author: Frank Holt, Justice. Darrell Hickman, Justice, John A. Fogleman, Chiéf Justice,

text:
    Jack SWEENEY v. Nancy SWEENEY
    79-115
    593 S.W. 2d 21
    Opinion delivered January 28, 1980
    (In Banc)
    [Rehearing denied February 19, 1980.]

      Johnson & Lewis, Ltd., by: Fletcher C. Lewis, for appellant.

      Boyett & Morgan, P.A., by: James L. Morgan and Mike

      Millar, for appellee.
   Frank Holt, Justice.

Appellee was granted a divorce from appellant on her counter-claim of general indignities. She was awarded permanent alimony, attorney’s fees and a statutory interest in appellant’s real and personal property pursuant to Ark. Stat. Ann. §§ 34-1211 and 34:1214 (Repl. 1962). This appeal, by present counsel, is from the final decree. Appellant contends these statutes are unconstitutional.

We first consider the validity of § 34-1211, which authorizes the permanent awards made here. Before doing so, the question of appellant’s standing, which appellee raises, must be resolved. To have standing to challenge the constitutionality of a statute, it must be unconstitutional as applied to the litigant. Carter and Burkhead v. State, 255 Ark. 225, 500 S.W. 2d 368 (1973). It is well established that a litigant can question the validity of a statute “when and insofar as it is being, or is about to be, applied to his disadvantage . . .” Block v. Allen, 241 Ark. 970, 411 S.W. 2d 21 (1967). Here appellant was required to pay appellee temporary maintenance and attorney’s fees during the pendency of this action, which awards were made permanent by the first decree. Clearly appellant has standing to challenge the constitutionality of § 34-1211 since he was and continues to be financially obligated to the appellee under the decree rendered pursuant to this statute. By seeking a ruling from the chancellor as to its constitutionality, as applied to him, he properly raised the constitutional issue in the trial court.

In support of his argument that § 34-1211 is a gender-based classification and therefore unconstitutional, appellant relies upon Orr v. Orr, 440 U.S. 268, 99 S. Ct. 1102, 59 L. Ed. 2d 306 (1979); and Hatcher v. Hatcher, 265 Ark. 681, 580 S.W. 2d 475 (1979). Here appellant correctly points out that in Hatcher we held § 34-1210, which authorizes temporary maintenance and attorney’s fees for the wife, unconstitutional as being violative of equal protection rights citing Orr. In Orr Alabama statutes, similar to ours, were declared unconstitutional. We hold Ark. Stat. Ann. § 34-1211 (Repl. 1962), which is undisputedly gender-based, likewise unconstitutional. We deem it appropriate to observe, however, that Orr and Hatcher were rendered subsequent to the trial of this case or during the pendency of this appeal.

Appellant next contends that § 34-1214, which pertains to a wife’s property rights upon divorce, is unconstitutional, because it is also gender-based in its classification. This issue is raised for the first time on appeal and therefore we cannot consider it. Hatcher v. Hatcher, supra.

Appellant next contends that the chancery court erred in granting appellee a statutory interest in appellant’s Ford Motor Company and Honeywell retirement benefits. The decree provides that appellee receive a one-third interest in the retirement benefits with Ford but does not mention the Honeywell benefits. Pension benefits which are vested but not currently due and payable are not personal property. Knopf v. Knopf, 264 Ark. 946, 576 S.W. 2d 193 (1979). Here on the record before us, it is not demonstrated that any retirement benefits are currently due and payable.

Finally, appellant contends that Act 705 of our 1979 General Assembly cannot be applied to sustain the chancellor’s order. This act was enacted during the pendency of this appeal and amended §§ 34-1210, 34-1211, 34-1213, and 34-1214 by making them gender-neutral rather than gender-based. Substantive rights are clearly affected by this act and the statute cannot be retroactively applied absent clear legislative intent to that effect. Chism v. Phelps, 228 Ark. 936, 311 S.W. 2d 297 (1958). Here no emergency clause was enacted and neither is there express language regarding retroactive applicability. The act, therefore, is prospective in its application. Since the statute, § 34-1211, in effect when the chancellor’s order was entered, is unconstitutional and since Act 705, subsequent to the order, is prospective in its application, no statutory law exists to apply on remand.

Even so, it has been suggested that we delineate some guidelines for the chancellors in cases now pending with respect to alimony upon rendition of the decree of divorce between the Orr decision and the effective date of Act 705 of 1979.

It is true that we recognized in Hatcher that “[d]ivorce and the incidental rights, responsibilities and liabilities of a divorce, are purely statutory.” At common law, there was no power to award alimony. 1 Nelson, Divorce & Annulment (2d. Ed.) 5, § 1.02, and Am. Jur. 2d, Divorce & Separation, § 534. Ark. Stat. Ann. § 34-1211 (Repl. 1962), which gives authority to the chancellor to award alimony, has been in effect for approximately 150 years. The pronouncement of Orr and Hatcher, as indicated, requires the invalidation of this statute. To meet the obvious requirements of Orr that this type statute be neutral and not gender-based, our legislature, within a month, enacted Act 705 of 1979. Even though our legislature acted expeditiously to correct the hiatus created by Orr, a void of statutory law has existed during the interim between Orr and the effective date of Act 705 of 1979 affecting this and perhaps numerous other cases. In this unusual situation, we think the broad power of equity should be allowed to fashion a remedy to meet the demonstrated needs of divorced spouses in order to prevent harsh and inequitable results.

In Whitaker & Co. v. Sewer Improvement Dist. No. 1 of Dardanelle, Ark., 229 Ark. 697, 318 S.W. 2d 831 (1958), we said: “A court of equity should be as alert to afford redress as the ingenuity of man is to cause situations to develop which call for redress. ’ ’ As further indication of the inherent powers of equity to do substantial justice between divorced parties, we said in Conner v. Conner, 192 Ark. 289, 91 S.W. 2d 260 (1936):

Notwithstanding the fact that the wife may be the guilty spouse, the trial court, in the exercise of a sound discretion, if the facts and circumstances in the particular case warrant it, may allow her alimony, attorney’s fee, and costs. This power is inherent in the court, although not provided by statute. This court said in the case of Prior v. Prior, 88 Ark. 302, 114 S.W. 700 that: ‘Whether dependent upon enlarged powers conferred by the statute or not, we think it is settled that a court has the power to allow alimony to a wife against whom a decree for divorce is granted on account of her misconduct.’

In the circumstances, we hold, with respect to this and other cases pending during this brief void of statutory law, that a chancellor may, within the exercise of inherent power and sound discretion, award alimony to the wife or husband as is justified by the facts and circumstances.

Here, as indicated, the chancellor’s award of alimony cannot be sustained pursuant to § 34-1211 nor Act 7Ó5 of 1979. However, it is well recognized that we review chancery cases de novo on appeal and affirm when it appears correct from the record as a whole even though the chancellor has based his decision upon the wrong reason. Morgan v. Downs, 245 Ark. 328, 432 S.W. 2d 454 (1968).

Affirmed.

Hickman and Stroud, JJ., concur.

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

Darrell Hickman, Justice,

concurring. The majority has reached the only result it can, unless a small number of people are to be the victims of a legal hiatus.

The United States Supreme Court in Orr v. Orr, 440 U.S. 268 (1979), held in effect that most of the alimony statutes in this country were unconstitutional. That decision would not have created too serious a problem if alimony had been a right recognized by common law. But it is not. Alimony is essentially a creature of statute. Certainly, this has always been the rule in Arkansas. If one followed a legalistic line of logic, then the appellee could be denied her right to alimony because the chancellor, after Orr, would have no authority to grant it. However, to deny the appellee alimony would be a greater judicially created injustice than that which some may think the majority is committing here. I think the majority is simply granting to a small number of people a right that people before them, who were members of the same class, and people after them, who are members of the same class, would have. Unless this grant is made, this small number of people will not have a right, which would be a great injustice. I do not believe the chancery courts have the inherent power to deal with this. I think the majority is giving the courts that power, a decision in which I concur.

Stroud, J., joins in this concurrence.

John A. Fogleman, Chiéf Justice,

concurring in part; dissenting in part. I agree that appellant had standing to challenge the constitutionality of Ark. Stat. Ann. § 34-1211 (Repl. 1962) and that this section of the statute is unconstitutional by the standards established in Orr v. Orr, 440 U.S. 268, 99 S. Ct. 1102, 59 L. Ed. 2d 306 (1979). I also agree that Act 705 of 1979 is prospective in effect. I would add that it could not have been retroactive. A decree of absolute divorce was granted Mrs. Sweeney upon her counterclaim. There has been no attempt, on appeal, to obtain a reversal of that portion of the decree. It has become final; it is not affected by the decision here, and is the basis for any allowances made to her and for any award of property. Her rights were then fixed. Even if it could be argued that the rights of appellant and appellee upon entry of the divorce decree were not property rights, they were certainly substantive rights. It is well settled generally that retrospective laws are unconstitutional if they affect substantive or substantial rights. Gillioz v. Kincannon, 213 Ark. 1010, 214 S.W. 2d 212.

