text:
    James SURRIDGE v. STATE of Arkansas
    CR 82-105
    650 S.W.2d 561
    Supreme Court of Arkansas
    Opinion delivered May 9, 1983
    [Rehearing denied June 13, 1983.]

      Harkey, Walmsley, Belew & Blankenship, by: John M.. Belew, for appellant.

      Steve Clark, Atty. Gen., by: William C. Mann, III, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

Russell Ratliff, 61, had been a resident of Pine Bluff for some time before he disappeared on December 4, 1980. More than a month later his badly decomposed body was found by police officers on the Surridge property in Desha County, over 50 miles from Pine Bluff. James Surridge, the appellant, was charged with capital murder in the course of robbery. He was found guilty of first-degree murder and was sentenced to a 50-year term, to run concurrently with a commuted life sentence for murder from which he was on parole at the time of Ratliff’s death. For reversal it is argued that the State’s evidence was insufficient to present a jury question and that certain hospital records and x-rays should not have been considered by the medical examiner in identifying Ratliff’s body.

First, the sufficiency of the evidence. The State’s proof was entirely circumstantial in that there was no eyewitness testimony about the shooting. The jury was correctly instructed that circumstantial evidence must be consistent with the defendant’s guilt and inconsistent with any other reasonable conclusion. AMCI106. On appeal, however, the judgment must be affirmed if the verdict is supported by substantial evidence. “Substantial evidence is that which is more than a scintilla and must do more than create a suspicion of the existence of the fact to be established; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Phillips v. State, 271 Ark. 96, 607 S.W.2d 664 (1980). Evidence is not substantial if it leaves the fact finders “only to speculation and conjecture in choosing between two equally reasonable conclusions, and merely gives rise to a suspicion.” Smith v. State, 264 Ark. 874, 575 S.W.2d 677 (1979).

There is no possible doubt about Ratliff’s having been murdered. There is no possible doubt that some person committed the murder by shooting Ratliff twice in the back of his head. The issue is simple: Was the evidence so evenly balanced that the jury had to resort to guesswork in finding that the crime was committed by Surridge rather than by someone else? No. We have no doubts about the sufficiency of the proof. In fact, we think the evidence clearly establishes Surridge’s guilt to the exclusion of any other reasonable conclusion.

For several months before Ratliff’s disappearance on December 4, he and Surridge, age 74, both living alone, had lived across the hall from each other in an 8-unit apartment house in Pine Bluff. During that fall Surridge made several inquiries about obtaining a gun, for protection and squirrel hunting. Some weeks before Ratliff’s disappearance Surridge acquired a rifle with a detachable scope (telescopic sight). He showed the rifle to three persons who testified at the trial: Russell Ratliff’s brother; the owner of the apartments; and the greatgrandson of Mrs. Jewell Cook, a lady whom Surridge was seeing about every day.

In October, Russell Ratliff received $1,619 in a personal injury settlement. For a time he left the money with his lawyers for safekeeping, but in November he obtained the money from them and deposited the check in a bank.

Russell Ratliff, who had a drinking problem, called his brother, W. E., apparently in late November, and asked him to get a lawyer to defend Russell on a public drunkenness charge. W. E. went to Russell’s apartment on December 1 and had to wait a few minutes until Surridge and Russell drove up in Surridge’s pickup truck, saying they had been to the bank. In Surridge’s presence Russell took two rolls of bills from his pockets and from one of the rolls handed W. E. two twenties and a ten to pay the lawyer’s $50 fee.

On December 4, the day of Russell’s disappearance, he called W. E. early in the morning and asked W. E. to take him to see a doctor. W. E. was unable to do so. Russell said he would get Surridge to take him. Russell did not have a car, and Surridge had often furnished him transportation. The State proved that Russell did go to the doctor that morning and was given three prescriptions, which he had filled at a pharmacy at about 11:00 a.m. There is no proof that he was ever seen alive again.

A day or two later W. E. went to Russell’s apartment, but he was not there. W. E. visited with Surridge, who said that on Thursday (December 4) he had taken Russell to a doctor’s office, a drugstore, and a grocery, where Russell had bought beer. Surridge said that when they got back to the apartment house there were two black men waiting in a gray pickup truck. Ratliff joined the two men, after telling Surridge that one of them had worked for him in the past.

W. E. continued to worry about Russell’s absence and came to see Surridge daily until Surridge began to dodge him. On December 9, W. E. reported to the police that Russell was missing and gave them the information Surridge had supplied. A week or so later the police found Surridge, at Mrs. Cook’s house. He talked freely, telling the police the same story he had told W. E. and adding that after dropping Ratliff near the apartment house he had himself gone to the Senior Citizens Center for lunch.

Eventually Surridge became the principal suspect. Among the incriminating facts discovered by the police and later disclosed to the jury were three in particular. One, Surridge’s tale about Ratliff’s having recognized one of the two black men was quite improbable. Ratliff himself had been unemployed for more than ten years, so it was hardly likely that his former employee, after that length of time, would turn up to renew Ratliff’s acquaintance at the very moment when Surridge needed someone to blame for Russell’s disappearance. Two, the Senior Citizens Center kept records which indicated that Surridge had not come for his meal on December 4. Third, Surridge had openly displayed his .22 rifle when he had no motive for murder, but after Ratliff’s disappearance Surridge denied to the police that he had owned or possessed a rifle. It is a familiar rule that a defendant’s false and improbable statements explaining suspicious circumstances against him are admissible as proof of guilt. Jones v. State, 61 Ark. 88, 101, 32 S.W. 81 (1895); see also Kellensworth v. State, 276 Ark. 127, 633 S.W.2d 21 (1982).

On January 6, 1981, Desha County officers and Pine Bluff officers searched the Surridge property. It is deserted and remote from any town. It is reached by traveling 1.5 miles east from Rohwer to the Mississippi River levee and then 4.4 miles south along the road on the levee. The Surridge property is next to the levee. The house, 439 feet west of the levee, had once been occupied by Surridge’s brother, but it had been vacant for almost 20 years. The land had grown up in weeds and bushes. The police found Ratliff’s body 84 feet north of the house. The weeds were over six feet high and so thick that one had to be “almost on top of the body” to see it. Owing to the cold there was very little odor. The body was clothed, with nothing in the pockets. Next to the body were a half-used matchbook and a beer can half full. The only witness for the defense testified that fingerprints on the can were not Surridge’s. Whether they were Ratliff’s is not shown; the medical examiner’s assistants could not raise fingerprints from the decomposed body.

Surridge was arrested on January 7 and readily consented to a search of his apartment, saying he had nothing to hide. In the apartment the officers found a Glenfield scope for a .22 rifle, on the floor under a dresser. They also saw some matchbooks, the significance of which they did not then realize. A week later they went back and got the matchbooks, which were of an unusual design that matched the one found by Ratliff’s body.

There was expert testimony that death was caused by two .22-rifle shots into the back of Ratliff’s head, at such close range that the weapon was in contact with the skin. The fragments of the bullets could have been fired from a Glenfield rifle or any one of three other makes. The date of death was fixed as having been between December 3 and December 10.

No possible suspect except Surridge himself is shown to have been familiar with the Surridge property. Mrs. Cook and Surridge went to Desha County twice in the fall to visit Surridge’s friends who lived five or six miles from the Surridge land, but they did not to go the Surridge property on those trips. Mrs. Cook testified that they went back on New Year’s Day, but spent only about 15 minutes there looking at the house, which Surridge talked about repairing if the two of them should marry. Surridge also took Ratliff to Desha County in about October, but there is no indication that they visited or had any reason to visit the deserted Surridge property.

We need not narrate the proof in complete detail. It was argued to the jury and again here that the unidentified black men may have murdered Ratliff, but that árgument rests only on Surridge’s unsworn statements and fails for want of any indication that either the men or Ratliff could somehow have found the way to the Surridge property, for no apparent reason.

By contrast, the State proved that Surridge had robbery as a possible motive, that he was the last person known to have seen Ratliff alive, that he had a rifle similar to the one that was used, that he denied that incriminating fact, that he had the opportunity to commit the crime, that he alone was familiar with the Surridge property over 50 miles from Pine Bluff, and that the telltale scope and matchbooks were in his apartment. The defense stresses the fact that the weapon was never found, but that argument cuts both ways. In the fall Surridge wanted to own a rifle and openly displayed it. But after the murder it would have been incriminating and could readily have been disposed of as Surridge drove homeward along the river for more than four miles. To say that the jury was confronted with a choice between two equally reasonable explanations of the murder appears to us, as it did to the jurors, to be a wholly untenable position. In fact, any attempt to construct an alternative theory, such as that the black men somehow went to the Surridge property and killed Ratliff, necessarily involves unfounded speculation and conjecture.

