text:
    David PLAFCAN v. Mary Louise Plafcan GRIGGS
    86-277
    724 S.W.2d 467
    Supreme Court of Arkansas
    Opinion delivered March 2, 1987

      James M. Thweatt, for appellant.

      Lovell & Arnold, for appellee.
   Darrell Hickman, Justice.

The issue in this case is whether an oral year-to-year leasehold interest ends with the death of the life tenant lessor or is extended by a statutory notice requirement. The trial court held the lease ended with the death of the lessor. The lessee, David Plafcan, appeals from that decision arguing that he did not receive notice to terminate in accordance with Ark. Stat. Ann. § 50-531 (Supp. 1985). He also questions the damages awarded by the chancellor.

The facts regarding the title to the land and the parties’ situation are undisputed. David Plafcan is a farmer in Lonoke County, Arkansas, working over 500 acres of land, which included a 70 acre tract, the subject of this dispute. He held that land by oral agreement on a year-to-year basis from Florence Plafcan, his mother, who had a life estate. He paid the usual rent of one fourth of the crop. The remainderman, who owned the land subject to the life estate, was appellee, Mary Louise Plafcan Griggs. She was married to appellant’s brother, now deceased. Florence Plafcan died on February 9, 1985, and Griggs became the owner of the land in fee simple absolute. She ordered Plafcan to pay cash rent for the land or vacate, but he refused. He had planted a fall wheat crop in 1984. He harvested it and planted beans. He claimed he was not required to vacate the land because he did not receive notice prior to June 30, 1984, as required by Ark. Stat. Ann. § 50-531, which reads:

The owner of farm lands which are leased under an oral agreement may elect not to renew the oral rental or lease agreement for the following calendar year by giving written notice by certified registered mail to the renter or lessee, on or before June 30, that the lease or rental agreement will not be renewed for the following calendar year.

The chancellor held that this statute did not change the settled law that upon the death of a life tenant, any interest of a lessee holding under the life tenant ceases. He was right. See Edwards v. Griffin, 228 Ark. 844, 310 S.W.2d 798 (1958). In Dupree v. Worthen Bank & Trust Co., 260 Ark. 673, 543 S.W.2d 465 (1976), we reaffirmed Edwards and quoted a statement from 6 A.L.R. 1506 that “a lease made by a tenant for life terminates instantly on his death. ...” A tenant can have no greater interest in land than his lessor. Edwards v. Griffin, supra. A life tenant cannot convey a greater interest than his own. Restatement of Property § 108, comment a (1936); C. Moynihan, Introduction to the Law of Real Property 59 (1962). Therefore, one who leases from a life tenant has no interest once the life tenant dies. Edwards v. Griffin, supra; Dupree v. Worthen Bank & Trust Co., supra.

The Arkansas legislature, by enacting § 50-5 31, did not intend to alter the legal interest which a tenant has in land; the statute only establishes a date when an owner has to give notice to terminate a year to year farm lease. Unless the remainderman agrees to allow the tenant to remain, the tenant has no interest in the land. In this case the remainderman Griggs gave no such permission; instead notice was given to vacate.

The chancellor heard extensive testimony regarding damages. Griggs claimed damages for the rental value of the property, for the removal or destruction of a rice well, and for a house on the property. She also asked for a return or portion of the Agricultural Stabilization and Conservation payments.

The chancellor decided that Plafcan was entitled to the wheat crop and Griggs would receive the landlord’s usual share of one fourth. Plafcan sold the wheat crop for hog feed for $1,052 and some odd cents. He received a diversion payment from the government for the wheat crop in the sum of $965.80. One fourth of the income from the wheat is $504.40. Plafcan received a payment from the federal government in late January, 1985, just before the death of Florence Plafcan, as a rice deficiency payment for the 1984-1985 crop year. (A deficiency payment is made when no crop is planted.) The total sum alloted to the 70 acre tract, according to Wayne Perryman, executive director of the Lonoke County A.S.C.S., was $3,994.56. It was undisputed that approximately half of this sum was paid in January with three fourths going to Plafcan and one fourth to Florence Plafcan. Plafcan’s share would be about $1,497.96.

The chancellor in his decree found “[t]hat Plaintiff, Mary Louise Griggs should have judgment against defendant, David Plafcan, for the sum of $2,035.78, representing payment for the pro rata share of the wheat crop to the owner for rent and a return of A.S.C.S. payments which he received, which should have been received by plaintiff, Mary Louise Griggs.”

Plafcan argues the damage award “as to the wheat crop is not supported in the record and was based on speculation.” The findings of the chancellor were fairly explicit. If Griggs received a fourth of what the wheat crop produced, that would be $504.40. So the court could have awarded $504.40 for the wheat crop. Add that to $1,497.60, which is about the sum Plafcan received in January, 1985, and this totals $2,002.36. This figure is only $33.42 off from the award made. Therefore, the award was not based on speculation.

Neither the appellant nor the appellee could conclude how the chancellor arrived at the figure of $2,035.78. Evidently, the chancellor inserted this amount after the trial. Both parties and the judge discussed at length all the figures that were presented regarding the wheat crop and payments which were received or could have been received from the government. Our rule is limited to finding whether the chancellor was clearly wrong.

On appeal the appellant has the responsibility to show the chancellor was clearly wrong in his findings. ARCP Rule 52(a). Plafcan did not meet this burden and we cannot say the chancellor was clearly wrong in his award of damages.

Affirmed.


source: Caselaw Access Project

author: John I. Purtle, Justice.

license: Public Domain

text:
    Derek SALES v. STATE of Arkansas
    CR 86-134
    724 S.W.2d 469
    Supreme Court of Arkansas
    Opinion delivered March 2, 1987

      Don E. Glover, for appellant.

      Steve Clark, Att’y Gen., by: Robert A. Ginnaven, III, Asst. Att’y Gen., for appellee.
   John I. Purtle, Justice.

The appellant was convicted of rape, aggravated robbery, breaking and entering and false imprisonment in the first degree. His respective sentences were forty (40), twenty (20), six (6) and ten (10) years. The forty and twenty year sentences were to run consecutively and the six and ten year sentences were concurrent with the others. This appeal challenges the sufficiency of the evidence. We find that there was substantial evidence to support the convictions and affirm.

The prosecutrix testified that the appellant broke into her house and, by use of a gun, raped her and took money from her boyfriend’s billfold. The appellant then forced her to drive him to another city. The appellant’s defense was that he did not do any of the crimes charged. He did admit to having sexual intercourse with the victim, but he claimed that she consented.

The victim’s statement alone is sufficient to sustain a conviction for rape. Hamm v. State, 214 Ark. 171, 214 S.W.2d 917 (1948). In addressing the sufficiency of the evidence concerning the other convictions, we have many times held that we will affirm if there is any substantial evidence to support the convictions. Fountain v. State, 273 Ark. 457, 620 S.W.2d 936 (1981). A physician testified that he found evidence consistent with that of sexual intercourse; tests revealed that the bedspread in the victim’s house had semen on it and the victim gave an eye witness account of all essential elements to the charges. Her testimony alone was sufficient to sustain each separate verdict. Clay v. State, 290 Ark. 54, 716 S.W.2d 751 (1986).

Affirmed.


author: Robert H. Dudley, Justice. Darrell Hickman, Justice,

text:
    Particia BLAYLOCK v. Paul STRECKER
    86-154
    724 S.W.2d 470
    Supreme Court of Arkansas
    Opinion delivered March 2, 1987

      James A. McLarty, for appellant.

      Harkey, Walmsley, Belew & Blankenship, by; John Norman Harkey, for appellee.
   Robert H. Dudley, Justice.

Appellee, Paul Strecker, filed a suit for alienation of affections against appellant, Patricia Blaylock, alleging that appellant had caused the destruction of appellee’s marriage to Chloe Strecker. The jury found in favor of appellee Strecker and awarded $50,000.00 compensatory and $250,000.00 punitive damages. We reverse and remand for a new trial.

Appellant’s first point of appeal concerns a ruling by the trial court which excluded the testimony of Debbie Strecker, the 20-year-old daughter of appellee and Chloe Strecker. The proffer of Debbie’s testimony reflects that three to four weeks before the trial she contacted appellee’s lawyer and told him that her mother, Chloe Strecker, and appellant Blaylock were not homosexual lovers and that marital strife had existed between her parents for years. According to his brief, appellant’s lawyer had not contacted Debbie because he did not wish to involve her in a trial with her father on one side and her mother’s alleged homosexual lover on the other. The record only discloses that Debbie was not subpoenaed to appear as a witness, but that she did attend the trial as an interested spectator. There, she heard her father’s attorney’s opening statement, in which he said, in part:

Paul is going to tell you that he has been hurt emotionally. That in his opinion his family life has been ruined, and the lives of at least two of his children ruined. This woman gives them marijuana. This woman right here gives his son Chip, who is 16 years old, and I’ll prove it to you. . .

Following the completion of appellant’s opening statement, Debbie approached appellant’s attorney and said that appellee’s opening statement was not true and that she wanted to testify to that effect. Appellant’s attorney notified the court and appellee’s attorney, and Debbie was placed under the rule. The next day the appellant called her as a witness. The appellee objected because she had not been listed as a witness and because she had heard opening statements. The trial court ruled that appellant was not surprised by the witness and refused to exclude her testimony on the basis that she was not listed. However, the trial judge did exclude the testimony for the reason the witness had heard opening statements. The ruling was erroneous.

Both parties agree Debbie’s proffered testimony was material. In fact, in his brief appellee states: “As the eldest child of the Streckers, she would have been in a position to understand the relationship between her parents and many of the other matters which were to be testified to during the trial. To that there is no question.”

The rule providing for the exclusion of witnesses, A.R.E. Rule 615, may involve three different types of rulings by a trial judge, and each type presents a different standard for the judge. The first sentence of the rule provides: “At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order on its own motion.” (Emphasis added.) The standard of discretion given to the trial judge by this part of the rule is that of no discretion. If a party requests the rule, it must be granted.

The remainder of the rule provides: “This rule does not authorize exclusion of (1) a party who is a natural person, or (2) an officer or employee of a party that is not a natural person designated as its representative by its attorney, or (3) a person whose presence is shown by a party to be essential to the presentation of his cause.” Under this phase of the rule, on deciding whether a person should be sequestered because he is an officer or employee of a party, or person whose presence is necessary, the standard of discretion afforded a trial judge is average discretion. Home Mutual Fire Insurance Co. v. Riley, 252 Ark. 750, 480 S.W.2d 957 (1972); Arkansas Power & Light Co. v. Melkovitz, 11 Ark. App. 90, 668 S.W.2d 37 (1984).