My point of departure from the majority opinion commences just after the statement that no statutory law exists to apply on remand. In my judgment, the opinion might well have ended there, because if no statutory law exists, no law whatever exists authorizing the allowance of alimony where the divorce is absolute. It was only by statute that the meaning of the word alimony was extended to include an allowance by the court on dissolving the bonds of matrimony. Bauman v. Bauman, 18 Ark. 320; Wood v. Wood, 54 Ark. 172, 15 S.W. 459.

There has never been any common law right to alimony, attorney’s fees or award of property to a spouse obtaining a divorce. The matter is treated extensively in a well recognized text on the subject of divorce, and is capsuled by the writer in an early section of the text, viz:

As a result of the history of the subject, discussed in the preceding section, the law of divorce and jurisdiction to grant absolute divorces are statutory. It has been repeated time after time, in fact, that divorce proceedings are “purely” or “entirely” statutory, and that divorce is a special statutory remedy. The power of the courts over divorce suits is derived entirely from the statutes, and is wholly dependent thereon. For example, only such judgments may be entered as are authorized by statute, and all the legislative requirements must be fulfilled to give the court jurisdiction. Not only must the statutes be strictly complied with, but they are also, usually, rather strictly construed.

1 Nelson, Divorce & Annulment (2d. Ed.) 5, § 1.02.

The matter is also explained in an annotation relating to alimony. See 34 ALR 2d 313, at p. 319, where it is stated thusly:

The matter of divorce a vinculo matrimonii is entirely statutory in origin. At common law the courts did not have the power to grant such a divorce; and even the English ecclesiastical courts could not or would not grant a divorce. And the better view is that the power to award permanent alimony in connection with a divorce a vinculo matrimonii depends on the existence of statutory authorization, and that there is no such thing as a common-law power to grant permanent alimony in connection with such a divorce. * * *

The matter of alimony is also treated at p. 658, 24 Am. Jur. 2d, Divorce & Separation, § 534, viz:

* * * But in the case of an absolute divorce terminating the matrimonial ties, the duty of support no longer exists at common law, and in the absence of a statute continuing the obligation of maintenance beyond the dissolution of the marriage, it is difficult to find a basis for awarding permanent alimony. The better view would appear to be that the right to award permanent alimony on decreeing a dissolution of the marriage can be based solely upon express statutory provision. Indeed, the broad statement is frequently made that all authority to award alimony is referable solely to the written law, and that authority to award alimony must be conferred by statute or it does not exist.

The broad power of equity seems to have greatly expanded in the nine months following our decision in Hatcher v. Hatcher, 265 Ark. 681, 580 S.W. 2d 475. There was much greater leeway in Hatcher, where temporary alimony was involved, but the majority followed a very narrow and restrictive course there. The comparison is reminiscent of straining at a gnat and swallowing a camel.

In Hatcher, the majority, in striking down Ark. Stat. Ann. § 34-1210 (Repl. 1962), said:

The fact that the Arkansas law in question only relates to temporary, as opposed to permanent, alimony is not significant.. . . It is not a question of temporary or permanent alimony. It is a question of a gender-based classification of the statute.

Now, it makes a tremendous difference. In Hatcher, the majority said:

The appellee has argued that we should simply hold that the law applied to both wives and husbands. We have never applied this statute in favor of husbands. When the will of the General Assembly is clearly expressed, we are required to adhere to it without regard to consequences. Walker v. Allred, 179 Ark. 1104, 20 S.W. 2d 116 (1929). It is not the function of this court to legislate; to do so would be a clear violation of this court’s authority. Divorce and the incidental rights, responsibilities and liabilities of a divorce are purely statutory. Ex parte Helmert, 103 Ark. 571, 147 S.W. 1143 (1912); Ramsey v. Ramsey, 259 Ark. 16, 531 S.W. 2d 28 (1975); Wheat v. Wheat, 229 Ark. 842, 318 S.W. 2d 793 (1958). We held in Young v. Young, 207 Ark. 36, 178 S.W. 2d 994 (1944):
The Legislature — not the courts — determines the grounds for, the defenses against, divorce; because divorce is always regulated by statute.

What has changed since Hatcher? Now the majority says that, in spite of the fact that we said in Hatcher that divorce and the incidental rights, responsibilities and liabilities of a divorce are purely statutory, in this unusual situation, the broad power of equity should be allowed to fashion a remedy to meet the demonstrated needs of divorced spouses in order to prevent harsh and inequitable results.

Has it now become the function of the courts to legislate? Are divorce and the incidental rights and liabilities purely statutory - except in an unusual situation? If so, what constitutes an unusual situation? In Hatcher, this court declined the invitation to make the law governing temporary alimony apply to both husbands and wives. Today the court says that “during this brief void of statutory law, a chancellor may, within the exercise of inherent power and sound discretion, award alimony to the wife or husband as is justified by the facts and circumstances.” Why so, in the case of permanent alimony and not in. the case of temporary alimony?

I am mystified by a temporary vesting of inherent power in the chancery courts. What is the source of this power? It is difficult for me to see how alimony can be converted into a matter for the exercise of equity powers for even a brief period. “To treat a divorce suit as one in equity is historically an error, however, as a suit for absolute divorce was unknown to the common law, either in the law courts or in chancery.” 1 Nelson, Divorce & Annulment (2d. Ed.) 8, § 1.03.

I am also troubled by our failure to deal with the question of constitutionality of Ark. Stat. Ann. § 34-1214 (Repl. 1962). Even though the question was raised for the first time on appeal, it will inevitably arise upon remand. Perhaps it is better to follow this procedure, since appellee did not address the issue of constitutionality.

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


source: Caselaw Access Project

author: Frank Holt, Justice. . John A. Fogleman, Chief Justice,

license: Public Domain

text:
    ELCARE, INC. v. Charles L. GOCIO, Executor of the Estate of Ralph W. BIGGER, Deceased
    79-253
    593 S.W. 2d 159
    Opinion delivered January 28, 1980
    (In Banc)
    [Rehearing denied March 3, 1980.]

      Little, McCollum & Mixon, by: James G. Mixon, for appellant.

      Godo & Dossey, by: Jerry B. Dossey, for appellee.
   Frank Holt, Justice.

Appellee’s decedent, 68 years of age, entered into two contracts with the appellant for the purpose of securing lifetime housing and medical services at the Concordia Life Care Center owned by the appellant. One contract was entitled ‘ ‘ Care Agreement’ ’ and the other, “Contract for the Sale of Life Estate in Living Unit.” Approximately six weeks prior to his death, the decedent delivered to appellant a written notice of cancellation of the Contract for Sale specifically citing Paragraph 5. The notice of cancellation and termination of occupancy was to be effective on the date of delivery. Following the decedent’s death, appellant refused to comply with appellee’s request on behalf of the decedent’s estate for a refund of a percentage of the original purchase price in accordance with the notice and the terms of the contract. In refusing the request, appellant cited Paragraph 16 (d) of the Care Agreement which required a resident to give 120 days’ notice of cancellation of that contract. Appellant took the position that this cancellation provision also governed by reference the cancellation of the Contract for Sale. Therefore, the effective date of the termination was 120 days from the date of the written notice to cancel the Contract for Sale. Further, since the decedent died prior to the expiration of the 120 days’ notice, the contract was terminated by his death and no refund was due according to the provisions of the Contract for Sale. Upon a review of the evidence, including the two contracts, the trial court, sitting as a jury, ruled that the cancellation notice of the sale contract was effective upon delivery and the appellant was obligated to repurchase the life estate as provided in the contract.

The only issue presented by this appeal is whether the 120 days’ notice provision in the Care Agreement also governed the cancellation of the Contract for Sale. Appellant argues that the contracts should be treated as a single agreement; that Paragraph 5 (A) of the Contract for Sale merely sets out the formula for the repurchase price in the event the contract is cancelled pursuant to Paragraph 16 (d) of the Care Agreement; and that the Contract for Sale can be unilaterally terminated only upon 120 days’ written notice by the resident. Therefore since the notice to cancel was not effective when given, there was no substantial evidence to support the trial court’s ruling. Appellee responds that the provisions in the contracts governing cancellation are confusing and ambiguous and, consequently, should be construed most strongly against the drafter, namely, the appellant. The lower court, therefore, correctly ruled that the Contract for Sale was cancelled upon delivery of the written cancellation notice.

The Care Agreement provides in pertinent part:

16. TERMINATION OF AGREEMENT. This agreement shall be terminated as follows:
(a) Upon death of Resident. . . .
(d) By Resident, by serving on Corporation one hundred twenty (120) days written notice of his desire to do so; but in such case, Resident’s contract shall not terminate until the end of 120 days except by mutual agreement in writing of Corporation and Resident. The Resident will be charged with such amounts as will cover other expenses incurred in connection with any repairs or replacement of the property of Corporation caused by the Resident. The Resident shall be obliged to sell his Life Estate in said Living Unit to the Seller at the price as set forth in Paragraph 5 (A) of the Contract for the Sale of Life Estate in Living Unit, referred to in Paragraph 1 hereof. Payment of the repurchase price shall be made within 120 days of the termination date.
In the event this contract is terminated, Corporation shall be entitled to all unearned portions of the Maintenance Fee.

