text:
    Herman Luther DAVIS v. STATE of Arkansas
    5774
    486 S.W. 2d 904
    Opinion delivered November 27, 1972

      Jack L. Lessenberry, for appellant.

      Ray Thornton, Atty. Gen., by: John D. Bridgforth, Asst. Atty. Gen., for appellee.
   J. Fred Jones, Justice.

This is an appeal by Herman Luther Davis from an order of the Pulaski County Circuit Court denying his petition for postconviction relief under our Criminal Procedure Rule No. 1.

Davis was originally charged on information filed by the prosecuting attorney in Pulaski County with the crime of rape. While that charge was still pending and Davis was free on bail, he became involved in incidents resulting in additional felony charges being filed against him for burglary and second degree murder. Davis was convicted at a jury trial on the rape charge and was sentenced to 40 years in prison.

Following his conviction on the rape charge, Davis took an overdose of several butisol tablets which had been prescribed for his nerves by a physician who regularly attended prisoners in the county jail. On return to the Pulaski County jail following hospitalization for the overdose of drugs, Davis had his girl friend arrange for his appearance before the trial court for disposition of the additional charges then pending against him. Attorney Louis Rosteck was appointed by the court to represent Davis and he appeared with Davis before the trial judge when Davis entered his pleas of guilty to the charges of murder and burglary. Davis was sentenced to the maximum penal servitude of 21 years on each charge with these sentences to run concurrently with each other and with the 40 year sentence on the rape conviction.

Some time after Davis was committed to prison to begin serving the concurrent sentences he filed a Rule 1 petition. At the hearing on that petition, Davis contended that his constitutional rights had been violated in that certain records had not been made available to him and certain witnesses had not been called to testify at his trial. The trial court set the rape conviction aside and granted a new trial. When the rape case came on for a new trial, the prosecuting witness could not be found and the rape charge was dismissed by the trial court for the state’s failure to prosecute. Davis then filed an additional Rule 1 petition attacking the validity of his sentences on his pleas of guilty to the murder and burglary charges.

This second petition, designated "Motion to Vacate Sentence Under Criminal Procedure Rule 1,” was filed by Davis on August 3, 1971. In it he alleged that his conviction for rape was set aside in proceedings had on July 29, 1971, and he feels that the trial court was prejudiced against him because of his conviction for rape and.for that reason sentenced him to the maximum imprisonment on both the charges of second degree murder and burglary when he entered his pleas of guilty to those charges. Davis alleged in his petition that the evidence available to the state would have been insufficient to support a conviction for murder in the second degree, in . that the state could not have proven he actually intended to take the life of the deceased. He alleged, therefore, that he should have been charged with a lesser offense. He also alleged in his verified petition thát hé was not represented by counsel or informed as to ány of his rights pertaining to representation by, or assignment of, counsel. He alleged that he was not aware of any of his constitutional rights and that he at no time waived any rights to assignment of counsel or to be represented by counsel. He alleged that he pled guilty to charges of second degree murder and burglary because he did not believe he could receive a fair trial after his conviction for the crime of rape.

On November 23, 1971, the trial court first appointed William C. McArthur as attorney to represent Davis, and on the following Tuesday, November 30, he relieved Mr. McArthur of the appointment and appointed Louis W. Rosteck to represent Davis on the Rule No. 1 petition. On December 27, 1971, Mr. Davis filed an instrument designated “Motion for Leave to Amend Rule No. 1 Petition” in which he stated that he had previously filed a motion to vacate his sentence under Criminal Procedure Rule No. 1, and in this motion he then stated:

“At the time I submitted my Rule No. 1 Petition I did not contend that I was represented by inadequate counsel but after making a careful study of my allegations in the said Rule No. 1 Petition I do not feel that my court-appointed attorney acted in my best interest and did not have ample time to effectively prepare my defense because he was appointed just fifteen minutes prior to my plea of guilty.
I believe that my court-appointed attorney’s advice to plead guilty without any preliminary investigations to my defense was so inadequate as to be tantamount to an effective deprivation of my right to counsel under the Sixth Amendment and the Due Process of Law under the Fourteenth Amendment to the United States Constitution.
Therefore, I respectfully request that Mr. Louis W. Rosteck my court-appointed attorney for the Rule No. 1 hearing be replaced by an attorney that is not related to my case in its original proceedings, and for such other and further relief from time to time as this Honorable Court may deem just and proper.”

On January 5, 1972, the trial court relieved Mr. Rosteck as attorney for the petitioner and attorney Jack L. Lessenberry was appointed in his stead. Following a hearing on the Rule No. 1 petition, relief was denied by judgment of the court dated March 24, 1972. The grounds alleged for change of counsel as above set out in the “Motion for Leave to Amend,” are as near as Davis comes to alleging ineffective assistance of counsel but, nevertheless, on his appeal to this court Davis has designated the points on which he relies for reversal as follows:

“Appellant was deprived of effective assistance of counsel.
Appellant improvidently entered pleas of guilty.”

The gist of Mr. Davis’ argument now seems to be that when he entered his pleas of guilty to murder and burglary, he was still under the influence of an overdose of drugs and was easily influenced by the bad advice of his attorney who seemed to feel that it made little difference whether he was guilty of second degree murder and burglary if he could serve the 21 year sentences, on pleas of guilty to those charges, concurrently with the 40 years he would be serving anyway on his rape conviction.

Mr. Davis appeared at the Rule No. 1 hearing and testified in support of his petition. His testimony was directed primarily to the stupefying effect of his overdose of drugs while he was in jail following his conviction on the rape charge. It was stipulated that an attending physician prescribed one-half grain butisol tablets for Davis while he was in jail, and there is no question that Davis was sent from jail to the hospital because of an overdose of the butisol tablets.

Dr. Gilbert Evans testified that butisol is a barbiturate used as a sedative, tranquilizer and also a hypnotic. He said that if a person should take 78 one-half grain butisol tablets at one time, the immediate effect would be loss of consciousness followed by death. He said, however, if a person should survive such massive dose, it is very probable he would have brain damage as a result of oxygen deficiency in the blood supply to the brain cells. Davis insisted that he did take 78 or 19 of the tablets at one time but there was no evidence, except Davis’ own testimony, that his mental processes were affected by the drug, and even Davis was not sure about that.

Davis testified that when he was returned to the jail from the hospital following his overdose of drugs, his girl friend visited him in jail and he told her he would like to get something done about the additional charges pending, against him. He said that he could not recall his exact instructions to his girl friend.

“She said she would go and see what she could get done or find out, or something, and the next thing I know I was brought up here.”

Davis said that prior to being brought to the Pulaski County Court House on that occasion he had seen Mr. Rosteck but had never talked to him. As to the appointment of Mr. Rosteck, Davis testified as follows:

“A. Judge Kirby appointed him whenever I walked in and, since Mr. Camp wasn’t here that day, that Mr. Rosteck would do it.
Q. Again, I want you to speak up a little bit louder. Did you confer with Mr. Rosteck about the two remaining offenses with which you had been charged; that is, second degree murder and burglary?
A. We went out in the hall and talked. It wasn’t over four or five minutes seemed to me like.
Q. Did Mr. Rosteck leave you and come into Judge Kirby’s office and then come back out?
A. I don’t remember him leaving.
Q. Well, I want you to tell the Court, to the best of your ability, how much time Mr. Rosteck actually spent with you, conferring with you?
A. To my knowledge, I don’t think it was over five minutes out there in the hall. I know it was a very short time.”

Mr. Davis testified that he did attempt to tell Mr. Rosteck something about how the homicide had occurred but that he does not remember what he tried to tell Mr. Rosteck about it. Mr. Davis was then asked if there was anything else he desired to say in support of his petition and he answered as follows: “Just that I am not guilty of it.” Under questioning by the court the petitioner then testified as follows:

“Didn’t you call me and indicate that you wanted to come up here and enter a plea of guilty?
PETITIONER DAVIS: I told Margaret I wanted to get something done.
THE COURT: That’s what you meant, wasn’t it?
PETITIONER DAVIS: I guess it was, Your Honor.”

Mr. Louis Rosteck was called as a witness in support of the petition. He testified that he could not remember the exact conversation he had with Mr. Davis when the guilty pleas were entered a year and a half previously, but that he conferred with Davis about thirty minutes before Davis entered his pleas of guilty. Mr. Rosteck was questioned concerning the disposition of the rape conviction and stated that his information on that case was only hearsay, whereupon the judge of the trial court stated as follows:

“The Court’s recollection is that I set it aside under the Rule One hearing on the theory that Alonzo Camp (Davis’ attorney) failed to obtain records from the State Hospital that Herman thought he ought to have and hadn’t called certain witnesses. I set it down for a new trial and, when the trial date came up, nobody could locate the prosecuting witness so I dismissed it for failure to prosecute.”