The third phase, and third different standard, arises when a witness has been ordered sequestered, but does not comply. The rule does not mention the consequences of noncompliance with an order of exclusion, and therefore the sanctions are a matter of case law. The three possible methods of enforcement available to the trial judge are: (1) citing the witness for contempt, (2) permitting comment on the witness’s noncompliance in order to reflect on her credibility, and (3) refusing to let her testify. See 3 J. Weinstein & M. Berger, Weinstein’s Evidence 614-15 (1986).

The first option, citing the witness for contempt, was not a viable alternative under the facts of this case. The second option, and the one favored in this State since 1855, Pleasant v. State, 15 Ark. 624, 650 (1855), and favored by federal courts since 1893, Holder v. United States, 150 U.S. 91 (1893) was available, and its use would have been proper. It was error to use the third option, exclusion.

A trial court has very narrow discretion to exclude the testimony of a noncomplying witness. Harris v. State, 171 Ark. 658, 285 S.W. 367 (1926); Williams v. State, 258 Ark. 207, 523 S.W.2d 377 (1975); Norris v. State, 259 Ark. 755, 536 S.W.2d 298 (1976). Our standard on the exclusion of a witness’s testimony remains as it has been for many years, a standard of narrow discretion. That narrow discretion can be exercised by the trial judge only when the noncompliance is had with the consent, connivance, or procurement of a party or his attorney. In Norris v. State, 259 Ark. 755, 536 S.W.2d 298 (1976), we quoted with approval the following language from Williams v. State, 258 Ark. 207, 523 S.W.2d 377 (1975):

The rule consistently applied by this court is that a violation by a witness of the rule of sequestration of witnesses, through no fault of, or complicity with, the party calling him, should go to the credibility, rather than the competency of the witness. Harris v. State, 171 Ark. 658, 285 S.W. 367; Hellems v. State, 22 Ark. 207; Golden v. State, 19 Ark. 590; Pleasant v. State, 15 Ark. 624.

In the case of Wade v. Moody, 255 Ark. 266, 500 S.W.2d 593 (1973), one of the parties told the noncomplying witness what the prior witnesses had testified to, and yet we went so far as to say that exclusion was not the proper remedy. In the case at bar no complicity between the noncomplying witness, the party calling her, or the party’s attorney is even suggested and the witness should have been allowed to testify.

In Norris v. State, 259 Ark. 755, 536 S.W.2d 298 (1976), we additionally quoted from Williams v. State, 258 Ark. 207, 523 S.W.2d 377 (1975) as follows:

The power to exclude the testimony of a witness who has violated the rule should be rarely exercised. We have been unable to find any case in which this court has sustained the action of a trial court excluding the testimony of such a witness. While the witness is subject to punishment for contempt and the adverse party is free in argument to the jury, to raise an issue as to his credibility by reason of his conduct, the party, who is innocent of the rule’s violation, should not ordinarily be deprived of his testimony. Harris v. State, supra; Aden v. State, 237 Ark. 789, 376 S.W.2d 277; Mobley v. State, 251 Ark. 448, 473 S.W.2d 176.

We are still unable to find any case in which this Court has sustained the action of a trial court in excluding a witness for noncompliance.

The appellee argues that we should not be governed by the above cases because most of them are criminal cases. While it is true there are additional constitutional considerations in criminal cases, the sequestration of witnesses is not limited to criminal cases, and the reasons for not excluding the relevant testimony apply to both civil and criminal cases. In addition, the scarcity of civil cases on the subject probably is due to the history of the statutes. The civil predecessor to A.R.E. Rule 615 dates back to the civil code and was permissive; that is, it provided that the trial judge “may” exclude from the courtroom any witness of the adverse party. Ark. Stat. Ann. § 28-702 (Repl. 1979); Vaughn v. State, 252 Ark. 505, 479 S.W.2d 873 (1972). On the other hand, the criminal rule was mandatory, that is, the judge “shall” exclude any witnesses. Ark. Stat. Ann. § 43-2021 (Repl. 1977); Vaughn v. State, supra. Obviously, the rule would have been used more often in criminal cases, and there would be more criminal appeals.

Appellee cannot bring himself within the harmless error rule. Accordingly, we must reverse on this first assignment of error. We discuss the other points of appeal because they are likely to arise again upon retrial.

Appellee and his counsel repeatedly violated a court order prohibiting the mention of certain matters and appellee’s counsel frequently led witnesses. We doubt that such acts will reoccur at retrial, but if they do, the trial court can (1) admonish the witness or the attorney at the bench or before the jury, (2) strike the improper question and either permit a proper one or refuse to allow counsel to re-ask, (3) cite the offender for contempt, and (4) declarea mistrial. Alexander v. Chapman, 289 Ark. 238, 711 S.W.2d 765 (1986). With this arsenal of sanctions, a trial judge should be able to prevent repeated violations of pretrial orders and leading of witnesses.

If the trial judge allows frequent and repeated violations, over timely objections, we will reverse. Alexander v. Chapman, supra.

The third point of appeal concerns an evidentiary ruling. The trial court allowed the appellee to prove that appellant had a homosexual relationship with his wife. In an alienation action, it is permissible to prove a sexual relationship, though such conduct is not an essential ingredient of the cause of action. The trial court, in addition, allowed the appellee to prove that the appellant had previously, but recently, engaged in a homosexual affair with another woman and circumstantial evidence indicated that she knew that she had alienated the other woman’s affections. The appellant contends that the latter ruling was in error. The assignment of error is without merit, and the evidence may again be permitted at retrial.

In Johnson v. Truck Insurance Exchange, 285 Ark. 470, 688 S.W.2d 728 (1985), we determined that A.R.E. Rule 404(b) applied to civil cases. Thus, our general rule is that appellant’s prior act would not be admissible to prove that she acted in conformity therewith. The evidence may, however, be admissible to show appellant’s intent or motive.

In an action for alienation of affections, one of the elements of proof is that the defendant acted with the intent to do a wrongful act. Hodge v. Brooks, 153 Ark. 222, 240 S.W. 2 (1922). Evidence of a defendant’s state of mind and motives with respect to the plaintiffs spouse is admitted, with latitude, to prove such state of mind and motives; however, irrelevant evidence, under the guise of such purposes, tending instead only to arouse the prejudice of the jury, is not admissible. 41 Am. Jur. 2d Husband and Wife § 495 (1968). The real issue then is whether the evidence of the prior affair has independent relevance to prove intent.

Although discussing criminal cases, the following quotation from Alford v. State, 223 Ark. 330, 266 S.W.2d 804 (1954) is pertinent:

The issue of intent is theoretically present in every criminal case, and for that reason it is here that we are most apt to overlook the basic requirement of independent relevancy. Professor Stone, in the article cited above, has cogently demonstrated how easy it is to reason in this manner: Evidence to prove intent is admissible, and since the present case involves intent the proof should be received. 51 Harv. L. Rev. 988,1007. What has happened is that the emphasis has shifted from evidence relevant to prove intent to evidence offered for the purpose of proving intent, by showing that the defendant is a bad man. If this transfer of emphasis is permitted the exclusionary rule has lost its meaning.

The evidence submitted in this case was independently relevant to prove intent. The evidence concerning the prior affair showed that the other woman was married to a pharmacist and had children. Her little boy had been run over by a car. Appellant went to work for the other woman’s husband in the pharmacy. Over a period of time, appellant became very friendly with the other woman, and ultimately entered into a homosexual relationship with her. Appellant made derogatory statements about the woman’s husband such as, “he wasn’t understanding,” “was never at home,” “didn’t express love,” and that she “deserved someone better.” Circumstantial evidence indicated that appellant knew that the affair had caused the other woman to be alienated from her husband and had damaged her to the extent that hospitalization for psychiatric treatment was necessary.

The circumstances leading up to the relationship which caused the suit at bar were strikingly similar. Chloe Strecker was married to a pharmacist, appellee, and had children, one of whom was struck and killed by an automobile. Appellant went to work for Chloe’s husband in his pharmacy. According to the appellee’s evidence, she entered into a homosexual relationship with Chloe and made derogatory statements about him.

Manifestly, the evidence from the first affair has independent relevance to show that appellant knew the result of the first affair, and therefore, entered the Strecker relationship with the conscious purpose of causing the same result. The trial court was correct in permitting the evidence. Accord, Golding v. Taylor, 23 N.C. App. 171, 208 S.E.2d 422 (1974).

Appellant’s final point also involves another evidentiary ruling. The appellee offered, as part of his case-in-chief, the testimony of Father Ralph Esposito, a Catholic priest. Father Esposito had listened to a recording of a telephone tap of a conversation between appellee’s wife, Chloe Strecker, and appellant. The recording was destroyed by Chloe Strecker after the witness listened to it. The core of the priest’s testimony was that in the conversation Chloe Strecker asked appellant, “do you want me to fuck you?”

The trial court denied appellant’s motion in limine to exclude the testimony. Appellant argues that the statement was hearsay and should have been excluded. Appellee argues it was not hearsay as it was not offered in evidence for the truth of the matter asserted. We have included the undisguised statement in this opinion because, as any reader can see, the statement could be used solely to prove that th*e statement was made, or it could be used as probative evidence to show a homosexual liaison.

Appellee’s argument at the hearing on the motion in limine to exclude the evidence and appellee’s opening statement clearly demonstrate that the statement was intended to be and, in fact, was used to prove the truth of the matter asserted.

During the argument on the motion, appellee’s attorney said in the pertinent part, “It is more probative on the point than any other evidence which we can procure with reasonable efforts. It is essential to our lawsuit. It is the only exact probative evidence that we have of this sexual liaison.” The argument showed that appellee intended to use the statement to prove its contents, and the trial judge should have excluded it.