The Contract for Sale Agreement reads in pertinent part:

5. (A) In the event Buyer desires to terminate his occupancy, Care Agreement or his interest in said Living Unit, Seller shall be obliged to repurchase the Life Estate in said Living Unit and Buyer shall be obliged to sell his Life Estate in said Living Unit to Seller as follows:
(1) On the day which the premises are made available to the Buyer for his occupancy and during the remaining days of that same calendar month, the repurchase and sales price shall be eighty (80) percent of the original sales price.
(2) Each calendar month thereafter, the repurchase and sales price shall decrease by three-fourths (3/4) of one (1) percent for the next one hundred (100) months.
(3) Thereafter, the repurchase and sales price shall be five (5) percent of the original sales price.
(B) In the event the Seller (other than for reasons stated in Paragraph 4 hereof) terminates Buyer’s Care Agreement, Seller shall be obliged to repurchase the Life Estate in said Living Unit and Buyer shall be obliged to. sell his Life Estate in said Living Unit to Seller in the same manner as setforth in subparagraph 5 (A) above.
(C) In the event of the death of one of the holders of the Life Estate, the monthly maintenance fee will be adjusted to the current single rate for a comparable unit for the surviving occupant. Upon the death of either a single occupant or of the surviving occupant, as the case may be, both this Contract and the Cafe Agreement shall automatically be terminated, and the Living Unit shall revert to the Seller.

The contracts were executed on the same day, were part of the same transaction, and were designed to provide an integrated program of housing and medical care.for the decedent and other residents. Paragraph 1 of the Care Agreement provides that no legal obligations are created pursuant to the agreement until the parties sign the separate Contract for Sale, and that the Contract for Sale is incorporated by reference. Similarly, Paragraph 8 of the Contract for Sale provides that if the parties do not enter into the Care Agreement, the Contract for Sale is cancelled. In view of these provisions, we agree with the finding of the trial court that the contracts were incorporated by reference. However, when there is uncertainty or ambiguity in a contfact or contracts and they are susceptible to more than one reasonable construction, then we must construe them most strongly against the party who drafted them, the appellant here. Barton v. Perryman, 265 Ark. 228, 577 S.W. 2d 596 (1979); Christmas v. Raley, 260 Ark. 150, 539 S.W. 2d 405 (1976); Prepakt Concrete Co. v. Whitehurst Bros., Inc., 261 Ark. 814, 552 S.W. 2d 212 (1977). Further the drafter of a document is in a better position to convey a clarity in meaning by its choice of phraseology and words, and if there are any uncertainties, they will be construed against the drafter of the form if the language bears more than one reasonable meaning in its interpretation. Hall v. Weeks, 214 Ark. 703, 217 S.W. 2d 828 (1949); and Pate v. Goyne, 212 Ark. 51, 204 S.W. 2d 900 (1947).

Here, tested by these standards, we hold there is substantial evidence to support the court’s findings that if a buyer were required to give 120 days’ notice of his desire to terminate the Contract for Sale, Paragraph 5 (A) (1) and part of 5 (A) (2) would be “meaningless”, and that if the 120 days’ notice governed termination of both contracts, the third sentence of Paragraph 16 (d) would be “totally unnecessary”. This is a reasonable construction even though we treat the contracts as a single instrument. The appellant, the proponent of the contracts, was in a better position to prevent any ambiguities by easily expressing its intent in plain English by reiterating the 120 days’ cancellation notice in the cancellation provision of the Contract for Sale. The written notice of cancellation submitted by the decedent effectively cancelled the Contract for Sale on the date of delivery.

Since there was no notice of cross-appeal by the appellee, we do not consider the issues presented therein.

Affirmed on direct and cross-appeal.

Fogleman, C.J., dissents.

. John A. Fogleman, Chief Justice,

dissenting. It is extremely difficult for me to see how it can possibly be said that the two instruments involved are the result of a single transaction and are incorporated into each other by reference (which makes them a single contract) and then say that there are two separate and independent means of termination for each contract. If all provisions are read in the light of each other, the two provisions in question can be read harmoniously. This the courts must do, if at all possible. Continental Casualty Co. v. Davidson, 250 Ark. 35, 463 S.W. 2d 652. There are provisions other than those reproduced in the majority opinion that are material to the. inquiry here. In reading these provisions and those set out in the majority opinion, the court should give heed to its own teachings in Fowler v. Unionaid Life Ins. Co., 180 Ark. 140, 20 S.W. 2d 611. In essence, they were: The intention of the parties to a contract is to be gathered, not from particular words and phrases, but from the whole context of the contract, even though the immediate object of the inquiry is the meaning of an isolated clause; the interpretation must be upon the entire contract and not upon disjointed or particular parts of it; the contract must be viewed from beginning to end and all its terms must pass in review, for one clause may modify, limit or illuminate the other; seeming contradictions must be harmonized, if that course is reasonably possible; and each of a contract’s provisions must be considered in connection with the others.

In the “Contract for the Sale of Life Estate in Living Unit,” there are these provisions:

3. *** It is understood Seller reserves for. its duly authorized officers and employees the right of entry and use as to the facilities aforesaid for management, maintenance and emergency purposes and any other purpose in connection with the duties imposed on Seller by Care Agreement with Elcare, Inc., sometimes herein referred to as “Care Agreement”, executed in connection with this agreement and made a part hereof by reference. Seller agrees to furnish a policy of title insurance for the life estate in said Living Unit, in an amount equal to the purchase price, subject, however, to exceptions contained in the above description and as otherwise herein contained.
4. Time shall be and hereby is made the essence of this contract and of each and all of the conditions herein contained. ***
8. In the event Buyer and Seller do not enter into the agreement known as Care Agreement of Elcare, Inc., or that agreement is voided prior to occupancy of Living Unit by Buyer, the sum of Twenty-five Hundred and nollOO Dollars ($2,500.00) paid herewith shall be refunded to Buyer and this Contract shall be cancelled.

Pertinent provisions of “Care Agreement of Elcare, Inc.” are:

RECITALS:

A. ELCARE, INC. is a business corporation organized under the laws of the State of Arkansas for the purpose of founding and maintaining residences and other facilities, referred to sometimes herein as Concordia, for persons primarily over sixty-five (65) years of age, operated or to be operated in accordance with policies and directives of all applicable government agencies. Its residences and facilities are operated on a non-discriminatory basis and afford equal treatment and access to services and facilities as to all persons regardless of race, sex, color, religion, creed, national origin, or ancestry.
B. Resident is 68 years of age; has made application for residence; and such application has been approved by the Corporation, subject to the provisions of this contract;

NOW, THEREFORE, IT IS AGREED:

1. Prior to the time this agreement creates any legal obligations, Resident, and Corporation shall sign the Contract for the Sale of Life Estate in a Living Unit, in the properties known as Concordia, as required by the Corporation, and said sale contract is hereby incorporated by reference.
2. The Corporation agrees to furnish the Resident meals, care, facilities and services enumerated in this section, and no others, for the rest of the natural life of Resident, and so long as Resident remains in the accommodations maintained by Corporation and carries out his obligations under this contract.
h. CHANGE OF ACCOMMODATIONS.
The Corporation will furnish convalescent care, determined necessary by the staff physician, in its own or suitable outside medical facility, unless hereinbefore excluded. If convalescent hospitalization exceeds three (3) months and it is the opinion of the staff physician, in conference with Resident’s personal physician, members of Resident’s family, and/or Resident’s Guardian or Conservator, that convalescent hospitalization will be permanent, Corporation will have the right and will be obliged to repurchase Resident’s interest in said Living Unit and Resident will be obliged to sell his interest in said Living Unit to Corporation in the same manner as set forth in Paragraph 5 (A) of the Contract for the Sale of Life Estate in Living Unit. Credit for the repurchase of Resident’s interest in said Living Unit will be applied to payment of the monthly maintenance fee charged under Section 3 of the Care Agreement. In the event of Resident’s death prior to reimbursement of Resident’s interest, if any, the remainder will be paid to Resident’s Estate.
7. AGREEMENTS, CANCELLATIONS AND REPURCHASES. ***
The Corporation reserves the right of action of its Board of Directors to cancel this Care Agreement for what is, in the judgment of the Board, good and sufficient cause. It is specifically agreed that such “good and sufficient cause” shall include, but not be limited to, termination of Resident’s rights according to the terms of Paragraph 4 of the Contract for Sale of Life Estate in Living Unit. Thereupon, the Corporation will be discharged from all obligations hereunder. In the event of such cancellation of the Care Agreement, Corporation shall have the obligation to repurchase the Living Unit of Resident at the price set forth in Paragraph 5 (B) of said Contract for Sale of Life Estate in Living Unit, and Resident shall be obliged to sell said Life Estate in his Living Unit to Corporation for the price and as provided in Paragraph 5 (B) of said Contract.