The appellant’s other point for reversal questions the trial judge’s action in permitting Dr. Malak, the state medical examiner, to identify the body by comparing x-rays taken during the autopsy with x-rays of Russell Ratliff that Dr. Malak had obtained from St. Vincent Hospital in Little Rock. The argument is that under Uniform Evidence Rule 803 (6), Ark. Stat. Ann. § 28-1001 (Repl. 1979), the custodian of the hospital x-rays should have been called to identify them as records made in the usual course of business. That rule, however, has been modified by Act 255 of 1981, which permits hospital records to be authenticated by an affidavit of the custodian with the same effect as if the custodian were present and testified to the matters stated in the affidavit. Ark. Stat. Ann. §§ 28-935 to -943 (Supp. 1981). That statutory procedure was followed in this case; so Dr. Malak’s comparison of the two sets of x-rays, which he showed to be identical, was proper. Moreover, Uniform Evidence Rule 703 provides that an expert witness may base his opinion upon facts or data not admissible in evidence if of a type reasonably relied upon by experts in the particular field. The St. Vincent records and x-rays were not introduced in evidence, but they were marked for identification and are in the record. They, together with the medical examiner’s testimony, form an adequate basis for the identification of the body.

Affirmed.


source: Caselaw Access Project

author: Frank Holt, Justice.

license: Public Domain

text:
    Terry HUTCHERSON v. Hoyle WOOD and T. E. ADAIR
    83-79
    650 S.W.2d 229
    Supreme Court of Arkansas
    Opinion delivered May 9, 1983
    [Rehearing denied May 31, 1983.]

      Robert G. Bridewell of Holloway & Bridewell, for appellant.

      William E. Johnson, for appellees.
   Frank Holt, Justice.

This is a usury case and is certified to us by the Court of Appeals pursuant to Rules of the Supreme Court and Court of Appeals, Rule 29 (1) (i). The transaction predates the recently enacted Amendment 60 to the Constitution of Arkansas (1874).

Three different instruments are involved in the transactions that ultimately gave rise to this action by the appellant Hutcherson to cancel the third instrument on the ground that it was usurious. The first instrument was an Oklahoma note executed by appellee Wood to appellee Adair in the amount of $20,000 with interest at 14% per annum. No contention is made that this instrument is invalid under Oklahoma law nor that Arkansas law applies to it. Subsequently, the appellant Hutcherson executed a promissory note in Arkansas in the amount of $30,000 to Wood with interest at 10% per annum. No contention is made that this instrument is usurious. The third instrument, which the appellant argues is usurious, was an assignment in Arkansas by Wood to Adair, signed by Hutcherson, of a portion of the $28,042.41 balance owed Wood by Hutcherson in an amount sufficient to retire the balance owed Adair by Wood on the $20,000 note. Wood had paid $6,029.77 on his note to Adair, leaving a balance of $13,970.23 owed with an interest rate of 14%. Hutcherson defaulted and later filed this action to cancel the assignment on the ground that it was usurious. Adair filed a cross-claim against Wood and a counterclaim against Hutcherson alleging default.

The chancellor found the assignment not to be usurious and entered judgment in favor of Adair against Hutcherson and Wood jointly and severally. He found that the assignment stated the balance from Wood to Adair to be $13,970.23 carrying a valid 14% interest rate, and that Hutcherson’s debt ($28,042.41) to Wood was considerably more than that amount at the time of the assignment. From the exhibits and testimony, he construed the assignment as not increasing Hutcherson’s interest liability on his $30,000 note to Wood, but as merely directing a dollar figure to be paid Adair, for which Hutcherson could take credit on his valid 10% obligation to Wood.

The appellant argues that the assignment increased his interest liability on a portion of the note executed by him to Wood from a valid 10% to an illegal 14% and that the chancellor erred in finding the assignment not to be a usurious transaction. We have said on many occasions that an intention to charge a usurious rate of interest will never be presumed, imputed or inferred where the opposite result can fairly and reasonably be reached. Pulpwood Suppliers v. Owens, 268 Ark. 324, 597 S.W.2d 65 (1980); McCoy Farms, Inc. v. J & M McKee, 263 Ark. 20, 563 S. W.2d 409 (1978); Key v. Worthen Bank & Trust Co., 260 Ark. 725, 543 S.W.2d 496 (1976); Brown v. Central Ark. Prod. Cred., 256 Ark. 804, 510 S.W.2d 571 (1974); Peoples Loan & Inv. Co. v. Booth, 245 Ark. 146, 431 S.W.2d 472 (1968). Here, the conclusion that the transaction was non-usurious can be reached fairly and reasonably.

As the chancellor held, appellant Hutcherson’s basic indebtedness to Wood on the Arkansas $30,000 note at 10% interest was not increased by the assignment and the assignment or transaction merely provided a dollar figure to be paid Adair by Hutcherson for which Hutcherson could take credit on his valid 10% obligation to Wood. It appears that in no event will Hutcherson be required to pay more on the Arkansas obligation than the unpaid principal plus 10%. Hutcherson, himself, testified that his underlying obligation was limited to 10% on the $30,000 Arkansas note to Wood and that he could not say that he owed more than 10% interest on the $30,000 note. This assignment did not infect the original or borrowing transaction with usury nor constitute a cloak for usury.

Affirmed.

Hickman, J., concurring, would affirm because of noncompliance with Rule 9, Rules of the Supreme Court and Court of Appeals.


author: Darrell Hickman, Justice. Richard B. Adkisson, Chief Justice,

text:
    Clarence WALTON v. STATE of Arkansas
    CR 82-136
    650 S.W.2d 231
    Supreme Court of Arkansas
    Opinion delivered May 9, 1983

      Jesse E. “Rusty” Porter, Jr. of Porter ir King, for appellant.

      Steve Clark, Atty. Gen., by: Victra L. Fewell, Asst. Atty. Gen., for appellee.
   Darrell Hickman, Justice.

Clarence Walton was charged with the rape and attempted capital murder of a mother of four who clerked in a twenty-four hour convenience store called the Jr. Food Mart in Marianna, Arkansas. He was convicted on both counts and sentenced to life imprisonment for the attempted murder, and fifty years and a $15,000 fine for the rape, the sentences to be served consecutively.

On appeal he argues that seven errors were committed. We find one of them meritorious. Sarah J. Hood, who ultimately served as foreman of the jury, was challenged for cause and the court should have sustained the challenge. Not doing so was prejudicial error which requires us to reverse the judgment and remand the cause for a new trial.

On May 29, 1981, at about 8:50 A.M., the victim, while working at the store, was violently assaulted and raped. Walton, eighteen, was charged with the offense. He is black and the victim is a white woman.

His first trial resulted in a mistrial because the jury was unable to reach a verdict. The jury impaneled for a second trial was ordered quashed by the trial court when it was challenged by Walton’s attorneys. That jury was selected by jury commissioners rather than by random selection using a jury wheel in accordance with Ark. Stat. Ann. § 39-205.1 (Supp. 1981). A total of forty-four jurors were examined, seventeen were excused by the court for various reasons, and the jury was selected only after individual voir dire examination in the judge’s chambers. The trial judge was careful in the formation of the jury which heard Walton’s case. But, even so, we are satisfied that the trial court abused its discretion in allowing Mrs. Hood to sit on this jury because the record reflects that Mrs. Hood was simply not candid with the court. There is no question that a proper motion to strike her for cause was made; all the appellant’s peremptory challenges had been exhausted.

Mrs. Hood is a teacher at a private school in Lee County. She brought her government class to the second day of Walton’s first trial and evidently was present during most of the day. We cannot be certain from the record exactly what she heard in the way of testimony, because she was somewhat vague about it and denied any knowledge of what actually transpired. She did say that she and her class had discussed the case, but explained that the discussion was mostly about the procedural aspects of the trial. Mrs. Hood had been a teacher of the deputy prosecuting attorney. She said she wanted to serve on the jury because she never had been a juror. No doubt this desire affected her answers to questions about her qualifications.

