considerations the court must state its basis and reasons for not dividing the marital property equally between the parties and such basis and reasons should be recited in the order entered in said matter.

The appellant contends that the trial court is limited in its division of property to only take into consideration the nine factors set forth in paragraph (A) (1) above. The primary rule in statutory construction is to ascertain and give effect to the intention of the legislature. Heard v. Payne, 281 Ark. 485, 665 S.W.2d 865 (1984); Shinn v. Heath, 259 Ark. 577, 535 S.W.2d 57 (1976). Under the statute the court, in making an equitable division of property, is to take into consideration the nine factors enumerated. Does that preclude consideration of other factors? The rule of construction which dictates that general terms are controlled by specifics is to be used only to ascertain legislative intent not to control it or to confine the statute to narrower limits than intended. Wiseman v. Affolter, 192 Ark. 509, 92 S.W.2d 388 (1936); State v. Gallagher, 101 Ark. 593, 143 S.W. 98 (1912). We cannot hold that the legislature intended to preclude a chancellor from considering such bizarre facts as those in this case. Simply because the statute specifically enumerates certain factors for the chancellor to consider in distributing the marital property other than equally should not prevent consideration of the fact that one spouse has been convicted of conspiring to kill the other. That is the extent of our holding. A literal application which leads to absurd consequences should be rejected where an alternative interpretation effects the statute’s purpose. See Hice v. State, 268 Ark. 57, 593 S.W.2d 169 (1980). The purpose of the statute must be considered in construing it. Berry v. Sale, 184 Ark. 655, 43 S.W.2d 225 (1931). The purpose of Ark. Stat. Ann. § 34-1214 (Supp. 1985) is to effect the equitable distribution of property upon divorce. We uphold the chancellor’s decision.

Cases on appeal from the chancery court are tried de novo. This court does not reverse unless the findings of the trial judge are clearly erroneous, giving due deference to the trial judge’s superior position to determine the credibility of witnesses, and the weight to be accorded to their testimony in the light of other facts before the trial judge. Edward v. Vaught, 284 Ark. 262, 681 S.W.2d 322 (1984).

The trial court during two days of trial had the opportunity to observe the parties and their witnesses and reflect upon their demeanor and testimony as given from the witness stand, and to make an equitable distribution between the parties where it found that an equal division would be inequitable. In the case of Day v. Day, 281 Ark. 261, 663 S.W.2d 719 (1984), it was stated:

To the contrary, Section 34-1214 allows leeway for the exercise of the Chancellor’s best judgment, for it provides that all marital property shall be divided equally ‘unless the court finds such division to be inequitable.’

This court, in the case of Potter v. Potter, 280 Ark. 38, 655 S.W.2d 382 (1983), held:

The statute states that all marital property shall be divided equally unless the court finds such a division to be inequitable, in which case the court shall make an equitable distribution.

The court has on more than one occasion recognized that the chancellor is given latitude in dealing with the division of property rights in order that an equitable division of property between parties will be made. Cases supporting this position Paulsen v. Paulsen, 269 Ark. 523, 601 S.W.2d 873 (1980); Bachman v. Bachman, 274 Ark. 23, 621 S.W.2d 701 (1981); and Hackett v. Hackett, 278 Ark. 82, 643 S.W.2d 560 (1982).

The ruling of the lower court is affirmed.

Dudley and Newbern, JJ., dissent.

Holt, C.J., and Purtle, J., not participating.

David Newbern, Justice,

dissenting.

The chancellor said “under the facts and circumstances presented” he was making other than equal division of the property. The only fact or circumstance mentioned by him is that the appellant was convicted of attempting to murder the appellee. At first blush of moral indignation that fact would seem surely enough to deny the appellant any marital property whatever. Upon palliative reflection, however, I believe the majority’s opinion is incorrect, and its credibility is immediately betrayed by the attempt to limit its effect to the “bizarre” facts of this case. This should be a court in which precedent is applied even-handedly.

It is clear that we cling to fault as the main basis for dissolution of marriage. It is equally clear that a person convicted of attempted murder will be punished by the criminal law. However, I believe it was the intention of our General Assembly to remove the punitive aspect from division of property upon divorce.

As the majority points out, Ark. Stat. Ann. § 34-1214 (Supp. 1985) permits the chancellor to divide property on other than a fifty-fifty basis when equal division would be inequitable. The statute says the court shall make its equitable decision “taking into consideration” the nine factors listed, none of which mentions fault. The statute concludes with the sentence beginning: “When property is divided according to the foregoing considerations the court must state its basis. . . .” To me that indicates legislative intent to limit the considerations to those enumerated. The provision for equitable distribution is no more than a general introduction to the specific “equities” enumerated in the act. It would be proper for us here to follow the principle of statutory construction that when there is inconsistency or doubt about the meaning of a statute the general terms will be controlled by the specific. Langford v. Brand, 274 Ark. 426, 626 S.W.2d 198 (1982); Scott v. Greer, 229 Ark. 1043, 320 S.W.2d 262 (1959). The substantially older cases cited by the majority on the limitations of this principle do no more than suggest that it is not iron-clad. I agree with them, but that does not lessen the principle’s usefulness in a case where the General Assembly has given an extensive list of considerations which is notable for its omission of “fault,” a matter which surely must have crossed the legislative mind when the statute was drafted.

In addition, the majority misapplies the language of Ark. R. Civ. P. 52(a). The “clearly erroneous” standard of review is invoked without citation of the rule. The rule, in part, says:

Findings of fact shall not be set aside unless clearly erroneous (cleiarly against the preponderance of the evidence), and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.

There is no dispute in this case about the fact that the appellant was convicted of conspiring to kill her husband. The dispute here is about whether that fact should control the result reached by the chancellor in distribution of marital property.

I agree with the majority that we try a case like this de novo. While Rule 52(a) precludes us from upsetting factual findings unless they are clearly erroneous, we are free to alter the chancellor’s conclusions and the result the chancellor reached.

Even if I could conclude that it was not error for the chancellor to go beyond the statutory considerations for marital property division, I would conclude the division here to have been inequitable. Although the misconduct of the appellant was extreme, the abstract of the record presented by the appellant and unchallenged by the appellee showed that the appellee was engaged in income tax evasion and hiding his assets from her and introducing drugs to her which caused her physical injury. The chancellor may or may not have believed any of that testimony. We do not know. He seized solely upon the criminal conviction of the appellant. That is the only fact or circumstance he recited.

This case demonstrates the wisdom of the General Assembly’s decision to leave fault out of the considerations to be used in division of marital property. There is enough misery to go around in the disintegration of a marriage. There is enough inevitable punishment in the dissolution of a marriage. Surely when, as here, a criminal act is a part of the fault of one party it is enough that the criminal law has run its course.

While we will always be able to hide behind the majority opinion’s disclaimer of its effect only on cases with the same facts as this one, it is wrong for us to do so. When, in the next case, we say it was wrong for the chancellor to consider some lessor fault, we will be delivering that well-known contradiction in terms, “unequal justice.”

Dudley, J., joins in dissent.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Jeffery Lynn GATES v. STATE of Arkansas
    696 S.W.2d 754
    Supreme Court of Arkansas
    Opinion delivered October 7, 1985

      Pro Se Motion for Belated Appeal from Baxter Circuit Court; denied.
    Appellant, pro se.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   Per Curiam.

Jeffery Lynn Gates was found guilty by a jury of rape and incest and sentenced on March 18,1985 to concurrent terms of ten and three years imprisonment. No appeal was taken.

. He now seeks a belated appeal on the ground that his retained counsel Mark Cooper did not pursue an appeal despite petitioner’s wish to appeal. In an affidavit filed in response to the motion, counsel states that he fully advised petitioner of his right to appeal and the time limit for filing a timely notice of appeal. He has attached to his affidavit an affidavit signed by petitioner’s wife, dated April 10,1985, in which she averred that her husband had informed her that he did not desire an appeal and instructed counsel not to appeal Also attached is an undated letter, which counsel states was mailed within the time for filing a notice of appeal, from petitioner to his wife in which he stated, “I don’t want an appeal.” Counsel’s law partner has also submitted an affidavit in which he avows that he was present when counsel explained to petitioner the process of appeal and when petitioner’s wife assured counsel that her husband personally told her that he did not want to appeal.

A belated appeal may be granted for good cause even if no notice of appeal was filed. A.R.Cr.P. Rule 36.9. We have consistently held that the failure of counsel to perfect an appeal in a criminal case where the defendant desires an appeal amounts to a denial of the defendant’s right to effective assistance of counsel. Surridge v. State, 276 Ark. 596, 637 S.W.2d 597 (1982). Even though Criminal Procedure Rule 36.26 states that counsel, whether retained or appointed, shall continue to represent a convicted person throughout appeal unless permitted to withdraw by the trial court or this Court, we recognize that a convicted defendant may waive his right to appeal. Henderson v. State, 278 Ark. 107, 643 S.W.2d 107 (1982).

The affidavit of petitioner’s wife and the letter from petitioner to his wife indicate that she communicated to counsel her reasonable belief that petitioner did not want to appeal. Petitioner contends that counsel should have consulted him rather than his wife, but he fails to state that he personally took any step to inform counsel of his desire to appeal. Petitioner concedes that he did not inquire about whether an appeal was pending until two and one half months after the time for filing a notice of appeal had passed. As petitioner has not demonstrated that he made known to counsel his desire to appeal within the time for filing a notice of appeal, he voluntarily waived his appeal right.

Motion denied.

Purtle, J., not participating.


text:
    Marion Albert PRUETT v. STATE of Arkansas
    CR 83-58
    697 S.W.2d 872
    Supreme Court of Arkansas
    Opinion delivered October 7, 1985

      Thomas M. Lahiff, Jr. and Jeff Rosenzweig, for appellant.