To reach the conclusion reached by the majority and by the trial court, it is necessary to find that two agreements which are so interdependent as to constitute a single contract may be terminated at different times by different means, although one never could have come into effect without the other.

It is significant that the determination of the repurchase price depends upon the time of occupancy of the Living Units by the Buyer. It is clearly contemplated that the execution of the Care Agreement and the occupancy of the Living Unit may not be simultaneous, because, under paragraph 8 of the contract for sale of the Living Unit, the down payment is to be refunded if the parties do not enter into the Care Agreement or if the Care Agreement is voided prior to the occupancy of the Living Unit by the Buyer. What is more important, the provision for payment under 5 (A) of the sale agreement could never be meaningless, because the 120 day notice is not applicable if the Resident and Corporation mutually agree upon an earlier termination.

Giving effect to paragraph 5 (A) of the sale agreement to the exclusion of paragraph 16 of the Care Agreement is error, because the two are reconcilable. Continental Casualty Co. v. Davidson, 250 Ark. 35, 463 S.W. 2d 652. Whatever the construction of paragraph 5 (A) standing alone may be, it must be read in connection with other clauses limiting it. Continental Casualty Co. v. Davidson, supra.

In other words, the two clauses are not really conflicting and certainly not hopelessly so. They can, and certainly should be, harmonized. Paragraph 5 provides the means of arriving at the amount to be paid the resident upon a termination by the resident, when agreed to by the corporation. It also provides the formula for determination of the amount to be paid to the resident if there is a termination by the corporation under another provision of the contract.

I simply do not see where the evidence, outside the contracts themselves, enters into the matter at all.

I would reverse the judgment.

       This was the actual holding of the trial court which the majority finds to have been justified.


author: Frank FIolt, Justice.

text:
    Charles Rudolph PACE v. STATE of Arkansas
    CR 79-125
    592 S.W. 2d 21
    Opinion delivered January 28, 1980
    (In Banc)

      Mickey Buchanan, for appellant.

      Steve Clark, by: Dennis R. Molock, Asst. Atty. Gen., for appellee.
   Frank FIolt, Justice.

Following a jury trial, appellant was found guilty of possession of heroin with intent to deliver in violation of Ark. Stat. Ann. §§ 82-2604,82-2605, and 82-2617 (a) (1) (i) (Repl. 1977) and was sentenced to thirty years imprisonment. We agree with his contention that the conviction must be reversed inasmuch as the testimony of his admitted accomplice, the only witness who testified as to his commission of the crime, was insufficiently corroborated.

Ark. Stat. Ann. § 43-2116 (Repl. 1977) provides that a felony conviction cannot be had “upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows that the offense was committed, and the circumstances thereof.” The corroborating evidence need not be sufficient in and of itself to sustain a conviction and, if substantial, may be slight and not altogether satisfactory and convincing; however, it must do more than raise a suspicion of guilt. Olles v. State, 260 Ark. 571, 542 S.W. 2d 755 (1976). Circumstantial evidence may be sufficient if the evidence is unequivocal and certain in character, of a material nature, and tends to connect the defendant with the crime. Roath v. State, 185 Ark. 1039, 50 S.W. 2d 985 (1932). Evidence relied on to corroborate an accomplice must, independently and without the aid of the accomplice’s testimony, establish the commission of the offense and the connection of the accused therewith. Olles v. State, supra; Ford v. State, 205 Ark. 706, 170 S.W. 2d 671 (1943); and Froman and Sanders v. State, 232 Ark. 697, 339 S.W. 2d 601 (1960). As indicated, it is not sufficient if it merely shows that the offense was committed and the circumstances of the offense. § 43-2116, supra.

The facts surrounding the search which resulted in the filing of charges against the appellant are not in dispute. The local sheriff received a tip from officers observing a house owned by appellant’s accomplice that a quantity of heroin had been brought to the house from Dallas. There was evidence, aside from the testimony of the accomplice, that appellant would be bringing drugs into the Texarkana area the morning of the raid. A search warrant was procured, and, following a search of the accomplice’s residence, three separate quantities were seized. Criminal charges were filed against four of six individuals, including the appellant. No heroin was found on the appellant’s person, in the room where he was found, nor in his automobile. It appears appellant and three or four others arrived in two separate cars about two or three hours before the raid. There was evidence that appellant associated with known drug dealers and users in the area; and on one occasion (in the local area) a month before the raid, and on another occasion (in Dallas) two months before the raid, he was observed participating in a drug transaction.

Appellant’s admitted accomplice, an inmate at Cummins Prison who had been convicted of possession of heroin with intent to deliver arising out of a sale at his home, testified that he had sold heroin on a percentage basis for appellant; appellant, accompanied by a woman companion, had brought the heroin from Dallas that morning; appellant and his companion had rested for two or three hours in a room of the house (where the largest quantity of heroin was found); he had observed the woman companion remove heroin from her bra and give it to appellant who then gave some to him; he had observed appellant sell heroin to two individuals the.morning of the raid; and, further, there was no heroin anywhere in his house prior to appellant’s arrival. Upon reviewing all the evidence in the light most favorable to the appellee, we hold that the evidence is insufficient when the recited testimony of the accomplice is eliminated to establish the commission of the offense and the connection of the accused therewith.

As we stated in Ravellette v. State, 264 Ark. 344, 571 S.W. 2d 433 (1978):

No one should be deprived of his liberty or property on mere suspicion or conjecture. Where inferences are relied on, they should point to guilt so clearly that any other conclusion would be inconsistent. This is so regardless of how suspicious the circumstances are.
We need not consider the other grounds urged for reversal inasmuch as the evidence is insufficient to sustain a conviction.

Reversed and dismissed.


author: John I. Purtle, Justice. Darrell Hickman, Justice,

text:
    Larry Bee BLY v. STATE of Arkansas
    CR 79-108
    593 S.W. 2d 450
    Opinion delivered January 28, 1980
    (In Banc)

      John M. Bynum and Robert E. Irwin, for appellant.

      Steve Clark, Atty. Gen., by: Dennis R. Molock, Asst. Atty. Gen., for appellee.
   John I. Purtle, Justice.

Appellant was convicted of murder in the first degree and sentenced to life in prison. This was a retrial of the prior conviction of capital felony murder which was reversed by this Court in Bly v. State, 263 Ark. 138, 562 S.W. 2d 605 (1978). On appeal he alleges 8 points for reversal. We will deal with them in the order of appearance in the brief. The points argued generally deal with lack of corroboration, collateral estoppel, improper offer of evidence, and the introduction of improper evidence. However, we do not find prejudicial error in any of the contentions argued by appellant arid therefore affirm the conviction.

Arthur Ed Burns was brutally murdered on October 13, 1976, by means of stab wounds to the heart and having his throat cut. The evidence, except for the testimony of the accomplice, Marty Tumbleson, was circumstantial. The accomplice testified that he was present with the appellant and the victim at the time of the murder. He described how the three of them got together at a service station in Clarksville about 9:00 or 9:30 p.m. on October 13, 1976, and drove around in a white Chevrolet automobile for some time. He described the actions of the appellant in beating the victim, who was 71 years of age, in the back seat of the car. The victim lost a considerable amount of blood while in the automobile. After driving around looking for wine, they eventually stopped on Lake Dardanelle at a location known as Cabin Creek. Appellant removed the victim from the vehicle and took him behind the automobile where he continued to beat him. Appellant then borrowed the accomplice’s knife and stabbed Burns in the heart while he was lying on the ground behind the automobile. Following this, the appellant handed the knife to the accomplice, who was 17 years of age, who stabbed the victim in the chest again. Thereafter appellant instructed him to remove the body from the area and cut Burns’ throat, which he did. According to the accomplice, they then drove to a place called Minnow Creek where they washed the blood from the automobile with some type of chemical. Tumbleson and the appellant then drove back to Clarksville and arrived at the South Park Service Station where they purchased gas and cigarettes with $2 they had taken from the victim. Then they went to the Caprice Restaurant where they met Jennifer Tumbleson, the accomplice’s sister. Although this witness made some four different statements, some of which were inconsistent, we are reciting only his testimony at the trial. He subsequently entered a plea of guilty to murder in the first degree..

Tumbleson testified that he and the appellant, along with his sister Jennifer, left town in the automobile that night. He went to sleep after they had driven for awhile and when he awoke they were at a roadside park. The following morning they drove into Mississippi where they discarded their clothing, which had bloodstains on them, and threw the knife in the Mississippi River. Thereafter they headed back into Arkansas and the accomplice departed the company of the other two at Hazen, Arkansas, and hitchhiked back to Clarksville.