Mrs. Hood’s initial examination by the court reads:

BY THE COURT:
Q. Good morning, Mrs. Hood.
A. Good morning.
Q. Mrs. Hood, this is the case of the State of Arkansas against Clarence Walton. He is charged with rape and attempted capital murder. This is a criminal trial. The charge alleges that on or about May the 29th of last year that he committed these two offenses. The victim was _Mrs. Hood, do you know anything about this case?
A. I have no personal knowledge of the case, no, sir.
Q. Have you read anything about it in the local newspaper?
A. Yes, sir.
Q. From what you have read about it in the newspaper, have you formed any opinion about this case one way or the other?
A. No, sir, I have not.
Q. Have you heard anybody discuss the case where you work, or in your home, or throughout the community?
A. No, sir.
Q. Have you heard any talk about the case in the community at all? f
A. Just casual conversation.
Q. From the casual conversation that you may have heard about this case, have you formed any opinion, Mrs. Hood?
A. No, sir, I have not.
Q. Mrs. Hood, Clarence Walton is sitting at the table here this morning. Do you know Clarence Walton?
A. No, sir.
Q. As you sit here this morning, Mrs. Hood, do you have anything that is running through your mind that you think you ought to tell me or the lawyers that might in some fashion affect your ability to be a fair and impartial juror no matter what it is, legal, moral, or anything?
A. No, sir.
(Emphasis added.)

She was next examined at length by the prosecutor and she did not reveal that she had heard one day’s testimony in the first trial. She did not disclose this until she was examined by the defense attorney. Then, in response to a direct question, she answered that she had indeed been in the courtroom with her government class at Walton’s first trial and had listened to testimony for one full day. She obviously should have volunteered this information to the trial court when initially examined. The judge refused to strike her for cause, but the record reflects that the trial judge did not accurately remember her first answers because he did not think she had been evasive. The defense attorney said:

Your Honor, I believe, as the court inquired of Mrs. Hood, she indicated that she had not heard any testimony of the case other than possible talk; is that correct, when she first started talking?
The court replied:
I can’t honestly say. That is the forty-second juror we have questioned, and I have asked all of them if they know anything about the case, and she indicated she knew something and could set it aside. What her precise answers were, I do not know.

Clearly, the court did not recall that Mrs. Hood had been deceptive in her answers to the court’s questions. In our judgment her answers were not truthful and, in view of that, she should not have been allowed to sit on this jury. We do not imply that if a prospective juror is aware of testimony in a case he can never be allowed to sit as a juror. See Holland v. State, 260 Ark. 617, 542 S.W.2d 761 (1976). However, that is not the situation presented here. The case before us involves a prospective juror, who later served as foreman of the jury, who was not candid with the court. She knew a considerable amount about the case, or she certainly could have; she did or could have easily formed some opinions from hearing evidence at the first trial which could have influenced her judgment of the case. When examined closely about what she heard, all her answers were phrased to deny any knowledge that would disqualify her. She expressed a special desire to serve on the jury because she had always wanted to serve on a jury, had been a registered voter for at least twenty-one years, and never been called. She thought it would be quite an experience. Perhaps that desire affected her answers. But it was not until she was specifically asked whether she attended the first trial did she answer candidly. We cannot easily overlook this fact simply because she said she could set aside any conceptions, information or opinions she may have had. While a venireman is generally “impartial” when he states that he can put aside any preconceived opinions and give the accused the benefit of all doubts that the law requires, it is not an automatic cure-all for opinions, relationships or information that could disqualify one. Glover v. State, 248 Ark. 1260, 455 S.W.2d 670 (1970). Art. 2, § 10, ARK. CONST. See also Ark. Stat. Ann. §§ 43-1919, 43-1920. In Glover v. State, supra, we independently reviewed the voir dire examination and found it error to allow four jurors to be seated who said they could set aside opinions they held about the guilt of the defendant.

And in Swindler v. State, 264 Ark. 107, 569 S.W.2d 120 (1978) and Seed v. State, 271 Ark. 526, 609 S. W.2d 898 (1980), we found error in the court’s decision to allow jurors to serve who in our judgment could have been biased because of certain relationships. In both cases the jurors said they could put aside their personal feelings, or be objective. Some opinions and relationships cannot be overcome by a mere recitation by the prospective jurors that they will set aside objectionable factors. And we have reversed cases where a juror deliberately withheld information. Baysinger v. State, 261 Ark. 605, 550 S.W.2d 445 (1977); Bryant v. Brady, 244 Ark. 807, 427 S.W.2d 179 (1968).

We have said that statutes concerning qualifying a juror must be liberally construed to safeguard the guarantee of an impartial trial. “The polestar should be brighter and more clearly visible in a criminal case than in a civil one,” and “justice ought not only to be fair, but appear to be fair.” Beed v. State, supra. In view of Mrs. Hood’s answers we can only conclude she should not have been allowed to serve.

Other issues that we must discuss will be dealt with briefly. It is argued three other prospective jurors should have been excused for cause, but we need not examine that claim since they were excused peremptorily.

There was substantial evidence to support the finding that Walton was guilty of rape and attempted capital murder. The victim was brutally assaulted in the store, dragged a considerable distance, and beaten about the head and face; she was raped, and according to her testimony, she was strangled with a belt and survived only because the blood from her wounds made the belt slippery enough for 'her to remove it. She said that she knew the man who raped her, that he had been in the store several times to buy magazines. Walton only lived about 200 yards from the store, and was seen in the store close to the time of the rape by at least one witness. This was about 3:00 A.M.

The trial court’s ruling that the victim’s in-court identification of the defendant was admissible was not error. The trial court was careful to limit the State’s use of the identification evidence so that no prejudicial evidence would be admitted. No mention was to be made by the State of a lineup or identi-kit. (A picture made up of the assailant from her description by the State in its examination of the victim.) Actually the defense brought up both matters in its cross-examination. Immediately after the assault the victim talked to a policeman and generally described her assailant as about six feet tall, black, medium complexioned, with a beard and wearing khaki pants. The policeman said blood was coming out of her eyes. Her lower lip had been split almost to the chin exposing her teeth and gums. She had been choked and had massive bruises, abrasions and contusions. The day after her assault the victim was unable to identify the appellant as her assailant from a group of photographs. But there was testimony that her condition could have easily affected her judgment. Her eyes were virtually swollen shut and she was under medication. At the first physical lineup, held June 11, 1981, she could not identify the appellant until he turned sideways and at that point she did identify him as her assailant. She was positive. She testified positively that she had seen him because he often bought magazines which she described as “girly” magazines. She did say that she thought her assailant was thirty years old and as it turns out he was not nearly that age. But his photograph demonstrates why she could have been that far off on his age. One could easily be of the opinion that that person was well over eighteen. Her other descriptions of him were generally close to his physical appearance. Victims of violent crimes rarely give descriptions that later square in all respects with the physical characteristics of their assailants and that is understandable. Sometimes identification is unreliable, and for that very reason reliability is considered an important factor, and the trial court must decide if the identification is reliable enough to be considered by a jury. The trial court decided the victim’s identification was reliable and we cannot say that he abused his discretion. Kellensworth v. State, 278 Ark. 261, 644 S.W.2d 933 (1983).

The photographs taken of her immediately after the incident and used as evidence were certainly graphic proof of the vicious beating she suffered. But merely because photographs are inflammatory is not reason enough to exclude them. Cotton v. State, 276 Ark. 282, 634 S.W.2d 127 (1982). In this case the appellant was charged with attempting to kill the victim and the photographs were evidence of the viciousness of the attack, from which the jury could easily conclude that the assailant tried to kill her. Hulsey v. State, 261 Ark. 449, 549 S.W.2d 73 (1977).

The trial court denied a motion for change of venue. There were twenty affidavits filed by people who said they heard talk or knew the appellant could not get a fair trial in Lee County. Some of them were of the opinion that a black man accused of raping a white woman could not get a fair trial in Lee County. The State filed counter-affidavits by several people who said that in their judgment the appellant could get a fair trial. There was no evidence at all there was undue publicity in this case as there was in the case of Swindler v. State, supra. Nor does the voir dire record reveal that an undue number of j urors had to be stricken because of their knowledge of the case, or feelings about the case, as was the case in Ruiz v. State, 265 Ark. 875, 582 S.W.2d 915 (1979). We cannot say on the basis of this record that the trial court was wrong in denying the appellant a change of venue. This was an all white jury composed of two men and ten women. There was a general challenge to the panel as not being fairly representative of blacks and men. Both arguments are meritless. The State only used two of its peremptory challenges and, evidently, those were used on blacks. That, however, does not constitute error. Beed v. State, supra. A black person has no constitutional right to a jury that has one or more black people on it. Brown v. State, 239 Ark. 909, 395 S.W.2d 344 (1965), cert. denied 384 U.S. 1016 (1966); Conley v. State, 272 Ark. 33, 612 S.W.2d 722 (1981). Merely because no member of a party’s race is on a jury is not in itself cause to quash a jury. Lewis v. Pearson, 262 Ark. 350, 566 S.W.2d 661 (1977). Nor is it prejudicial in a rape case that women compose a substantial part of the jury. Urquhart v. State, 275 Ark. 486, 631 S.W.2d 304 (1982). The appellant had the burden of showing a systematic exclusion of black people, and failed to meet that burden. Beed v. State, supra.