Mr. Rosteck testified that it was difficult, for him to remember exactly what was said to and by Davis in personal conversation as distinguished from what was later written to him by Davis. Mr. Rosteck then testified as follows:

- “Q. But you did not confer with them in entering the plea of guilty; is that right?
A. I didn’t enter a plea of guilty. He entered the plea of guilty on his own. If I recall the circumstances correctly, I talked to him; then, when the point came up that he was already serving a forty year sentence, he asked me to ask the Court — now, this is what I did; if he would enter a plea of guilty, would the Court run the sentences concurrent with the time he had, and I recall talking to Judge Kirby and asking him the question, and the Judge told me that he would. I came back, talked to Mr. Davis further and told him that the Judge said that if he would enter a plea of guilty, that he would run the sentences concurrent. I don’t remember how much but, anyway, twenty-one years was the maximum. I explained that to him, that twenty-one was the maximum under the second degree and the burglary was twenty-one and, at that time, there was no necessity after that because he said that is what he wanted to do, so there wouldn’t have been any purpose to have had more conversation regarding a trial on the murder charge, or witnesses, or anything else.
* * *
A. I did not make any recommendations to him, and he knows I didn’t because I explained the facts and, as I say, I explained them to Mr. Davis with the — with what he had at that time, and you will have to face it, what it was at that time, it seemed like a pretty good deal and he seemed very well pleased to enter a plea of guilty at that time.
* * #
Q. The petitioner also specifically states that you advised him to plead guilty; is this true or not?
A. No, I didn’t advise him to plead guilty. Now, that, I can say for certain. When he wanted to find out whether the sentences would be run concurrent and I told him at that time, he said that he would enter a plea of guilty, and I think I mentioned the fact to him, and I won’t deny it, I said, ‘Well, it doesn’t look like you are losing anything on that,’ and I was taking into consideration that he already had forty years, and the Judge ran the sentence concurrent with twenty-one, that would not cost him any time, and I think I probably told him that. So, as far as me pursuing—
Q. (Mr. Anderson Interposing) Did you ask the defendant if he was pleading guilty because he was, in fact, guilty?
A. Well, he told me he was.
Q. He told you he was guilty?
A. Yes.”

On redirect examination Mr. Rosteck testified as follows:

“Q. You say that Mr. Davis told you he was guilty; yet, he told you of the defense witnesses that would appear—
A. I mean, as far as killing the man, yes. As I say, I didn’t discuss the whole offense with him, but he admitted killing some man. When I asked him, ‘Well, did you do this?’ he said, ‘Yes, I did.’ Now, whether there was a defense to that, Mr. Lessenberry, I do not know because we did not go into the case;>. proper because there was no necessity. He wanted".:'y, to find out if he entered a plea of guilty to th¿\ charges, would the Judge run them concurrent.” y

No general guidelines have been laid down nr Arkansas by which we gauge the effectiveness of counsel. The state, as appellee in the case at bar, directs our attention to the 1960 New York case of People v. Tomaselli, 165 N. E. 2d 551, where the petitioner for a writ of coram nobis presented a situation similar to the one now before us. In that case, on advice of court appointed counsel, Tomaselli was given a suspended sentence on a plea of guilty to the crimes of forgery and uttering when he was 16 years of age. Six months later he was convicted of the crime of robbery and because of the forgery conviction he was sentenced, as a second felony offender, to imprisonment for a term of 30 years, plus an additional five year term for being armed. Tomaselli alleged that he was “deprived of due process of law” in that his legal representation was “so stunted and withered; so deficient and inadequate as to amount to a sham and a mockery of justice.” In affirming the action of the trial court in denying the petition, the Court of Appeals of New York said:

“. . . [T]here is denial of effective representation of counsel only when the representation given is so patently lacking in competence or adequacy that it becomes the duty of the court to be aware of it and correct it.
Indeed, to hold otherwise would require a rule that a conviction must be vacated solely on the ground that assigned counsel was negligent or otherwise at fault in performing his duty. Although we do not condone or make light of an alleged failure on the part of any lawyer to serve his client adequately, it furnishes no basis either in reason or authority for setting aside a judgment.”

An attorney is presumed to be competent or he would not be licensed to practice law, and a practicing attorney is presumed to be competent or he would not be appointed by a trial judge to represent an indigent defendant in a criminal case. The federal court standards on the effectiveness of counsel in guilty pleas have long recognized the presumption of competency.

In Poole v. United States, 438 F. 2d 325 (1971), the court said:

“There is a presumption of the competency of court appointed counsel. Slawek v. United States, 413 F. 2d 957 (8th Cir. 1969). A charge of inadequate representation can prevail
‘only if it can be said that what was or was not done by the defendant’s attorney for his client made the proceedings a farce and a mockery of justice, shocking to the conscience of the Court. Hanger v. United States, 428 F. 2d 746, 748 (8th Cir. 1970).'
* * *
‘If a movant under Section 2255 makes no allegations of ineffectiveness or incompetence of counsel, save in matters normally within the realm of counsel’s judgment, he is not entitled to a hearing.’ Mitchell, supra, 259 F. 2d 787.”

See also North Carolina v. Alford, 400 U. S. 25 (1970); Harris v. United States, 434 F. 2d 23 (1970) and McMann v. Richardson, 397 U. S. 759, 711, 90 S. Ct. 1441, 25 L. Ed. 2d 763 (1970).

In the case at bar the 21 year prison sentences meted out to Davis on his pleas of guilty, not only ran concurrent with the 40 year sentence on the rape conviction, they also ran concurrent with each other. Davis was not exonerated or acquitted on the rape charge. He was granted a new trial on that charge and the charge was later dismissed only because the alleged victim or prosecuting witness could not be found to testify at the second trial. The Rule 1 petition Davis filed in the rape case is not before us, but according to the trial court’s "recollection,” it was granted because the attorney who represented Davis at the trial failed to procure and offer certain evidence which Davis thought should have been offered.

The record is silent as to why Davis did not question the validity of the conviction on his guilty pleas when he filed his Rule 1 petition questioning the validity of his conviction for rape. Section (H) of the Rule provides:

"All grounds for relief available to a prisoner under this rule must be raised in his original or amended petition. Any grounds not so raised or any grounds finally adjudicated or intelligently and understanding^ waived in the proceedings which resulted in the conviction or sentence or in ány other proceedings that the prisoner may have taken to secure relief from his conviction or sentence, may not be the basis for a subsequent petition.”

Davis did not question the competency of his court appointed attorney or the adequacy of his representation in either of the original petitions for post-conviction relief, but in his second original petition he alleged that when he entered his pleas of guilty, he was not represented by an attorney at all and was not advised that he was entitled to one. He first registered dissatisfaction with the services of his attorney in the amendment requesting a change of attorneys, and he first mentions “ineffective assistance of counsel” in his designation of the points he relies on, in the brief he has filed on this appeal.

“Improvident” is defined in Random House Dictionary as “lacking foresight, incautious, unwary, neglecting to provide for future needs.” An “improvident” plea of guilty is not a specific ground for relief set out in Criminal Procedure Rule No. 1 which provides under § (A) as follows:

“A prisoner, in custody under sentence of a circuit court and whose case was not appealed to the Supreme Court, claiming a right to be released, or to have a new trial, or to have the original sentence modified on the ground:
(a) that the sentence was imposed in violation of The Constitution and laws of the United States or this State; or
(b) that the court imposing the sentence was without jurisdiction to do so; or
(c) that the sentence was in excess of the maximum authorized by law; or
(d) that the sentence is otherwise subject to collateral attack;
may file a verified motion at any time in the court which imposed the sentence, praying that the sentence be vacated or corrected.”

We do not reach the appellant’s assignment stating that the “appellant improvidently entered pleas of guilty,” for the reason that this contention was not made or argued at either of the Rule 1 hearings before the trial court and is raised by the appellant for the first time on this appeal. See Fleschner v. State, 253 Ark. 58, 484 S.W. 2d 342.

The judgment is affirmed.


source: Caselaw Access Project

author: Frank Holt, Justice.

license: Public Domain

text:
    Louis A. GREEN v. Hosea A. HARRINGTON et al
    5-6103
    487 S.W. 2d 612
    Opinion delivered November 27, 1972
    [Rehearing denied January 8, 1973.]

      Kenneth Coffelt, for appellant.

      Terral, Rawlings, Matthews & Purtle, for appellees.
   Frank Holt, Justice.

The appellant, a school teacher, brought this action against the appellees, members of the Board of the Pulaski County School District, alleging that the appellees had “unlawfully breached their said contract with” appellant by terminating his contract although appellant had offered to continue performance. He sought compensation for the alleged balance due on his annual written contract. It was stipulated that the appellant had served appellees in a teaching capacity for the preceding 13 years. The trial court, sitting as a jury, found that appellees had just cause in discharging appellant; that in doing so the appellees did not act arbitrarily or capriciously; and that the appellees had offered the appellant all available administrative remedies. Appellant contends for reversal of the judgment that the trial court erred in denying judgment to the appellant against the appellees upon his “motion and as prayed for in the complaint because the judgment of the trial court is contrary to the evidence in the case and the applicable law, the facts being that there is a clear, unjustifiable breach of the contract ***, without any just cause.”

It is an oft stated rule that it is the function of the jury or the trial court sitting as a jury to determine the preponderance of the evidence, and we affirm if there is any substantial evidence to support the finding after reviewing the evidence and all reasonable inferences deducible therefrom in the light most favorable to the appellee. Fanning v. Hembree Oil Co., 245 Ark. 825, 434 S. W. 2d 822 (1968). Before we reverse the finding of a jury or a trial court sitting as a jury, it must appear to us that “[TJhere is no reasonable probability that the incident occurred as found by the trial court sitting as a jury.” Fanning v. Hembree Oil Co., supra, Lumbermens Mut. Ins. Co. v. Cooper, 245 Ark. 81, 431 S.W. 2d 256 (1968). In the case at bar we are of the view there is substantial evidence to sustain the trial court’s action.