Roger Holman testified he saw the appellant, the vietim, and the accomplice at the Save Service Station between 9:00 and 9:30 p.m. on October 13, 1976, in a 1964 cream colored automobile. The accomplice joined the appellant and the victim at the station after the two had arrived in the automobile. When they left the station, about 9:30 p.m., the accomplice was driving the vehicle. He had also noticed a knife strapped to the body of the accomplice. His wife, Patricia Holman, testified essentially to the same facts.

Mervin Ferrish operated the Caprice Restaurant in Clarksville. He observed the appellant and Tumbleson at his place of business about 11:15 p.m. on October 13,1976. The two of them were in a white Chevrolet automobile. Tumble-son called his sister, Jennifer, over to the automobile where appellant and the accomplice were seated. Jennifer was employed by Ferrish at the restaurant. At that time he advanced her $20. Although she was supposed to return to work the next day, it was two or three weeks before she appeared again.

Alan Ferrish testified he worked at the Caprice Service Station on October 13, 1976. He filled a white Chevrolet automobile gas tank for the appellant, Tumbleson and Jennifer shortly after 11:00 p.m. on the same date. He observed the three of them leave in the vehicle.

On October 15,1976, Chesley Shirrod, a junk dealer in Memphis, purchased a 1964 white Chevrolet automobile from Jennifer and the appellant. He paid the sum of $50 and received a bill of sale after Jennifer exhibited ownership papers to him. Shirrod identified appellant at the trial as the man who was with Jennifer when he purchased the car. He kept the car a week or so and turned it over to a Mr. Goza who was interested in purchasing the vehicle. He testified the vehicle was not altered in any manner while he had it in his possession.

Don Goza testified he took possession of the car from Shirrod about the middle of October, 1976 and took it deer hunting the following day. The car was subsequently confiscated by the Arkansas State Police. He thought the vehicle was picked up by the police a few days after it came into his possession.

Bill Bounds, a member of the Arkansas State Police, investigated some of the events of this crime. He took possession of the automobile in question on November 9,1976, and had it towed to West Memphis where he examined it in detail for evidence. He noticed some discoloration in the back seat and on the floor board. He took samples of the fabric from the seat and from the floor mat. These samples were marked for identification and turned over to the state toxicologist for laboratory analysis.

Berwin Monroe, Chief Criminologist for the State of Arkansas, testified he analyzed the samples received from Bounds and found traces of human blood in the exhibits, which he identified at the trial.

Doug Stephens, an investigator for the Arkansas State Police, aided in the investigation of this matter. He visited the scene of the crime and obtained pictures of the body and of the surrounding territory before the body was moved. He also drew diagrams or sketches of the area which he admitted were not to scale. His investigation commmenced on October 16,1976. He described the scene to the jury and exhibited the pictures which were introduced into evidence. He further described the nature of the wounds on the body of the victim.

Sheriff Meek assisted in the investigation and his testimony was essentially the same as that of Doug Stephens.

Rodney Carlton, then State Medical Examiner, performed an autopsy. He found bruises and scratches about the face of the victim. He also described the stab wounds to the chest and the wound to the throat of the victim. It was his feeling the wounds to the chest initiated the victim’s death. He further stated the throat wound revealed the trachea, carotid arteries and jugular vein were damaged. He also found the victim’s blood alcohol content was 0.19 percent by weight.

I.

THE EVIDENCE IS LEGALLY INSUFFICIENT TO SUSTAIN THE CONVICTION SINCE TUMBLESON WAS AN ACCOMPLICE AND HIS TESTIMONY WAS NOT CORROBORATED BY OTHER EVIDENCE TENDING TO CONNECT BLY WITH THE COMMISSION OF THE CRIME.

Tumbleson described every detail of the event, including the crime scene and the flight. There is no doubt his testimony alone would support the conviction of the appellant were it not for the rule that a conviction cannot stand upon the uncorroborated testimony of an accomplice. Ark. Stat. Ann. § 43-2116 (Repl. 1977). We must examine the record to see if such corroboration existed in this case. The corroborating evidence must tend to connect the accused with the crime and must be independent of the evidence given by the accomplice. Froman v. State, 232 Ark. 697, 339 S.W. 2d 601 (1960); Burnett v. State, 262 Ark. 235, 556 S.W. 2d 653 (1977), cert. denied 435 U.S. 944 (1978). Corroborating evidence may be circumstantial so long as it is substantial. Olles v. State, 260 Ark. 571, 542 S.W. 2d 755 (1976). A test on the sufficiency of corroborating testimony of an accomplice is if the accomplice’s testimony were eliminated from the case, would the other testimony establish the commission of the offense and the connection of the accused therewith. Froman, supra. The independent evidence itself need not be of such substantial character as to support a conviction without the testimony of the accomplice. Shipp v. State, 241 Ark. 120, 406 S.W. 2d 361 (1966); Gardner v. State, 263 Ark. 739, 569 S.W. 2d 74 (1978), cert. denied 440 U.S. 911 (1979).

Several witnesses saw the appellant, Tumbleson and Bums drive away in a 1964 Chevrolet about 9:30 p.m. on the date of the murder. Other witnesses saw appellant, and Tumbleson return to the same area in a white Chevrolet about 11:00 p.m. on the same day. The victim was not with them when they returned. Witnesses also saw the appellant, Tumbleson and Jennifer drive away from Clarksville shortly thereafter. Mr Shirrod testified he purchased the car in Memphis on October 15, 1976. Jennifer Tumbleson ,had ownership papers to the vehicle and executed a bill of sale. This evidence was introduced at the trial..We have held the flight by an accused is a circumstance to be considered in determining his guilt. Murphy v. State, 255 Ark. 90, 498 S.W. 2d 884 (1973); Centeno v. State, 260 Ark. 17, 537 S.W. 2d 368 (1976). The evidence of human blood on the samples taken from the vehicle several days later tend to have some probative value, especially in view of the testimony clearly showing the vehicle had not been tampered with. When the above testimony and evidence is considered we think it tends to substantially connect the appellant with the commission of the offense. Jones v. State, 254 Ark. 769, 496 S.W. 2d 423 (1973); Olles, supra. In this case where the murder weapon had been disposed of in the Mississippi River and there were no direct witnesses to the murder, other than the accomplice and the accused, who refused to testify, there is no way to prove the guilt of the accused other than by circumstantial evidence. We hold circumstantial evidence introduced in this case is substantial and tends to connect the appellant with the offense.

II.

THE DOCTRINE OF COLLATERAL ESTOPPEL PREVENTS THE STATE OF ARKANSAS FROM TRYING BLY FOR FIRST DEGREE MURDER BECAUSE THE JURY AT THE FIRST TRIAL AND A SPECIAL FINDING FOUND SPECIFICALLY THAT BLY DID NOT KILL BURNS.

Appellant urges collateral estoppel should be applied in this case. He contends the finding of the jury, during the mitigation stage of the first trial, that Burns was killed by someone other than the appellant, brings this doctrine into force thereby causing appellant to be immune from prosecution for first degree murder. This argument is based upon the premise that first degree murder was necessarily included in the trial for capital felony murder. Ark. Stat. Ann. §§ 41-106 and 107 (Repl. 1977) relate to this doctrine. § 41-106 relates to prosecution for the same offense, and § 41-107 relates to former prosecution for a different offense. We have the prosecution for a different offense under consideration here. Ark. Stat. Ann. § 41-107 reads:

A former prosecution is an affirmative defense to a subsequent prosecution for a different offense under the following circumstances.
(1) The former prosecution resulted in an acquittal or in a conviction as set out in section 106 (§ 41-106) and the subsequent prosecution is for:
(a) any offense of which the defendant could have been convicted in the first prosecution; or
(b) an offense based on the same conduct, unless:
(i) the offense of which the defendant was formerly convicted or acquitted and the offense for which he is subsequently prosecuted each requires proof of a fact not required by the other and the law defining each of the offenses is intended to prevent a substantially different harm or evil; or
(ii) the second offense was not consummated when the former trial began.
(2) The former prosecution was terminated by an acquittal or by a final order or judgment for the defendant which has not been set aside, reversed, or vacated and which necessarily required a determination inconsistent with a fact which must be established for conviction of the second offense.
(3) The former prosecution was terminated under the circumstances described in section 106 (§ 41-106) and the subsequent prosecution is for an offense of which the defendant could have been convicted had the former prosecution not been terminated.

Obviously, the first trial did not result in an acquittal. The charge included, the present charge but was not an acquittal of the first degree murder charge by reason of being convicted of capital felony murder. There was not a necessary determination of the appellant’s guilt on first degree murder in the finding of his guilt in capital murder. In setting the first conviction aside the appellant is back where he started. He is presumed innocent of first degree murder when the trial commences just as he was presumed innocent of capital felony murder when his first trial started. Capital felony murder requires the death to have been the result of actions taken during the commission or attempt to commit a felony. First degree murder may be committed in the same manner; however, first degree murder may also be committed only by premeditation and deliberation for the purpose of killing the victim. There is no requirement that first degree murder be the result of actions pertaining to a felony. Ark. Stat. Ann. § 41-1502 (1) (b) (Repl. 1977). The defense of collateral estoppel is not warranted under the facts or the law in this case. In making this determination, we hold that the finding of the. jury on mitigation of circumstances has no bearing on the issue of guilt or innocence of the appellant.