      Steve Clark, Att’y Gen., by: Jack Gillean, Asst. Att’y Gen., for appellee.
   Per Curiam.

Marion Albert Pruett was found guilty of capital murder and sentenced to death in 1982. We affirmed the conviction and sentence. Pruett v. State, 282 Ark. 304, 669 S.W.2d 186 (1984), cert. denied,_U.S__, 105 S. Ct. 362 (1984).

After his trial petitioner Pruett was remanded to the United States Department of Justice on an outstanding detainer. According to petitioner, he is now in the custody of the Mississippi Department of Correction under sentence of death from a Mississippi court. Petitioner has never been committed to the Arkansas Department of Correction.

Rule 37.1 provides that postconviction relief under the Rule is available to prisoners in custody under sentence of a circuit court. Although petitioner is not presently under commitment to the Arkansas Department of Correction, he is under sentence of death imposed by an Arkansas circuit court and is incarcerated. Under circumstances where a petitioner is under a sentence of imprisonment or death duly imposed by a circuit court in this state and is in the custody regardless of his place of incarceration, we will consider a petition to proceed pursuant to Rule 37.

Because petitioner has not been committed to an Arkansas prison, he asked, in a motion filed before this petition, for clarification of the application to his case of Rule 37.2 (c), which states that a petition under the Rule must be filed within three years of the date of commitment. Petitioner asked if he would have three years to file from the time he might be committed to the Arkansas Department of Correction in the future or if the three years began to run when he was incarcerated elsewhere while under sentence from an Arkansas circuit court. That question becomes moot with our acceptance of the petition before us.

Petitioner raises multiple issues, several of which have a number of subpoints. He first contends that a juror at his trial, Richard Allured, was both mentally incompetent and biased against him and his attorney. In an affidavit, Allured avers that attempts were made to induce bias in him against petitioner and the attorney and that the attempts affected his judgment. He does not explain the nature of the attempts or the extent to which his judgment was affected or make any reference to being mentally incompetent. In fact, he relates inadequacies he perceived in the defense and ways that it could have been made more effective.

In an affidavit, a paralegal working for petitioner’s present counsel states that Allured recently told him that the attempt to prejudice him occurred when he was given a copy of the newspaper during the trial which contained a fabricated announcement of the engagement of petitioner’s trial attorney to Allured’s girlfriend.

As substantiation for the allegation that Allured was incompetent at the time of the trial in 1982, petitioner has also attached to his petition a copy of medical reports indicating that Allured was committed to a psychiatric hospital in 1984.

There is a strong presumption that jurors are unbiased. Linell v. State, 283 Ark. 162, 671 S.W.2d 741 (1984). The burden is on the petitioner to establish actual bias or demonstrate that -a juror was otherwise unqualified. Urquhart v. State, 275 Ark. 486, 631 S.W.2d 304 (1982). Since the issue of Allured’s mental competence in 1982 could have been questioned at trial or in-a motion for new trial, petitioner has the additional burden of showing that Allured’s presence on the jury resulted in a deprivation of some constitutional right so fundamental as to void judgment of conviction. Constitutional issues not sufficient to void the judgment are waived if not raised in accordance with the controlling rules of procedure. Collins v. State, 271 Ark. 825, 611 S. W.2d 182 (1981). A valid judgment is not void simply because a juror may have experienced mental illness at sometime before trial.

Allured’s commitment to a psychiatric hospital nearly two years after trial is also insufficient to void the judgment. Even in cases where counsel filed a timely motion for new trial, a post-verdict allegation of juror incompetence will not result in setting aside the judgment unless the defendant produces substantial evidence of incompetence at the time of trial, such as an adjudication of insanity made shortly before or after the trial. See United States v. Mauldin, 714 F.2d 854 (1983), citing United States v. Dioguardi, 492 F.2d 70, 80 (2d Cir. 1974), aff'g 361 F.Supp. 954 (S.D.N.Y. 1973), cert. denied, 419 U.S. 873, 95 S. Ct. 134, 42 L.Ed2d 112 (1974).

Petitioner further challenges the jury by alleging that several jurors were not truthful during voir dire. He names juror J. C. Hodges who petitioner contends has a “distinct preference” for the death penalty contrary to his statement in voir dire. In an affidavit, Hodges states that he believes the death penalty to be less severe than a life sentence.

As in the case of Allured, petitioner offered no objection at trial to Hodges’ presence on the panel. Instead, it is apparent that a basis for objecting to his qualification to serve was not discovered until well after trial and is only now put forth as an assault on the judgment. A jury’s verdict cannot be impeached merely because an enterprising petitioner can find one juror willing to voice a different opinion than that expressed in voir dire. Proper voir dire of the venirepersons is a function to be conducted in the trial court. Our postconviction rule does not provide a means to attack a conviction on the ground that a juror questioned after trial is heard to give an answer which conflicts with his testimony in voir dire.

Petitioner next alleges that the trial court failed to authorize sufficient funds and failed to grant a continuance so that counsel could establish a defense of mental incapacity. We found on appeal that the trial court did not abuse its discretion in denying a continuance which was requested on the ground that petitioner did not learn the name of the physician he wanted to testify until after voir dire of the jury was completed. The denial of other motions for continuances which petitioner cites in this petition was not raised on appeal and cannot be advanced for the first time in a petition for postconviction relief. Pitcock v. State, 279 Ark. 174, 649 S.W.2d 393 (1983).

Petitioner asserts that he located an expert in forensic psychiatry who would have been exceedingly helpful to the defense but was unable to retain the expert because of monetary or time restrictions. Petitioner acknowledges that the trial court granted funds in excess of the amount provided by Ark. Stat. Ann. § 41-2419 (Repl. 1977) for legal fees and expenses.

Although the State must assure the defendant access to a competent psychiatrist to examine him and assist in his defense if the defendant makes a preliminary showing that his sanity at the time of the offense is to be a significant factor at trial, an indigent defendant does not have a constitutional right to choose a psychiatrist of his personal liking or to receive funds to hire his own doctor. Ake v. Oklahoma,_U.S__, 105 S. Ct. 1087 (1985). Petitioner, who was examined by psychiatrists at the Arkansas State Hospital, has not shown that he was unable to obtain the assistance of a competent doctor with the funds and time available. More importantly, petitioner waived this issue since it could have been argued in the trial court and on the record on appeal. It was not so raised and does not present a question so fundamental as to void the conviction. Ruiz v. State, 275 Ark. 410, 630 S.W.2d 44, cert. denied, 459 U.S. 882 (1982).

Petitioner’s sixth allegation is that the jury instructions were constitutionally inadequate in that the jury was not provided a definition of “mitigation” and was not informed of the function of mitigating circumstances or the burden of proof necessary for a finding of such circumstances. The argument, which should also have been addressed to the trial court, is meritless.

The language used by the legislature in naming the elements of mitigation cannot be said to be vague and beyond the common understanding and experience of the ordinary juror. Neal v. State, 259 Ark. 27, 531 S.W.2d 17 (1975). With regard to the burden of proof, the jury was instructed that it was not required to be convinced of the existence of a mitigating circumstance beyond a reasonable doubt; the probable existence of a mitigating circumstance was sufficient.

Because petitioner was required to prove the affirmative defense of self-induced intoxication, he contends that the state was not held to the requirement that it prove every essential element of the crime beyond a reasonable doubt. There was no error. The State was required to prove beyond a reasonable doubt all the elements of the offense of capital murder. Proof of the nonexistence of affirmative defenses was not constitutionally required. Fairchild v. State, 284 Ark. 289, 681 S.W.2d 380 (1984); See also Moss v. State, 280 Ark. 27, 655 S.W.2d 375 (1983), citing Patterson v. New York, 432 U.S. 197 (1977). The argument is also one which should have been raised at trial.

Petitioner raises yet again another point which should have been presented in the trial court in his eighth allegation in which he asserts that the trial court erred when it failed to instruct the jury that it could not impose the death penalty unless it found that petitioner had the specific intent to kill. Petitioner argues that there is an unconstitutional distinction between capital murder and first degree murder ostensibly because first degree murder, but not capital murder, requires a finding that the perpetrator acted deliberately.

Petitioner has misconstrued the statute. Our capital murder statute, Ark. Stat. Ann. § 41-1501 (Repl. 1977), provides that capital murder is committed when a person or his accomplice “causes the death of any person under circumstances manifesting extreme indifference to the value of human life” in the course of and in furtherance of, or in immediate flight therefrom, the commission of certain enumerated felony offenses. Petitioner was convicted of kidnapping and murdering the clerk of a convenience store he had robbed. Both kidnapping and aggravated robbery are felonies designated by statute as underlying felonies of capital murder. The wording of the statute, i.e., conduct manifesting extreme indifference to human life, indicates that the perpetrator of capital murder must act with deliberate conduct which culminates in the death of some person. See Owens v. State, 283 Ark. 327, 675 S.W.2d 834 (1984); Clines v. State, 280 Ark. 77, 656 S.W.2d 684 (1983).

On appeal, petitioner argued that the prosecutor improperly commented on his failure to testify by asking a witness who was a psychologist if he put his patients, one of whom was petitioner, under oath. Petitioner seeks to relitigate the question now, but since it was settled adversely to him on appeal, it cannot be argued again in a petition under Rule 37. Holloway v. State, 276 Ark. 120, 632 S.W.2d 428 (1982); see also United States v. Frady, 456 U.S. 152 (1982).