Appellant was placed on probation in writing during the 1970-1971 school term for assertedly having an unprofessional attitude and failing to maintain a proper standard of teacher-student relationship. He was later advised that this complaint had been corrected and was rehired for the 1971-1972 school year term. A few months after the beginning of the new term he was suspended by written notice which detailed four reasons for the suspension. Appellees afforded the appellant an opportunity to be heard before the board to make an explanation and refute the written accusations upon which his suspension was based. Appellant appeared by counsel and refused to offer any explanation on the theory that the burden was upon the appellees to adduce proof to sustain the charges against him. He was offered another similar hearing which he refused to attend upon advice of counsel. Appellant, also, was offered the opportunity to appear before the Pulaski Association of Classroom Teachers (PACT). This is a voluntary organization which exists as a policy of the School District. This committee is composed of four classroom teachers (elected by the teachers), two principals (selected by the principals), and one administrative staff member (chosen by the administrative staff). The appellant, with his counsel, appeared before this committee and declined to discuss the charges on the basis that the committee was illegally convened and had no statutory authority. It appears that the purpose of the committee was to investigate and hear complaints concerning teachers and merely offer recommendations. The committee recommended suspension to the appellees. Upon being discharged by appellees, the appellant filed his complaint in Circuit Court alleging unlawful breach of his contract and seeking the balance due on his contract for the current school term.

Evidence was adduced before the trial court that a bottle of alcoholic beverage was transported from appellant’s car by a ninth grade student to the school cafeteria refrigerator at appellant’s request. Later in the day the bottle was removed from the refrigerator and placed in appellant’s car by the same student as directed by appellant. This was one of the four written accusations. Appellant admitted the incident; however he denied that the bottle contained any alcohol. The bottle was introduced by appellant as an exhibit and it is labeled a “WHISKEY SOUR MIX” and is non-alcoholic with no liquor stamp. Appellant’s explanation was that he had a date that evening with another teacher and that she had inquired about ingredients for cocktails at her apartment preceding their attending the local school football game. One of appellees’ witnesses a counselor assigned to the Junior High School, testified, however, that he had observed the bottle in the cafeteria refrigerator. According to him, it was a “bottle of whiskey sour with alcohol with a stamp on it *** the seal wasn’t broken.” It was in a brown bag with some garnishments ordinarily used with alcoholic beverages. Later when the boy attempted to take the bag and its contents to appellant’s car, as requested by appellant, the youth was intercepted by this counselor. At first the student denied knowing the contents of the bottle and then admitted to the counselor that the bottle contained liquor. The boy then was permitted to take the bag and its contefits to appellant’s car. On cross-examination the student, also, admitted there “was alcohol in the bottle.” Therefore, a fact question on the issue of alcoholic beverages was presented to the trial court, as a jury, and any conflict in the evidence was within the province of the court to resolve. As previously indicated, on appellate review in testing the sufficiency of the evidence as being substantial in nature, we consider the testimony of the appellees alone or that portion of all the evidence which is most favorable to them. Baldwin v. Wingfield, 191 Ark. 129, 85 S.W. 2d 689 (1935). In the case at bar, we deem it unnecessary to discuss the other three allegations inasmuch as we are of the view the evidence as previously discussed, is sufficiently substantial to sustain the trial court’s finding that appellant was discharged with just cause. However, in fairness to appellant, it must be said that he denied the accusations and, also, that no student or school patron made any complaint against him.

We have long recognized that every teacher’s contract, “includes the implied power of the board to dismiss for adequate cause.” Crownover v. Alread School Dist. No. 7, 211 Ark. 449, 200 S.W. 2d 809 (1947). It is only in cases where the dismissal is not justified that the teacher is entitled to damages. Berry v. Arnold School District, 199 Ark. 1118, 137 S.W. 2d 256 (1940). These rules of law which have evolved are in accord with our cases which hold that school boards must necessarily be given some latitude. White v. Jenkins, 213 Ark. 119, 209 S.W. 2d 457 (1948), Safferstone v. Tucker, 235 Ark. 70, 357 S.W. 2d 3 (1962), Corbin v. Spec. School Dist. of Ft. Smith, 250 Ark. 357, 465 S.W. 2d 342 (1971).

Appellant next asserts that "[T]he appellees failed to follow the required procedural due process requirements under the 14th Amendment to the U.S. Constitution in their attempt to nullify their contract with appellant.” We find no merit in his contention. The complaint alleged only an unlawful breach of contract and the due process argument was never raised or considered before the trial court. In these circumstances the issue cannot be considered because it is being raised for the first time on appeal. Batesville Ins. & Fin. Co. v. U.S.F. & G., 248 Ark. 776, 453 S.W. 2d 709 (1970), Hettel v. Rye, Adm’r, 251 Ark. 868, 475 S.W. 2d 536 (1972). Furthermore the appellant was given notice in writing of the alleged complaints against him and was given adequate opportunity to refute the allegations. The procedure accords with the rudiments of fair play and a fair hearing under the “implied power of the [school] board to dismiss for adequate cause.”

Affirmed.


author: Carleton Harris, Chief Justice.

text:
    Peggy McARTHUR v. Circuit Court of Pulaski County, Arkansas, Fourth Division: Hon. Richard B. ADKISSON, Judge
    5767
    488 S.W. 2d 5
    Opinion delivered December 4, 1972
    [Rehearing denied January 15, 1973.]

      James L. Sloan, for petitioner.

      Ray Thornton, Atty. Gen. by: Henry Ginger, Asst. Atty. Gen., for respondent.
   Carleton Harris, Chief Justice.

On January 18, 1972, the state charged petitioner, Peggy McArthur, in the Little Rock Municipal Court with two separate felony violations of Act 590 of the General Assembly of 1971, being known as the Uniform Controlled Substances Act. One of the cases involved a delivery of hashish and the other a delivery of marijuana. Petitioner appeared the next day and entered pleas of not guilty. On motion of the state the causes were continued and reset for hearing on Janury 27, 1972. In the meantime, on January 20, 1972, the state filed felony informations on the same identical charges in the Pulaski County Circuit Court; thereafter, the judge of the municipal court made a notation, “filed direct”. Subsequently, petitioner filed a motion in the circuit court for abatement of the prosecutions on the ground that the circuit court had not acquired jurisdiction because of the fact that the charges involved misdemeanors, not felonies, and since the jurisdiction of the municipal court and the circuit court in misdemeanor cases is concurrent, the jurisdiction of the municipal court, the charges having first been filed there, was exclusive. The court reduced the charges to misdemeanors (the reason therefor being hereafter stated) but denied the motions to abate, and this action is the basis for petitioner’s plea for a writ of prohibition. In support of the petition, it is urged that the jurisdiction of the Little Rock Municipal Court and the Circuit Court of Pulaski County over misdemeanors committed in Pulaski County is concurrent, and, on the principle of priority, the Municipal Court acquired jurisdiction rather than the Circuit Court. Ark. Stat. Ann. § 22-709 (Repl. 1962) relates to the jurisdiction of the municipal court and inter alia, sets out that municipal courts have concurrent jurisdiction with the circuit court in misdemeanor offenses committed within the county.

On March 13, 1972, this court, in Bennett v. State, 252 Ark. 131, 477 S.W. 2d 497, held that violations of the type here involved were misdemeanors rather than felonies since Act 590 did not provide that these offenses were punishable by imprisonment in the penitentiary. Accordingly, the charges against petitioner can now be no more than misdemeanors.

In State v. Devers, 34 Ark. 188, in an opinion by Chief Justice English, it is pointed out that circuit courts and justices of the peace hold concurrent original jurisdiction of all criminal offenses less than felony, in other words, of all misdemeanors. In Bradley v. State, 32 Ark. 722, in an opinion also by Chief Justice English, we said “In a case of concurrent jurisdiction in different tribunals, the one first exercising jurisdiction rightfully acquires the control, to the exclusion of the other.” See also Doss v. Taylor, 244 Ark. 252, 424 S.W. 2d 541.

The state relies entirely upon the case of Bottom v. State, 155 Ark. 113, 244 S.W. 334. In Bottom, the defendant was indicted by a grand jury of White County for first degree murder. Before the trial commenced, Bottom filed a motion alleging that the killing occurred on a barge in White River at a place where it constituted the boundary between White and Woodruff Counties, and that prior to the returning of the indictment by the grand jury in White County, Bottom had been arrested in Woodruff County upon a warrant issued in that county and that he had been incarcerated in jail awaiting the action of the grand jury but was admitted to bail and at the time of the finding of the indictment in White County, was under a bond for appearance in the Woodruff Circuit Court. It was admitted by the state and the accused that the killing took place on a barge in White River which was anchored or tied by a rope to the White County bank of the river, though this circumstance had no part in the court’s decision. The contention of appellant is stated in the court’s opinion as follows:

“Appellant relies upon the statute which provides that where a river is the boundary between two counties, ‘the criminal jurisdiction of each county shall embrace offenses committed on the river’ (Crawford & Moses’ Digest, sec. 2874), and that when two or more counties, under the provision mentioned, have jurisdiction of the same offense, ‘the county in which the defendant is first arrested shall proceed to try the offense to the exclusion of the other.’ Crawford & Moses’ Digest, sec. 2878. The contention is that, pursuant to the terms of this statute, there was concurrent jurisdiction in the two courts, but that exclusive jurisdiction was obtained by the courts in Woodruff County upon the arrest of appellant.”