III.

THE OFFER BY THE STATE OF ARKANSAS OF THE TRANSCRIPT OF APPELLANT ELY’S TESTIMONY IN THE FIRST TRIAL, AND THE ENSUING DISCUSSION BEFORE THE BENCH AMOUNTS TO A COMMENT ON THE APPELLANT’S FAILURE TO TESTIFY.

The record shows appellant’s motion to exclude his former testimony in the prior trial was granted. Also, the record shows it was out of the hearing of the jury. Without need of citation we state unequivocally this was not prejudicial to the appellant.

IV.

THE TRIAL COURT ERRED IN PERMITTING THE JURY TO REHEAR A PORTION OF TESTIMONY WITHOUT FIRST DETERMINING WHAT SUCH TESTIMONY WAS.

After deliberating for some time the jury returned and requested to hear parts of Marty Tumbleson’s testimony again. Prior to allowing the jury to hear this testimony, the court inquired of the attorneys whether there were any objections. The entire jury was in the room at this time. Neither the state nor the defense objected to it being heard again by the jury. In fact, both specifically stated they did not object. Obviously, appellant waived any objection he may have had to this procedure. We do not hear matters on appeal for the first time. The issue must be raised at the trial level. Hughes v. State, 264 Ark. 723, 574 S.W. 2d 888 (1978).

V.

THE TRIAL COURT ERRED IN ADMITTING A PORTION OF BLOODSTAINED SEAT COVER IN EVIDENCE WITHOUT PRELIMINARY PROOF TENDING TO SHOW THE CONDITION OF THE SEAT COVER AT THE TIME OF THE CRIME, OR IMMEDIATELY THEREAFTER.

We discuss the facts under Point I as they relate to the description of the stained seat cover which was introduced into , evidence. It seems the testimony of the witnesses clearly showed the vehicle was in essentially the same condition as it was when the appellant departed possession of it. Appellant objected to the introduction of the bloodstained fabric because the state failed to show the stain was on it when the appellant last had control of it. Whether the evidence was relevant was the determining factor. Uniform Rules of Evidence, Ark. Stat. Ann. § 28-1001 (Repl. 1979), Rule 401, states:

“Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

Rule 402 makes all relevant evidence admissible. We think this evidence was relevant as having a tendency to corroborate the testimony of Tumbleson. We have previously allowed bloodstained clothing to be introduced. Atkinson v. State, 223 Ark. 538, 267 S.W. 2d 304 (1954). The trial judge did not abuse his discretion in this matter. Gardner v. State, supra.

VI.

THE TRIAL COURT ERRED IN LIFTING THE SEQUESTRATION OF THE JURY OVER APPELLANT’S OBJECTION.

The jury was sequestered the first night of the trial. Several jurors indicated a second night of sequestration would cause some hardship to them. Also, the sheriff informed the court it would be virtually impossible to find adequate quarters for them at that time of day. The trial court instructed the jury that under no circumstances were they to discuss the matter with each other nor were they to listen to news accounts or read the newspapers. They were allowed to return to their respective homes the second night. The following morning, when they returned, the court again questioned them as to whether they had violated his previous instructions. He went so far as to inquire of each individual juror as to whether he had abided by the admonition. Under the circumstances, we do not feel it was prejudicial error to fail to sequester the jury on the second night, especially in view of the extent to which the court went to protect the integrity of the jury. This is a matter that is within the sound discretion of the trial court and such determination will not be deemed improper unless there is a showing of abuse of this discretion. Hutcherson v. State, 262 Ark. 535, 558 S.W. 2d 156 (1977).

VII.

THE TRIAL COURT ERRED IN PERMITTING TESTIMONY BY INVESTIGATOR STEPHENS CONCERNING THE ALLEGED CRIME SCENE.

We can see no prejudicial error whatsoever in the trial court allowing Doug Stephens to give a description of the murder scene. It is also helpful to the jury to have an explanation of the area in order to better understand the testimony as it is given. Stephens’ testimony was the first given and apparently intended to give the jury an over-all understanding of the geographical territory which would be discussed during the trial. The drawings which Mr. Stephens introduced were admittedly not drawn to scale. However, there is no indication that anything about either drawing was prejudicial to the appellant. Several witnesses later referred to the drawings during their testimony. Obviously, this was of assistance to the witnesses in offering their testimony and probably aided the jury in understanding what the witness was saying. We view the matter to be governed by our decision in Pinson v. State, 210 Ark. 56, 194 S.W. 2d 190 (1946); Howell v. Baskins, 213 Ark. 665, 212 S.W. 2d 353 (1948).

VIII.

THE STATE FAILED TO PROVE BLY WAS AN HABITUAL OFFENDER UNDER ARK. STAT. ANN. § 41-1002.

One of two prior convictions introduced by the state indicated appellant had received only a 6-month sentence. Appellant objected to this conviction being introduced because it was not shown on the document the offense was a felony. The court made a determination that the challenged conviction was in fact a felony before permitting it to be presented to the jury. The court relied upon a computer printout to determine the offense was a felony. Subsequent examination of the Oregon statute revealed it was in fact a felony. Therefore, the court took a chance in relying upon the printout and it turned out to be correct. We see no prejudice to appellant in this case.

We have examined the record of this trial for potential errors which have not been briefed by the appellant. We do not find any prejudicial errors which were not treated by the appellant in his brief.

Affirmed.

Mays and Hickman, JJ., dissent.

Darrell Hickman, Justice,

dissenting. I would reverse and dismiss the judgmentfor lack of corroborating evidence.

The majority recites our decisions on corroboration of an accomplice and then proceeds to disregard them.

The testimony of an accomplice is suspect — usually the accomplice has made a deal to save his own hide in return for testimony against another suspect. The General Assembly has wisely enacted a law that prevents a defendant from being convicted on such testimony alone. Ark. Stat. Ann. § 43-2116 (Repl. 1977).

Our previous cases have strictly enforced this statute. For example, we have held that the accomplice’s testimony must be totally eliminated and what remains examined. The question is, will the remaining evidence establish the commission of the offense and tend to connect the accused with the crime. Froman & Sanders v. State, 232 Ark. 697, 339 S.W. 2d 601 (1960).

In Green v. State, 265 Ark. 179, 577 S.W. 2d 596 (1979), we held that presence alone at the scene of the crime was not sufficient to corroborate the testimony of an accomplice.

In Dunn & Whisenhunt v. State, 256 Ark. 508, 508 S.W. 2d 555 (1974), there was evidence that the defendants had been seen riding around with the other alleged accomplice to a robbery shortly before the crime. Moreover, in Dunn & Whisenhunt, a witness even corroborated the accomplice’s story that the defendants attempted to establish an alibi by cashing a check at a tavern. We held all this was not enough. Here the majority, relying entirely on the testimony of the accomplice Tumbleson, recites the facts in detail. But totally disregarding Tumbleson’s testimony, what can we find to connect Bly to the crime of murder in the first degree? He was seen about 9:30 that night in a car with Tumbleson and the victim. Later that night he and Tumbleson were seen alone in a car together. The majority says there is evidence of flight. What flight? The evidence is that the defendant’s girlfriend sold a car in Memphis and that Bly was there and took the money. That is not flight. Smith v. State, 218 Ark. 725, 238 S. W. 2d 649 (1951). That is somebody selling a car in Memphis, Tennessee.

It is argued that blood drops were found in the back seat. So what?

It really should not make any difference if Bly was present at the scene of a crime which occurred several miles from where Bly was observed in a vehicle.

While the testimony of the accomplice may seem believable and be detailed, it alone carries no weight. We require additional facts. There are simply not enough in this case.

Where is the evidence that tends to show that Bly killed Ed Burns?

The defendant is presumed innocent until proven guilty; the evidence in this case is just as consistent with Bly’s innocence as with his guilt. He was simply seen in a vehicle with the deceased and Tumbleson before the crime and in a vehicle with Tumbleson after the crime. He was not placed at the scene. There is no evidence whatsoever that Bly killed or participated in the killing of Burns.

This is the second trial. At the first trial Bly testified; so did his girlfriend and his mother-in-law. There was evidence of flight in that case, and based on that record we found that there was sufficient evidence to support a conviction of some sort of homicide. That evidence was not present at this trial and we cannot consider it.

The majority has created a precedent which flies in the face of all of our decisions regarding the testimony of an accomplice.

Mays, J., joins in this dissent.


author: John I. Purtle, Justice.

text:
    Albert Ted SCOTT Jr. v. STATE of Arkansas
    CR 79-133
    593 S.W. 2d 27
    Opinion delivered January 28, 1980
    (In Banc)

      Robert A. Newcomb, for appellant.

      Steve Clark, Atty. Gen., by. Julie W. McDonald, Deputy Atty. Gen., for appellee.
   John I. Purtle, Justice.