Petitioner further complains that the State commented on his right not to testify when it included his name in voir dire as one of the potential witnesses. The mere recitation of petitioner’s name in the list does not show that he suffered any actual prejudice. Also, an objection could have been made at the time if there were a basis for one.

Petitioner, who is white, next cites statistics to support his allegation that the death penalty is unconstitutional because it is discriminatorily applied to defendants who are poor, black and have killed a white person. Petitioner also contends that the death penalty was not appropriate since his offense does not reflect an unusually depraved mind when he is compared with others who have committed murder, and when compared to other capital offenders, there is no constitutional basis to distinguish him from defendants on whom the death penalty was not imposed. He again challenges the “death qualified” jury as he did on appeal.

We have held consistently that the death penalty as provided for by our statute is constitutional. Simmons v. State, 278 Ark. 305, 645 S.W.2d 680 (1982). It is not error to empanela death qualified jury. Rector v. State, 280 Ark. 385, 659 S.W.2d 168 (1983). On appeal, this Court conducted a comparative review of petitioner’s case and found no ground to set aside the death penalty.

Petitioner alleges that the prosecutor made an improper closing argument in the first phase of his trial when he said that petitioner had been given the best defense possible. He further asserts that the prosecutor’s closing argument in the sentencing phase was also improper in that it did not give a complete, correct statement of the law on mitigating and aggravating circumstances and contained an expression of personal opinion about the appropriateness of the death penalty. Neither point was raised in the trial court and neither is sufficient to void petitioner’s conviction.

Petitioner’s last claim of constitutional error is that he was forced to expend his peremptory challenges to excuse venirepersons who were biased by pretrial publicity. As we said on appeal, the trial court meticulously tried to select a fair and impartial jury. Petitioner’s allegations of juror bias arising from pretrial publicity are not substantiated in this petition and are but a reworking of arguments made at trial and on appeal.

Finally, petitioner alleges ineffective assistance of counsel, an assertion which must be examined in light of the criteria set out in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). In Strickland, the Court held that the benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial court cannot be relied on as having produced a just result. The criteria apply to a capital sentencing proceeding as well as the guilt phase of the trial since the proceeding is sufficiently like a trial in its adversarial format that counsel’s role in the proceeding is comparable to counsel’s role at trial.

To prove ineffective assistance of counsel under the Strickland standard, the petitioner must show that counsel’s performance was deficient in that counsel made errors so serious that he was not functioning as the “counsel” guaranteed by the Sixth Amendment. Second, the deficient performance must have resulted in prejudice so pronounced as to have deprived the petitioner of a fair trial whose outcome cannot be relied on as just. Both showings are necessary before it can be said that the conviction or death sentence resulted from a breakdown in the adversarial process that renders the result unreliable. There is a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. The petitioner has the burden of overcoming that presumption by identifying the acts and omissions of counsel which when viewed from counsel’s perspective at the time of trial could not have been the result of reasonable professional judgment. Even if counsel’s conduct is shown to be professionally unreasonable, the judgment must stand, unless the petitioner demonstrates that the error had a prejudicial effect on the actual outcome of the proceeding. A reasonable probability that, but for counsel’s conduct the result of the proceeding would have been different, is a probability sufficient to undermine confidence in the outcome.

None of counsel’s errors as alleged by petitioner overcomes the presumption that counsel was effective. He first contends that counsel failed to investigate petitioner’s background. As support for the allegation, he provides the affidavits of petitioner’s father and a married couple who knew petitioner in his youth. The father states that he could have testified that petitioner had been in no trouble until after graduation from high school and that petitioner’s execution would hurt the family. The couple avers that petitioner was of good character until he began using drugs. Although it is possible that another attorney might have chosen to call petitioner’s parents and the couple to testify in the sentencing phase, petitioner has not demonstrated that their testimony was of such import that he was denied a fair trial by the failure to contact them before trial or call them to testify.

Petitioner next argues that counsel should have requested more than twelve peremptory challenges in light of pretrial publicity. He also alleges that counsel should have questioned the jurors about their attitude on drug abuse. As we found no basis on appeal or in this petition for concluding that the jury was biased, the allegations are without foundation.

Petitioner next reiterates his contention that the jury instruction on the affirmative defense of intoxication was error by alleging that counsel was remiss in not objecting to the instruction. Since the instruction was proper, counsel was not wrong to accept it.

At the conclusion of his arguments of counsel ineffectiveness, petitioner makes a series of general statements that if counsel had investigated mitigating evidence of friends and family, he would have learned of substantial mitigating evidence which would have offset the aggravating circumstances. He does not explain what specific evidence was available beyond that in the affidavits previously mentioned.

Petition denied.

Purtle, J., not participating.


author: Jack Holt, Jr., Chief Justice.

text:
    Lonnie EVANS v. STATE of Arkansas
    CR 85-159
    697 S.W.2d 879
    Supreme Court of Arkansas
    Opinion delivered October 14, 1985

      Cecilia Ryker Seay, for appellant.

      Steve Clark, Att’y Gen., by: Mary Beth Sudduth, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

Appellant Lonnie Evans was convicted of breaking or entering and theft. He was fined and sentenced to imprisonment in the Arkansas Department of Correction. Appellant was 17 years old when the crime was committed and the information filed, but had turned 18 before trial. This case was certified to the Supreme Court by the Court of Appeals pursuant to Sup. Ct. R. 29(l)(c) and 29(4), in order for this court to interpret Ark. Stat. Ann. § 45-420 (Supp. 1985) concerning the transfer of juvenile cases where the circuit and juvenile courts have concurrent jurisdiction over a defendant.

The trial court denied appellant’s pretrial motion to transfer his case to the juvenile court. We find no error in that portion of the proceedings. Appellant raises several other issues on appeal and we find merit in his contention that the trial court erred by admitting into evidence testimony concerning appellant’s alleged involvements in two other criminal matters. Accordingly, we reverse and remand.

Appellant was on trial for breaking or entering and for theft of a wrench set and air hose taken from a truck and the tool box attached to it, owned by Terry Howerton. A substantial amount of the testimony during the course of the trial, however, did not pertain to the Terry Howerton incident, but rather to appellant’s alleged involvements in the burglary and theft of tools and auto parts from Smith Wheel Alignment and the passing of hot checks in another city. The appellant was initially charged with committing burglary and theft from Smith Wheel Alignment on the same night that the charges in question occurred, however, these charges were formally dismissed. The hot check charge against appellant was pending in another county. The trial court permitted extensive testimony from the appellant’s accomplices and the investigating officer which focused more on appellant’s disputed involvement in the Smith burglary than on the charged offense. In addition, the state was permitted to bolster its testimony concerning the Smith burglary through an independent witness who had no knowledge as to the offense charged.

The trial court initially permitted this testimony because it concerned events which occurred during the same night as the incident in question and were thus so intertwined as to be necessary for background and clarification of the Howerton burglary and theft. Admission of the testimony was further justified as showing a motive and common scheme or plan under Ark. Stat. Ann. § 28-1001, Rule 404(b) (Repl. 1979), which provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Additional testimony from an accomplice describing appellant’s involvement in passing hot checks written by the accomplice, was also ruled admissible based on common motive. The asserted connection between the charged offense and the other offenses is that they were all part of the same plan involving the motive of supplying appellant with tools and money so that he could open an auto shop next door to Smith Wheel Alignment.

It is difficult to summarize the facts of the Howerton and Smith burglaries because of the intermixing of testimony and the varying accounts given by appellant’s accomplices.

In essence, the testimony against the appellant was that he and two accomplices were driving around on the night of the crime when they decided to get some gas by syphoning the Howerton truck. When they were unable to get the locked cap off, they instead took the tools from the truck’s tool box which is the basis of the present charges. Sometime later that night the Smith burglary occurred. The appellant’s involvement in that crime is unclear from the record. Testimony was elicited at length to determine whether appellant participated in the planning of the Smith burglary or whether he was invited to participate; whether he was at the scene or just drove around looking for the police; whether the stolen goods were left at his house; and whether he knew they were stolen. Repeated objections were made by defense counsel that the prosecution was attempting to “bootstrap” the charged offense with evidence of another burglary and that appellant was put in the position of having to defend two crimes. We agree.

In analyzing the admissibility of the testimony about the Smith burglary, it should be noted that the state is entitled to produce evidence to show all of the circumstances connected with the crime, even if other criminal offenses are thereby brought to light. Hobbs v. State, 277 Ark. 271, 641 S.W.2d 9 (1982). In Hobbs, evidence of other crimes came out in the testimony, but only as incidental references that were necessary to determine issues relating to the charged offense. Unlike Hobbs, the state in this instance called witnesses for the sole purpose of establishing that the appellant did in fact commit the other crimes.

In Alford v. State, 223 Ark. 330, 266 S. W.2d 804 (1954), we thoroughly discussed the purposes and application of the common law equivalent of Rule 404. The court there stated:

We do no permit the State to bolster its appeal to the jury by proof of prior convictions, with their conclusive presumption of verity, and still less is there reason to allow the jury to be prejudiced by mere accusations of earlier misconduct on the part of the defendant. If the accused has committed other crimes, each may be examined separately in a court of law, and punishment may be imposed for those established with the required certainty. In this way alone can we avoid the elements of unfair surprise and undue prejudice that necessarily attend trial by accusation in place of trial upon facts demonstrated beyond a reasonable doubt.

Reference to the Smith burglary should only have been allowed if it was so intertwined factually with the case before the court that exclusion of any reference to it would be confusing to the jury or unnecessarily hamper the state’s proof of the charged crime. It cannot be said that, merely because they occurred on the same night and involved items of similar nature, that the state should be allowed to freely bring in all the evidence it could find on the Smith burglary to implicate the appellant. In light of the fact that the charges against the appellant concerning the Smith burglary were dismissed, we see little probative value in the evidence and substantial prejudice. The trial court committed error in admitting these facts into evidence for which the case must be reversed and remanded.