The court had previously, in State v. Rhoda, 23 Ark. 156, upheld a statute which provided that when any offenses were committed on the boundary of two counties, the indictment might be found and trial and conviction had in either county. In Bottom, the court concluded that the whole of White River was the boundary line and therefore the courts of both counties had concurrent jurisdiction. In deciding that White County had jurisdiction to try the case, this court, in an opinion by Chief Justice McCulloch said:

“It does not follow, however, that the jurisdiction of the Woodruff court became exclusive so as to prevent the exercise of jurisdiction by the circuit court of White County. The statute provides, it is true, that ‘the county in which the defendant is first arrested shall proceed to try the offense, to the exclusion of the others,’ but this does not confer an unending jurisdiction in the county where the arrest is first made, for when the proceedings in that county come to an end short of a final judgment, the jurisdiction again becomes concurrent instead of exclusive, and the prosecution may be made in either county. ***
The finding of a new indictment and its acceptance by the court in White County was tantamount to an abandonment of the prosecution in Woodruff County and ended the exclusive jurisdiction of the courts in that county. [Our emphasis]”

If the state had, after the violation of this act was held to be a misdemeanor by this court, and before any information had been filed in the circuit court, instituted charges in the municipal court, we would agree that the municipal court had acquired jurisdiction. But that is not the case. The state filed felony charges in municipal court, and that court has no jurisdiction to render any final judgment in a felony case. The state was free to by-pass the prelimary hearing by filing felony charges directly in circuit court, and this was done; the municipal court docket reflects “filed direct”. In Payne v. State, 226 Ark. 910, 295 S.W. 2d 312, it was contended that Amendment21 to the State Constitution, giving the prosecuting attorney the right to file an information in circuit court in lieu of obtaining an indictment, was contrary to the 5th and 14th Amendments of the Federal Constitution. We disagreed, citing authority, and held that contention to be without merit. The court then said:

“Notwithstanding the above, appellant makes the further contention that the information in this case should have been quashed because it is undisputed that it was issued before there had been a preliminary hearing. In support of this contention appellant apparently relies on Ark. Stat. § 43-806 which provides that when a defendant has been held to answer at a preliminary examination the prosecuting attorney may file an information. The section referred to is a part of Act 160 of the Acts of 1937 which was passed to implement Amendement No. 21 referred to above and was not meant to be a limitation on the powers granted by the amendment. This court definitely settled the question against appellant’s contention in the Penton case, supra, at page 513 of the Arkansas Reports, where it was stated:
‘The principle distinction between provisions of §1 of Amendment 22 to the Constitution of Arkansas, and the provision of California’s Constitution authorizing prosecutions under information, is that as a condition precedent to the validity of prosecutions on information in California, there must have been examination and commitment by a magistrate. Omission of this requirement from the Arkansas Amendment does not deprive the accused of the rights of due process guaranteed under the Constitution of the United States.’
Our Amendment No. 21 (referred to above as 22) says nothing about a preliminary hearing.”

Accordingly, the prosecuting attorney was within his rights in filing the circuit court information, and, in doing so, as pointed out in Bottom, abandoned the hearing or prosecution in municipal court. The circuit court information was amended by that court (after our decision in Bennett) to reduce the charges to misdemeanors, but this was never done in the municipal court. Since the municipal court had no authority to do anything with the felony charges other than to bind the defendant over to await action of the grand jury, the municipal court cases, as stated in Bottom had “come to an end short of a final judgment”. It follows that the petition for writ of prohibition is without merit.

Writ denied.

       The record reflects nothing in municipal court except the court docket sheet which does not itself make clear whether the charges filed there were felony or misdemeanor charges; however from the briefs of the parties, it is apparent that the informations were for felony charges, the cases being filed there as a matter of detennining probable cause on preliminary examination.

       The General Assembly, in the Special Session of 1972, enacted Act 67 declaring the offenses mentioned a felony.


author: George Rose Smith, Justice.

text:
    Arthur E. SQUIRE et ux v. Russell L. SQUIRE et al
    5-6055
    486 S.W. 2d 910
    Opinion delivered December 4, 1972

      Pearce, Robinson <fr McCord, for appellants.

      Harper, Young ir Smith, for appellees.
   George Rose Smith, Justice.

This is essentially a dispute between the appellant Arthur E. Squire (and his wife Nancy) and Arthur’s father, the appellee Russell L. Squire, about the father’s accountability to the son for certain coal mining royalties paid to a family-owned corporation, Nancy Lee Coal Company, during a period of years while the father was actively in charge of the company’s affairs. Arthur and Nancy brought this suit to obtain an accounting from the elder Squire and from the appellee Evans Coal Company, which was the lessee actually mining the coal and paying the royalties to the family corporation. The chancellor entered a decree finding that the plaintiffs were entitled to recover $14,-855.59 as their share of the royalties during the years in question. The plaintiffs, in appealing from the decree in their favor, submit alternative contentions by which they assert that their recovery should be either $47,657.08 or $22,789.34. There is no cross appeal.

The 626-page record and the abstracts and briefs involve many facts not pertinent to an understanding of the issues presented. The facts that we regard as controlling are either undisputed or very nearly so.

In 1947 the elder Squire, who was experienced in coal mining, and his son Arthur organized the corporation, Nancy Lee Coal Company, with equal stock ownership. Their explorations proved the existence of coal deposits underlying certain lands in Oklahoma. The corporation obtained coal leases upon the lands from the United States Commissioner of Indian Affairs, who had control of the lands. We are concerned only with Lease No. 5, which is still in force.

The Squires made no effort to mine the coal themselves. Instead, the family corporation assigned the leases to Evans Coal Company in 1950. Over a period of some twenty years Evans removed coal by the strip-mining process and paid royalties at an agreed rate to Nancy Lee Coal Company.

In 1951 differences arose between the father and son. By an agreed transfer of stock the father became the owner of 101 shares in the corporation, with the son owning the other 99 shares. (In 1964 Arthur gave his stock to his wife, but as they are co-plaintiffs we need not distinguish between their rights.)

On April 17, 1951, the father and son executed what we will refer to as The Contract, upon which this entire litigation actually centers. That agreement recited the parties’ common desire to sell their stock in the Nancy Lee Coal Company and empowered the father, Russell Squire, to offer the entire 200 shares for sale. The stock was not to be sold within the first six months for less than $500,000. If no purchaser should be found within that period the parties were to agree upon a new minimum price. The net proceeds of sale, after certain deductions, were to be divided two thirds to the father and one third to the son.

The Contract provided that until such time as the stock was sold Arthur would receive, in lieu of any or all claims for salary or dividends, the sum of $75.00 per week during each month in which more than 7,000 tons of coal was produced from properties previously assigned to Evans Coal Company. In months in which the production was less than 7,000 tons Arthur was to receive only three cents for each ton produced.

Russell Squire never succeeded in selling the stock. As far as the record shows, he never even attempted to sell it. Instead, the Evans Coal Company continued to strip-mine the leased property and to pay royalties to Nancy Lee Coal Company. (Nancy Lee’s corporate charter was actually canceled in 1958 for nonpayment of franchise taxes, but none of the litigants have attached significance to that forfeiture.)

Arthur Squire duly received from his father the weekly or monthly payments under The Contract until March, 1964, when the payments stopped. In response to Arthur’s inquiry his father, who was then living in California, informed him — apparently in good faith — that coal was no longer being mined. In 1967 Arthur learned that mining operations had not actually stopped. In 11969 he and his wife brought this suit for an accounting, resulting in the decree now on review. Two contentions for reversal are asserted.

First, the appellants argue that The Contract, as a result of Russell Squire’s failure to accomplish its purpose by selling the Nancy Lee stock, terminated either in 1964, when the payments to Arthur stopped, or in 1967, when Russell purportedly sold the Nancy Lee assets to a company owned by Russell and his daughter and son-in-law. Upon the premise that The Contract actually terminated, the appellants insist that they are now entitled to $47,657.08, as a share in the post-1964 royalties proportionate to their 49.5% stock ownership in the family corporation. In that connection it is argued that Russell Squire wrongfully sold all the corporate assets in 1967 without complying with the procedure specified in Ark. Stat. Ann. § 64-803 (Repl. 1966).

We find no merit in that argument. In substance die appellants are seeking a forfeiture of Russell Squire’s rights under The Contract. It is basic, however, that a court of equity abhors a forfeiture and will seize upon even slight circumstances that indicate a waiver of the right to declare a forfeiture. Triplett v. Davis, 238 Ark. 870, 385 S.W. 2d 33 (1964); Berry v. Crawford, 237 Ark. 380, 373 S.W. 2d 129 (1963).