The trial court denied appellant’s petition for relief pursuant to Rule 37. Petitioner had alleged ineffective assistance of counsel and failure to knowingly, voluntarily, and intelligently enter a guilty plea. For his appeal from the adverse ruling on his petition the appellant urges the court erred in finding he knowingly, voluntarily, and intelligently entered a guilty plea and that the trial court failed to make statutorily required written findings of act and conclusions of law. We disagree with appellant on both arguments.

Appellant had entered a guilty plea and charges of theft of property and aggravated robbery. He was sentenced to 35 years on the robbery charge and 15 years on theft. The sentences were, to be served concurrently. About two months after sentencing appellant filed his Rule 37 petition. The trial court conducted a hearing on the Rule 37 petition on October 3,1978, and overruled the petition in an order dated October 12, 1978. The appellant was represented by the public defender at the Rule 37 hearing. At the request of the court, the order, including the findings of fact and conclusions of law, was prepared by the prosecuting attorney. Appellant was granted a belated appeal from this ruling on June 18, 1979.

Appellant and an accomplice were accused of using threats of physical force while taking property, having a value in excess of $100, from Thomas and Katherine Ladd on September 19, 1977. The accomplice pleaded guilty and was prepared to testify on behalf of the state at the appellant’s trial which was set for April 25, 1978. Appellant’s employed attorney, James Massie, was present and announced ready for trial on the date scheduled. Massie had worked out a plea bargain with the prosecutor and told appellant he did not feel they could beat the charges. Appellant was also charged as a habitual offender because he had at least three prior felony convictions. The retained counsel explained the minimum and maximum sentence the appellant. could receive. He also explained the charges and the possibility of conviction but left the decision to appellant as to whether he wanted to plead or go to the jury. After a conversation with his girlfriend, or wife, the appellant informed his attorney he desired to plead guilty. His attorney informed him that the prosecution had found fingerprints at the scene which indicated the appellant was there. The court asked the appellant if he wanted to plead guilty or have a jury trial. Appellant informed the court he wanted to plead guilty. Before accepting the plea, the court explained the penalty on the aggravated robbery was 50 years to life and the penalty on theft of property was 10 to 20 years. The following questions and answers are set out verbatim:

The Court: Is anybody forcing you to do this?
Defendant Scott: No, sir.
The Court: You’re doing it of your own free will?
Defendant Scott: Yes, sir.
* * *
The Court: “. . . may be sentenced to an extended term of imprisonment, as follows: Not less than 50 nor more than life.” So, apparently, it makes the minimum 50.

The court then examined the habitual offender act and explained it carried a penalty of 10 to 50 years or life. The court again inquired of the defendant if he wanted to plead guilty, and he replied, “Yes, sir.” The court then stated: “You’re sure you want to do that? If you want to back out and have a jury trial, I have a jury in there ready to try you.” The defendant then stated he did not actually commit the robbery. Thereupon the court admonished the appellant not to plead guilty if he were not guilty. Then for at least the third time appellant stated he wanted to enter a guilty plea. The court proceeded to sentence him to 35 years on aggravated robbery and 15 years on theft with the sentences to run concurrently.

After the Rule 37 hearing the court instructed the prosecuting attorney to draw up the order denying the petition. Appellant alleges this is in violation of Rule 37.3 (c) which requires the court to make written findings of fact and conclusions of law.

The evidence clearly shows the appellant knowingly, intelligently, and voluntarily entered a plea of guilty. The record of the Rule 37 hearing clearly reveals appellant stated at least three separate times that he wanted to enter a guilty plea. He admits the court and his attorney advised him of the possible penalty. Further, he knew his fingerprints were found at the scene and that the accomplice would testify against him. In view of this record and the evidence, it appears his attorney advised him well.

We stated in Byler v. State, 257 Ark. 15, 513 S.W. 2d 801 (1974), that a trial court must determine whether a guilty plea was intelligently and voluntarily made and that a silent record would not satisfy such requirement. That is still the law and we reaffirm it now. Although we were dealing with what was then called Rule 1, we have the same criteria for the present Rule 37. The record is not silent here; it is replete with testimony clearly showing the appellant was informed of the possible penalty, the right to a jury trial, and the probable evidence against him. At least three times he repeated his desire to plead guilty. We think the court met the requirements of Boykin v. Alabama, 395 U.S. 238 (1969), as well as requirements of Rule 24 and our prior decisions.

The second point argued by appellant is the court failed to make written findings of fact and conclusions of law because the prosecuting attorney drafted the order at the request of the court. This is such a common practice it gives us no concern whatever. When the court approved and signed the instrument he adopted it as his own. It makes no difference who drafted the order so long as the court approved it. We hold this was in compliance with requirements of the law.

Affirmed.

Mays, J., not participating.


author: John F. Stroud, Justice.

text:
    Alma KOLLMEYER, Circuit Clerk and Ex-Officio Recorder of Washington County, Arkansas; and Washington County, Arkansas v. Richard B. GREER
    79-290
    593 S.W. 2d 29
    Opinion delivered January 28, 1980

      Kim M. Smith, Prosecuting Attorney, by: Andrew J. Ziser, Deputy Pros. Atty., for appellants.

      Charles W. Atkinson, for appellee.
   John F. Stroud, Justice.

This is a suit by a taxpayer seeking to void ordinances of the Washington County Quorum Court levying an additional local recording fee on deeds and other instruments. The Chancellor granted Plaintiffs Motion for Summary Judgment, declared the ordinances void and ordered a refund of the fees collected.

On Janüary 1, 1977, Amendment 55 to the Arkansas Constitution became effective, granting to the counties greater legislative authority in local affairs. In what it thought to be a valid exercise of this new legislative authority, the Washington County Quorum Court, on November 17,1978, adopted Ordinance No. 78-31, establishing a county fee of $1.00 per page for the filing and recording of all real estate deeds, mortgages, deeds of trust, release deeds, plats, survey plats, materialmen’s liens and certificates of assessment. The Ordinance provided that this fee was in addition to all other fees provided by law. Some two months later, the Quorum Court adopted Ordinance No. 79-10, amending No. 78-31 to raise the county fee to $2.00 per page for such filing and recording.

Richard Greer, appellee herein, brought suit on March 1,1979, seeking to have the ordinances establishing the fees declared unconstitutional, the county enjoined from collecting the fees, and an order directing the county to refund those fees already collected. The case was submitted to the Washington County Chancery Court on a Motion for Summary Judgment, as the facts of the case were not in dispute; only the interpretation of particular Arkansas Statutes was at issue. On May 23, 1979, the trial court declared the fee ordinances void and ordered a refund of the monies collected after awarding 10% of such sum to the attorney for appellee. The defendants, Alma Kollmeyer, et al, have brought this appeal, and contend that the trial court erred in its interpretation of the law.

In determining the validity of Washington County Ordinances No. 78-31 and No. 79-10, one must resolve Amendment 55 and its enabling act, Act 742 of 1977, with Act 333 of 1977 (digested in part of Ark. Stat. Ann. § 12-1720). The provisions of Act 742 most relevant to this action are codified as Ark. Stat. Ann. §§ 17-3701 - 17-4014 (Supp. 1979). Amendment 55, § 1(a), states:

A county acting through its Quorum Court may exercise local legislative authority not denied by the Constitution or by law.

Appellants cite Ark. Stat. Ann. § 17-3801(k) (Supp. 1979), which sets out some of these powers that are available to local governments:

. . . impose a special assessment reasonably related to the cost of any special service or special benefit provided by county government or impose a fee for the provisions of a service; . . .

Appellants also cite Ark. Stat. Ann. § 17-3802(2) (Supp. 1979) as supportive of their position, wherein the legislature provided that:

A county government, acting through the Quorum Court, may provide through Ordinance for the establishment of any service or performance of any function not expressly prohibited by the Arkansas Constitution or by law.

There are at least two other Arkansas statutes relevant to this appeal. Ark. Stat. Ann. § 17-3802(1) (Supp. 1979) sets out those necessary services which counties must provide for its citizens, and the relevant part of that statute provides:

(d) . . . court and public records management, as provided by law, including registration, recording, and custody of public records; . . .

The statute that is dispositive of the issues in this appeal is Ark. Stat. Ann. § 12-1720 (Repl. 1979), which provides.

The uniform fees to be charged by the recorders in the various counties in this State shall be as follows:
(a) For recording deeds, deeds of trust, mortgages, release deeds, power of attorney, and other recordable instruments, except as hereinafter prescribed, $3.00 for one page (one side only) and $ 1.00 for each additional page.

Ark. Stat. Ann. § 12-1720 is controlling in this case, for it sets out the amount that should be charged for such recording services, and provides further that these fees should be “uniform” throughout the state. Washington County Ordinances No. 78-31 and No. 79-10 exceed the authority granted to the counties by Amendment 55 and Ark. Stat. Ann. § 17-3801, et seq, in that they are contrary to and inconsistent with Arkansas law, in this case Ark. Stat. Ann. § 12-,1720.