Further, in opening statement, counsel for appellee said, in part:

Paul took this recorded telephone conversation to his Priest, and the Priest is going to tell you that before the conversation was completed, that is, before they listened to all the conversation, the Priest is going to tell you he observed this man get physically sick. Paul and his brother, Andrew, was there. Paul excused himself from the room. The Priest is going to tell you that he took this telephone conversation on equipment that he has so he could clearly hear everything that was said between Chloe Strecker and this person, Blaylock. And he is going to describe to you a situation where it was like man and woman lovers talking to each other on the telephone. And he is going to describe to you in sexually explicit language what was said between these two lovers. And I’m talking about Chloe and this woman Blaylock.
The Priest is further going to tell you that this was probably a year and a half ago. He did not tell Paul about all of the sexually explicit language on that recording at that time. And in fact, told him only very recently. Paul excused himself because he became physically ill, hearing this conversation with his wife and her lover, because that’s obviously what it was.

The above quotation from appellee’s opening statement demonstrates that appellee used the statement to prove the truth of the matter asserted. It was hearsay. The only real question is whether, upon retrial, the testimony should be admitted under the residual-hearsay exception. See A.R.E. Rule 803(24) and 804(b)(5). This court carefully noted in Hill v. Brown, 283 Ark. 185, 672 S.W.2d 330 (1984), that all the common-law exceptions to the hearsay rule are based either upon necessity or upon some compelling reason for attaching more than average credibility to the hearsay, and that any new exception must have circumstantial guarantees of trustworthiness equivalent to those supporting the common-law exceptions. In determining that trustworthiness, the court must, under the language of the residual-hearsay rule, determine that (1) the statement is offered as evidence of a material fact, (2) the statement is more probative on the point for which it is offered than any other evidence the proponent can procure through reasonable efforts, and (3) the general purposes of these rules and the interests of justice will best be served by admission of the statements into evidence.

Here, the hearsay statement was that of appellee’s wife, Chloe. Appellant’s argument takes no issue with whether a tape actually had been obtained of a conversation between Chloe and herself. In fact, Chloe testified at trial, stating her son had given tapes to her which he took from appellee’s bedroom and that one of the tapes contained a conversation between appellant and herself. She denied, however, that the tape contained any sexual references or suggestions.

Chloe also admitted that she destroyed the tapes. It was this action, and the son having taken the tapes, that made it necessary for appellee to call Father Esposito as a witness. Father Esposito listened to the entire tape which contained a conversation between two women. He recognized one voice as Chloe’s, but the other he could not identify except Chloe referred to the person as Trish or Trisha. Those names, Chloe testified, were ones she used when referring to appellant.

In sum, it appears undisputed that appellee secretly taped a conversation between Chloe and appellant, knew and recognized the voices of each, and took the tape to Father Esposito, who, unlike appellee, heard the entire tape, including the sexually explicit statement now in issue, and he too recognized Chloe’s voice. He further identified the person to whom Chloe spoke as Trish or Trisha — a name Chloe used in referring to appellant. Under these circumstances, there is little room to doubt the trustworthiness of the text of the testimony given by Father Esposito. Upon retrial, the testimony should again be allowed.

Though not argued by appellant, it has been suggested in our conferences involving this case that the tort of alienation of affections is an outdated cause of action, should be abolished, and this case should be dismissed, instead of remanded. The appellant did not present such an argument either at trial or on appeal, and we will not raise it oursélves. As we said in Arkansas Kraft Corp. v. Johnson, 257 Ark. 629, 519 S.W.2d 74 (1975):

Nowhere in appellant’s brief is such an argument presented. In other words, such a position was neither taken at the trial court level nor is it set forth here. No citation of authority is necessary in saying that, aside from jurisdiction, we do not reverse cases on theories not presented by appellant to either the trial court or this court.

Reversed and remanded.

Hickman and Purtle, JJ., concur in part and dissent in part.

Darrell Hickman, Justice,

concurring. Alienation of affection is a civil action that should be abolished. I have yet to see the case where affection existed to be alienated. The affections are gone by the time the new suitor makes his or her move. Furthermore, this action is for vengeance not for justice.

Bitterness permeates these suits and this case epitomizes the damage done to all parties in such lawsuits. The appellant’s personal life has been invaded beyond the limits of decency; her character has been demolished beyond repair. The appellee has embarrassed himself and his children. He has probably achieved his purpose which is vengeance, but at what price? The former spouse, the pawn in this tragedy, having been through a personal emotional tragedy, will probably spend the rest of her life trying to restore her psyche to a semblance of normalcy. The damage to the children is immeasureable. Only the lawyers won.

The other side of this coin is that the law should provide a forum for a wrong, and those who indeed steal the affections of another, which “belongs” to a third person, should pay; it is better to resolve the conflict in a court of law than in the streets. Our legal system should not lend itself to such proceedings. The law has no obligation to pacify, condone or tolerate every real or imagined wrong people can suffer at the hands of their fellowmen. Sometimes people simply need to walk away from a problem and accept it. This is one of those cases. The courts cannot solve all of society’s ills, and we should not lend them to those who do not seek justice. By becoming a channel for such personal feelings, we demean the purpose of the courts. We historically avoid some lawsuits: political and religious disputes and disputes between parents and children. We should quit hearing cases such as this.

I would reverse and dismiss.

Purtle, J., joins.


author: Robert H. Dudley, Justice. Robert H. Dudley, Justice.

text:
    MEDICAL AND DENTAL CREDIT BUREAU, INC. v. LAKE HAMILTON CAMP AND CONFERENCE GROUNDS
    86-161
    724 S.W.2d 477
    Supreme Court of Arkansas
    Opinion delivered March 2, 1987
    [Supplemental Opinion on Denial of Rehearing April 20, 1987.]

      Hobbs, Longinotti, Bosson & Naramore, by: Richard W. Hobbs, for appellant.
    No brief filed.
   Robert H. Dudley, Justice.

The appellant, Medical and Dental Credit Bureau, Inc. held a judgment against a debtor and attempted to collect the judgment by causing a writ of garnishment to be issued against appellee. Appellee answered. Appellant moved for summary judgment contending that the appellee’s answer to the garnishment proceeding was not verified. See Ark. Stat. Ann. § 31-506 (Repl. 1962). The trial court denied the motion for summary judgment. Appellant seeks to appeal from that denial. We dismiss the appeal.

It is well settled that the denial of a summary judgment is deemed an interlocutory order and not a final order from which an appeal may be taken. Rule 2, Rules of Appellate Procedure; Bawcom v. Allis-Chalmers Credit Corp., 256 Ark. 569, 508 S.W.2d 741 (1974).

Dismissed.

727 S.W.2d 382

Supplemental Opinion on Denial of Rehearing April 20, 1987

Petition for rehearing; denied.

Robert H. Dudley, Justice.

On March 2,1987, the Court dismissed this appeal on the ground that denial of a motion for summary judgment in a garnishment proceeding is an interlocutory order and, therefore, not appealable.

In a petition for rehearing, the petitioner earnestly contends that garnishment is a proceeding which is ancillary to the main action between the plaintiff and defendant and the order releasing the garnishee finally disposes of the garnishment portion of the action and is appealable. We agree with the petitioner’s statement of law. In fact, Rule 2(a)(5), Rules of Appellate Procedure provides that an appeal may be taken from “an order which vacates or sustains an attachment or garnishment.” The distinction between that facet of law and this case is that in this case there is no order vacating or sustaining a garnishment, instead there is only an order denying a motion for summary judgment.

Petition for rehearing denied.


author: Steele Hays, Justice.

text:
    Gordon L. CUMMINGS, Individually, and Patrons of the FAYETTEVILLE SCHOOL DISTRICT NO. 1, upon the Relation of Gordon L. CUMMINGS v. The WASHINGTON COUNTY ELECTION COMMISSION; Linda OXFORD, Intervenor
    86-155
    724 S.W.2d 486
    Supreme Court of Arkansas
    Opinion delivered March 2, 1987

      Rudy Moore, Jr., for appellants.
    No brief for appellee.

      Niblock Law Firm, by: Walter R. Niblock, for Fayetteville School District No. 1, as amicus curiae.

      Hall, Wright & Morris, P.A., by: David E. Morris, for intervenor.
   Steele Hays, Justice.

Mrs. Linda Oxford, appellee, sought to qualify as a candidate for the school board of Fayetteville School District No. 1. Because she did not reside in the district, her eligibility was challenged. When the Washington County Election Commission, appellee, ruled in favor of Mrs. Oxford, Gordon L. Cummings, individually and on behalf of other patrons of the district, filed suit to declare Mrs. Oxford ineligible and for a writ of mandamus to the election commission to remove her name from the ballot. Mrs. Oxford intervened.

The circuit court denied the petition and refused to issue a writ of mandamus, reasoning that because Act 822 of 1983 (Ark. Stat. Ann. §80-1568 [Repl. 1980]) gave Mrs. Oxford the right to choose whether her children would attend Springdale or Fayetteville schools, she was “not clearly ineligible” to hold the office. Gordon Cummings has appealed.

While the case was pending the election was held and Mrs. Oxford’s opponent was elected, rendering the issue of Mrs. Oxford’s eligibility moot. The parties urge us to treat the case as an exception to the rule that we do not render advisory opinions where a genuine controversy does not exist. We have recognized an exception where the public interest is involved and the issue is such that it tends to become moot before it can be fully litigated. Robinson v. Arkansas State Game & Fish Commission, 263 Ark. 462, 565 S.W.2d 433 (1978); Dotson v. Ritchie, 211 Ark. 789, 202 S.W.2d 603 (1947). We believe that course is appropriate here.

The facts are not disputed. Mrs. Oxford and her husband own 11.57 acres of land lying partly in Springdale School District No. 50 and partly in Fayetteville School District No. 1 .The larger portion, 7.2 acres and the house, are in the Springdale district, while 4.55 acres are in the Fayetteville district. Mrs. Oxford’s children originally attended schools in the Springdale district, but after the passage of Act 822, they attended school in the Fayetteville district. Mrs. Oxford had voted in Springdale but changed her registration to become an elector in the Fayetteville district.

Two acts of the legislature pertain to the issue of Mrs. Oxford’s eligibility. Act 30 of 1935 (Ark. Stat. Ann. § 80-504 [Repl. 1980]) provides that a school director shall be a bona fide resident and qualified elector of the school district she serves. Act 822 provides that when any person owns a tract of land partially in one school district and partially in another, such persons may choose which district their children will attend, regardless of the location of the home on such lands.