Here the equities strongly favor Russell Squire. For thirteen years Arthur accepted payments under The Contract without complaining about his father’s failure to sell the corporate stock. The appellants admit that their conduct kept the contract in force far beyond what might otherwise have been a reasonable time for Russell Squire to find a buyer for the stock. Yet when the payments stopped in 1964, the appellants still delayed for five years before bringing this suit for an accounting. In that interval Arthur took no action, although even a slight investigation would have disclosed the truth with respect to the Evans Coal Company’s mining activities and payment of royalties. At this late date a retroactive forfeiture would penalize the elder Squire for having disbursed royalty payments that Arthur was apparently not claiming any interest in. Such a forfeiture would disregard Arthur’s remedy under The Contract, which required that a new minimum price for the stock be fixed by agreement. It would unduly favor Arthur, by investing him with about half the royalties when The Contract provided that he was to receive only one third of the net proceeds of sale of the assets. Upon the record as a whole, the chancellor was right in holding that The Contract was not terminated in 1964 or in 1967.

There is, however, merit in the appellants’ alternative contention that they are entitled to judgment for $22,-789.34 instead of the lesser sum allowed by the decree. Upon this issue several additional facts must be taken into account.

The Evans Coal Company, after obtaining an assignment of Nancy Lee’s Lease No. 5 in 1950, strip-mined the lands described in the lease for many years. By 1962 Evans had mined the vein of coal to the western edge of the leasehold lands. Next to the premises, still farther west, was a tract from which the coal had been extracted as completely as was possible by the underground mining process that was used. Evans obtained permission from the Department of Interior to strip the overburden from those adjacent lands and recover the coal that had been left as supporting pillars in the underground mines. A year later similar permission was obtained from the Government with respect to a tract still farther west. In both instances Evans and Squire, Sr., treated the new stripping operations as mere extensions of Lease No. 5. No new agreement was entered into. Evans simply paid royalties to Squire (as the representative of the Nancy Lee Coal Company) at the rate specified in Lease No. 5. The president of the Evans Coal Company testified without contradiction that he considered the two new tracts to be mere extensions of Lease No. 5 and that he so treated them.

The chancellor found that the 1962 and 1963 extensions were distinct from Lease No. 5, so that the plaintiffs had no interest in the royalties derived from the extensions. That finding restricted the appellants to their share in the royalties upon coal produced after March, 1964, from the original Lease No. 5 lands. That production was so limited that the appellants’ recovery was measured at least in part at the rate of three cents a ton, for a total award of $14,855.59. Had the two extensions been taken into account the appellants’ measure of recovery would have been at The Contract rate of $75.00 a week, making a total of $22,789.34.

We disagree with the trial court’s conclusion. It is undisputed that both Squire, Sr., and Evans treated the two extensions as parts of the original Lease No. 5, so that the appellants are prima facie entitled to share in the income derived from the extensions. The appellees, however, argue that The Contract precludes that view, because by its terms Arthur Squire accepted, in lieu of salary or dividends, $75.00 per week during each month that the Evans Coal Company’s production “from coal properties previously assigned to it by the Nancy Lee Company” exceeded 7,000 tons per month.

We are unwilling to construe the contract so strictly or so inequitably, especially as it was apparently prepared by Russell Squire. The equities are clearly with the appellants. There is no suggestion whatever that Evans would have paid any royalties to Squire, Sr., from the extended premises, but for the fact that he represented the Nancy Lee Coal Company. It is obvious that Evans was not making a gift of thousands of dollars to Squire or to Nancy Lee. We discern no basis in simple fairness for denying to the appellants their right to participate in the income accruing from the extensions. This conclusion works no hardship upon the elder Squire or his associates in their new company, for they received from the two extensions royalties far in excess of the additional $7,933.75 that will be recovered by the appellants.

The appellees also argue that the appellants, by accepting payment of the sums awarded to them by the court below, have enjoyed the benefits of the decree and therefore cannot question it. They have, however, accepted nothing that they were not entitled to receive under any possible disposition of the appeal; so they are not precluded from questioning the trial court’s decree with respect to the additional recovery now being sought. McCown v. Nicks, 171 Ark. 260, 284 S.W. 739, 47 A.L.R. 332 (1926).

Reversed and remanded for the entry of a decree consistent with this opinion.


author: John A. Fogleman, Justice. Carleton Harris, Chief Justice,

text:
    Thomas D. HILL v. STATE of Arkansas
    5758
    487 S.W. 2d 624
    Opinion delivered December 4, 1972

      Mobley ir Smith, for appellant.

      Ray Thornton, Atty. Gen., by: James A. Neal, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Thomas D. Hill was found guilty of disposing of property subject to a lien and sentenced to imprisonment for one year. He asserts the following points for reversal:

I.
1. The verdict herein is contrary to both the law and the evidence.
2. There is no evidence to support a conviction of the defendant on a charge of disposing of property subject to a lien.
3. The criminal statute under which this defendant was prosecuted does not apply to the facts in this situation.
4. The trial court erred in that defendant’s motions for dismissal of the charges and for a directed verdict should have been granted as a matter of law and also based upon the evidence.
II.
The trial court erred in denying defendant’s motion for a dismissal of the charges as this was clearly a prosecution to aid in the collection of a debt and as such violated the defendant’s constitutional rights.
III.
The Howard County Circuit Court was without venue or jurisdiction over the subject matter of this cause of action and should have dismissed said cause of action upon the motion of defendant.
IV.
It was error for the court to allow the prosecutor to introduce into evidence the total amount of the debt owed to the Nashville Production Credit Association by defendant as this cause of action included only $19,000.00, particularly in view of the pretrial order denying this information to defendant’s counsel.
V.
The court erred in allowing prejudicial statements to be made by the prosecutor in his opening and closing arguments.
VI.
The court erred in allowing the prosecuting attorney to attempt to impeach their own witness as no evidence was ever introduced of prior contradictory statements.
VII.
The court erred by refusing to give defendant’s requested instructions No. 1, 2, and 3.

Appellant Hill was charged with having disposed of six bulls, 136 cows and 65 calves by selling the same to Ted Powell for the sum of $19,000 on December 9, 1969, while the cattle were subject to a lien in favor of Nashville Production Credit Association by reason of a financing statement and security agreement executed by Hill on November 10, 1969, with the intent to defeat the Production Credit Association in the collection of the debt secured by these instruments.

The applicable statute is Ark. Stat. Ann. § 41-1928 (Repl. 1964), which reads:

It shall be unlawful for any person to sell, barter, exchange or otherwise dispose of, or to remove beyond the limits of this State or of any county in which a landlord’s or laborer’s lien exists, or in which a lien has been created by virtue of a mortgage or deed of trust, or to which title has been retained by the vendor, any property of any kind, character or description, upon which a lien of the kind enumerated above exists or to which title still remains in the vendor: provided, such sale, barter, exchange, removal or disposal of such property be made with the intent to defeat the holder of such lien or title in the collection of the debt secured by such mortgage, laborer’s or landlord’s lien or retention of title.

Since we find that there was reversible error in the denial of appellant’s requested instruction No. 2, we first treat appellant’s Point VII. The court gave its instructions 9 and 11 relative to the effect of the consent of Nashville Production Credit Association to the sale. By instruction No. 9, the jury was told that if it found other necessary elements of the offense and that the cattle were sold dnd disposed of by the said Thomas D. Hill without the consent of Nashville Production Credit Association, it would find Hill guilty. Instruction No. 11 read:

Members of the jury, you are instructed that if you find from the evidence presented in the trial of this cause that the Nashville Production Credit Association, by or through its Board of Directors, one or more, its Manager, or any one of its employees consented to the sale of the cattle, you should acquit the defendant, Thomas Hill.

The court refused defendant’s requested instruction No. 2, which reads:

You are instructed that consent may be expressed or implied from the conduct of the parties.

There is no question that the consent of the injured party is a defense to the charge, because there is no mortgage lien after a sale with the lienholder’s consent. Lawhorn v. State, 108 Ark. 474, 158 S.W. 113; Osborne v. State, 109 Ark. 440, 160 S.W. 215; Murry v. State, 150 Ark. 461, 234 S. W. 425. See also, Mitchell v. Mason, 184 Ark. 1000, 44 S.W. 2d 672. The state argues that, in order to constitute a defense, the consent must be actual, not implied, and that the court’s instruction No. 11 fairly and correctly states the law. We do not agree with the first argument and find instruction No. 11 incomplete in that respect. In arriving at this conclusion, we are influenced by the rule that a criminal statute must be strictly construed in favor of one accused. Burke v. State, 235 Ark. 882, 362 S.W. 2d 695, cert. denied, 373 U.S. 922, 83 S. Ct. 1523, 10 L. Ed. 2d 421. Nothing may be left to intendment and all doubts must be resolved in favor of the defendant in construing such statutes. Stuart v. State, 222 Ark. 102, 257 S.W. 2d 372. See also, Ladwig v. Arlington Hotel Company, 225 Ark. 972, 286 S.W. 2d 853. No case may be brought within the purview of a criminal statute by construction unless it is completely within the words of the statute. Lewis v. State, 220 Ark. 259, 247 S.W. 2d 195; Giles v. State, 190 Ark. 218, 78 S.W. 2d 70. This rule is applied in determining the meaning of the word “consent” in criminal statutes. Baker v. State, 147 Tenn. 421, 248 S.W. 548 (1923).