Objection was made that the maintenance of the master jury list violated Ark. Stat. Ann. § 39-206 (Supp. 1981). The appellant’s argument is somewhat confusing. Evidently after the panel was chosen by random selection, using two numbers to select registered voters, a list of the panel was prepared. Then the list was cut up so that the names were on individual slips of paper; they were placed in a metal, three by five, file box. It was always in the custody of the clerk and locked in a vault at night. Defense counsel compared the slips with the master list and could show no discrepancy. He challenged the correctness of the procedure but where there is no prejudice shown, we find no error. Renton v. State, 274 Ark. 87, 622 S.W.2d 171 (1981).

On appeal, for the first time, it is argued that Walton’s conviction and sentence for both attempted capital murder and rape subjects him to double jeopardy and violates Ark. Stat. Ann. § 41-105. We agree that the statute does prohibit such sentences. Rowe v. State, 271 Ark. 20, 627 S.W.2d 16 (1982); Swaite v. State, 272 Ark. 128, 612 S.W.2d 307 (1981). On retrial the trial court will no doubt see that these decisions are followed in the event the appellant is found guilty of both charges as he was in this case.

Reversed and remanded.

Adkisson, C.J., dissents.

Richard B. Adkisson, Chief Justice,

dissenting. I dissent from this Court’s conclusion that Mrs. Hood was untruthful in her answers to questions on voir dire.

The correctness of Mrs. Hood’s answers is undisputed. Mrs. Hood correctly stated that she had no personal knowledge of the case, that she had not heard anyone discuss the case out in the community, and that she knew of nothing running through her mind that would affect her ability to be a fair and impartial juror.

The majority has no other basis on which to reverse this case other than the fact that Mrs. Hood had heard some bits of the testimony on the first trial of the case. This is not a sufficient reason for disqualification of a juror. Holland v. State, 260 Ark. 617, 542 S.W.2d 761 (1976).

The trial judge heard the voir dire of Mrs. Hood and concluded that she was not evasive in her answers. The record reflects that she answered each question accurately. The trial judge’s conclusion that she was not evasive is not only not clearly erroneous but is clearly correct.

I would affirm this case.


author: Steele Hays, Justice.

text:
    SIMMONS FIRST NATIONAL BANK v. Harold D. WELLS
    83-45
    650 S.W.2d 236
    Supreme Court of Arkansas
    Opinion delivered May 9, 1983

      Coleman, Gantt, Ramsay ir Cox, for appellant.

      Gill & Johnson, by: Marion S. Gill, for appellee.
   Steele Hays, Justice.

This suit presents the issue of whether the interest of a secured creditor in the inventory of a grain dealer is superior to that of a rice grower who subsequently deposits his rice with that dealer.

On May 1, 1980, Simmons First National Bank made a loan of $520,000 to Western Rice Mills, Inc., for which Western granted Simmons a security interest in all of its real and personal property, including all inventory and after acquired property. Western defaulted and in September of 1981, a receiver was appointed. Shortly thereafter, Harold Wells intervened, claiming ownership of certain rice and proceeds from the sale of rice, pursuant to a previous agreement with Western.

Wells had dealt with Western for a number of years, the standard arrangement being that Western would buy the rice outright from Wells, would mill it and then sell it. In April and May of 1981, because of financial difficulties, Western could not buy the rice outright from Wells. Wells and Western orally agreed instead that Western would mill the rice for a certain price and then market the rice at an agreed minimum price for Wells. The charge for milling would be deducted when Western sold the rice, and the remaining proceeds would go to Wells. In the interim, the rice was stored with Western.

The trial court, relying on the rationale of In Re Sitkin Smelting and Refining, Inc., 639 F.2d 1213 (5th Cir. 1981), found the arragement between Wells and Western to constitute a bailment and found Ark. Stat. Ann. § 85-2-326 (Add. 1961) inapplicable. Under this finding, the inventory lien of the bank did not extend to the rice or to the proceeds claimed by Wells.

Simmons argues for reversal that the Chancellor erred in finding that § 85-2-326 was inapplicable to the facts of this case. We agree and find that § 85-2-326 is applicable and we reverse as to those grounds.

The Chancellor mistakenly relied on Sitkin, whereby he found the arrangement to be a bailment and, apparently, found that that precluded the possibility of finding a consignment and § 85-2-326 applicable. We see two flaws in this analysis: first, the Sitkin case is factually distinguishable, the main issue there being whether the arrangement was a sale or a bailment. Second, even if a particular arrangement is found to constitute a bailment as opposed to a sale, that does not preclude a finding that there is also a consignment arrangement and, hence, § 85-2-326 is applicable.

In Sitkin, the issue was whether the bankruptcy court had erred in determining that possession of film entrusted to a bankrupt metal refiner, Sitkin, should be given to a secured creditor of the refiner rather than to the film manufacturer, Kodak, which had entrusted it to Sitkin. The arrangement between Sitkin and Kodak was basically that Sitkin would retain possession of film waste delivered to it by Kodak. But for Kodak’s business purposes, not until the film had been reduced and destroyed and the silver content removed by Sitkin, would Kodak’s ownership cease, and at that time a “settlement” would be made as to the amount owed by Sitkin. The court looked at a number of factors surrounding the transaction and found it to be a bailment arid not a sale. The court also determined that the transaction was not a “sale or return” within the meaning of § 85-2-326 since the goods were not delivered for resale with an option to return. Although we are not convinced that the court was correct in finding a bailment and not a sale in Sitkin, that is irrelevant here.

Whether the arrangement in this case was a bailment or a sale is not determinative of the rights of the parties. Even if under the analysis of Sitkin, the trial court found a bailment and not a sale, the question of whether § 85-2-326 is applicable must still be answered. Western could have been a bailee for Wells and at the same time been a consignee under § 85-2-326. We emphasize the following language of § 85-2-326 (3) which we find applicable to this fact situation:

(3) Where goods are delivered to a person for sale and such person maintains a place of business at which he deals in goods of the kind involved, under a name other than the name of the person making delivery, then with respect to claims of creditors of the person conducting the business the goods are deemed to be on sale or return. The provisions of this subsection are applicable even though an agreement purports to reserve title to the person making delivery until payment or resale or uses such words as “on consignment” or “on memorandum” ....

The comment to this section reinforces the policy indicated by the language of this section:

2. Pursuant to the general policies of this Act which require good faith not only between parties to the sales contract, but as against interested third parties, subsection (3) resolves all reasonable doubts as to the nature of the transaction in favor of the general creditors of the buyer.... (our italics).

Here, Wells delivered his goods, the rice, to Western for sale and Western maintained a place of business where it dealt in goods of that kind, under a name other than the name of the person making the delivery, Wells. With regard to the rights of creditors, it is irrelevant whether the transaction between the two parties was a bailment or a sale if the provisions of § 85-2-326 (3) are also satisfied.

We find In Re KLP, Inc. Finance Co. of America v. Morris, 7 BR 256 (Bankr. N.D. Ga. 1980) more analogous to our case and it provides a more appropriate and clearer application of § 85-2-326. In KLP, the plaintiff had leased space from the debtor to store two organs. The organs were delivered to the debtor’s warehouse where the debtor had traditionally dealt in organs and related goods. At the time of delivery, the agreement was modified to allow the debtor to secure offers for the purchase of the organs, subject to the debtor obtaining prior approval of the offers and sale by the plaintiff. When the debtor filed for bankruptcy, the plaintiff filed to recover the organs. The court ruled in favor of the Trustee whose status under the Bankruptcy Code is that of a hypothetical lien creditor who would have priority over a consignment seller who failed to comply with the require-merits of UCC § 2-326. The following passage states the policy and reasoning behind UCC § 2-326.