We have long followed the common law maxim that statutes on the same subject will be construed together and reconciled to effect the legislative intent. We are required to give effect to both enactments unless it is impossible to do so. Ragland v. Yeargin, 288 Ark. 81, 702 S.W.2d 23 (1986); Sargent v. Cole, 269 Ark. 121, 598 S.W.2d 749 (1980); Cook v. Bevill, 246 Ark. 805, 440 S.W.2d 570 (1969); McFarland v. The Bank of the State, 4 Ark. 410 (1842). It requires no deep scrutiny into the two acts to see that they are easily harmonized. One deals with school attendance, the other with qualifications for school directors. Act 822 has nothing to do with school board elections, it merely covers school attendance by children residing on lands lying in two school districts. To construe Act 822 as entitling a parent whose property lies in two districts to serve on the school board he or she chooses for school attendance purposes requires an inference entirely unsuggested by the act itself. More significantly, that interpretation of Act 822 effectively repeals Act 30, a result to be avoided whenever possible. Yeargin v. Ragland, supra; Nance v. Williams, 263 Ark. 237, 564 S.W.2d 213 (1978); Faver v. Golden, 216 Ark. 792, 227 S.W.2d 453 (1950).

These acts are not irreconcilable. If Mrs. Oxford wants her children to attend schools in the Fayetteville district, she has that right under Act 822. If she wants to serve on a school board, she must meet the requirements of Act 30 — she must be a bona fide resident of the district where she becomes a candidate. Mrs. Oxford is not, nor does she claim to be, a resident of Fayetteville School District No. 1. To hold that she can send her children there to school and thereby qualify to serve on that district’s school board plainly nullifies Act 30. We are not free to interpret one act so as to defeat another when we can give effect to both acts.

The circuit court denied relief upon a finding that under Act 822 Mrs. Oxford was “not clearly ineligible” to serve on the Fayetteville school board and since an action in quo warranto was available to challenge her qualifications, mandamus would not lie. As we have attempted to demonstrate, Mrs. Oxford was clearly ineligible by the admitted fact that she did not reside in the Fayetteville school district. Since neither the law nor the facts were in doubt, appellant was entitled to have Mrs. Oxford declared ineligible to be a candidate for the Fayetteville school board. In that context mandamus was appropriate to the purpose. Ark. Stat. Ann. § 3-614 (Repl. 1976); Dykeman v. Symonds, 54 A.D.2d 159, 388 N.Y.S.2d 472 (1976).

Nor do we regard quo warranto as an adequate alternative. It is the state who initiates quo warranto. Ark. Stat. Ann. § 12-713 (Repl. 1979); Ramsey v. Carhart, 27 Ark. 12 (1871); Caldwell’s Adm’r. v. Bell, 6 Ark. 227 (1845). We have stated the other remedy, to be adequate, must be “plain and complete and as practical and efficient to the ends of justice and its proper administration as the remedy by mandamus.” Mears v. Hall, 263 Ark. 827, 569 S.W.2d 91 (1978). In Huie v. Barkman, 179 Ark. 772, 18 S.W. 334 (1929), we said:

To exclude resort to mandamus on the ground that the [petitioner] has another remedy, such remedy must be an adequate one and well adapted to remedy the wrong complained of; if it is inconvenient or incomplete, the court exercises a sound discretion in granting or refusing the writ.

Reversed.

       By a vote of 2,278 to 1,688.


author: Steele Hays, Justice. Steele Hays, Justice.

text:
    Raymond WATSON v. STATE of Arkansas
    CR 86-107
    724 S.W.2d 478
    Supreme Court of Arkansas
    Opinion delivered March 2, 1987
    [Supplemental Opinion on Denial of Rehearing April 20, 1987.]

      L. Gray Dellinger and Larry Dean Kissee, for appellant.

      Steve Clark, Att’y Gen., by: Robert A. Ginnaven, III, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

Raymond Watson has appealed from a judgment entered on his conviction of three felony counts and one misdemeanor count of theft by receiving, and one count of possession of a controlled substance with intent to deliver. The convictions brought fines of $16,000 and sentences totaling nineteen years in the Department of Correction. Watson argues twenty points for reversal grouped in five categories: I) the trial court erred in refusing to suppress evidence obtained under a defective search warrant; II) the trial court erred in denying a motion for a mistrial for witness misconduct; III) the trial court erred in permitting the state to amend the information in that Watson was charged and convicted of multiple offenses out of a single, continuing course of conduct; IV) the trial court erred in permitting testimony of other acts of misconduct and prior convictions of the appellant; and V) the trial court erred in permitting the state to exercise a peremptory challenge against a juror who had already been accepted by the state and the defense. We find no merit in the arguments and therefore we affirm the judgment.

J.R. Robinson, Jr. testified for the state that around February 6,1985 he went with Bobby Foster to a place near Mammoth Spring where they had hidden stolen property — including two three-wheelers and some welding equipment. Robinson helped Foster load the property and take it to appellant’s farm in Fulton County where it was traded for marijuana. A week or so later Foster and Robinson agreed that in return for Robinson’s silence, Robinson would receive a pound of marijuana which Foster expected to receive from appellant in exchange for stolen guns. Some disagreement arose and Robinson arranged to meet Foster when Foster would have the marijuana, but then tipped off the police, who arrested Foster with the marijuana.

On February 19 a search warrant was obtained on the basis of information given by Robinson and Foster to Sheriff Stan Witt. The warrant authorized a search of appellant’s farm in Fulton County and the seizure of two three-wheeler motorcycles, a cutting torch, two bottles, a double-barreled shotgun, a bolt action shotgun, a semiautomatic rifle, a rifle with a scope, and an indeterminate amount of marijuana. The warrant was executed and, except for the guns, the articles were found in appellant’s barn. Marijuana was found in the barn and in a cattle feeder.

I

The Search Warrant

Appellant attacks the search warrant on eleven grounds (numbered A through K). He submits that even if no defect taken alone would invalidate the warrant, the accumulation of errors is fatal under Harris v. State, 264 Ark. 391, 572 S.W.2d 389 (1978). We uphold the warrant.

A

Appellant alleges the February 19, 1985 affidavit of Sheriff Witt failed to recite facts which tended to prove the reliability of the two unnamed informants (Robinson and Foster). Aguilar v. Texas, 378 U.S. 108 (1964) and Spinelli v. United States, 393 U.S. 410 (1969). We disagree. The affidavit states that one informant told him on February 16,1985 he went with another individual on February 6, 1985 to the farm of the appellant with “two three-wheeler motorcycles, a cutting torch and two bottles” exchanged for one and one-half pounds of marijuana. The affidavit further states “within the last two days” the other informant returned to appellant’s barn where he was shown in excess of ten pounds of marijuana and where he observed the stolen articles still stored there. We note the informants gave specific details from their own actions and observations, describing the articles, the locations and the times with precision. Coupled with the Sheriffs assertion he considered the informants reliable the affidavit was sufficient. Wolf v. State, 10 Ark. App. 379, 664 S.W.2d 882 (1984).

In Illinois v. Gates, 462 U.S. 213 (1983), the two-pronged test of Aguilar and Spinelli was replaced by a different test — “a practical, common sense decision,” based on all the circumstances, including the veracity and basis for knowledge of persons supplying information. It is sufficient if “there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Under Gates it is the duty of the reviewing court simply to insure that the magistrate issuing the warrant had a substantial basis for concluding that probable cause existed. We are satisfied those requirements were met in this case. Jackson v. State, 291 Ark. 98, 722 S.W.2d 831 (1987); Toland v. State, 285 Ark. 415, 688 S.W.2d 718 (1985).

In Jackson, the affidavit said only that “a reliable informant advised affiant that he gave another boy $20 to get him some marijuana and watched him go to Spike Jackson’s house. When he came out he gave him a bag of green leafy substance and he returned this bag to me.” Here, Sheriff Witt initially received information directly from one of the participants, Robinson, describing the removal of specific articles of stolen property and the transporting of that property to appellant’s farm in exchange for marijuana. Robinson’s information was independently confirmed in three respects: Foster was intercepted where and when Robinson had said he would be, Foster had the marijuana as Robinson had said, and Robinson’s information about the delivery of the stolen property to appellant was corroborated by the other informant, Foster. Foster’s information reenforced a conclusion that the stolen articles were still there two days later when Foster returned to appellant’s farm to trade the stolen guns for more marijuana. Moreover, the admission by the informants of the possession of stolen property cast them under a cloud, and we have recognized that when an informant gives information which exposes himself to prosecution, there is an increased likelihood of reliability. Thompson v. State, 280 Ark. 265, 658 S.W.2d 350 (1983). The details and circumstances of these transactions and the corroborating aspect of two informants verifying the same events created a “fair probability that evidence of a crime would be found in the place designated,” as indeed it was. Gates v. Illinois, supra.

B

Appellant maintains the warrant in this case was not issued by a judicial officer. He reasons that because the case of Lawson v. City of Mammoth Spring, 287 Ark. 12, 696 S.W.2d 712 (1985) held the municipal court of Mammoth Spring was created in violation of our constitution, all proceedings and judgments of that court are null and void under Caldwell v. Barrett, 71 Ark. 310, 74 S.W. 748 (1903). However, we have later held that when a court is created under color of law it exists de facto and its orders are valid against collateral attack. Tumbs v. State, 290 Ark. 214, 718 S.W.2d 105 (1986); Landthrift v. City of Beebe, 268 Ark. 45, 593 S.W.2d 458 (1980).

C

Appellant submits the warrant was not returned in a timely manner. The warrant was returned on the seventh day, whereas five days are allowed under A.R.Cr.P. Rule 13.2(b)(v). On the fifth day Officer Beech called the magistrate, Judge Barksdale, to discuss returning the warrant. She informed him that Monday would be acceptable. The warrant was executed within the allotted time, and there was a good faith reliance with no resulting prejudice to the appellant. Leon v. United States, 468 U.S. 897 (1984).

D

Appellant’s argument that there was no written verification of the report of the execution of the warrant is without merit. Officer Beech testified Judge Barksdale placed him under oath before receiving the information. The requirements of A.R.Cr.P. Rule 13.4(b) were adequately met.

E

Appellant contends the warrant is defective because A.R.Cr.P. Rule 13.2(b)(i) provides the warrant shall state the date and place where the application was made and this warrant failed to state precisely where the application occurred. True, but the date and Fulton County, Arkansas, are stated and in the absence of any showing as to why greater exactitude was required, we reject the argument. A.R.Cr.P. Rule 16.2; Baxter v. State, 262 Ark. 303, 556 S.W.2d 428 (1977).