In its broadest sense “consent” may be either express or implied. State v. Neterer, 33 Wash. 535, 74 P. 668 (1903); Bouvier’s Law Dictionary, Unabridged, Rawle’s Third Revision. It may be based upon an express agreement or it may also be implied from actions, a course of conduct, silent acquiescence or even inaction. In re Estate of Seeger, 208 Kan. 151, 490 P. 2d 407 (1971); Vick v. Zumwalt, 130 Col. 148, 273 P. 2d 1010 (1954); State v. Stanfield, 1 S.W. 2d 834 (Mo. 1927).

Implied consent has been defined as that manifested by signs, actions or facts, or by inaction or silence, which raise a presumption that consent has been given. 15A C.J.S. 576, Consent; Black’s Law Dictionary, Fourth Edition; Bouvier’s Law Dictionary, Unabridged, Rawle’s Third Revision; In re Estate of Seeger, supra; Bartle v. Bartle, 132 Wis. 392, 112 N.W. 471 (1907); State v. Stanfield, supra. Implied consent may be inferred from a course of conduct and the relationship between the parties. Standard Accident Insurance Co. v. Gore, 99 N.H. 277, 109 A.2d 566 (1954).

Although we have not specifically stated the foregoing principles as to implied consent, we have given them effect without stating them. See, e.g., Kaplan v. Scherer, 205 Ark. 554, 169 S.W. 2d 660. These principles have been given particular application in considering jury instructions in rape cases where consent of the female constitutes a defense. Threet v. State, 110 Ark. 152, 161 S.W. 139; Jackson v. State, 92 Ark. 71, 122 S.W. 101; Mills v. United States, 164 U.S. 644, 17 S. Ct. 210, 41 L. Ed. 584 (1897) (Writ of error to Circuit Court for Western District of Arkansas).

Even though the word “consent” does not appear in the statute, we must give it its broadest possible meaning in considering the criminal charge against defendant, because that is the meaning most favorable to the defendant in detennining whether there was an intent, in the sense of the statute defining the offense, to defeat the holder of the lien in the collection of the debt secured by the instruments executed, or whether a lien was actually defeated by unauthorized acts of the defendant. We need not set out the testimony on which a finding of implied consent might have been based. It is sufficient to say that evidence pertaining to the relationship between the appellant, the managing officers of the PCA and the purchaser, the knowledge and actions of these officers and the long period of inaction on the part of the PCA afforded substantial evidence to present a question of fact on this issue, as well as on the issue of express consent.

We are unable to say, however, that the jury was adequately advised of the issue of implied consent. In common usage, the word “consent” has several different definitions and conveys varying connotations, ranging from deliberate agreement to acquiescence. See Webster’s New International Dictionary, Second and Third Editions; Random House Dictionary of the English Language (College Edition); Black’s Law Dictionary, Fourth Edition. The strict definition of the word “consent” without any accompanying adjective seems to suggest an actual agreement. As used in the instruction given by the court, it may well have conveyed to some the thought that consent might be implied from the conduct of the parties and to others the idea that the consent of the secured party must have been in express terms. It would be sheer speculation for us to say that the jury’s verdict was not based on the thought that express consent was required.

We recognize that the trial court is not required to charge the law upon a question in every possible manner in which a correct statement of it may be prepared by counsel, but the law must be so declared that the jury may not be in doubt as to the law of a particular question as applied to the facts of the case. DeShazo v. State, 120 Ark. 494, 179 S.W. 1012. The instructions must fully and fairly declare the law applicable to any defense as to which the defendant has offered sufficient evidence to raise a question of fact. Cox v. State, 116 Ark. 588, 173 S.W. 187. See also, Barnhardt v. State, 169 Ark. 567, 275 S.W. 909. Even if the court’s instructions could be said to have covered the matter in a general way, it is reversible error to refuse to give a specific instruction correctly and clearly applying the law to the facts of the case, unless it affirmatively appears that no prejudice resulted. Beevers v. Miller, 242 Ark. 541, 414 S. W. 2d 603; Lighter v. State, 157 Ark. 261, 247 S.W. 1065. Since the record clearly indicates that appellant’s principal defense was that the sale to Powell was made with the consent of the Nashville Production Credit Association, we certainly cannot say that he was not prejudiced by the refusal of this instruction.

There was no error in the refusal of other instructions offered by appellant. His requested instruction No. 1 would have been essentially covered by the court’s instruction No. 11 and appellant’s requested instruction No. 2 except for its declaration that defendant should be acquitted if the PCA later acquiesced in the sale of the cattle. In this respect, it was an incorrect statement of the law. When the owner’s consent is a defense in a criminal case, it must precede the act constituting the gist of the offense and does not relate to what occurs thereafter. State v. Boggs, 181 Iowa 358, 164 N.W. 759 (1917); People v. Lowe, 209 App. Div. 498, 205 N.Y.S. 77 (1924). Consent given after the offense is complete does not destroy the criminality of the act or prevent its prosecution as a public offense. Davis v. Government of Canal Zone, 299 F. 256 (5th Cir. 1924). See also, People v. Anderson, 7 Mich. App. 513, 152 N.W. 2d 40 (1967). This is not to say that the secured party’s conduct subsequent to the sale could not be considered as evidence of prior consent, but the jury should not be told that consent could be given after the sale was made. Waters v. Georgia, 15 Ga. App. 342, 83 S.E. 200 (1914).

By appellant’s requested instruction No. 3, the jury would have been told that notice to or knowledge of one or more members of the board of directors of the PCA, or of any of the PCA employees, would constitute knowledge of the PCA, a corporation. This is not a correct statement of the law. We have long applied the rule of agency law that a corporation, which can act only through its officers and agents, is affected with notice which comes to an officer, agent or employee in the line of his duty and the scope of his powers and authority and that knowledge of an officer, agent or employee acquired in the ordinary discharge of his duties is ordinarily to be imputed to the corporation. See American Exp. Field Warehousing Corp. v. First National Bank, 233 Ark. 666, 346 S.W. 2d 518; A. J. Chestnut Co. v. Hargrave, 177 Ark. 683, 7 S.W. 2d 800; Bank of Hoxie v. Meriwether, 166 Ark. 39, 265 S.W. 642. But a corporation is not affected by notice to, or knowledge of, an officer, agent or employee unless the notice or knowledge comes to him while he is acting in the course of his employment and the matter comes within the scope of his authority. Poole v. Newark Trust Co., 1 Terry 163, 40 Del. 163, 8 A.2d 10 (1939); Wellington v. Maffi, 136 Tex. 201, 150 S.W. 2d 60 (1941); Corrigan v. Bobbs-Merrill Co., 228 N.Y. 58, 126 N.E. 260, 10 A. L. R. 662 (1920); 19 C.J.S. 615, et seq., Corporations, §§ 1079, 1081; 3 Fletcher, Cyclopedia Corporations, Perm. Ed., 129, § 793 (1965). See Sims v. Southeast Missouri Trust Co., 140 Ark. 365, 215 S.W. 671. Wilmans v. Peoples Building & Loan Assn., 193 Ark. 118, 97 S.W. 2d 930. Furthermore, by the great weight of authority, notice to one individual director, or knowledge acquired by him, while not acting officially as a member of the board in the business of the corporation is not chargeable to the corporation, unless communicated to the board of directors or to some officer entitled to receive it. Poirier v. East Coast Realty Co., 84 N.H. 461, 152 A. 612 (1930); Schoenbaum v. Firstbrook, 405 F. 2d 200, 211-12 n.9, and cases therein cited (2nd Cir. 1968); Skaggs v. Big Sandy Commercial Bank, 246 Ky. 157, 54 S.W. 2d 650 (Ct. App. 1932); 3 Fletcher Cyclopedia Corporations, Perm. Ed., 68, § 808; 19 C.J.S. 616, Corporations, § 1079b. See also, Hudson v. Alaska Airlines, 43 Wash. 2d 71, 260 P.2d 321 (1953). In this respect, the court’s instruction No. 11 stated the law more favorably to appellant than he was entitled to.

Since a remand is necessary, there are other points which we must consider, the most important of which is Point III, dealing with venue. We agree with appellant that the undisputed evidence shows that all negotiations for the sale of the cattle between Hill and Powell took place in Sevier County, that both Hill and Powell were residents of Sevier County and that Powell delivered the check for payment of the purchase price in Sevier County. We also agree that the only connection between Howard County and the transaction was the fact that the cattle were on the Doc Simpson farm in that county.

It is presumed that an offense charged was committed within the jurisdiction of the court in which the charge is filed, unless the evidence affirmatively shows otherwise. Ark. Stat. Ann. § 43-1426 (Repl. 1964). The state relies upon Ark. Stat. Ann. § 43-1414 (Repl. 1964) which reads:

Two counties, offenses committed in. — Where the offense is committed partly in one county and partly in another, or the acts or effects thereof, requisite to the consummation of the offense, occur in two [2] or more counties, the jurisdiction is in either county. [Grim. Code, § 18; C. & M. Dig., § 2875; Pope’s Dig., § 3691.]

Consequently, it must be presumed that the venue was properly laid, unless the evidence affirmatively shows that no act essential to the offense and no effect of the offense occurred in Howard County. We find no such evidence. The cattle were in Howard County at all pertinent times.