The applicable UCC provision, § 2-326, is not only one of the more important UCC sections, but is also one of the most unique provisions in the UCC article which governs the sale of goods. The uniqueness of the section lies primarily in the fact that the section applies to transactions which are not true sales at all, since the section governs agreements which somehow provide that “delivered goods may be returned by the buyer even though they conform to the contract.” The section’s importance lies primarily in the role it plays, along with the notice provisions of article nine, in giving disclosed claims to property priority over secret claims. To encourage disclosure of in rem claims is a central feature of any well-reasoned system of commercial law.
Accordingly, UCC § 2-326 provides that whenever goods are delivered under a contract which allows the buyer to return nonconforming [sic] goods and the goods were delivered “primarily for resale,” § 2-326 (1) (b), then goods so delivered become “subject to,” § 2-326 (2), the claims of creditors of the receiving party as long as the goods remain in that party’s possession. In such a situation, the delivering party may be referred to as the “consignment buyer.”
Of particular importance to the instant case is the fact that certain types of transactions are “deemed” by § 2-326 (3) to constitute “consignment sales.” The statute so characterizes a transaction when the following three circumstances are present:
(1) when goods are delivered for sale,
(2) when the “consignment buyer” maintains a place of business at which he deals in goods of the kind so delivered, and
(3) when the business name of the “consignment seller” is different than the business name of the consignment buyer.
If a transaction is so deemed to constitute a consignment sale, the consignment seller may obtain priority over the consignment buyer’s creditors only by complying with the notice requirements of UCC § 2-326 (3).

The facts of this case require us to examine § 85-2-326 for its applicability. The language of the statute and the commentary convince us that the reasoning of the court in KLP is sound. See also, Bufkor, Inc, v. Star Jewelry Co., Inc., 552 S.W.2d 522 (Tx. 1977); Manger v. Davis, 619 P.2d 687 (Utah 1980). Therefore, because we think the theory on which the case was tried would bring it within § 85-2-326, and since there was no evidence or argument that Wells complied with any of the requirements of § 85-2-326 (3) so as to remove him from the provisions of that section, the priority of Simmons’ interest would prevail on that issue.

The appellee makes two arguments that should be addressed. First, that for § 85-2-326 to apply, there must have been an actual sale between the consignor and the consignee, which, he submits, is not present here. We find that interpretation is not a correct statement of the law. KLP and the other cited cases make this clear by direct implication. The identical issue was dealt with in General Electric Co. v. Pettingell Supply Co., 199 N.E.2d 326 (Mass. 1964) and that contention is found to be without merit.

Appellant also argues that Arkansas Act 401 of 1981 (Ark. Stat. Ann. §§ 77-1339 et seq) provides that in a case such as this, the grain warehouseman cannot sell or encumber grain in his custody unless the owner has by written document transferred title to the grain to the warehouseman, which was not done in this case. The Act specifically provides that any such transaction without written authorization will be void, notwithstanding any provision of the Uniform Commercial Code to the contrary. Appellant points out, however, that this argument was not raised below and should not be heard on appeal and the record supports that assertion.

Although we may affirm a decision on a legal theory not argued to the trial court, we must have some basis for that result. As we said in Palmer, et al v. Cline, 254 Ark. 393, 494 S.W.2d 112 (1973), “We must determine the issues upon the record that was made in the trial court. The facts essential to the question now argued were not pleaded in the court below and therefore cannot serve as the basis for a decision in this court.” Here, § 77-1339 defines public grain warehouseman as one who operates any building or structure for the purpose of storing grain for a consideration. Because this was not argued to the trial court, evidence relevant to Act 401 was not sufficiently developed for us to apply the rule that we will affirm the trial court if the correct result is reached, even if reached on an erroneous theory. We have discretion in determining whether an equity case should be reopened for additional proof on the proper theory. Brizzolara v. Powell, 214 Ark. 870, 218 S.W.2d 728 (1949); Nakdimen v. Atkinson Improvement Company, 149 Ark. 448, 233 S.W. 694 (1921). We believe the issue here is of sufficient importance to merit retrial on facts developed in light of Act 401.

Reversed and remanded.

       § 85-2-326. Sale on approval and sale or return — Consignment sales and rights of creditors. — (1) Unless otherwise agreed, if delivered goods may be returned by the buyer even though they conform to the contract, the transaction is
      (a) a “sale on approval” if the goods are delivered primarily for use, and
      (b) a “sale or return” if the goods are delivered primarily for resale.
      (2) Except as provided in subsection (3), goods held on approval are not subject to the claims of the buyer’s creditors until acceptance; goods held on sale or return are subject to such claims while in the buyer’s possession.
      (3) Where goods are delivered to a person for sale and such person maintains a place of business at which he deals in goods of the kind involved, under a name other than the name of the person making delivery, then with respect to claims of creditors of the person conducting the business the goods are deemed to be on sale or return. The provisions of this subsection are applicable even though an agreement purports to reserve title to the person making delivery until payment or resale or uses such words as “on consignment” or “on memorandum”. However, this subsection is not applicable if the person making delivery
      (a) complies with an applicable law providing for a consignor’s interest or the like to be evidenced by a sign, or
      (b) establishes that the person conducting the business is generally known by his creditors to be substantially engaged in selling the goods of others, or
      (c) complies with the filing provisions of the Article on Secured Transactions (Article 9 [§§ 85-9-101 — 85-9-507]).

       Pertinent provisions:
      § 77-1339. Definitions.
      (b) “Public grain warehousemen” means any person, firm or corporation who operates any building, structure or other protected enclosure used for the purpose of storing grain for a consideration.
      § 77-1340. Title to grain.
      Ownership of grain shall not change by reason of an owner delivering grain to a public grain warehouseman, and no public grain warehouseman shall sell or encumber any grain within his possession unless the owner of the grain has by written document transferred title of the grain to the warehouseman. Notwithstanding any provision of the Uniform Commercial Code (Act 185 of 1961 [§§ 85-1-101 et seq.], as amended) to the contrary, or any other law to the contrary, all sales and encumbrances of grain by public grain warehousemen are void and convey no title unless such sales and encumbrances are supported by a written document executed by the owner specifically conveying title to the grain to the public grain warehouseman. [Acts 1981, No. 401, § 2, p---]


author: Per Curiam.

text:
    Eugene Wallace PERRY v. STATE of Arkansas
    CR 82-19
    650 S.W.2d 241
    Supreme Court of Arkansas
    Opinion delivered May 9, 1983

      James E. Davis, for petitioner.

      Steve Clark, Atty. Gen., by: Alice Ann Burns, Asst. Atty. Gen., for appellee.
   Per Curiam.

Petitioner Eugene Wallace Perry was convicted by a jury of capital felony murder and sentenced to death. We affirmed. Perry v. State, 277 Ark. 357, 642 S.W.2d 865 (1982). Petitioner now seeks a further stay of mandate and permission to proceed in circuit court for postconviction relief pursuant to A.R.Cr.P. Rule 37.

Petitioner first argues that he is entitled to postconviction relief because the sentence imposed on him was in violation of the Constitution and laws of the United States and this State. He has enumerated twenty-two allegations of constitutional error: (1) the trial court erred in refusing a request for a second change of venue; (2) the trial court erred in denying a request for a handwriting expert at state expense; (3) the trial court erred in refusing to suppress identification testimony by witnesses participating in pretrial photographic and physical Jine-ups; (4) the trial court erred in denying a motion for directed verdict since the evidence was all circumstantial; (5) the trial court erred in sustaining an objection to a hypothetical question by the defense to witness Linda Godwin; (6) the trial court erred in excluding the testimony of Dr. Stevens regarding identification witness testimony; (7) the trial court erred in not allowing expenses for out-of-state defense witnesses and subpoena power; (8) the prosecuting attorney in three instances made improper comments during closing argument; (9) the trial court erred in admitting State’s Exhibit No. 64, a fingerprint card; (10) the trial court erred in failing to grant a mistrial because of a prejudicial television news account shown on July 16, 1981; (11) the trial court erred in overruling a defense objection to the testimony of Chantina Ginn regarding statements by co-defendant Anderson; (12) the trial court erred in refusing a request to sequester the jury; (13) through comparative appellate review this Court should reduce the death sentence; (14) the trial court erred in denying a motion to acquit based on petitioner’s indictment by information rather than by grand jury; (15) the trial court erred in admitting State’s Exhibit Nos. 1, 2, 3 and 4, photographs of the victims’ bodies; (16) the trial court erred in refusing to grant a mistrial based on the jury’s observation of a newspaper headline; (17) the trial court erred in failing to declare Chantina Ginn an accomplice; (18) the evidence was insufficient to convict because Ginn was an accomplice whose testimony was not corroborated; (19) death by electrocution is cruel and unusual punishment; (20) the trial court erred in establishing the juror’s qualifications through prejudicial voir dire examination; (21) the trial court erred in permitting the State to empanel a death qualified jury; and (22) Ark. Stat. Ann. §§ 43-1507 and 43-1518 (Repl. 1977) are unconstitutional.