F

A.R.Cr.P. Rule 13.4(c) requires the issuing magistrate to “file the warrant, report, and list returned to him with the record of the proceeding on the application for the warrant.” Judge Barksdale did not file the material until sometime later, prompting the argument that this infraction invalidates the warrant. No prejudice, nor even any inconvenience so far as we can tell, resulted and we regard the delay as inconsequential. Boyd v. State, 13 Ark. App. 132, 680 S.W.2d 911 (1984).

G

Citing A.R.Cr.P. Rule 13.4(d), appellant argues Judge Barksdale’s failure to transmit the warrant and accompanying documents to the circuit court, which has jurisdiction over felony cases, renders the warrant defective. Judge Barksdale evidently retained the papers in her office until the suppression hearing. As the state points out, the rule is not mandatory, as it states “he may transmit the warrant, etc.” As with the other challenges to the search warrant, appellant has shown no reason why this handling of the warrant has put him at any disadvantage. McFarland v. State, 284 Ark. 533, 684 S.W.2d 233 (1985).

H

Rule 13.3(d) of the criminal rules states that upon completion of the search a receipt shall be made and given to the person from whom the things are seized. That was not done in this case. Had that omission resulted in some doubt about the identity or whereabouts of the articles seized, the argument would have greater weight. Harris v. State, supra. But the fact is there is no dispute whatever over the identity or location of the things which were seized and the argument is without substance. A.R.Cr.P. Rule 16.2(e).

I

Appellant notes that A.R.Cr.P. Rule 13.1(c) requires the issuing officer to make and keep a fair written summary of the proceedings and testimony taken before her. Appellant contends Judge Barksdale failed to keep the affidavit while the warrant was being executed. Had the affidavit been lost the argument would have greater force, but it seems to have been returned with the warrant and no harm resulted.

J

Under Point J appellant maintains the facts recited in the affidavit were not supported by the proof. He renews the argument that the affidavit fails to establish the reliability of the confidential informants. But we have examined that contention under Point A, and need not reiterate except to note the affidavit claims no prior contact with either informant, it merely refers to each as “reliable,” which, given the circumstances in their entirety, Witt was justified in assuming.

The companion argument is that Sheriff Witt’s testimony at trial and at the suppression hearing were inconsistent — at the suppression hearing he said he had had prior contact with both informants, whereas at trial he said he had had prior contact with neither — an obvious conflict. Why Sheriff Witt would jeopardize the case with testimony of doubtful credibility is inexplicable. It may be he mistakenly thought he had to establish previous contact with these informants pursuant to Aguilar, but, as we have seen, that is not the test. Be that as it may, it is not the sheriff’s testimony at the suppression hearing so much as his testimony at the warrant interview that concerns us, as the issue at the suppression hearing is whether there was probable cause shown to the magistrate for the issuance of the search warrant. Gates v. Illinois, supra. Hence any misleading testimony before the magistrate in obtaining the search warrant would clearly contaminate any seizures thereunder.

On that score appellant’s abstract contains nothing concerning the proceedings before Judge Barksdale, although a transcript is in the record. Sheriff Witt did not testify before Judge Barksdale that he had had prior contact with both informants, he said he had had one recent contact with one of them, which led to an arrest. That reference, we take it, is to the initial contact with Robinson which led to the interception and arrest of Foster two days later. We are satisfied the proof before the magistrate was factually accurate and Witt’s misstatements at the suppression hearing did not alter the fact that sufficient grounds were shown for the magistrate’s issuance of a warrant.

K

The final challenge involves the description of the place to be searched. Appellant argues the police were given a free hand to search a 560 acre farm in spite of the requirements of A.R.Cr.P. Rule 13.2(b)(iii) that the place to be searched be described with particularity.

Appellant relies on United States v. Chadwick, 433 U.S. 1 (1977), but in Chadwick, the search involved a footlocker, conducted with neither a search warrant nor an arrest warrant. The case has no relevance to the situation before us. The warrant here included a legal description of the farm and directions for reaching the house. We find no authority that a farm is too broad a description where stolen articles and marijuana are believed to be located. Similar descriptions have been upheld. United States v. Frazier, 491 F.2d 243 (6th C.A. 1974), United States v. Hassell, 427 F.2d 348 (6th C.A. 1970). The requirement of particularity is to avoid the risk of the wrong property being searched or seized. United States v. Gill, 623 F.2d 540 (8th C.A. 1980). Obviously, there was no danger of that in this case.

In reply to appellant’s reliance on Harris v. State, supra, we note that Harris was decided a decade ago, before several recent decisions by this court and the United States Supreme Court easing the more rigid requirements affecting search warrants. Even so, the deficiencies in Harris were, we believe, of greater substance than in this case, including execution of the warrant during the nighttime without provision in the warrant for a nighttime search.

Highly technical attacks on search warrants are not favored, lest police officers are discouraged from obtaining them. We think the language of United States v. Ventresca, 380 U.S. 102 (1964) is pertinent:

These decisions reflect the recognition that the Fourth Amendment’s commands, like all constitutional requirements, are practical and not abstract. If the teachings of the Court’s cases are to be followed and the constitutional policy served, affidavits for search warrants, such as the one involved here, must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion. They are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area. A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting.

II

Witness Misconduct

Appellant cites two instances where the trial court’s directive to witnesses and jurors not to discuss the case were breached, resulting in motions for mistrials. The arguments are renewed on appeal. In one, the Fulton County Sheriff, a witness for the state, acknowledged in chambers he had spoken with two jurors at the soft-drink machine during a recess. The brief conversation consisted entirely of comments about deer hunting. A mistrial was not required.

The other incident is of more concern. Mike Pickney, who had accompanied Foster when the guns were exchanged for marijuana, testified in chambers about a conversation with Bobby Foster, who had already testified for the state. He said Foster told him “they was going to ask me a bunch of questions and they was going to give me a hard time.” Foster told him to remember “we was going to get the pot for J.R.,” that “J.R. was the one who wanted the pot and we got the pot on a front,” meaning on credit. Back in front of the jury, defense counsel was permitted to question Pickney about the conversation with Foster and to ask if he had not told someone before trial that he would testify to whatever Foster said, even if he had to lie. Inasmuch as the jury was fully informed about the conversation between the two witnesses, as well as Pickney’s self-impeaching admission he would lie if necessary, we see no abuse of the trial court’s broad discretion concerning mistrials. His assessment of the impact of these developments on the basic fairness of the trial and whether the curative measures sufficed, is superior to our own. We cannot say the prejudice was so pronounced a mistrial was imperative. Combs v. State, 270 Ark. 496, 606 S.W.2d 61 (1980).

III

The Conviction of Multiple Offenses

The original information included all the articles in one count of theft by receiving.' The state later filed an amended information charging four separate offenses. Appellant argues the transactions constituted a single continuing course of conduct and, hence, only one offense. We reject the argument in part because the trial court was not asked to pass on the issue. After the state filed its amended information, appellant filed a motion for a continuance on several grounds, including an allegation the defense had not had time to research whether the counts were felonies or misdemeanors. At a subsequent pretrial conference on the motion the issues now argued on appeal were never discussed. Not having made a specific objection on the point now asserted, the issue is waived. Sawyer v. State, 284 Ark. 26, 678 S.W.2d 367 (1984).

IV

Prior Convictions and Other Acts of Misconduct

Appellant complains the state was permitted to offer proof of prior convictions and other acts of misconduct on his part. J.R. Robinson was asked by the state on redirect if he and Dick Watson (appellant’s father) had been “to the back of Raymond’s farm?” He said, “Yes, he took me up there to get some marijuana.” The defense objected and asked for a mistrial or for an admonition to the jury to disregard the last statement. The trial judge refused to declare a mistrial but instructed the jury accordingly. Appellant requested either a mistrial or an admonition. The court chose the latter and appellant’s request was satisfied. Gilbert v. State, 277 Ark. 61, 639 S.W.2d 346 (1982).

Next, appellant urges error occurred in connection with questions put to J.R. Robinson and Bobby Foster which violated a motion in limine by the defense. The questions concerned the guns which Robinson and Foster said were traded to appellant for marijuana. In Foster’s testimony he acknowledged the guns were stolen and appellant argues this proof had no relevance to the offenses being tried. He cites Cabbiness v. State, 241 Ark. 898, 410 S.W.2d 867 (1967) which held that prejudice is presumed in the absence of an affirmative showing to the contrary. That is no longer the rule. See Vasquez v. State, 287 Ark. 468, 701 S.W.2d 357 (1985); Berna v. State, 282 Ark. 563, 670 S.W.2d 434 (1984). Aside from that, the trial judge had denied the motion in limine because he could not decide on the admissibility of the disputed proof until he heard it. Since there was no objection when the testimony regarding the stolen guns was offered, we need not decide whether the testimony had relevance. Adams v. State, 276 Ark. 18, 631 S.W.2d 828 (1982).

Appellant also argues that questions by the state focused on his character in violation of A.R.E. Rule 404. He was asked if his father had gone to the penitentiary on a drug charge, and if Gary Cunningham and Donnie Allbright had convictions for marijuana. Appellant had earlier testified on direct that Allbright might have planted the marijuana found on his farm. To what extent these questions had relevance to the issues cannot be determined from the abstract, but the appellant has failed to demonstrate how his own character was put in issue by questions involving Cunningham, Allbright and his father. We find no reversible error here.

Another contention: after eliciting from the appellant an admission that he had been convicted of growing marijuana in August, 1984 the state asked how many marijuana plants were found on his property, what penalty the jury imposed, and whether he knew what “stripping marijuana” meant. Appellant relies on Floyd v. State, 278 Ark. 342, 645 S.W.2d 690 (1983), where we discussed A.R.E. Rule 609 and the use of evidence of prior convictions to impeach. Obviously, what is admissible in one case may not be admissible in the context of another case. Here, the appellant had testified on direct that he had no idea the articles Foster had brought to him were stolen, that he was keeping them simply to determine their value after which he planned to pay for them; moreover, he denied any knowledge of how a sizeable quantity of marijuana got on his farm. When a person in possession of stolen property denies knowing the property is stolen, proof of previous acts of the same nature is admissible to show knowledge. Reeves v. State, 263 Ark. 227, 564 S.W.2d 503 (1978); Walker v. State, 13 Ark. App. 124, 680 S.W.2d 915 (1984). By the same token, questions relating to a conviction for growing marijuana and the quantity involved were permissible under A.R.E. Rule 404(b) to show knowledge, motive and intent of the appellant.