Appellant asserted several other arguments for reversal which we reject but will address as they are likely to arise on retrial. A motion was made by appellant before trial to have his case transferred from circuit court to juvenile court pursuant to Ark. Stat. Ann. § 41-617 (Supp. 1985) and § 45-420 (Supp. 1985). Section 41-617 gives concurrent jurisdiction to circuit courts and juvenile courts where the defendant was 15 to 17 years of age at the time of the conduct alleged to constitute an offense, and gives the circuit court the power to enter an order waiving jurisdiction in favor of a juvenile court.

The discretion of the circuit court judge in making this decision was limited by a 1981 amendment to section 45-420 which stated that the judge shall hold a hearing to determine whether the case should be transferred and consider only certain factors in the decision. Those factors are:

(a) The seriousness of the offense and whether violence was employed by the juvenile in the commission of the offense.
(b) Whether the offense is part of a repetitive pattern of adjudicated offenses which would lead to the determination that the juvenile is beyond rehabilitation under existing rehabilitation programs, as evidenced by past efforts to treat and rehabilitate the juvenile and the response to such efforts.
(c) The prior history, character traits and mental maturity, and any other factors which reflect on the juvenile’s prospects for rehabilitation.

The appellant stated in support of his motion that the tools taken were valued at less than $200, that no violence was used in the commission of the offense, that he was 17 years of age when it was committed, that he had never been adjudicated or convicted of a criminal offense and that he is amenable to rehabilitation. Appellant asserted that the purpose of the juvenile code is to benefit those in his position who should not be subjected to imprisonment with adults and stigmatized with a criminal record, but should instead be given the opportunity for rehabilitation.

Before the trial, the court heard arguments from counsel on appellant’s motion. The prosecution pointed out that defendant had a pending case in juvenile court for theft of a chainsaw and had benefited from the juvenile system on at least one previous occasion. The court expressed its concern with the fact that although a juvenile court has jurisdiction over those presently 18 years old who committed offenses while a juvenile, it may only sentence them to one year probation and may not commit them to the Division of Youth Services. Ark. Stat. Ann. § 45-406.1 (Supp. 1985).

The primary complaint of appellant is that the trial court failed to state the rationale for its decision so that it would be possible to determine whether it properly exercised its discretion according to the statute. Appellant also contends that it was error for the court to consider the unresolved juvenile petition against appellant because the statute only allows consideration of adjudicated offenses. He further asserts that no inquiry was made into other factors such as social history, maturity, or amenability to rehabilitation.

Appellant had two pending charges of theft that, while not adjudicated offenses under subsection (a) of the statute, could be indications of appellant’s character, prior history and prospects for rehabilitation under subsection (c). The fact that appellant would not have been subject to any kind of commitment in a juvenile proceeding because of his age is a legitimate consideration relevant to the question of rehabilitation, since a court could find that probation would not be a significant enough consequence of appellant’s conduct to impress upon him the seriousness of the offense. Any complaint that appellant has concerning what the trial court failed to consider, is weakened by the fact that these factors should have been brought to the court’s attention at the hearing when the court asked the parties to make further arguments on the motion.

Although it would be preferable for a trial court judge to state the reasons for his decision, there is no statutory requirement that he do so. The statute and the required considerations were brought to the attention of the court in appellant’s motion and arguments were made at the hearing as to how these factors applied. In light of all these considerations, we find no abuse of discretion by the trial court.

Appellant also contends that the evidence corroborating the accomplices’ testimony was insufficient as a matter of law. Much of the testimony against appellant was by his alleged accomplices in the crime. The primary source of corroborating evidence was the testimony of Lieutenant Bill Bruegel, who assisted in the investigation. He testified that appellant told him in an unrecorded conversation in reference to a list of items taken from the truck: “We didn’t take all that stuff. All we got was the packet of tools and air hose.” Bruegel also stated that appellant told him that, “We didn’t break into anything, the toolboxes was unlocked and the truck was unlocked.”

Where the state relies on testimony from accomplices, that testimony must be corroborated by other evidence which tends to connect the accused with the commission of the offense. Ark. Stat. Ann. § 43-2116 (Repl. 1977). The evidence does not have to be sufficient to sustain the conviction but it must, independent from the testimony of accomplices, tend to a substantial degree to connect the defendant with the commission of the crime. King v. State, 254 Ark. 509, 494 S. W.2d 476 (1973), Rhodes v. State, 276 Ark. 203, 634 S.W.2d 107 (1982). In Price v. State, 267 Ark. 1172, 599 S.W.2d 394 (1980), the court of appeals stated that the corroboration required is “only that which tends in ‘some degree’ to connect the accused with the crime.” See Gardner v. State, 263 Ark. 739, 569 S.W.2d 74 (1978). The testimony of the officer sufficiently connected appellant with the offense.

Appellant next argues that the trial court erred in refusing to instruct the jury that evidence of other crimes should not be considered in sentencing. Appellant cites no authority for such an instruction and the Arkansas Model Criminal Instructions have no such instruction. The trial court did instruct the jury that evidence of other crimes is only to be considered as going to the proof of motive, opportunity, intent, preparation, manner, knowledge or indentity or absence of mistake or accident and not for the purpose of proving the guilt or innocence of the defendant of the crime charged.

The test to be applied in a criminal case when an instruction is refused is: “[d]oes the ommission infect the entire trial so that the resulting conviction violates due process?” Conley v. State, 270 Ark. 886, 607 S.W.2d 328 (1980); Henderson v. Kibbe, 431 U.S. 145 (1977). The burden of showing prejudice is much heavier when an instruction is omitted than when an erroneous instruction is given. Though the instruction requested is an accurate statement of the law, the contents of the instruction were adequately covered in the instruction that was given by the court and could have been further argued by counsel in his statements to the jury.

The appellant finally contends that the court erred in receiving and considering a presentence report prepared pursuant to Ark. Stat. Ann. § 43-2342 (Supp. 1985), and that the court erred in imposing a prison term without findings of fact and conclusions of law in conformity with this statute.

We find no abuse of discretion and that the trial court acted properly. Clearly, the statute does not require a trial judge to issue findings of facts and conclusions of law. Likewise, we find the record does not support the appellant’s statement that the trial judge merely rubber-stamped the jury’s recommendation. To the contrary, the court directed counsel, the probation officer, and other persons having knowledge relative to sentencing to submit written reports to the court. Subsequent thereto the court set a hearing date at which time a hearing was held and the appellant sentenced. No error was committed.

Reversed and remanded.

Purtle, J., not participating.


text:
    NORTHSIDE CONSTRUCTION CO. v. Jessica HUFFMAN
    85-87
    697 S.W.2d 89
    Supreme Court of Arkansas
    Opinion delivered October 14, 1985

      Davis, Cox & Wright, by: Constance G. Clark, for appellant.

      Dale Varner, for appellee.
   Jack Holt, Jr., Chief Justice.

Appellee claims her property was damaged when the appellant conducted blasting operations to lay a water pipeline across the property. During the trial, the appellant asked for a directed verdict, which was denied. The jury returned a judgment for damages in favor of the appellee, and the appellant then sought a judgment notwithstanding the verdict. That motion was also denied. It is from these two rulings that this appeal is brought. Our jurisdiction is pursuant to Sup. Ct. R. 29(l)(o) as this case presents questions in the law of torts.

The basis for both of the appellant’s, Northside Construction Co.’s, motions was that appellee, Jessica Huffman, failed to produce any evidence of negligence, and did not prove that Northside’s blasting operation was the proximate cause of the injury to her property.

In reviewing the denial of motions for directed verdict and for judgment notwithstanding the verdict, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the party against whom the motions are sought. Both motions should be granted only if there is no substantial evidence to support a jury verdict. Green v. Gowen, 279 Ark. 382, 652 S.W.2d 624 (1983); McCuistion v. City of Siloam Springs, 268 Ark. 148, 594 S.W.2d 233 (1980); see Ark. R. Civ. P. 50.

The jury was instructed on both absolute liability and negligence. However, in submitting separate verdict forms to the jury for findings on interrogatories, questions as to absolute liability were not tendered. The jury was left with verdict forms for findings based upon negligence and proximate cause only. Accordingly we will not consider the issue of absolute liability and instead review the evidence as to negligence and proximate cause. The jury returned a verdict by interrogatories finding that Northside was negligent and that Northside’s negligence was the proximate cause of the damage to Mrs. Huffman’s property in the amount of $12,500.

Northside’s first argument is that Mrs. Huffman failed to offer any proof as to negligence. A prima facie case of negligence is established in a blasting case where the evidence of the results and surrounding circumstances of a blast shows that under ordinary circumstances such a result could not have occurred unless the blast was negligently performed. 35 C.J.S. Explosives § 11 (6)(b) p. 300 (1960). Furthermore,

[a] violent and unusual result from blasting may constitute evidence from which may be inferred a lack of proper care as to the amount of explosive used or the manner in which the explosive was placed and discharged, this being particularly true where rocks or debris are thrown by the blast.

Id.

Using this criterion, the evidence presented in this case was sufficient to support a finding of negligence. Mrs. Huffman testified that within a week after Northside completed its blasting operation, three natural springs on her property, which have never gone dry in the 16 years she’s lived there, dried up. She further alleged that her fence posts were blown over and her pasture was damaged and that large boulders were blown out of the ground and into the road, damaging electrical power poles which run along her fence line. Mrs. Huffman’s son corroborated her testimony as to the damage to the springs, the power poles, and the gate. He further stated that he saw boulders blown across the fence.