All twenty-two issues were raised on direct appeal and decided adversely to petitioner. Rule 37 was not intended to permit a petitioner to again present questions addressed on appeal. Neal v. State, 270 Ark. 442, 605 S.W.2d 421 (1980); Hulsey v. State, 268 Ark. 312, 595 S.W.2d 934, reh. denied, 268 Ark. 315,599 S.W.2d 729 (1980). Furthermore, no factual support is provided for the allegations. Conclusory statements without substantiation do not justify postconviction relief. Hill v. State, 278 Ark. 194, 644 S.W.2d 282 (1983); Bosnick v. State, 275 Ark. 52, 627 S.W.2d 23 (1982); Cooper v. State, 249 Ark. 812, 461 S.W.2d 933 (1971).

Petitioner also makes five conclusory allegations of ineffective assistance of counsel. He initially contends that counsel failed to request a second change of venue; but since an impartial jury was empaneled, petitioner has demonstrated no prejudice. Counsel cannot be found ineffective absent some showing of prejudice. Hill, supra; Blackmon v. State, 274 Ark. 202, 623 S.W.2d 184 (1981).

Petitioner next alleges that counsel should have requested funds to employ a handwriting expert. Again, petitioner fails to allege any prejudice resulting from counsel’s failure to act. As we said on appeal, the State did not use expert testimony to establish the author of any writing. Petitioner has given no reason to support his claim that counsel erred in failing to ask for his own expert.

The trial court sustained the State’s objection to a defense question asked of witness Linda Godwin. Petitioner does not specify where in the record the specific objection can be found as he should have done. See Hill, supra. We assume that he is referring to the objection raised on appeal wherein the defense asked a hypothetical question of God-win which was disapproved as assuming a fact not in evidence. If so, he has not alleged or shown that a proffer was called for under the circumstances. Defense counsel asked the witness:

If it were developed in the course of this trial that seven (7) people will testify under oath that Gene Perry was in Alabama at the time this occurred, would that change your testimony in any way?

As the trial court said, the question assumed facts not in evidence. The question was not proper and we cannot agree with petitioner that counsel was remiss in not making a proffer of it.

Petitioner alleges that counsel failed to object to an unspecified jury argument by the State which amounted toa comment on petitioner’s decision not to testify. We must again assume that petitioner has reference to a point also raised on appeal since he does not quote the State’s comment or otherwise identify it. The portion of the State’s argument which was questioned on appeal as a comment on petitioner’s exercise of his right to remain silent reads as follows:

Obviously there is a lot of stuff being done here to disguise the names of people. What name is given for Damon when he is down in Florida? Damon Malantino. Why was that name used? Who can tell. It is obviously one thing; it was not the name of Wallace Eugene Perry on any of this stuff. And why not? . . . You do not have eye witnesses. Nobody is going to come in here and say here, I robbed, and I have shot. Whose fault is that? It’s the defense’s fault. There are no witnesses. You know, criminals are the ones that pick the witnesses for crimes, because criminals are the ones that decide the time and the place of the crime.

Petitioner argued on appeal that this court should reverse because these remarks were an improper comment even though no objection was made. We declined, stating that the lack of an objection and the total context of the closing argument caused us to conclude that this was not a comment on the right to remain silent. We now hold that even if there had been an objection, the remarks when considered with the argument as a whole did not prejudice petitioner to the degree that he was denied a fair trial. There is a presumption of effective assistance of counsel. Hill, supra; Thomas v. State, 277 Ark. 74, 639 S.W.2d 353 (1982); Hoover v. State, 270 Ark. 978, 606 S.W.2d 749 (1980); Irons v. State, 267 Ark. 469, 591 S.W.2d 650 (1980). To overcome that presumption, a petitioner must show by clear and convincing evidence that he suffered prejudice by the representation of counsel and that the prejudice which resulted was such that he did not receive a fair trial. Blackmon v. State, 274 Ark. 202, 623 S.W.2d 184 (1981). Petitioner has not shown that he was denied a fair trial by counsel’s failure to object.

Finally, petitioner asserts that counsel failed to make a proper objection to the hearsay testimony of Chantina Ginn. He does not cite any specific testimony as being objectionable hearsay. We found no reversible error when a similar issue involving Ginn’s testimony was raised on appeal. We have no way of knowing whether it is this same testimony that petitioner has reference to in this petition. If so, he has not provided any support for the allegation on which counsel could be found ineffective.

Petitioner’s total fáilure to substantiate any of the allegations of constitutional error or ineffective assistance of counsel may indicate that he is merely seeking to exhaust state remedies with this petition. See Reynolds v. State, 248 Ark. 153, 450 S.W.2d 555 (1970). In any event, there is no ground for relief which warrants an evidentiary hearing or other postconviction relief. Accordingly, the petition for relief under Rule 37 and the petition for further stay of mandate are denied.

Petitions denied.


text:
    VERMEER MANUFACTURING COMPANY v. Jimmy VANDIVER, a/k/a VANDIVER EQUIPMENT COMPANY and FORD MOTOR COMPANY
    650 S.W.2d 244
    Supreme Court of Arkansas
    Opinion delivered May 9, 1983

      Pollard ir Cavaneau, by; Jerry Cavaneau, for appellant.

      Lightle, Beebe, Raney ér Bell, by: Donald Raney, for appellee Vandiver.

      Smith é• Nixon, by: W. R. Nixon, Jr., for appellee Ford Motor Company.
   Per Curiam.

This case involves multiple claims of relief and liability among multiple parties. The trial court dismissed one defendant, Ford Motor Company, on the basis of lack of venue. The other parties now seek to appeal that ruling. However, the order of the trial court does not recite that there is no just reason for delaying an appeal nor does it direct the entry of a final judgment in favor of Ford Motor Company. Therefore, ARCP Rule 54 (b) requires that the present appeal be dismissed without prejudice to appeal when a final judgment is entered.


author: Richard B. Adkisson, Chief Justice.

text:
    Wayne RICHARDS v. STATE of Arkansas
    CR 82-162
    650 S.W.2d 566
    Supreme Court of Arkansas
    Opinion delivered May 16, 1983

      Lessenberry h Carpenter, by: Thomas M. Carpenter, for appellant.

      Steve Clark, Atty. Gen., by: Leslie M. Powell, Asst. Atty. Gen., for appellee.
   Richard B. Adkisson, Chief Justice.

Appellant, Wayne Richards, was convicted by a jury of first degree murder and was sentenced by the Hempstead County Circuit Court to 40 years in the Arkansas Department of Correction. On appeal we affirm.

About 7:00 p.m. on January 6, 1982, the victim’s body was found on the freeway in Hempstead County a few miles outside of Prescott. The facts leading up to the murder are as follows: Appellant and the victim, who was female, had been seen in Texarkana by a pawnshop owner who testified that appellant and the victim had both come into his shop on December 30; that on January 6, the victim had returned without appellant; and that on the latter occasion he noticed that she had black eyes and bruises on her face. Appellant told the police that he and the victim had left Texarkana on January 6, 1982, traveling east on 1-30. According to appellant’s statement, they got into a fight, he hit her, and she jumped out of the car. Appellant stated that he was going about 40 m.p.h. when she jumped but that he did not stop the car until he got off the freeway at the next exit. He then stopped at a service station and asked that the police be called.

The testimony of the medical examiner who examined the victim’s body did not substantiate appellant’s story. He stated that the victim had actually died from manual strangulation associated with blunt trauma to the head and face. He also testified that the victim’s body had been run over, after death, by a heavy vehicle.

Appellant first argues that the trial court erred in not dismissing the case for lack of jurisdiction because it is unclear where the crime was committed. Ark. Stat. Ann. § 43-1408 (Repl. 1977) provides:

Territorial jurisdiction of circuit and justices’ courts. — The local jurisdiction of circuit courts and justices’ courts, shall be of offenses committed within the respective counties in which they are held.

And, Ark. Stat. Ann. § 41-110 (2) (Repl. 1977) provides:

The state is not required to prove jurisdiction or venue unless evidence is admitted that affirmatively shows that the court lacks jurisdiction or venue.

We stated in Gardner v. State, 263 Ark. 739, 569 S.W.2d 74 (1978) that before the State is called upon to offer evidence on the question of jurisdiction, there must be positive evidence that the Offense occurred outside the jurisdiction of the court. Appellant alleges that the medical examiner’s testimony that the victim’s body had been run over by a heavy vehicle after death established that she was killed elsewhere and this constituted the necessary affirmative evidence that Hempstead County did not have jurisdiction. We cannot agree with this contention. The fact that the victim may have been dead when her body left the car is not affirmative evidence that she was killed in any particular place.