Lastly, appellant complains of the state’s questioning of appellant about a quarter of a pound of marijuana. When appellant denied that he and Tommy Corp sold a quarter of a pound of marijuana to a B.J. Weaver, he was asked if Corp delivered that amount of marijuana to Weaver in his presence. Another denial. Appellant also denied having said that he usually didn’t deal in quarter pounds. Appellant now argues that A.R.E. Rule 606(b) precludes proof of specific instances of conduct by extrinsic evidence. However, the rule also provides that on cross-examination such proof may be admissible if, in the discretion of the trial court, it is probative of truthfulness or untruthfulness. The objection to this line of questioning was merely general, there was no specific objection. See A.R.E. Rule 103(a)(1).

V

The Peremptory Challenge

After several jurors had been accepted by the state and the defense, one juror was excused by the court for cause and another by peremptory challenge from the state. Both excusáis were over the objection of the defense. Appellant argues that once accepted, a juror cannot then be excused. We settled this issue in Nail v. State, 231 Ark. 70, 328 S.W.2d 836 (1959):

As pointed out in that case [Green v. State, 233 Ark. 761, 270 S.W.2d 895] we have frequently held that a litigant is not entitled to a particular juror. This being true, there is no valid reason to refuse the request to excuse one who has already been taken, even though a defendant’s challenges have been exhausted, unless it first be shown that the defendant will be prejudiced by the service of the venireman accepted in lieu of the juror excused. The record in this case, with reference to this matter, completely quoted above, shows nothing further. Counsel raised no objection to the substituted juror, nor endeavored to show any reason why the replacement could not, or would not, try the case with fairness or impartiality.

Appellant failed to show that he was prejudiced by having to take a juror he would not have accepted otherwise.

727 S.W.2d 383

For the reasons stated, the judgment is affirmed.

Glaze, J., not participating.

Supplemental Opinion on Denial of Rehearing April 20, 1987

Steele Hays, Justice.

In our original opinion we cited the testimony of J.R. Robinson, a witness for the state (Point IV, “Prior Convictions and Other Acts of Misconduct”). After the prosecution had asked Robinson on redirect if there was another occasion when Robinson and Dick Watson, appellant’s father, had gone to the back of appellant’s farm, Robinson answered, “Yes, he took me there to get some marijuana.” This response brought the following (R. p. 583):

By Mr. Delinger (Defense Counsel):
Well, we move for a mistrial, and in the alternative we would ask the court that the jury be admonished to disregard that last statement.
By the Court:
I will deny the mistrial but I will admonish the jury. By Mr. Delinger:
All right. Thank you, Judge. [The jury was then admonished accordingly].

In our original opinion we said that because the trial court granted one of the two remedies sought — the admonition — there could be no error since the defense had asked for one or the other.

By petition for rehearing the appellant argues that we overlooked a later development in the trial reflecting that the motion was first for a mistrial and, if denied, • then for an admonition. After a noon recess the following occurred (R. p. 584):

By Mr. Delinger:
(At the bench) My motion, I phrased it incorrectly, I moved for a mistrial first, and then I said or in the alternative for an admonition to the jury. I didn’t mean to withdraw my moving for the mistrial. And then you ruled no, then I moved for an admonishment.
By the Court:
That’s right. I took it in that order.

In light of the trial court’s comment, we accept appellant’s point that his motion for a mistrial was preserved and should be decided on the merits.

We have reviewed J.R. Robinson’s testimony in full. Robinson was called by the state and on direct examination he was asked nothing about appellant’s father or about being at the back of appellant’s farm. On cross-examination defense counsel brought out that Robinson and Dick Watson were friends, that Dick Watson had given Robinson between 15 and 20 pounds of marijuana for helping him cut wood. Robinson was also asked by the defense about other trips to appellant’s farm. On redirect, the prosecutor asked if there had been one other time he and Dick Watson had gone to the back of the farm and Robinson gave the answer already quoted, prompting the mistrial motion.

In denying the motion for a mistrial the trial court remarked that the answer was not responsive to the question posed. Whether the question could have been answered simply yes or no, rendering the reference to marijuana as voluntary by the witness, was for the trial judge to decide. Evidently he was satisfied the state had not intentionally elicited an improper response from the witness and given the wide latitude afforded trial courts in acting on mistrial motions we see no abuse of discretion. We do not regard the incident as so manifestly prejudicial as to require a mistrial. Mosier v. State, 285 Ark. 67, 684 S.W.2d 810 (1985).

Rehearing denied.

       The affidavit could have included as a factor of reliability that Sheriff Witt determined the three-wheelers matched the descriptions of similar vehicles in offense reports of stolen property. A.R.Cr.P. Rule 13.1(b).

       Record, p. 324.


author: David Newbern, Justice.

text:
    Phillip Tod CHENOWITH and Boyce SHADDON v. STATE of Arkansas
    CR 87-23
    724 S.W.2d 488
    Supreme Court of Arkansas
    Opinion delivered March 2, 1987

      Robert E. Irwin, for appellant Phillip Todd Chenowith.

      Streett & Kennedy, by: Alex G. Streett, for appellant Boyce Shaddon.

      Steve Clark, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

The issue in this case is whether Ark. Stat. Ann. § 43-1903 (Repl. 1977) or general principles of fairness require that, in felony cases, prospective jurors be questioned on voir dire and subjected to challenges for cause and peremptory challenges one prospective juror at a time. We hold that procedure is not required, and thus we find no error in the trial court’s procedure by which prospective jurors were subjected to this process two at a time.

The appellants were accused of theft of property. Counsel for appellant Chenowith asked that the court permit the prospective jurors to be questioned and challenged one at a time out of the hearing of the other jury panel members. The state objected on the ground that unnecessary delay would be caused by that procedure. The judge stated he did not want the jurors subjected to unnecessary voir dire, and he would permit examination of them two at a time. The appellants, both Chenowith and Shaddon, objected as follows:

BY MR. STREETT: [Counsel for appellant Shaddon] I’m going to make a specific objection to the Court drawing twelve Jurors and seating them in the box in that it gives an edge to the Prosecutor for the Court to pull those twelve and let the Prosecutor see those twelve as opposed to the rest of the panel, and I think there are specific cases that have held that that’s error and I would object to that procedure.
BY MR. IRWIN: [Counsel for appellant Chenowith] I join in the same objection.

Neither the statute, § 43-1903, nor the cases decided in this court, support the objection to gathering twelve prospective jurors for voir dire. However, our cases and a recent court of appeals decision based upon them do support the objection to subjecting more than one juror at a time to voir dire and challenges. The state asks us to reconsider our earlier decisions, and we agree the matter is ripe for review.

1. The statute

Ark. Stat. Ann. § 43-1903 (Repl. 1977) is as follows:

43-1903. Felonies, selection in. — In a prosecution for felony, the clerk, under the direction of the court, shall draw from the jury box the names of twelve [12] petit jurors, who shall be sworn to make true and perfect answers to such questions as may be asked them touching their qualifications as jurors in the case on trial, and each juror may be examined by the State and cross-examined by the defendant, touching his qualification. If the court decide he is competent, the State may challenge him peremptorily or accept him, then the defendant may peremptorily challenge or accept him. If not so challenged by either party, he shall stand as a juror in the case, and each of the twelve [12] jurors shall be examined and disposed of in like manner. If any of said jurors are disqualified or challenged, the clerk shall draw from the box as many more as may be required, and as often as may be required, until the jury shall be obtained, or the whole panel exhausted.

The statute clearly contemplates gathering twelve jurors for voir dire. It further says “each” juror “may” be examined by the state and then by the defendant with peremptory challenges to be in the same order. “Each” is to be “examined and disposed of in like manner.” Nothing in the statute prohibits examination of all twelve jurors or any number of them before challenges are made. In our cases we have, however, come to the position that, if a request for individual voir dire is made, the court may not permit questioning and then challenging of more than one juror at a time.

2. The cases

In Clark v. State, 258 Ark. 490, 527 S.W.2d 656 (1981), the trial court required that a group of twelve jurors be examined with questioning first by the state and then by the appellant. After the twelve were examined by the parties, the state made its peremptory challenges and then the appellant made his challenges. The state excused four, and the appellant excused five of the first twelve peremptorily. Then, apparently, nine more jurors were called and subjected to voir dire after which further peremptory challenges by the state and then by the appellant were permitted. We reversed the conviction. After quoting the statute we noted that an individual juror must first be accepted or rejected by the state before the appellant is required to do so. We found prejudice in the procedure used and said so as follows:

Furthermore, since the State here exercised 4 of its 6 and the appellant 5 of his 8 peremptory challenges on the first 12 jurors drawn from the panel, it at once becomes obvious that it was an advantage to the State to be able to examine all of the next 9 jurors before exercising its last two challenges — i.e., it could peremptorily challenge the least desirable of the nine jurors instead of rejecting them one at a time. Consequently, we must hold that the trial court erred in requiring the appellant to examine all of the jurors drawn from the panel each time before the State was required to either accept or reject a juror. [258 Ark. at 493-494; 527 S.W.2d at 621.]

The difficulty with the language we used is that it does not show how the appellant was prejudiced. If the state looking at more than one juror at a time could peremptorily remove the jurors least desirable to it, so could the appellant remove those least desirable to him. As long as the appellant exercises his challenges after the state exercises its challenges, we fail to see any violation of the statute. As long as the state and the appellant both have available to them the same information obtained from equal opportunity to examine prospective jurors, we can find no unfairness to the appellant. To the contrary, the appellant has a slight advantage, as the state may remove a juror the appellant had planned to remove, thus saving a challenge for the appellant.

In Rolleson v. State, 272 Ark. 346, 614 S.W.2d 656 (1981), we cited Clark v. State, supra, and quoted that opinion’s description of the prejudice resulting to the appellant from allowing both parties to question more than one prospective juror before allowing challenges. However, we did not rely on it because in Rolleson v. State, supra, only the state was allowed to question the remaining jurors before either party was allowed to exercise peremptory challenges. The prejudice there was clear.

In Vowell v. State, 4 Ark. App. 175, 628 S.W.2d 599 (1982), our court of appeals correctly, but over a strong and well reasoned dissent, implemented the message we had sent. They held it was error to permit the state to choose the number of jurors, in that case three, to be questioned together and then subjected to peremptory challenges. We reversed the decision, Vowell v. State, 276 Ark. 258, 634 S.W.2d 118 (1982), but only because the record did not show the state had peremptorily challenged any juror, thus the prejudice we had discussed in our earlier cases could not be shown.