Mrs. Huffman also offered evidence from Robert Wayne Langston, who testified as an expert in geology, that the springs on the Huffman property were fed by a perched aquifer, a zone of sandstone rock saturated with ground water which has a large set of fractures in it. The fractures act as passageways to carry the water, according to Langston, and blasting could disrupt that system. He also testified it would take a large blast to blow boulders into the street and damage the power lines, and that such damage can be prevented by the use of blasting mats, which were not used in this instance.

Although Northside offered contradictory evidence, we have long held that decisions as to witnesses’ credibility and the weight to be accorded their testimony are the province of the jury and will not be disturbed on appeal. Dildine v. Clark Equipment Co., 285 Ark. 325, 686 S.W.2d 791 (1985).

The appellant also maintains no proof was offered that the blasting was the proximate cause of the damages to Mrs. Huffman’s property. We have held that “[i]n an action for negligence, the evidence is sufficient to show proximate cause if the ‘facts proved are of such a nature and are so connected and related to each other that the conclusion therefrom may be fairly inferred’ (citation omitted),” Cockman v. Welder’s Supply Co., 265 Ark. 612, 580 S.W.2d 455 (1979), rehearing denied.

This court has previously addressed the specific question of damage to a water supply caused by blasting. In McGeorge v. Henry & Jamison, 193 Ark. 443, 101 S.W.2d 440 (1937) we found the evidence was sufficient to show that the blasting caused a disturbance in the rock strata under the plaintiffs’ lands in such a way as to drain or dry up their wells. Part of the proof at trial was that the plaintiffs had a good water supply until five days after the blasting when the wells failed.

We have also found the evidence sufficient to warrant the conclusion that an excessive amount of explosives was used where wells dried up, houses were shaken, and rocks and gravel were thrown 150 feet from the blasting. Benton Gravel Co. v. Wright, 206 Ark. 930, 175 S.W.2d 208 (1943).

As stated previously, Langston testified that the blasting could have disrupted the fracture system which carried the water to Mrs. Huffman’s springs. Northside’s expert geologist, Wendell Martin Goodman, testified that he thought a lack of rainfall for four out of the last six years could have caused the springs to dry up. Mr. Goodman acknowledged, however, that if the fractures in the ground were enlarged by a significant ground disturbance they would leak more water and that is one possible explanation for why the springs would dry up more quickly when there is a lack of rainfall.

The testimony offered as to the effect of blasting on the underground water system was sufficient to show proximate cause.

Affirmed.

Purtle, J., not participating.


text:
    Phillip D. SUMMERS v. Thomas Rex MYLAN
    85-126
    697 S.W.2d 91
    Supreme Court of Arkansas
    Opinion delivered October 14, 1985

      Howell, Price & Trice, P.A., by: Ronald A. Hope, for appellant.

      Dodd, Kidd, Ryan & Moore, by: RichardN. Moore, Jr., for appellee.
   Jack Holt, Jr., Chief Justice.

This adoption case concerns the effectiveness of the withdrawal of a consent to adopt by the natural father. The trial court held that his consent was effectively withdrawn and ordered the adoption decree set aside. We affirm. Our jurisdiction is pursuant to Sup. Ct. R. 29(l)(c) as we are being asked to interpret provisions of the Revised Uniform Adoption Act, Ark. Stat. Ann. §§ 56-201 — 56-221 (Supp. 1985).

The facts giving rise to this lawsuit are rather unusual. The appellant, Phillip Summers, was married to Peggy Summers. Mrs. Summers had two children, seven year old twins, by a previous marriage to appellee, Thomas Mylan. The twins had lived with the Summerses for almost one year when, on January 9, 1985, Mr. Mylan executed a consent to adoption to allow the Summerses to adopt the children. As part of his consent, he waived all rights to notice of any future proceedings. Later on the same evening of January 9, Mrs. Summers was killed when her home burned.

After Mrs. Summers’ death, Mr. Mylan’s attorney, Ray Baxter, contacted Mr. Summers’ attorney, Eugene Fitzhugh, and indicated that Mr. Mylan would file a petition for guardianship of the twins. Mr. Fitzhugh told Mr. Baxter that he would not use the consent to adoption executed by Mr. Mylan. On January 17, 1985, Mr. Mylan filed a Petition for Guardianship in Saline County.

After the conversation between Mr. Baxter and Mr. Fitzhugh, Mr. Summers retained a different attorney and, using Mr. Mylan’s consent to adoption, filed a petition for adoption in Pulaski County. A decree of adoption was entered on the same date, March 14, 1985. On March 27, 1985, Mr. Mylan filed a motion to set aside the adoption, alleging that the consent became null and void as a result of the death of Mrs. Summers and the representations of Mr. Fitzhugh. It is from the trial court’s ruling, that the consent was effectively withdrawn, that this appeal is brought.

The evidence presented at the hearing on this matter demonstrated that Mr. Summers had notice that a guardianship proceeding was pending in Saline County at the time he filed his adoption petition in Pulaski County. He did not apprise the trial judge of that fact however. Mr. Fitzhugh testified that he told Mr. Summers he would not file a petition for adoption under these circumstances and, apparently because of his unwillingness to file the petition, Mr. Summers changed attorneys. The trial judge made the following statement during the hearing:

There was a subterfuge and a fraud worked on this Court. There was an open hearing in Saline County with a guardianship pending which tells you that he has withdrawn his consent to adoption, and you come in and bring those papers to me and had me sign them. That ain’t right.

The trial judge concluded the hearing by stating, “I signed the thing unaware of all of these facts, and I certainly have a right to set it aside, and I am going to. . .”

Arkansas R. Civ. P. Rule 60(b) provides that a decree or order may be set aside within 90 days of its having been filed with the clerk to correct any error or mistake or to prevent a miscarriage of justice.

Here, the decree of adoption was entered on March 14, 1985, and the order setting it aside was filed May 16,1985. The judge therefore was acting within the 90 day period. Furthermore, the judge’s finding that a fraud had been practiced on the court allowed him to set aside the decree to prevent a miscarriage of justice.

The appellant relies on the provisions of the Revised Uniform Adoption Act and, in particular, on Ark. Stat. Ann. § 56-209 (Supp. 1985). Part (a) of that statute provides, “[a] consent to adoption cannot be withdrawn after the entry of a decree of adoption.”

Section 56-209 is not dispositive of this issue. The question here is not whether consent to adoption was properly withdrawn. The question is whether it was proper for the court to set aside its decree upon discovering it was not aware of pertinent facts when the decree was entered. Whether or not Ark. R. Civ. P. 60(b) applies to this kind of special, non-adversarial proceeding, see Ark. R. Civ. P. 81, we hold the court has inherent authority to set aside a judgment it perceives to have been entered as a result of fraud on the court. See Blissard Management & Realty Inc. v. Kremer, 284 Ark. 136, 680 S.W.2d 694 (1984), rehearing denied; Massengale v. Johnson, 269 Ark. 269, 599 S.W.2d 743 (1980).

Affirmed.

Purtle, J., not participating.


author: George Rose Smith, Justice.

text:
    Stephen Craig DOLLAR v. STATE of Arkansas
    CR 85-168
    697 S.W.2d 93
    Supreme Court of Arkansas
    Opinion delivered October 14, 1985

      John Wesley Hall, Jr., for appellant.

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

In appealing from a DWI conviction Dollar argues that a prospective juror should have been excused for cause and that a blood alcohol test by means of a device called an Intoxilyzer does not satisfy the statutory requirement of being a “chemical analysis.” Ark. Stat. Ann. §75-1031.1 (Supp. 1985). It is the latter contention that brings the case to us under Rule 29(l)(c). Neither point has merit.

The juror in question was peremptorily challenged by the accused after the trial judge had refused a challenge for cause. In the selection of the jury the defense exhausted its peremptory challenges, but the record does not show that Dollar was forced to accept any juror against his wishes. In that situation there was no reversible error. Conley v. State, 270 Ark. 886, 607 S.W.2d 328 (1980).

The Intoxilyzer showed Dollar’s blood alcohol level to be .17%. Although the use of an Intoxilyzer had been approved by the State Board of Health and this particular device and its operator were properly certified, it is argued that the process was not a chemical analysis, which the statute contemplates. In making this argument the appellant relies upon the description of an Intoxilyzer as set forth in a widely used treatise, Defense of Drunk Driving Cases, § 24A.01 (3d ed. 1985). There the authors explain that alcohol absorbs infrared energy. The Intoxilyzer passes an infrared light beam through the sample of accused’s breath that he has blown into the device. The Intoxilyzer measures the amount of infrared energy that is absorbed by the alcohol vapor and converts that figure into a blood alcohol reading.

Whether an Intoxilyzer makes a chemical analysis appears to have been decided in only three reported cases, all in trial courts. Every one of the cases upheld the test as being a chemical analysis. State v. Moore, 307 A.2d 548 (Del. Super. 1973); People v. Jones, 118 Misc.2d 687, 461 N.Y.S.2d 962 (Co. Ct. 1983); City of Dayton v. Schenck, 63 Ohio Misc. 14, 409 N.E.2d 284 (Ohio Mun. Ct. 1980). We agree with their reasoning. Chemistry is the science that treats of the composition of substances and of the transformations which they undergo. Webster’s Second New International Dictionary (1939). That accurately describes what the Intoxilyzer does in analyzing a breath sample for its alcoholic content. As the cases observe, the process is not “wet chemistry,” but it is nonetheless chemistry. Defense counsel argues that the legislature could easily have used some other language in the 1983 statute. Perhaps so, but the draftsmen of the statutory language exercised good judgment in leaving exact details to the discretion of the Board of Health. As this case illustrates, the Board has been able to make use of scientific methods of analysis that have been developed since the statutory language was first selected a number of years ago. The draftsmen’s choice of language readily withstands the attack now made upon it.