Appellant argues that the trial court erred in refusing to allow his brother to testify as to appellant’s medical history as a part of his insanity defense. During direct examination the brother was asked about certain medication appellant allegedly took as a child, but after the prosecution objected, the court refused to allow him to answer. We cannot say that this ruling was reversible error because a proffer was never made as to what the brother’s testimony would have been concerning the medication.

There are no reversible errors.

Affirmed.


author: George Rose Smith, Justice.

text:
    BARNETT RESTAURANT SUPPLY, INC. v. Peck VANCE et al
    83-46
    650 S.W.2d 568
    Supreme Court of Arkansas
    Opinion delivered May 16, 1983

      Henry ir Walden, by: Brent Davis, for appellant.

      Penix, Penix, Mixon & Lusby, for appellees.
   George Rose Smith, Justice.

The only question on this appeal is whether the trial court was right in denying the plaintiff’s motion to strike the defendant Vance’s responses to the plaintiff’s requests for admissions because the responses were not served and filed within the 30 days allowed by A.R.Civ.P. Rule 36. We find that the trial court was in error.

Barnett Restaurant Supply brought this action against Vance and others upon a $1,894.94 open account. Vance filed an answer denying all allegations in the complaint. On August 17, 1981, the plaintiff filed requests for admissions, the only important one being that Vance admit he owed the plaintiff $1,894.94 for merchandise. No responses were filed until January 6, 1982, the day before trial, when defense counsel learned of their mistake and filed responses with the clerk. At the beginning of the trial the court, after hearing defense counsel’s explanation for the omission, denied the motion to strike the responses, without further comment.

At the hearing Vance’s trial attorney stated that responses had been prepared and had been signed and verified by Vance on September 8. Below the verification another member of the law firm had certified that he had served a copy on each of the two opposing attorneys (presumably by mail), but that can hardly have been correct. Neither opposing attorney received a copy, nor had one been filed with the clerk. The secretary who notarized Vance’s signature would have testified that he came to the office and signed the responses, that the original was not in the file, and that it was the habit and practice of the office to Send the responses to the clerk’s office and mail copies to the various parties. Quite evidently there was an oversight, it hardly being possible that all three copies were lost in the postal system.

Rule 36 (a) provides, as did its predecessor, Act 335 of 1953, §11, that a request for an admission is admitted unless a timely response is served. Rule 6 (c) also requires that a copy be filed with the clerk within a reasonable time. In 1957 we upheld a trial court’s decision to permit timely but unsworn responses to be verified on the day of trial. Kingrey v. Wilson, 227 Ark. 690, 301 S.W.2d 23. Ten years later, however, we explained that when Kingrey was decided our lawyers had not had much time to become acquainted with the penalties for failure to comply with discovery procedures. B. & P.,Inc. v. Norment, 241 Ark. 1092, 411 S.W.2d 506 (1967). Our policy through the years has been to require compliance with the rule governing responses to requests for admissions. White River Limestone Products Co. v. Mo.Pac. Rd. Co., 228 Ark. 697, 310 S.W.2d 3 (1958); Stocker v. Hall, 269 Ark. 468, 602 S.W.2d 662 (1980). A similar trend away from early leniency has been noted with respect to the federal rule. Driver v. Gindy Mgf. Corp., 24 F.R.D. 473 (E.D. Pa. 1959).

Our lawyers are familiar with our practice during the past twenty-five years or more. Rule 6 (b) (2) provides broadly for extensions of time in instances of excusable neglect, but an attorney’s shifting of complete responsibility to a secretary does not fall in that category. DeClerk v. Tribble, 276 Ark. 316, 637 S.W.2d 526 (1982). If this law office took any precautions to avoid oversights such as the one that occurred, trial counsel failed to mention that fact. In the circumstances it would be a step backward for us to recognize an exception to the procedural requirements in this case.

Reversed and remanded for the entry of judgment.


text:
    Thomas J. EVANS v. Connie WILSON
    83-84
    650 S.W.2d 569
    Supreme Court of Arkansas
    Opinion delivered May 16, 1983

      James E. Smedley, for appellant.

      Butler, HickyérHicky, Ltd., by: PhilHicky and Preston G. Hicky, for appellee.
   George Rose Smith, Justice.

This appeal comes to us as a tort case. Rule 29 (1) (o). On October 2, 1979, the plaintiff-appellant, while waiting to turn left at a traffic light, suffered a whiplash injury to his neck when his car was struck from behind by the appellee’s car. In appealing from an $11,000 verdict and judgment in his favor, the plaintiff argues that the trial judge violated the collateral source rule by permitting the defendant to prove that as a result of his injuries the plaintiff had received specified disability payments from his employer and from insurance companies. We agree that the trial judge’s action was wrong.

The plaintiff’s doctors testified in effect that he sustained a serious and painful, though not permanent, injury, that he was necessarily hospitalized from October 4 to October 18, and that he was unable to work for about four and a half months. That proof is undisputed; the defendant offered no testimony contradicting the doctors’ assertions.

Why then should the collateral source rule have been disregarded? The appellee argues that she pleaded malingering as an affirmative defense and was properly permitted to prove the plaintiff’s disability income in support of that defense, with a cautionary instruction to the jury that the evidence was to be considered only with regard to the asserted malingering, not with regard to any reduction of the plaintiff’s actual damages.

This argument does not have substantial support in the record. To begin with, the charge of malingering is not truly an affirmative defense. It simply denies that the plaintiff was injured at all or as seriously as he contends, casting no affirmative burden of proof on the defendant. We may compare it to the now largely discredited defense of unavoidable accident, which we eventually realized to mean little more than that the defendant was not negligent. Houston v. Adams, 239 Ark. 346, 389 S.W.2d 872 (1965); AMI Civil 2d, 604(1974).

There are unquestionably situations in which proof of a plaintiff’s collateral income may be admissible for a particular purpose. We mention four such purposes: One, to rebut the plaintiff’s testimony that he was compelled by financial necessity to return to work prematurely or to forego additional medical care. Gladden v. P. Henderson & Co., 385 F.2d 480 (3d Cir. 1967); Johnson v. Reed, 464 S.W.2d 689 (Tex. Civ. App. 1971). Two, to show that the plaintiff had attributed his condition to some other cause, such as sickness. Stanziale v. Musick, 370 S.W.2d 261 (Mo. 1963); Burrous v. American Airlines, 639 S.W.2d 263 (Mo. App. 1982). Three, to impeach the plaintiff’s testimony that he had paid his medical expenses himself. Fabler v. Freeman, 241 N.E.2d 394 (Ind. App. 1968). And four, to show that the plaintiff had actually continued to work instead of being out of work, as he claimed. Bookbinder v. Rotondo, 285 A.2d 387 (R.I. 1972).

No comparable situation is shown by the appellee. For the most part she merely asserts that the plaintiff’s complaint exaggerated his injuries and property damage, a commonplace occurrence having nothing to do with the collateral source rule. She does have support in the record for arguing that the plaintiff said at the scene of the accident that he didn’t think he needed to go to a doctor, that he did not see a doctor until two days later', when he tried to resume work and was not able to do so, and that he consulted an attorney 24 days after the accident (during which he had been in the hospital for two weeks). All those matters were fully accounted for by the plaintiff’s witnesses and were not left in doubt by any proof offered by the defense. The trial judge abused his discretion in- failing to hold that what slight probative value the testimony in question may have had was outweighed by the prejudicial effect of proof that the plaintiff had received substantial income from outside sources. Uniform Evidence Rule 403, Ark. Stat. Ann. § 28-1001 (Repl. 1979).

Reversed and remanded for a new trial.


author: Darrell Hickman, Justice.

text:
    WESTARK SURGICAL CLINIC, P.A. v. John J. WEISSE
    83-30
    650 S.W.2d 571
    Supreme Court of Arkansas
    Opinion delivered May 16, 1983

      Thompson, Paddock ir Llewellyn, by: William P. Thompson, for appellant.

      Harper, Young, Smith & Maurras, by: S. Walter Maurras, for appellee.
   Darrell Hickman, Justice.

This is the second appeal of this breach of contract case. John J. Weisse, a newly certified surgeon, was employed in 1976 by Westark Surgical Clinic, a professional association of doctors located in Fort Smith. After one year Weisse resigned and sued Westark for what he claimed was due him under an employment contract. At the first trial the jury awarded him $20,000. We reversed the judgment because of prejudicial evidence submitted to the jury., Westark Surgical Clinic v. Weisse, 268 Ark. 505, 597 S.W.2d 820 (1980). On retrial the jury awarded Weisse $32,000, and we affirm that judgment.