There is no standard or accepted timing procedure for the exercise of peremptory challenges in the state courts, nor is any particular mode universally condemned. The system also varies considerably among the federal courts as well. B. Colson, L. Blue, and J. Sagninaw, Jury Selection, § 10.4.4 (Callaghan 1986). In Pointer v. United States, 151 U.S. 396 (1894), the Circuit Court for the Western District of Arkansas had presented to the parties a list of thirty-seven jurors after all thirty-seven had been examined and found not liable to objection for cause. The defendant was then allowed to strike a number, up to twenty, from the panel. He complained that the procedure violated Arkansas law. The Supreme Court noted that this procedure was inconsistent with Arkansas law which, however, was not controlling. The court then discussed whether the procedure used was “in violation of any settled principle of criminal law relating to the subject of challenges.” 151 U.S. at 408. In his discussion of the general principles controlling the peremptory challenge process, Mr. Justice Harlan, writing for the court, said:

Any system for the empanelling of a jury that presents [prevents] or embarrasses the full, unrestricted exercise by the accused of that right, must be condemned. And, therefore, he cannot be compelled to make a peremptory challenge until he has been brought face to face, in the presence of the court, with each proposed juror, and an opportunity given for such inspection and examination of him as is required for the due administration of justice. [151 U.S. at 408-409].
In some jurisdictions the mode pursued in the challenging of jurors is for the accused and the government to make their peremptory challenges as each juror, previously ascertained to be qualified and not subject to be challenged for cause, is presented for challenge or acceptance. But it is not essential that this mode should be adopted. [151 U.S. at 410.]

The Standard 15-2.6 found in III A.B.A. Standards for Criminal Justice (1986) addresses peremptory challenges as follows:

(a) Peremptory challenges should be limited to a number no larger than ordinarily necessary to provide reasonable assurance of obtaining an unbiased jury, but the trial judge should be authorized to allow additional peremptory challenges when special circumstances justify doing so.
(b) The procedure for exercise of peremptory challenges should permit challenge to any of the persons who have been passed , for cause.
(c) The number of peremptory challenges and the procedure for their exercise should be governed by rule or statute.

In the commentary following the standard, various state procedures are discussed. With respect to the desirability of exercising peremptory challenges on one prospective juror at a time, as opposed to exercising them as to a group, i.e., striking from a qualified panel larger than twelve, the discussion is as follows:

The Supreme Court observed in Swain v. Alabama, [380 U.S. 202 (1965)] that the approach of striking jurors, as opposed to other types of peremptory challenge, has been praised “as a fairer system to the defendant and prosecutor and a more efficacious, quicker way to obtain an impartial jury satisfactory to the parties.” It is true that each party, at the time of each peremptory challenge, is confronted with the total number of persons from whom the final jury will be formed, and thus is always in a position to exclude the person found to be most objectionable. Under the other systems, by contrast, there is always the chance of some other person or persons coming on the panel who are more objectionable than those already challenged. At the same time, the system of striking jurors is arguably more time consuming in that in every case it is necessary to examine and qualify a large group of jurors, while under other systems the parties may reach an early accord on the jury without exercising all of their challenges. [Footnote omitted. Ill A.B.A. Criminal Justice Standards at 15-70]

We recognize that striking, say, a panel of twenty down to twelve by the use of peremptory challenges differs from striking from a panel of twelve and then replacing those struck with others until a final twelve are selected when both sides have no more peremptory challenges. However, the practice in which we found prejudice in Clark v. State, supra, is the subject of praise elsewhere, and we are convinced we were wrong in saying it prejudiced the appellant. That case is thus overruled.

Section 43-1903 leaves some discretion in the trial judge as to the manner of conducting voir dire of prospective jurors. As long as both parties, the state and the defense, are allowed to examine jurors individually, and the state is required to exercise its peremptory challenges first, the trial court has leeway to permit more than one juror to be subjected to the process at one time.

Affirmed.


author: Tom Glaze, Justice.

text:
    Ronnie Lee BIRCHETT v. STATE of Arkansas
    CR 86-162
    724 S.W.2d 492
    Supreme Court of Arkansas
    Opinion delivered March 2, 1987

      William R. Simpson, Jr., Public Defender, and Howard W. Koopman, Deputy Public Defender, by: Arthur L. Allen, Deputy Public Defender, for appellant.

      Steve Clark, Att’y Gen., by: J. Blake Hendrix, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

Appellant was found guilty by a jury in March 1986 of hindering apprehension, and sentenced, as a habitual offender, to a term of forty years. At the penalty phase of his trial, appellant objected to the use of six prior felony convictions to enhance his sentence because they were on appeal. Appellant urges this court to modify its ruling in Glick v. State, infra, and hold that prior convictions on direct appeal cannot be considered for the purpose of sentence enhancement. We decline to do so and, therefore, affirm.

The habitual offender statutes, Ark. Stat. Ann. § 41-1001 — 1005 (Repl. 1977 & Supp. 1985), provide for the enhancement of sentence based on the number of prior felony convictions or findings of guilt. In Hill v. State, 13 Ark. App. 307, 310, 683 S.W.2d 628, 630 (1985), the court of appeals upheld the use of prior convictions on appeal for enhancement of punishment, stating:

Adopting the theory advanced by the appellant would result, as a practical matter, in rarely ever being able to apply the habitual criminal statutes, since criminal defendants have numerous avenues through which to seek relief, including direct appeal, petitions under Rule 37, and federal habeas corpus petitions. We do not believe that the legislature intended the result urged by the appellant.

In Glick v. State, 286 Ark. 133, 689 S.W.2d 559 (1985), we agreed with the reasoning of the court in Hill, supra, and held that, for purposes of sentence enhancement, a conviction is final when judgment is pronounced. We have also stated, in Mannix v. State, 273 Ark. 492, 621 S.W.2d 222 (1981), that a prior decision will be upheld unless an injustice would result. We find no injustice in the case presented here.

While appellant seeks to have Glick modified only with regard to prior convictions on direct appeal, we are unconvinced, as appellant suggests, that the application of our previous ruling is either fundamentally unfair or out of step with other jurisdictions. Under appellant’s proposal, not only would the use of prior convictions for enhancement purposes be delayed, but, in many cases, the State would be foreclosed from availing itself of their use. Appellant, on the other hand, can, under these circumstances, petition for post-conviction relief and thereby request his original sentence be modified on the ground his sentence is in excess of the maximum authorized by law. A.R.Cr.P. Rule 37.1. Appellant claims, however, the Rule 37 relief is unsatisfactory and ineffective because he is not entitled to an attorney under that rule. Of course, Rule 37.3(b) does provide for the appointment of counsel for a hearing in both the circuit court and, on appeal, this court. And, while a petitioner has no right to counsel at the time he prepares a Rule 37 petition, the procedure in preparing such a verified petition is uncomplicated, and it is the established practice in Arkansas for the courts to be liberal in allowing amendments to such petitions. See Bogett v. State, 290 Ark. 43, 716 S.W.2d 749 (1986); see also Knappenberger v. State, 278 Ark. 382, 647 S.W.2d 417 (1983).

Appellant further argues that other jurisdictions adhere to the rule that prior convictions on appeal may not be used for sentence enhancement. We are unaware of what other remedies those jurisdictions provide defendants who are in situations comparable to that posed here, but certainly we believe the remedy allowed under our statutory scheme is a fundamentally fair one. In any event, we think it important to note that we are not alone in holding that, for purposes of sentence enhancement, a conviction is final when judgment is pronounced. See, Prock v. State, 471 So. 2d 519 (Ala. Crim. App. 1985); Jackson v. State, 418 So. 2d 827 (Miss. 1982); People v. District Court, Etc., 559 P.2d 235 (Colo. 1977); Sutton v. State, 519 S.W.2d 422 (Tex. Crim. 1975); People v. Sarnblad, 26 Cal. App. 3d 801, 103 Cal. Rptr. 211 (1972); State ex rel Corbin v. Court of Appeals, Etc., 103 Ariz. 315, 441 P.2d 544 (1968). As the Supreme Court of Colorado concluded in People v. District Court, Etc., supra: “If prior convictions on appeal were not included, many recent felony convictions might be effectively exempted from the operation of the statute. This would be clearly inconsistent with the obvious purpose of the statute, which is to punish repeat offenders.” 559 P.2d at 236. Because we agree with this statement, and believe viable remedies are available, we affirm.

Affirmed.

       In May 1986, the six convictions were reversed and remanded. See Birchett v. State, 289 Ark. 16, 708 S.W.2d 625 (1986). Appellant’s attorney, at oral argument, informed the court that appellant, on retrial, was again convicted of “some” of the six charges, and those convictions will be appealed.


author: Jack Holt, Jr., Chief Justice.

text:
    HILL CONSTRUCTION CO. and MAYES, SUDDERTH & ETHERIDGE v. Mel BRAGG
    86-191
    725 S.W.2d 538
    Supreme Court of Arkansas
    Opinion delivered March 9, 1987
    [Rehearing denied April 13, 1987.]

      Barber, McCaskill, Amsler, Jones & Hale, P.A., for appellant Hill Construction Co.

      Bridges, Young, Matthews, Holmes & Drake, for appellant Mayes, Sudderth & Etheridge.

      Gibson & Ellis, for appellee.
   Jack Holt, Jr., Chief Justice.

The appellee, Mel Bragg, was injured when a steel column fell over on him during a construction job. Bragg was an ironworker for the subcontractor on the construction project. He filed suit against the appellant, Hill Construction Co., (Hill), the general contractor for the job, and against the architects and engineers who prepared the plans for the building, the other appellant, Mayes, Sudderth & Etheridge (Mayes). The case was tried before a jury which returned a verdict in Bragg’s favor for $250,000. Fault was apportioned between the two appellants: 90% to Hill and 10% to Mayes. It is from that verdict and judgment that this appeal is brought. We find error in the failure to give certain jury instructions and reverse and remand.

The accident occurred after the subcontractor had erected two columns and was attempting to erect and attach a horizontal beam. Bragg and a co-worker were riding on a beam which was to be placed on top of two vertical columns, on a windy day, when one of the vertical columns fell over, injuring Bragg. No guy wires or other bracing were used to temporarily hold the column until the beam was in place. Bragg contended in his lawsuit that the faulty design of the project by the architect and the execution of that design by the general contractor were the cause of his injuries. Hill and Mayes argued that Bragg failed to prove they were to blame for the column falling and that the subcontractor’s action, in not bracing the columns, caused the accident.