The statutes and Constitutional amendment cited by appellants state that the counties may engage in a broad range of activities so long as they are not expressly prohibited or denied — and it is appellants’ contention that nowhere is the charging of an additional fee for recording services expressly prohibited. Ark. Stat. Ann. § 17-3808(a) provides:

A county government exercising local legislative authority is prohibited the exercise of any power in any manner inconsistent with State law . . .

The ordinances adopted in this case were inconsistent and in conflict with Ark. Stat. Ann. § 12-1720 and are, therefore, void.

It is appellants’ contention that “uniform” in Ark. Stat. Ann. § 12-1720 refers to the method of computation of the fee rather than the amount charged. They base this argument on the fact that the previous statutes allowed recording fees to be computed either on a per word or per page basis for the recording of deeds, mortgages and similar instruments. We disagree with appellants’ interpretation of the usage of the word “uniform” and feel that the first sentence of the statute, “The uniform fees to be charged by the recorders ...” indicates the intent of the legislature to establish a standard amount of recording fee. This is further emphasized by the emergency clause of the statute declaring an emergency:

. . . because of the confusion and uncertainty existing in the various counties throughout the state under the present laws relative to the legal fees entitled to be charged by the circuit and chancery clerks and recorders in this state for the services they render . . .

Furthermore, Webster’s Third New International Dictionary, p. 2498 (1961), defines “uniform” as:

marked by lack of variation, diversity, change in form, manner, worth or degree: showing a single form, degree, or character in all occurrences or manifestations.

Act 333 of 1977 (digested in part as Ark. Stat. Ann. § 12-1720) effectively precludes the counties from charging any different fee for such recording services, for to do so would violate existing Arkansas law. This situation is comparable to the federal doctrine of pre-emption that is utilized in reconciling federal law with any state law that seeks to regulate the same subject matter. As noted by the United States Supreme Court in Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S. Ct. 1146, 91 L. Ed. 1447 (1947), one must inquire if “the federal regulation is so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it.” Further, in Ray v. Atlantic Richfield Co., 435 U.S. 151, 158, 98 S.Ct. 988, 55 L. Ed. 2d 179 (1978), the Court stated:

Even if Congress has not completely foreclosed state legislation in a particular area, a state statute is void to the extent that it actually conflicts with a valid federal statute.

In Confederated Tribes of Colville v. State of Washington, 446 F. Supp. 1339, 1358 (E.D. Wash. 1978), the U.S. District Court stated, “It is well-established that when Congress passes legislation in implementation of one of its enumerated powers, it may be so pervasive as to preclude any state regulation in the same field.”

The General Assembly should be clear when it intends to pre-empt a field that otherwise could be validly regulated by county ordinance, but we feel the language of Act 333 of 1977 (digested in part as Ark. Stat. Ann. § 12-1720) does contain such clarity. Considering all of the arguments and law relevant to the issue, including the alternative argument of appellants that Act 742 of 1977 takes precedence over Act 333 of 1977 due to its subsequent adoption, we find the decision of the trial court correct and it is affirmed.

Attorneys for appellee are awarded an additional $ 1,000 as an attorneys’ fee, to be paid from the monies collected pursuant to Ordinances No. 78-31 and No. 79-10prior to the refunds. Appellee’s prayer for additional attorneys’ fees for preparing the supplemental transcript and supplemental abstract is granted in the amount of $250, and appellee’s prayer for additional costs for the preparation of the supplemental transcript is also granted in the amount of $20. However, appellee’s prayer for additional costs for the printing of the supplemental abstract is denied for failure to strictly comply with the provisions of Supreme Court Rule 9 (e) (1) requiring a statement from the printer indicating the additional printing cost.


text:
    Charles O. FINNIE v. STATE of Arkansas
    CR 79-42
    593 S.W. 2d 32
    Opinion delivered January 28, 1980

      James E. Davis, for appellant.

      Steve Clark, Atty. Gen., by: Catherine Anderson, Asst. Atty. Gen., for appellee.
   John F. Stroud, Justice.

A jury convicted Charles Finnie of second degree murder in the Circuit Court of Miller County and sentenced him to twenty years imprisonment. Appellant contends the refusal of certain character testimony was reversible error and that he was denied effective assistance of counsel because of the association of his attorney and the special prosecutor.

Appellant Charles Finnie was charged with first degree murder in the shooting death of Earl Tatum on May 7,1977. Claiming self-defense, appellant entered a plea of not guilty, was tried before a jury and found guilty of the lesser included offense of second degree murder on September 13, 1977. Appellant failed to file a timely appeal, but later sought Rule 37 post-conviction relief and moved for a new trial, both of which were denied. On June 11, 1979, this Court granted appellant’s motion for belated appeal.

Appellant alleges for reversal that the trial court’s ruling prohibiting the witness Kress W. Nowlin from testifying as to the peaceful and law-abiding nature of appellant denied him his rights under the Sixth and Fourteenth Amendments to the United States Constitution. The Uniform Rules of Evidence adopted in Arkansas provide for the use of character evidence in certain cases. Rule 404 provides in part:

(a) Character Evidence Generally. Evidence of a person’s character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except:
(1) Character of accused. Evidence of a pertinent trait of his character offered by an accused, or by the prosecution to rebut the same . . .
(Uniform Rules of Evidence, Rule 404, Ark. Stat. Ann. § 28-1001 [Repl. 1979])

As noted earlier, appellant was charged with first degree murder, to which he pled not guilty and claimed self-defense. Thus, the traits of being peaceful and law-abiding were pertinent to both the crime with which he was charged and the defense upon which he relied. Therefore, this character evidence was admissible in the trial below. Rule 405(a) of the Uniform Rules of Evidence sets out two of the methods by which character may be proven:

(a) Reputation or Opinion. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct.

In the instant case, appellant properly sought to introduce evidence of his reputation for being a peaceful and law-abiding citizen. He called the witness Kress W. Nowlin to testify as to that reputation. After Mr. Nowlin had told the Court that he knew the reputation of the appellant in the community for being peaceful and law-abiding, the following exchange took place:

By Mr. Gunter [the prosecutor]:
Your Honor, I would like at this time to take the witness on voir dire.
By the Court:
All right.
VOIR DIRE EXAMINATION
By Mr. Gunter:
Q. Mr. Nowlin, you are about to give some testimony, or you came here for the purpose of giving some testimony in response to the question just asked?
A. That’s right.
Q. I just want to ask you if you came here prepared to testify about what you know, or are you coming over here to testify about what other people have said?
A. What I know.
By Mr. Gunter:
The witness is not qualified for reputation and character testimony, and I move it not be allowed.

After defense counsel once again on redirect examination attempted to show the witness to be qualified to give character testimony as to reputation, the prosecutor’s objection and motion that the witness be prevented from giving such testimony was sustained by the trial court.

It is apparent from the record that both Mr. Nowlin and the trial court were confused by the question put to the witness by the prosecutor. Defense counsel had correctly established Mr. Nowlin’s qualifications for giving the testimony sought, but the “When did you stop beating your wife?” type question asked by the prosecutor created a ball of confusion that was never unraveled.

The United States Supreme Court has recognized the value of character testimony to a defendant in those cases in which a particular trait of character is involved in the crime with which he is charged — as in the present case where the defendant, charged with murder, sought to put on evidence as to his peaceful and law-abiding nature. The Court has noted:

He [defendant] may introduce affirmative testimony that the general estimate of his character is so favorable that the jury may infer that he would not be likely to commit the offense charged. This privilege is sometimes valuable to a defendant for this Court has held that such testimony alone, in some circumstances, may be enough to raise a reasonable doubt of guilt. . . (Michelson v. United States, 335 U.S. 469, 476, 69 S.Ct. 213, 93 L.Ed. 168 [1948]; Edgington v. United States, 164 U.S. 361, 17 S. Ct. 72, 41 L. Ed. 467 [1896]).

We cannot say that the exclusion of the character evidence offered by appellant was harmless error; error is presumed prejudicial unless we can say with confidence it is not. Buckeye Cellulose Corp. v. Vandament, 256 Ark. 434, 508 S.W. 2d 49 (1974); Allen v. Ark. State Hwy. Comm’n. 247 Ark. 857, 448 S.W. 2d 27 (1969).

Since this appeal has been decided on the grounds that appellant was wrongfully prohibited from putting on testimony as to his reputation for being peaceful and law-abiding, it is unnecessary to rule on appellant’s other contention — that the officing arrangements between defense counsel and the special prosecutor were so interconnected as to deprive appellant of effective assistance of counsel and a fair trial. As the appellant is presently represented by the Public Defender, this possible conflict should not occur on retrial. We do, however, take this opportunity to note that we do not condone representation of adverse interests, especially in criminal cases, by attorneys whose law practices are substantially connected. The interests of justice, and public confidence therein, require attorneys to take every reasonable step to protect the rights of their clients, and to avoid even the appearance of a conflict of interests in their representation.

Reversed and remanded.