Statutes like § 43-1414 are remedial, intended to prevent miscarriages of justice by extending the lines of jurisdiction beyond the limits prescribed by the common law, and are to be liberally construed. State v. Ashe, 182 Wash. 598, 48 P.2d 213 (1935); Robinson v. Commonwealth, 217 Ky. 129, 288 S.W. 1044 (1926); People v. Vario, 165 Misc. 842, 2 N.Y.S. 2d 611 (1938); Willis v. O’Brien, 151 W. Va. 628, 153 S.E. 2d 178 (1967), cert. denied, 389 U.S. 848, 88 S. Ct. 71, 19 L. Ed. 2d 116 (1969).

If the acts committed by the accused were intended to take effect in a county other than that in which all were actually committed, venue may be laid in the former county, even though all of the acts of the accused were done before the actual effect of the unlawful purpose has materialized there. People v. Wallace, 78 Cal. App. 2d 726, 178 P.2d 771 (1947); People v. Vario, supra. See also, People v. Quill, 2 Misc. 2d 72, 149 N.Y.S.2d 566 (1956), writ of prohibition on jurisdictional grounds denied, 3 App. Div. 2d 717, 159 N.Y.S.2d 312, motion for leave to appeal denied, 3 App. Div. 2d 764, 161 N.Y.S.2d 577, indictment dismissed on other grounds 11 Misc. 2d 512, 177 N.Y.S.2d 380 (1958).

The language of the Supreme Court of Washington in State v. Ashe, supra, is appropriate:

A crime may be a single act and immediate in all its consequences and the locality where it was committed is its “vicinage.” On the other hand, a crime may be the result of a series of acts or the result of a single act. The direct consequences may be made to occur at various times and in different localities. The criminal act, the motive of the perpetrator, the cause, and the effect, are but parts of the complete transaction. Wherever any part is done, that becomes the locality of the crime as much as where it may have culminated. Commonwealth v. Jones, 118 Ky. 889, 82 S.W. 643, 4 Ann. Cas. 1192.
*** Identical, or similar, statutes have been passed in a number of states and in some of them have been in existence for many years. Under such statutes the vicinage of a crime begun in one county and finished in another, or where the cause occurs in one county and the result in another, has been deemed to be in either county. Commonwealth v. Jones, supra; Coleman v. State, 83 Miss. 290, 35 So. 937, 64 L.R.A. 807, 1 Ann. Cas. 406; People v. Crotty, 55 Hun, 611, 9 N.Y.S. 937; People v. Peckens, 153 N.Y. 576, 47 N.E. 883 (citing with approval the Crotty Case, supra, and others); Archer v. State, 106 Ind. 426, 7 N.E. 225; Robinson v. Commonwealth, 217 Ky. 129, 288 S.W. 1044; State v. Spayde, 110 Iowa, 726, 80 N.W. 1058; Reynolds v. State, 18 Ariz. 388, 161 P. 885, Ann. Cas. 1918D, 879.

Under virtually identical, or similar, statutes, we find the following applications:

A prosecution for committing a nuisance by pollution of a stream from the discharge of a sewer may be had in a county in which the waters have been rendered impure by the discharge, even though every act which produced this effect took place in an upstream county. State v. Glucose Sugar Refining Co., 117 Iowa 524, 91 N.W. 794 (1902); State v. Smith, 82 Iowa 423, 48 N.W. 727 (1891); Commonwealth v. Louisville & N. R. Co., 175 Ky. 267, 194 S.W. 345 (1917). See also, State v. International Paper Co., 201 La. 870, 10 So. 2d 685 (1942);
An indictment for inducing another to commit perjury in the county in which the perjured testimony was to be given, even though the alleged incitement and attempt to procure the witness to commit perjury took place in another county, has been held proper. People v. Vario, supra;
A conviction for embezzlement may be had in the county in which the accused agent should have accounted to his principal for money entrusted to him for the use and benefit of the principal in another county, even though there was no evidence as to the place where the accused used or spent the money. Draughon v. State, 29 Ala. App. 385, 196 So. 290 (1940);
Venue in the county where a female was taken for purposes of prostitution has been held proper on a charge of taking a female person for prostitution by fraudulent inducement, even though all the representations and inducements on which the consent of the female was given were made in another county. People v. Mandell, 35 Cal. App. 2d 368, 95 P.2d 704 (1939);
Even the payment of a check drawn by an officer ot a corporation and used for the officer’s personal purposes by a bank located in a county different from that where the check was drawn has been held to be sufficient basis to lay the venue for prosecution of the officer for embezzlement because the effect of the payment was to diminish the corporation’s funds on deposit there, even though it be acknowledged that the corporation actually had title to no specific money in the bank. State v. Johnson, 109 Kan. 239, 199 P. 104 (1921);
Prosecution of a soliciting agent of an insurance company upon a charge of obtaining money by false pretenses could be had in the county where fictitious applications for insurance were received by the company, check for payment of a commission thereon drawn, and the amount of the check charged to the account of the insurance company, as against the contention that the money was actually received in the county from which the application was mailed and the check received and cashed. State v. Gibson, 132 Iowa 53, 106 N.W. 270 (1906);
Venue of a prosecution for violation of a statute prohibiting die making of statements and reports with the intent to deceive any person was sustained in the county where the alleged false report was received by the state bank commissioner, even though the statement and report were prepared, subscribed, sworn to and transmitted from another county. State v. Mason, 61 Kan. 102, 58 P. 978 (1899).

Perhaps the case most nearly analogous to the one before us involved a charge of receiving stolen goods. It was held that where the accused purchased the goods in one county and took possession of them in another, the courts of either county would have jurisdiction (i.e., the right to exercise its jurisdiction based upon venue) over the offense. Ellison v. Kentucky, 190 Ky. 305, 227 S.W. 458 (1921).

In reaching this decision, we are not oblivious of the provisions of Article 2, Section 10, of our Constitution. This matter has been thoroughly, and we think correctly, treated by the Supreme Court of West Virginia in Willis v. O’Brien, 151 W.Va. 628, 153 S.E. 2d 178 (1967), cert. denied 389 U.S. 848, 88 S. Ct. 71 19 L. Ed. 2d 116 (1969), in which it was held that a charge of murder by reason of an abortion could be tried in the county in which the woman died even though the abortion was performed in another county. A statute providing that the offense or murder could be prosecuted either in the county where the mortal wound was inflicted or that where death ensued was there held constitutional. The West Virginia court reasoned that the legislature had not granted authority for prosecution in a county other than that in which the offense was committed, and held that where one puts in force an agency for the commission of a crime, he, in legal contemplation, accompanies the agent to the point where it becomes effectual. This is closely akin to our reasoning in State v. Reeves, 246 Ark. 1187, 442 S.W. 2d 229, where we held that an aider, abettor or assister in the commission of larceny could be prosecuted in the county where the property was actually taken.

In this case, the acts of Hill with reference to the sale may well have taken place in Sevier County, but the intention essential to his conviction must have been to defeat the holder of the “lien” in the collection of the debt. If the cattle were in Howard County, the “lien” was there and its enforcement could be expected to be conducted or at least initiated in that county. The effect of the sale was to transfer title to the cattle located in Howard County to Powell, who would certainly take them into his possession there. Clearly, acts or their effects requisite to the consummation of the alleged offense would occur in Howard County. The venue was not improperly laid there, even though it might have been properly laid in Sevier County.

Upholding the circuit judge’s ruling on the venue question is harmonious with our decisions involving venue of prosecutions for receiving stolen property in any county in which the property is either received or possessed by the accused as provided by Ark. Stat. Ann. § 43-1420 (Repl. 1964). See Atwood v. State, 184 Ark. 469, 43 S.W. 2d 70; Smith v. State, 169 Ark. 913, 277 S.W. 530; Baker v. State, 58 Ark. 513, 25 S.W. 603. See also, McCoy v. State, 161 Ark. 658, 257 S.W. 386, wherein we held that proof of venue was sufficient when it showed only that one charged with forgery had uttered the forged instrument in the county where the indictment was found. Our holding is not contrary to Norris v. State, 170 Ark. 484, 280 S.W. 398, because we only held there that the court had jurisdiction of an alleged offense of obtaining a check under false pretenses when the venue was laid in the county from which the representations were mailed and in which the check was received, although the check was issued and paid elsewhere.

On a retrial, we anticipate that app diant’s Point IV will likely arise. We find no error in the introduction of evidence as to the total amount of appellant’s indebtedness to the PCA. His plea of not guilty put all material facts in issue. Ark. Stat. Ann. § 43-1223 (Repl. 1964). The existence of a debt secured by the security agreement and financing statement was an essential element of the offense charged. McCaskill v. State, 68 Ark. 490, 60 S.W. 234. As we understand the evidence, it shows that the financing statement and security agreeinent, according to its own provisions, secured all existing and future indebtedness of Hill to the PCA. This evidence was relevant to a material issue in the case.