Affirmed.

Purtle, J., not participating.


author:
George Rose Smith, Justice.
      George Rose Smith, Justice,

text:
    Charles D. RAGLAND, Commissioner of Revenues v. ARKANSAS WRITERS' PROJECT, INC.
    85-115
    697 S.W.2d 94 698 S.W.2d 802

      Supreme Court of Arkansas
    Opinion delivered October 14, 1985
    [Supplemental Opinion on Denial of Rehearing November 18, 1985.]

      Timothy J. Leathers, Wayne Zakrzewski, Kelly Jennings, John Theis, Ann Kell, Joe Morphew, and Michael D. Munns, by: Joseph V. Svoboda, for appellant.

      House, Wallace, Nelson & Jewell, P.A., by: Anne Owings Wilson, for appellee.

       Purtle, J., not participating.

   George Rose Smith, Justice.

The appellee, Arkansas Writers’ Project, is the publisher of the Arkansas Times Magazine, a monthly magazine devoted to matters of general interest. Claiming a tax exemption, the appellee brought this suit for the refund of $ 15,838.22 which it had paid as sales tax on the sale of its magazine during a period of three years. The chancellor held that the sales were tax exempt and ordered a refund. The appeal comes to this court under Rule 29(l)(c).

The sales tax statute, as revised in 1941, contained an exemption for the proceeds from the sale of newspapers. Ark. Stat. Ann. § 84-1904(f) (Repl. 1980). It also contained an exemption for the proceeds from the sale of advertising space in newspapers and publications and billboard advertising services. § 84-1904(j). By Act 152 of 1949 the legislature added to that subsection the following proviso, the proper construction of which is the decisive question in this case:

Provided, further, that religious, professional, trade and sports journals and/or publications printed and published within this State, shall be exempt when sold through regular subscriptions.

In the trial court it was stipulated that the Arkansas Times Magazine is not a newspaper nor a religious, professional, trade, or sports journal. The magazine, however, is printed and published in Arkansas and is sold primarily by mail subscriptions.

The chancellor concluded that in the controlling sentence the words “and/or” have the eifect of creating two separate exempt categories, which he paraphrased in his written opinion as follows: “(1) Religious, professional, trade and sports journals; and (2) publications printed and published within Arkansas.” In that view the Arkansas Times is a publication printed and published in Arkansas, so that the proceeds from its sale are tax exempt.

We cannot agree with the trial court’s conclusion. As we read the sentence, the legislature intended to create not two exemptions but only one, which was fully described. In several opinions we have joined many other courts in condemning the lack of precision in the phrase “and/or.” Boren v. Qualls, 284 Ark. 65, 680 S.W.2d 82 (1984), citing prior cases. Here we are not persuaded that “and/or” was used to awkwardly divide the whole sentence and create separate exemptions having no apparent basis for their separate existence. We think instead that the lawmakers had a single purpose in mind. That was to exempt the enumerated periodicals if printed and published in Arkansas and sold by subscription and if the particular periodical comes within the term journal or the term publication or the two terms considered together. Under that reading of the statute the Times is not exempt, for it is admittedly not a religious, professional, trade, or sports periodical.

November 18, 1985

We regard the legislative intention as not being open to serious doubt, but even if that were not true our reading of the statute is confirmed by two familiar rules of construction. One, an exemption from taxation is to be strictly construed against the exemption; to doubt is to deny the exemption. S.H. & J. Drilling Corp. v. Qualls, 268 Ark. 71, 593 S.W.2d 178 (1980). Two, an interpretation that has long been given to a statute by the executive department will not be disregarded unless it is clearly wrong. Walnut Grove Sch. Dist. No. 6 v. County Bd. of Education, 204 Ark. 354, 162 S.W.2d 64 (1942). The Commissioner’s Regulation GR-48(E) correctly interprets the statute:

The gross receipts or gross proceeds derived from the sale of any books, magazines, or publications other than newspapers are subject to the tax; except that religious, professional, trade and sports journals or publications printed and published in Arkansas are exempt when sold through regular subscriptions.

In closing, we add that neither party has questioned the constitutionality of the exemption and that our disposition of the direct appeal makes it unnecessary for us to reach the cross appeal.

Reversed.

Purtle, J., not participating.

Supplemental Opinion on Denial of Rehearing

George Rose Smith, Justice,

on denial of rehearing. In our original opinion the decree was reversed on a question of statutory construction. In its petition for rehearing the appellee does not reargue that issue, but it does insist that we should have discussed the constitutionality of the imposition of a sales tax on the sales of the Arkansas Times Magazine. That issue was argued by the appellee on its cross appeal, seeking attorney’s fees, but the argument was incorporated by reference in the response to the direct appeal and should have been discussed.

The constitutional contention is twofold. It is first said that to exempt certain sports publications from the sales tax but to tax the sales of the Times is a denial of equal protection. We need not explore this point, for it would avail the appellee nothing if it wins its argument. The legislature has levied a valid sales tax that is applicable to the Times. It is immaterial that an exemption in favor of some other taxpayer may be invalid, as discriminatory. If so, it is the exemption that would fall, not the tax against the Times. The courts cannot create a tax exemption; that must be done by the legislature. It has not exempted the Times.

It is also argued that a tax on the sales of the Times is an infringement upon its freedom of speech and of the press. Two cases are primarily relied upon, but neither addressed the validity of a tax comparable to an ordinary sales tax. Minneapolis Star & Tribune Co. v. Minnesota Commissioner of Revenue, 460 U.S. 575 (1983); Grosjean v. American Press Co., 297 U.S. 233 (1936). In fact, Grosjean supplied the answer to the appellee’s contention. The Court said that the owners of newspapers are not immune from any of the “ordinary forms of taxation” for support of the government. That statement applies with even greater force to the Times, a monthly magazine publishing matters of general interest. Certainly the Times has no greater claim to tax exemptions than has, say, a publisher of books. Both are exercising First Amendment rights, but it would not be seriously argued that they are exempt from income taxes, property taxes, and other exactions levied to pay for the cost of government. No authority has been cited applying a different rule to the sales tax; we are confident that no such authority exists.

We do not reach the cross appeal, for the Times is not entitled to an attorney’s fee when it loses its case.

The petition for rehearing is denied.

Purtle, J., not participating.


author: Darrell Hickman, Justice.

text:
    Larry BURNETT and Brenda BURNETT v. STATE of Arkansas
    CR 85-44
    697 S.W.2d 95
    Supreme Court of Arkansas
    Opinion delivered October 14, 1985

      Fuchs, Villines & Vammen, by: M. Watson Villines II, for appellants.

      Steve Clark, Att’y Gen., by: Connie Griffin, Asst. Att’y Gen., for appellee.
   Darrell Hickman, Justice.

Larry and Brenda Burnett were convicted of the first degree murder of their thirteen month old infant, Larry Burnett, Jr. The jury recommended life without parole, but the court reduced the sentence to life imprisonment, the maximum legal sentence. The state’s case was based primarily on medical testimony that the child suffered abuse over a period of weeks or months and sustained numerous injuries, eventually dying from a blow to the abdomen. The defense was a denial of abuse by the parents and other witnesses, with evidence that the child had been sickly from birth, the baby had recently had a hernia operation, and any injuries were caused by the child falling or other normal childhood activities. The appellants make eleven assertions of error. We find no prejudicial error and affirm the convictions.

The medical testimony of abuse is overwhelming. Dr. Donna L. Brown, the assistant state medical examiner, who performed the autopsy, said that overall the child was smaller in size than she expected a 13 month old to be; he appeared very skinny with a very large abdomen which was tight like a drum; there were at least 15 bruises on the face and 30 bruises on the upper and lower extremities; some of these were a few days old and others were a few weeks old; the child’s skin was paper thin, with practically no fat present which would accentuate the bruises; the child was malnourished and dehydrated; the nose was flattened and almost cauliflower in shape; inside the child’s mouth were extensive tears between the lips and gums; both eyes were sunken with bruises around the right eye; there were scratches on the back of the head and back of the right lower leg; there was extensive bruising and swelling of the left foot; and the hands were scratched on the inside and bruised on the top. These were the external injuries.

Upon opening the child’s body, the doctor found four broken ribs, which had been broken within the last few days; multiple areas of the large and small bowels were in various stages of the healing process; there was a tear in the small bowel about an inch long; and the right kidney was bruised.

Dr. Brown testified about the cause of the injuries. She discounted the appellants’ explanation for the injuries. The bruises on the child’s face and head were the kind caused by pinching, knuckling or thumping a child; the tears inside the mouth are characteristically caused by blows to the mouth with a fist, not the kind of injuries caused by falling, because there would have been bruises on the outside of the mouth. The scratches on the back of the head, on the back of the right lower leg and on the hands were most likely caused by fingernails. The numerous “insults” to the abdomen and bowels are injuries caused by a punch or punches to the abdomen with a fist.

The ultimate cause of death was an impact injury to the abdomen, rupturing the colon, which caused the child to go into shock due to the loss of body fluids. Peritonitis also developed. Dr. Brown testified that the tear in the colon was caused by a quick force being applied, like a blow from a fist; this type of injury could not be sustained by a child falling down and hitting an object, and it was not a result of a hernia operation. Photographs of the child were introduced which graphically corroborated the doctor’s testimony. Death occurred about 8 p.m., May 11,1984. The lethal blow or blows occurred from twelve to three hours prior to death.