Among the errors argued on appeal by Hill and Mayes was the failure of the trial court to give a proffered jury instruction on intervening proximate cause. In support of this jury instruction, Hill and Mayes contend that testimony at the trial indicated that the specifications for the job required the subcontracted steel erector to use guy wires and other supports when raising and supporting the column and these were not used; that the subcontractor’s foreman decided on the erection sequence for the columns and decided to use only wooden wedges to temporarily brace the columns; and that testimony was given by the foreman that erecting columns on a windy day is hazardous and that he told Bragg and the co-worker before they got on the beam to “Pay attention to what’s going on because I don’t like this setup”; and that the same column was subsequently safety erected without altering the design.

Bragg maintains the instruction should not have been given because there was substantial evidence that Hill and Mayes were negligent and that their negligence was the proximate cause of the injury he suffered.

This court has explained that “[t]he question of intervening efficient cause is simply a question whether the original act of negligence or an independent intervening cause is the proximate cause of an injury. . . . Like any other question of proximate causation, the question whether an act or condition is an intervening or concurrent cause is usually a question for the jury.” Larson Machine et al. v. Wallace, 268 Ark. 192, 600 S.W.2d 1 (1980). Furthermore, “[t]he original act or omission is not eliminated as a proximate cause by an intervening cause unless the latter is of itself sufficient to stand as the cause of the injury.. . . The intervening cause must be such that the injury would not have been suffered except for the act, conduct or effect of the intervening agent totally independent of the acts or omission constituting the primary negligence.” Id. We have also held that the jury may be instructed on intervening cause where a third party, who is not a party to the action, may have been negligent, just so the instruction makes it clear that the third party’s negligence must be the sole proximate cause before a verdict for the defendant is required. Boyd & Smith v. Reddick & Twist, 264 Ark. 671, 573 S.W.2d 634 (1978).

Here, there was sufficient evidence of the subcontractor’s negligence to warrant a jury instruction on intervening proximate cause.

Bragg argues that Hill’s and Mayes’s objection to this jury instruction and to all of the other jury instructions were waived by their failure to apprise the trial court of their objections before the jury began its deliberations. We disagree.

It is true that no party “may assign as error the giving or failure to give an instruction unless he objects thereto before or at the time the instruction is given.” Ark. R. Civ. P. Rule 51. Bragg states in his brief that the record does not reflect that the court was apprised of the objections to instructions to be presented until after the jury had been instructed and immediately after plaintiffs first closing argument. To the contrary, the record reveals what instructions were proffered, including one on independent intervening cause, and after each proffered instruction is a statement in parenthesis: “Defendant Hill’s Requested Instruction No__was refused by the Court, to which action Defendant Hill objects.” The attorneys for Hill and Mayes also stated in the record, in the presence of the trial judge that the instructions were presented to the court by all three parties the night before the instructions were given and that, by agreement of counsel, they made the record of their objections to the instructions in the midst of closing argument.

In Beevers, Adm’x v. Miller, 242 Ark. 541, 414 S.W.2d 603 (1967), the appellee contended that appellant’s objection to the court’s failure to give the questioned instruction came after the jury was instructed. This court held:

Nothing in the transcript reflects that this was the case. Appellee relies on language in the objection which indicates that appellee’s counsel had argued the case to the jury at the time the objection was made. This objection was not contained in the original transcript but supplied in a supplement to the original transcript. . . Neither the original nor the supplement shows when the objection was made. . . . It is suggested that the court was aware of the objection but requested that appellant wait until the jury was deliberating to put the specific language of the objection into the reporter’s record. It is well known among the bench and bar that this is a common practice designed to expedite the trial by diminishing the time jurors must wait for instructions to be settled, prepared in written form and given. In the absence of a specific objection by counsel, which does not appear here, we find no waiver on the part of appellant’s counsel under such circumstances.

Here, too, the record is not clear as to exactly when the objections were made. The record does spell out, however, that Hill’s attorney stated in the presence of the trial judge that, before the jury was instructed, the court was aware of the instructions it was not going to give, the instructions that had been refused, and the instructions that had been proffered by all parties, to which the trial court did not take issue. While the better and less vulnerable practice would be for the judge to state in the record what instructions had been proffered and refused before the jury is instructed, the record is sufficient under these particular facts to show that Hill and Mayes did not waive their objections to the jury instructions.

Accordingly, the verdict is reversed and remanded for a new trial. Because the other objections raised could arise on retrial, we will address these issues.

Both Hill and Mayes argue that the trial court erred by not directing a verdict in their favor at the close of Bragg’s evidence. On appeal of the denial of a directed verdict this court takes a view of the evidence most favorable to the party against whom the verdict is sought and gives it its highest probative value, taking into account all reasonable inferences deducible from it. Dan Cowling & Assoc. v. Clinton Bd. of Educ., 273 Ark. 214, 618 S.W.2d 158 (1981). Such a motion is granted only if the evidence viewed in that light would be so insubstantial as to require that a jury verdict for the party be set aside. Id. We cannot say the evidence here is so insubstantial. While it is true there was sufficient evidence of the subcontractor’s negligence to warrant an instruction on intervening proximate cause, there was also evidence that there were problems with the design of the column’s anchbr bolts and that they were offset, and that the layout of the portion of the building which had been constructed when the column was erected was an “ironworker’s nightmare.” There was sufficient evidence to send the question of Hill’s and Mayes’s negligence to the jury.

Hill also contends that the trial court erred in admitting into evidence photographs of anchor bolts, base plates and columns not related to the accident. When the pictures were introduced, the jury was told that they were not pictures of the bolts and plates on the column that fell. Pictures of those bolts and plates and of that column were introduced separately. Since Bragg’s theory of the case in part was that the design of the anchor bolts and base plates was a cause of the accident, pictures of other parts of the building with similar bolts and plates were relevant. Inasmuch as the admissibility of photographs as an aid to the jury is a matter within the sound discretion of the trial judge, and the judge’s ruling is not disturbed on appeal absent an abuse of that discretion, Riggan v. Langley, 238 Ark. 649, 383 S.W.2d 661 (1964), no error was committed in the introduction of these photographs.

Next, Hill and Mayes argue that it was error for the trial court to instruct the jury on Bragg’s future medical expenses and loss of future earnings since no evidence was presented that it was reasonably certain Bragg would incur additional medical expenses or lose earnings in the future. When the record on the objections was made, while the jury was deliberating, Bragg’s attorney stated that he had no objection to omitting the requests for future medical expenses and for future earnings from the instruction and that, in his closing argument, he did not ask the jury to return a verdict for those two items. Since Bragg apparently concedes that these instructions were inappropriate based on the proof, this same problem should not recur in a new trial.

Another jury instruction error argued by Hill and Mayes and conceded by Bragg that should not arise on retrial, was the trial court’s giving of AMI (Civil) 203 in its entirety. The final bracketed portion of that instruction is not used when the case is submitted on interrogatories, as this case was. We assume, based on the observations and statements of counsel, that this instruction will be properly given in a new trial.

Hill and Mayes argue next that the court erred when it refused to give a “modified version” of AMI (Civil) 707. In the modified version, the jury would have been instructed that the subcontractor was an independent contractor and that any negligence of an independent contractor is not chargeable to his employer. AMI 707, on the other hand, provides that one of the questions for the jury to decide is whether a party was an agent or an independent contractor. The note on use to AMI 707 states this instruction may be given only when there is an issue whether a person is an agent or an independent contractor. Hill sought to misuse the instruction since he did not intend to ask the jury to resolve that question, but rather to instruct the jury that the subcontractor was an independent contractor. Accordingly, it was properly refused by the trial court.

Hill also objects to the trial court’s failure to instruct the jury on comparative fault (AMI 206) so that the jury could decide what role, if any, Bragg’s negligence played in the accident. We agree that this was error. There was some evidence that Bragg knew raising the column that day was risky, and that Bragg’s back was turned to the column when it fell and struck him, in spite of an admonition by the foreman not to go up there with his “head turned around” and to “[p]ay attention to what’s going on” because he didn’t “like this setup.” In Holiday Inns, Inc. v. Drew, 276 Ark. 390, 635 S.W.2d 252 (1982), we found reversible error in the trial court’s failure to instruct the jury on the issue of that plaintiffs negligence. We stated that the plaintiffs negligence was specifically pled as a defense in the defendant’s answer and that testimony was generated at the trial on plaintiffs negligence. Without instructing the jury on AMI (Civil) 206, the court found that nowhere throughout the other instructions could be found an explanation by the court that one of the issues was the affirmative defense of negligence. Here, too, negligence was pled in the answer and the evidence was sufficient to entitle Hill and Mayes to an instruction informing the jury that Bragg’s negligence was an affirmative defense.

The remaining assignments of error in this appeal concern Mayes’ objections to the refusal of proffered instructions on the duty of care of architects and the warranties for their work.

Mayes first contends that the trial court should have given a modified version of AMI (Civil) 1501 stating that an architect must use the degree of skill and learning ordinarily possessed and used by members of its profession engaged in the same type practice in the locality in which he practices or in a similar locality. The instruction also provided that the jury could consider only the evidence presented by the engineers and architects called as expert witnesses in deciding whether Mayes applied the degree of skill and learning which the law required. Mayes’s instruction was properly refused in that it uses the same or similar locality rule as the standard of care for architects and engineers, and that instruction applies only to physicians, surgeons, and dentists. Carroll-Boone Water Dist. v. M & P Equip. Co., 280 Ark. 560, 661 S.W.2d 345 (1983). This argument therefore has no merit.

Mayes also maintains the judge erred in refusing proffered instructions about the liability of an architect for negligence but “not for mere unsatisfactory results or mere errors of judgment”; and that an architect/engineer is not liable for faults in construction resulting from defects in the plans as he does not guarantee a perfect plan or a satisfactory result, but may only be liable for a failure to exercise reasonable care and skill.

The jury was instructed that Mayes must be guilty of negligence to be at fault, and negligence was defined as the failure to do something which a reasonably careful person would do. Mayes was also held by the jury instructions to the standard of ordinary care based on the degree of skill and care possessed by architects doing similar work. We find no error in the failure to give the proffered instructions since their content was presented to the jury in other instructions.

Reversed and remanded.