Appellant’s Point VI may well arise on retrial. This matter arose out of the state’s claim of surprise when Powell, a witness called by the state, testified that he borrowed money from the Nashville PCA to purchase the cattle from Hill and told Glen Coggins that the purpose of the loan was to purchase from Hill the cattle involved here. Coggins was Field Supervisor for the PCA, and the official of the company to whom Powell made application for the loan and who also filled out the financing statement and security agreement signed by Hill upon which the prosecution was based. The court ruled that the prosecuting attorney might cross-examine the witness about a prior contradictory statement on this point if he was surprised and if he had evidence that Powell had made such a statement. The prosecuting attorney proceeded to question the witness about a prior contradictory statement. At the time the witness left the stand, the prosecuting attorney asked permission to play a tape recording of a statement purportedly made by the witness, but the trial judge requested that the playing of the tape be postponed until the following day. We do not know whether that tape would have revealed a basis for this impeachment, because it does not appear that the matter was ever mentioned again. The state did show that Powell’s loan papers, made from information furnished by him, revealed that the property was located on Powell’s own farm, eight miles southeast of DeQueen, and no reference was made to any cattle on the Doc Simpson farm in Howard County. The questions about the prior statement were proper under the circumstances to lay a foundation for contradiction of the witness. Ark. Stat. Ann. § 28-706 (Repl. 1962); Garrison v. State, 148 Ark. 370, 230 S.W. 4.

Appellant’s argument on Point II is based upon his contention that the facts and circumstances establish that the prosecution was an effort to collect the debt because: there was no evidence of criminal intent; Tom Hill had been trusted by the PCA and had paid every previous loan made to him; even though Hill had left Arkansas after the sale of the cattle, he had thrice returned voluntarily in an effort to work out matters pertaining to the debt; the Nashville PCA knew about the sale of the cattle to Powell and had extended the maturity date on the Hill loan; Powell had made voluntary payments on the debt and had surrendered his PCA stock; the PCA knew of Hill’s cattle operations in Mexico and Texas. Some of these matters, such as the PCA’s knowledge of the sale, are disputed on the basis of conflicting evidence. The question of intent is to be determined from all the facts and circumstances of the case, and the existence of intent is ordinarily a jury question. Lucas v. Commonwealth, 255 S.W. 2d 609 (Ky. 1953); State v. Wilfong, 114 Kan. 689, 220 P. 250 (1923).

It would unduly extend this already lengthy opinion to outline the testimony in the case. It is sufficient to say that we find that the evidence was sufficient to present a jury question on appellant’s intent. We find no evidence to indicate that the prosecution was instituted for the collection of the debt. The testimony by the PCA manager that he still felt an obligation to collect the debt and that he would still accept a mortgage or agreement signed by appellant falls far short of showing that criminal processes have been subverted in violation of appellant’s constitutional rights.

We do not feel that there is any likelihood that the prosecuting attorney will in his opening statement again allude to the possibility that appellant will not take the stand or to sales of mortgaged property in other counties, so we find it unnecessary to consider these remarks covered in appellant’s Point V. We find no error in the overruling of appellant’s objection to the final statement in the state’s closing argument. That statement was:

If by chance, and I don’t think there is a chance, you should acquit this defendant — and you will never hear me criticize any one of you if you do — , but if you do, you can bet your bottom dollar that every loaning institution and every store in Howard County, Arkansas, is in trouble from now on. Thank you.

The trial judge is accorded a wide latitude of discretion in controlling the extent, scope, range and propriety of arguments of counsel to the jury, the exercise of which will not be reversed in the absence of manifest gross abuse. Peters v. State, 248 Ark. 134, 450 S.W. 2d 276; Parrott v. State, 246 Ark. 672, 439 S.W. 2d 924; Fisher v. State, 241 Ark. 545, 408 S.W. 2d 894, cert. denied, 389 U.S. 821, 88 S. Ct. 43, 19 L. Ed. 2d 73; Reynolds v. State, 220 Ark. 188, 246 S.W. 2d 724; Reynolds v. State, 211 Ark. 383, 200 S.W. 2d 806. We are unable to say that there was any abuse of the court’s discretion here. We have held that there was no abuse of discretion in allowing a fervid speech by a prosecuting attorney about the futility of maintaining courts and having courthouses if juries would not convict on such testimony as was offered in the case on trial. Kelley v. State, 175 Ark. 1170, 1 S.W. 2d 46. Refusal to exclude expressions of opinion of the prosecuting attorney as to the effect of failure to properly enforce the law has been held not erroneous. Venable v. State, 156 Ark. 564, 246 S.W. 860. A statement in a rape case that “The jurymen are the ones that enforce the law and if the people know the law is not enforced, the law is going to be violated’' was not improper. Davis v. State, 150 Ark. 500, 234 S.W. 482. The statement, “Gentlemen, when you return a verdict of less than murder in the first degree in this case, you throw down the license to everybody in this county to commit the same crime,” among other remarks, was found not to be outside the bounds of legitimate argument. Smith v. State, 79 Ark. 25, 94 S.W. 918.

Appellant’s arguments relating to his Point I really go to the sufficiency of the evidence to show criminal intent, failure to show that the financing statement and security agreement were filed in Howard County, inconsistencies and contradictions in the testimony on behalf of the state, the alleged knowledge of officers of the PCA that Powell was borrowing money from the PCA to purchase the cattle from Hill. We find no merit in any of these arguments. The matters of criminal intent and the corporation’s knowledge have heretofore been mentioned in connection with other points. Resolution of contradictions and inconsistencies was for the jury. The PCA had a security interest in the cattle, as between it and Hill, regardless of whether the instruments were properly filed. Ark. Stat. Ann, §§ 85-9-201, 203, 204, 301 (Add. 1961).

For the error indicated, the judgment is reversed and the cause remanded for a new trial.

Harris, C.J., dissents.

Carleton Harris, Chief Justice,

dissenting. It appears to me that the court, by this opinion, is adding a requirement, not heretofore in existence, for the conviction of one accused of disposing of mortgaged property. Though, as stated by the majority, the statute itself mentions nothing about consent, I agree that if one consents that the property that has been mortgaged to him may be sold by the mortgagor, no crime has been committed. But I do not agree that such consent can be implied in this type of case, and I find no Arkansas decisions to that effect — and none are cited by the majority.

The majority say that though we have not specifically said that implied consent may be inferred from a course of conduct we have given the principle effect without stating it, and three Arkansas cases are cited in support of that statement. The first of these, Kaplan v. Scherer, 205 Ark. 554, 169 S.W. 2d 660, dealt with whether the chancery court had jurisdiction in the matter there at issue. We pointed out that the right to have a suit in equity transferred to circuit court is waived by voluntarily submitting to trial of all the issues in the chancery court; the opinion also makes reference to another case, Hill v. McClintock, 175 Ark. 1059, 1 S.W. 2d 566, where this court stated:

“McClintock did not ask or obtain a ruling upon his motion to dismiss the appeal, but, on the other hand, went to trial in the circuit court on the merits of the case. Under our system of pleading he will be deemed to have waived a ruling on his motion to dismiss the appeal and to have consented to the jurisdiction of the circuit court to try the case.”

These cases deal entirely with court jurisdiction and I certainly cannot see where the holdings are relevant to a criminal charge of disposing of mortgaged property. The other two cases cited are rape cases dealing with whether the alleged rape victim, by her actions, impliedly consented to intercourse. In Threet the alleged victim admitted that she had subsequently voluntarily met the alleged rapist at the same place where she was raped, had sexual intercourse with him, and “further admitted that she had had intercourse with a number of men. ***” Also, she admitted that she had been paid money for these acts of intercourse, and each instance was with her permission (except the alleged rape). Evidence also reflected that she made no disclosure of the alleged rape until it was discovered sixty days later that she was meeting men at the place of that occurrence. I certainly do not consider that case as any authority for the holding in the case at hand. In Jackson the defense likewise was that the prosecuting witness had consented to the act of intercourse and evidence was introduced that the prosecuting witness had gone to a neighbor’s house with the alleged rapist, h^d sat there with him for some period of time, following the alleged rape, went to bed without making any complaint and subsequently met the defendant on two different occasions before bringing any charge. Jackson requested an instruction as follows:

“The court instructs the jury that, if they find from the evidence in this case that the defendant and the prosecutrix remained friendly for some time after the alleged outrage, this can be considered whether the sexual intercourse was by consent or not.”

We reversed because this instruction or one of a similar nature was not given. I cannot see where the holding in this case is in any way pertinent to the issue presently before us, for, of course, under the very nature of the charge of rape, the actions of the prosecutrix are fully as important as what she says, if not more so.

I regret that we are, by this opinion, presenting yet another defense to the chárge of disposing of mortgaged property.

I respectfully dissent.

       Similar constitutional provisions have seemed to be no impediment to similar results in Alabama, Kansas and Washington. See also, Commonwealth v. Jones, 118 Ky. 889, 82 S.W. 643 (1904).

       Appellant seems to take the position that Powell and Hill were partners in the ownership o£ the cattle. Powell’s testimony does not support this premise. Powell said that Hill bought the cattle and was to buy, sell and furnish money and Powell was to do the work, and if there was a profit when the cattle were sold, it was to be split between them. Powell said that title was vested in Hill. See Ark. Stat. Ann. § 65-107(4) (b) (Repl. 1966).

         Threet v. State, 110 Ark. 152, 161 S.W. 139; Jackson v. State, 92 Ark. 71, 122 S.W. 101.