The state offered evidence that the child was in the custody of one or both parents that day. The father, Larry Burnett, left for work about 7 or 7:30 a.m., and the child remained with the mother, Brenda Burnett, the remainder of the day. About 6:30 that evening she noticed Larry, Jr., was having convulsions. She took the baby to a neighbor, who gave them a ride to the farm where Mr. Burnett worked. Mrs. Burnett said she kept patting the child and became alarmed when the baby’s eyes glazed over. She also testified that when they arrived at the farm she attempted cardiopulmonary resuscitation on the child until her husband arrived. An ambulance was called and the child was taken to Baptist Medical Center where he was declared dead.

On appeal we look to see if there is substantial evidence to support the jury’s finding. While there was no direct evidence that these parents rendered the lethal blow which caused the child’s death, there is strong circumstantial evidence to support that conclusion. Indeed, the evidence of abuse is overwhelming. The jury could have found that the lethal blow occurred on the morning of May 11 when both parents were with the child. The evidence supports the conclusion that both parents could not have been ignorant of the abuse. They each had a duty to prevent such injury. Boone v. State, 282 Ark. 274, 668 S.W.2d 17 (1984); Limber v. State, 264 Ark. 479, 572 S.W.2d 402 (1978); Deviny v. State, 14 Ark. App. 70, 685 S.W.2d 179 (1985). In these cases we and the court of appeals affirmed both parents’ liability for the death of their child when caused by a single blow to the abdomen. The difference in these cases is the parents were convicted of second degree murder; the convictions here are for first degree murder.

We find sufficient circumstantial evidence that these parents were equally guilty of causing the death of the child with the premeditation and deliberation required to support a conviction for first degree murder. Ark. Stat. Ann. § 41-1502 (Repl. 1977). Premeditation, deliberation and intent may be inferred from the circumstances of the case, such as the weapon used and the nature, extent and location of the wounds inflicted. Stout v. State, 263 Ark. 355, 565 S.W.2d 23 (1978). According to the medical examiner, the weapon used was a fist which struck the abdomen with such force as to rupture the colon. The child sustained fingernail scratches, four broken ribs, and other internal damage as well as numerous bruises due to blows with a fist over all his body. The required mental state for first degree murder can be inferred from the evidence of abuse, which is substantial.

The appellants asked for a bill of particulars and the court denied the request. The information alleged that the appellants killed the infant by “starvation, beating and other forms of abuse.” See Mayer v. State, 285 Ark. 73, 685 S.W.2d 143 (1985). The purpose of a bill of particulars is to inform a defendant of the charge in sufficient detail to prepare a defense. Ark. Stat. Ann. § 43-804 (Repl. 1977). The trial court, using discretion, can grant or deny the request. Silas v. State, 232 Ark. 248, 337 S.W.2d 644 (1960). The appellants showed no surprise or prejudice, and we find no abuse of discretion by the trial court. Parker v. State, 265 Ark. 315, 578 S.W.2d 206 (1979).

The appellants requested a sequestered jury subject to individual voir dire examination. The trial court denied the request. Instead, the court called a panel of 12 jurors allowing counsel to question twelve at a time, and then strike from the panel for cause or peremptorily. Sequestration is a discretionary matter with the trial judge, just as individual voir dire is discretionary. Heffernan v. State, 278 Ark. 325, 645 S.W.2d 666 (1983); A.R.Cr.P. Rule 32.2.

The appellants also argue they were denied a fair trial because of pretrial publicity. Cited as evidence of prejudice is the jury’s recommendation of life without parole — an excessive sentence since life is the maximum authorized. The appellants have failed to meet their burden of showing that prejudice due to pretrial publicity was community-wide, depriving them of a fair trial. Swindler v. State, 267 Ark. 418, 592 S. W.2d 91 (1979). The jury’s stern recommendation could easily be the result of overwhelming evidence instead of the pretrial publicity. There was no evidence that any pretrial publicity caused this reaction.

Furthermore, to challenge the jury, the appellants must show that a seated juror was biased against them due to the pretrial publicity. In order to do this, the appellants must have exhausted their peremptory challenges and be forced to accept a juror they did not want. Orsini v. State, 281 Ark. 349, 665 S.W.2d 245 (1984). This the appellants have not done. They exercised only two peremptory challenges. Most of the pretrial publicity complained of occurred in May, 1984; the trial occurred in October, 1984. The jurors were questioned individually about the effect of the publicity, and each juror was admonished to refrain from discussing the case or listening to news reports about the case.

While some jurors indicated they had read or heard about the case, all that were seated said they could set aside any knowledge they had and give the appellants a fair trial. It is not required that jurors be totally ignorant of the facts involved in a case. Swindler v. State, supra. Using these standards, we can find no evidence from the record that the appellants did not receive a fair trial.

Charles Castleberry, the sheriff of Faulkner County, released photographs of the naked, battered body of the victim to KTH V news. These pictures were shown on the news broadcast of the television station during the 6 and 10 p.m. newscasts on May 16 and 17. Faulkner County is in the station’s broadcast range. The appellants argue that this release by the sheriff and the showing of the photographs were prejudicial error. While it was unprofessional for the sheriff to release this evidence, the issue is whether the pretrial publicity, including the airing of the photographs, deprived these appellants of a fair trial. We find no evidence it did.

Appellants moved for a mistrial after a police officer, who took Larry Burnett from the hospital to the police station, testified about a conversation with Burnett. He said that Burnett talked about the police car, the size of its engine, and mentioned that he had been in a “tough-man contest” in which he broke the jaw of a disc jockey. The trial judge denied the motion for a mistrial, and in response to the request to admonish the jury, the judge stated, “Not at this time.” However, the trial court did state that he did not see the relevance of the testimony.

Appellants now assert two arguments as basis for a mistrial. First, the appellants argue that the state was attempting to use the evidence to show the state-of-mind of Larry Burnett and his lack of remorse. The appellants contend that the state-of-mind after the crime is not admissible under Graham v. State, 2 Ark. App. 266, 621 S.W.2d 4 (1981); and that the state improperly introduced the character of Larry Burnett by showing he was violent. See Unif. R. Evid. Rule 404 (b). These statements were not inadmissible evidence of a crime or an illegal act under Rule 404 (b). Arguably, it could have been considered as some evidence that Larry Burnett was predisposed to violence, but it did not directly show that he had such a character trait nor demonstrate in any way he would be violent towards his own children. A mistrial is a drastic remedy used only when error is so prejudicial that it cannot be cured by admonition. Limber v. State, supra. The appellants have at most suffered a harmless error. The statement about the “tough-man contest” was essentially irrelevant and, while the court technically should have admonished the jury, failure to do so was not prejudicial error. This court will not reverse a judgment for an error which is unaccompanied by prejudice. Berna v. State, 282 Ark. 563, 670 S.W.2d 435 (1984).

The trial court denied a motion to sever the trials of the appellants. Such a decision will only be reversed if there is an abuse of discretion. McDaniel v. State, 278 Ark. 631, 648 S.W.2d 57 (1983). In Spears v. State, 280 Ark. 577, 660 S.W.2d 913 (1983), we explained the circumstances under which a motion to sever should be granted:

1) where defenses are antagonistic; 2) where it is difficult to segregate the evidence; 3) where there is a lack of substantial evidence implicating one defendant except for the accusation of the other defendant; 4) where one defendant could have deprived the other of all peremptory challenges; 5) where if one defendant chooses to testify the other is compelled to do so; 6) where one defendant has no prior criminal record and the other has; 7) where circumstantial evidence against one defendant appears stronger than against the other.

Applying these factors to the appellants: 1) Their defenses were not antagonistic since both claimed the injuries were due to a fall and surgery; that even if the child were beaten, they did not do it. At one point the appellants’ attorney did suggest that since the mother was the principal caretaker, she was more responsible, but evidence was brought out that the father could have been at home when the fatal blow was struck. Both appellants also assert that since the cause of death was one single injury, two people could not have rendered the blow. 2) The evidence was identical as to both appellants. 3) Neither appellant accused the other of beating the child. 4) The record does not show who exercised the two peremptory challenges. 5) Both appellants testified. 6) Neither appellant had a prior criminal record. 7) There is circumstantial evidence against both appellants. The motion was properly denied.

Appellants sought a change of venue due to the pretrial publicity. A change of venue is granted when it appears “that the minds of the inhabitants of the county in which the cause is pending are so prejudiced against the defendant that a fair and impartial trial cannot be had therein.” Ark. Stat. Ann. § 43-1501 (Repl. 1977). The trial court has discretion in granting this motion. Perry v. State, 277 Ark. 357, 642 S.W.2d 865 (1982). If it is determined the defendant can receive a fair trial by an impartial jury in the county in which he is being tried, then the motion will be denied. Orsini v. State, supra. In examining the record, the jurors responded that either they had not formed an opinion or they could set it aside; the jurors could give the appellants a fair trial based on the evidence and the court’s instructions. Thus, there is no abuse of discretion. Perry v. State, supra.

Graphic photographs of the body of Larry Burnett, Jr., were admitted over the appellants’ objection. We have in numerous cases upheld the admission of photographs of the victim that are considered gruesome. Some crimes are gruesome. It is discretionary to permit such evidence if it is useful in aiding the jury to understand the testimony by showing the nature and location of the wounds. Perry v. State, 255 Ark. 378, 800 S.W.2d 387 (1973). In this case the photographs were obviously a strong part of the state’s direct evidence, and we find no abuse of discretion by the trial court.

Under Ark. Stat. Ann. § 43-2725 (Repl. 1977), as put into effect by our Rule 11 (f), we consider all objections brought to our attention in the abstracts and briefs in appeals from a sentence of life imprisonment or death. In this case we find no prejudicial error in the points argued or in the other objections abstracted for review.

Affirmed.

Purtle, J., not participating.


author: Robert H. Dudley, Justice.

text:
    Anna COTHAM, Executrix of the Estate of Calvin E. Cotham; et al. v. FIRST NATIONAL BANK OF HOT SPRINGS and Richard COX, Guardian ad Litem for the Minor and Unborn Heirs at Law of Calvin T. Cotham
    84-243
    697 S.W.2d 101
    Supreme Court of Arkansas
    Opinion delivered October 14, 1985
    [Rehearing denied November 12, 1985.]

      Hoover, Jacobs <6 Storey, by: Victor A. Fleming, for appellant.

      Cox & MacPhee, by: Richard L. Cox, for appellee.

       Purtle, J., not participating.

   Robert H. Dudley, Justice.

Calvin T. Cotham created a testamentary trust. After his death his son, Calvin E. Cotham, and one of his granddaughters, Anna Cotham, filed suit against the trustee and the other granddaughter and grandson alleging that the trust violated the rule against perpetuities. The trust provides a lifetime income of $300.00 per month for the son, and at his death, $ 100.00 per month to each of three named grandchildren. At the death of the first grandchild, the trust provides that the deceased grandchild’s share is to be divided equally among the surviving sisters or sister or brother, or the survivor of them. The Chancellor held that the interests created under the will did not violate the rule against perpetuities. That decision was appealed to this Court. The two grandchildren who originally had been defendants then joined as appellants in requesting that the trust be voided. The son, Calvin E. Cotham died, and his estate, the three grandchildren, and the trustee settled the case, conditioned upon approval by the Chancery Court. The case was remanded, and a guardian ad litem was appointed for the minor and unborn heirs of the testator. The guardian ad litem opposed the proposed settlement. The Chancellor refused to approve the settlement and again the case is on appeal to this Court. Appellants contend that the trust violates the rule against perpetuities, that the trust was terminable upon agreement of the parties, and that the Chancellor abused his discretion in refusing to approve the settlement. The points of appeal are without merit. We affirm the holding of the Chancellor.

The rule against perpetuities provides that interests which are subject to the rule must vest within a period measured by a life or lives in being plus twenty-one years. Comstock v. Smith, 255 Ark. 564, 501 S.W.2d 617 (1973). The trust at issue does not violate the rule because the trust will vest within lives in being plus twenty-one years.

Paragraphs four, five, and six of the will establish trust funds for the three grandchildren, Joseph C. Cotham, Carolyn Cotham, and Anna Cotham. Those paragraphs are:

FOURTH: I give and bequeath the sum of seven thousand dollars to The Arkansas National Bank of Hot Springs, Hot Springs, Arkansas, to have and to hold the same in trust, as trustee for my grandson, Joseph Conrad Cotham, El Cajon, California, for the uses and purposes, and with the powers and duties following:
The trustee shall have full power and authority to manage and control the trust estate, and to sell, exchange, lease, grant options, rent, mortgage, pledge, assign, transfer or otherwise dispose of all or any part thereof, upon such terms and conditions as it may see fit, and it may invest and reinvest shares or participations in any common fund, bonds, notes, securities or other property, whether of the class or kind now or hereafter ordinarily approved or held to be lawful for the investment of trust funds or not, as it may in its absolute discretion select, and it may make and change such investments from time to time according to its discretion.
This trust is for a college education for my grandson and the trustee shall give to him the necessary funds for his college education as they are needed. If my grandson does not desire to go to college, then the trustee shall give him one-half of the trust fund when he reaches the age of twenty-five years, and shall give him the balance of the trust fund when he reaches the age of thirty years. If he should die before the trust fund is exhausted, then the trustee shall pay the balance of the trust fund to his sisters herein named, equally, each to share and share alike, or either of the survivor of them.
FIVE: I give and bequeath the sum of seven thousand dollars to The Arkansas National Bank of Hot Springs, Hot Springs, Arkansas, to have and to hold the same in trust as trustee, for my granddaughter, Mrs. Carolyn Cotham Sanders, El Cajon, California, for the uses and purposes, and with the powers and duties following:
The trustee shall have the same power and authority as in the fourth paragraph.
The trustee shall pay the sum of seventy-five dollars each month to Mrs. Carolyn Cotham Sanders until the trust fund is exhausted. If she should die before the trust fund is exhausted, then the trustee shall pay the balance of the trust fund to her sister and brother herein named, equally, each to share and share alike, or either of the survivor of them.
SIXTH: I give and bequeath the sum of seven thousand dollars to The Arkansas National Bank of Hot Springs, Hot Springs, Arkansas, to have and to hold the same in trust as trustee, for my granddaughter, Ann Marie Cotham, Albuquerque, New Mexico, for the uses and purposes, and with the powers and duties following:
The trustee shall have the same power and authority as in the fourth paragraph.
The trustee shall pay the sum of fifty dollars each month to Anna Marie Cotham until the trust fund is exhausted. If she should die before the trust fund is exhausted, then the trustee shall pay the balance of the trust fund to her surviving sister and brother herein named, equally, each to share and share alike, or either of the survivor of them.

Paragraph seven establishes the residuary trust. In it, the residue is devised to the trustee to hold in trust and to pay the sum of $300.00 each month to the testator’s son, Calvin E. Cotham. It further provides that if the son dies before the trust fund is exhausted, the trustee is to pay $ 100.00 each month to each of the “aforesaid grandchildren.” The paragraph ends by directing that if either of the grandchildren should die, then that grandchild’s share shall be paid to its surviving sisters or sister or brother. The language of the will does not provide for any other grandchildren who might be born. Paragraph seven quoted in full is as follows:

SEVENTH: All of the rest, residue and remainder of my estate, real or personal property, I give, bequeath and devise to The Arkansas National Bank of Hot Springs, Hot Springs, Arkansas, to have and to hold the same in trust, as trustee for my son, Calvin Everett Cotham, Albuquerque, New Mexico, for the use and purposes, and with the powers and duties following:
The trustee shall have the same power and authority as in the fourth paragraph.
The trustee shall pay the sum of three hundred dollars each month to Calvin Everett Cotham, until the trust fund is exhausted. If he should die before the trust fund is exhausted, then the trustee shall pay the sum of one hundred dollars each month to each of my aforesaid grandchildren until the trust fund is exhausted. If either of the grandchildren should die, then the payment of its share shall be made to its surviving sisters or sister or brother, equally, each to share and share alike, or either of the survivor of them.

The paragraph makes no provision for anyone other than the son, Calvin E. Cotham, and the “aforesaid grandchildren” who are named in the preceeding quoted paragraphs. Calvin E. Cotham is now deceased. Consequently, the trust will end upon the death of the last survivor of the three named grandchildren, and the remaining assets, if any, will be distributed. Thus, the trust vests within lives in being plus twenty-one years and does not violate the rule against perpetuities.

Appellants next argue that the trust is terminable by the court on the agreement of the beneficiaries. The argument is also without merit.

The trust is a spendthrift trust. In Bowlin v. Citizens’ Bank & Trust Co., 131 Ark. 97, 198 S.W. 288, 2 A.L.R. 575 (1917), we first recognized the right of a testator to create a spendthrift trust. We determined that trust to be a spendthrift trust because:

[the testator] provided against the anticipation of the income in any manner. He evidenced his intention most clearly by creating a stated income. His purpose was to impound the corpus of the estate in such way that the cestuis should not receive it, or even the income therefrom, except at certain and reasonable intervals. All power of alienation of the trust was withheld from the cestuis.

Similarly, in Clemenson v. Rebsamen, 205 Ark. 123, 168 S.W.2d 195 (1943), we said a spendthrift trust was created when legal title and absolute control of the corpus passes to the trustee for the purpose of creating an income for the beneficiary, and, by the terms of the trust, the beneficiary is only entitled to some stated income for life or a term of years, and the beneficiary does not have the right to voluntarily or involuntarily alienate his interest.

In the instant case, the power of the trustee is set out in paragraph four of the will:

The trustee shall have full power and authority to manage and control the trust estate, and to sell, exchange, lease, grant options, rent, mortgage, pledge, assign, transfer or otherwise dispose of all or any part thereof, upon such terms and conditions as. it may see fit, and it may invest and reinvest shares or participation in any common fund, bonds, notes, securities or other property, whether of the class or kind now or hereafter ordinarily approved or held to be lawful for the investment of trust funds or not, as it may in its absolute discretion select, and it may make and change such investments from time to time according to its discretion.

The provision setting out the entitlement to monthly incomes in paragraph seven has previously been quoted in full. The disabling restraint against both voluntary and involuntary alienation is contained in paragraph eight:

EIGHTH: I direct that the interests of the beneficiaries of any and all trusts hereunder shall not be subject or liable in any manner to or for their or any of their anticipations, assignments, sales, pledges, debts, contracts, engagements or liabilities, or subject or liable to attachment, execution or sequestrations under any legal, equitable or other process.

Thus, the legal title and absolute control of the corpus of the trust passed to the trustee for the sole purpose of providing a fixed monthly income. The testator’s purpose was to impound the corpus of the trust in such a way that the beneficiaries could not receive it, except at monthly intervals in fixed amounts. All power of alienation was withheld from the beneficiaries. Every element necessary to create a spendthrift trust is present.

Since the continuance of the spendthrift trust is necessary to carry out the testator’s purpose, the beneficiaries cannot compel its termination. Bowlin v. Citizens’ Bank & Trust Co., supra. Clemenson v. Rebsamen, supra.

We find it unnecessary to address the other arguments. The decision of the Chancellor is affirmed.

Purtle, J., not participating.