Weisse visited Westark Clinic twice before beginning his employment. After each visit he received a letter from the Clinic. The first letter generally set forth the terms of employment with the Clinic: salary, benefits, relocation expenses, vacation, etc. The second letter, written in February of 1976, acknowledged Weisse’s acceptance of the Clinic’s offer of employment. Both letters said that Weisse would receive a written employment agreement.

Weisse started work at the Clinic in July of 1976. It is undisputed that he continually asked for a written contract. And, when he asked about certain benefits, the Clinic physicians answered him that it was covered by the contract he would receive. Finally, in October, the Clinic’s attorney sent Weisse a blank contract along with other Clinic documents. The contract included a salary continuation clause which provided that in the event of termination the employee would get 100% of his salary for the first three months following termination, 75% the next three, 50% the next three, and 25% the final three months. In Dr. Weisse’s case that would amount to $30,000.

The blank contract was never signed but Weisse testified that he believed it to represent his agreement with the Clinic. When he left the Clinic he was refused salary continuation and he sued for that and for compensation for doing follow-up care on patients he treated while at the Clinic. On retrial, following the first reversal of this case, the jury awarded Weisse $30,000 in termination pay and $2,000 compensation for his work after he left the Clinic.

The Clinic appeals the jury’s decision on three grounds. First, it contends that the trial court erred in refusing to allow evidence of customary employment contracts between employing physicians and physicians just beginning practice. The Clinic proffered evidence by a Little Rock lawyer who prepared such employment contracts in six southern states that he had never seen a salary continuation clause in a contract with a physician just out of school.

The trial court correctly found that a custom is admissible as evidence only if it is known to both parties, or is such a widespread custom in a trade that the parties will be presumed to be aware of the custom. Ben F. Levis, Inc. v. Collins, 215 Ark. 172, 219 S.W.2d 762 (1949). Weisse was from New York and educated there. He completed his residency in Columbia, Missouri. He testified that he had no knowledge of the custom of inserting salary continuation clauses or the lack of them in medical employment contracts. The trial court’s ruling, a discretionary one, was on a sound basis. We cannot say that the record proves that such a custom was known to Weisse or so widespread that he would be presumed to be aware of it. To do so would be to rule that the trial judge manifestly abused his discretion — a decision we cannot make.

Secondly, it is argued that the trial court was wrong in allowing Weisse to introduce an exhibit which showed the services Weisse rendered to Clinic patients a short time before he left the Clinic and for two weeks after. These were patients Weisse treated or performed surgery on while at the Clinic, and the exhibit showed the surgery, the postoperative, and the follow-up care and treatment by Weisse. The Clinic argues that the exhibit was prejudicial because it showed that the Clinic made $10,000 in charges for the treatment and that that was not relevant to what Weisse should receive since Weisse and the Clinic had a salary agreement. Weisse testified that he had been paid for the services that he rendered before he left the Clinic but that he had not been paid for the services given after he left and that he estimated those services to be worth $2,000. Apparently the jury agreed because that is what he was awarded. The trial court ruled that the exhibit was relevant and we cannot say he was manifestly wrong.

Finally, it is argued that the evidence was not sufficient to support the verdict. Essentially the appellant makes a legal argument and the question is whether the jury was entitled to decide the terms of the contract between Weisse and the Clinic. Although there was no signed agreement, evidence existed that the parties contemplated a written agreement and that the Clinic intended the parties’ agreement to be governed by the employment contract. The Clinic’s only contract in existence, and the one given to Weisse, had a salary continuation provision. When the evidence is considered in a light most favorable to the appellee, we find that there was substantial evidence to support the jury’s finding.

Affirmed.


author: John I. Purtle, Justice.

text:
    Mark BRADLEY and Linda BRADLEY, Husband and Wife, and CITY OF RUSSELLVILLE, Arkansas et al v. Judith A. GALLOWAY et al
    83-86
    651 S.W.2d 445
    Supreme Court of Arkansas
    Opinion delivered May 16, 1983
    [Rehearing denied June 20, 1983.]

      Mobley & Smith, by: William F. Smith, for appellants Bradley.

      John M. Bynum, City Atty., for appellant City of Russellville.

      Jonathan P. Shermer, Jr., for appellees.
   John I. Purtle, Justice.

The Pope County Circuit Court issued a writ of mandamus directing the Russellville City Clerk to determine the sufficiency of a referendum petition filed for the purpose of referring an ordinance to the people for an election. The order was stayed pending this appeal. Two points are argued for reversal. First, that the circuit court was without jurisdiction to enter the order of mandamus. Second, if the circuit court had jurisdiction its decision was clearly erroneous and contrary to the law and the facts. We do not agree with either argument.

On November 12,1981, the City Council of Russellville, Arkansas enacted ordinance No. 1012 which rezoned certain property within the city. On December 10, 1981, appellees filed an instrument with the city council, in which they sought to refer the above ordinance to the people for a vote. The city clerk then issued a notice of hearing which was scheduled for January 12, 1982. Following the public hearing on the petition the city council and the city clerk, Charles F. Howell, declared the petition for referral of ordinance No. 1012 to be insufficient to the extent that it amounted to nothing and there was nothing which could be done to validate the petition because the time for referral of the ordinance had passed. No time to correct any deficiencies was given to petitioners. Thereafter, a petition was filed in the circuit court for mandamus to compel the city clerk to make a findingas to whether the petition was sufficient and if it were found insufficient, to give petitioners a period of time within which to remedy the deficiencies. After first determining that the city clerk had acted in compliance with Amendment 7 to the Arkansas Constitution, the circuit court entered an order directing the city clerk to comply with Amendment 7 by determining the sufficiency of the referendum petition. Several times the city clerk stated the petition for referendum was insufficient but each time he refused to allow appellees the opportunity to amend, modify or otherwise correct the petition. On June 14, 1982, the circuit court ordered the clerk to give petitioners (appellees) ten days within which to correct or amend the petition. It is from that order that this appeal is taken.

The only issue before this court is the legality of the order of mandamus issued by the circuit court directing the city clerk to comply with Amendment 7 by giving appellees written notice of the insufficiency of the referendum petition and to permit correction or amendment within ten days. Therefore, we will not consider the sufficiency of the referendum petition in the present action. Amendment 7 deals with the sufficiency of such petitions by stating:

If the Secretary of State, county clerk or city clerk, as the case may be, shall decide any petition to be insufficient, he shall without delay notify the sponsors of such petition, and permit. . . ten days in the instance of a municipal or county petition, for correction or amendment.

The burden of proof in this case is upon those opposing the petition. Although the appellants originally objected to the circuit court’s jurisdiction, they subsequently filed numerous requests for affirmative relief and in effect abandoned the objection. After sponsors of an initiative or referendum have been notified by the city clerk that the petition is insufficient they have ten days within which to correct or amend the petition. Any appeal from the decision of the clerk shall be taken to chancery court. However, appellees were not appealing from the decision of the clerk, rather, they were trying to force him to act one way or the other.

Ark. Stat. Ann. § 33-101 (Repl. 1962) gave both circuit and chancery courts jurisdiction to determine petitions for writ of mandamus. This statute has been considered authority for a circuit court to compel the performance of a ministerial duty. Cox v. Wentz, 231 Ark. 205, 329 S.W.2d 413 (1959). This court has held that chancery courts do not have the power to issue writs of mandamus. Nethercutt v. Pulaski County Special School Dist., 248 Ark. 143, 450 S.W.2d 777 (1970). Therefore, the circuit court had jurisdiction to issue a writ of mandamus.

Appellant relies upon Townsend v. McDonald, 184 Ark. 273, 42 S. W.2d 410 (1931) as authority for upholding the action taken by the city clerk. In Townsend the issue was whether the Arkansas Secretary of State should be required to accept petitions for a referendum on Act 345 of 1931. This court ordered that the petition for mandamus be dismissed. The petition for mandamus in the Townsend case was filed directly with the supreme court as provided for in Amendment 7. We considered the petition on its merits and decided that failure to attach a full and correct copy of the measure to be voted upon rendered the petition invalid. In the case before us we do not consider the sufficiency of the petition on its merits. In Townsend this court approved the holding in State ex rel. v. Olcott, 62 Or. 277 (1912). The court in Olcott held that if the petition for referendum substantially complied with the requirements of the law then it was sufficient. The Oregon court further held that it was not necessary to have a full and correct copy of the title and text of the measure attached to each sheet of the petition. In the case before us the petitioners seek to have the city clerk inform them of the nature of the deficiencies of their petition and to give them ten days within which to correct or amend. This differs from the relief sought in Townsend because there petitioners sought to compel the Arkansas Secretary of State to accept the petitions and certify the matter for an election. Time within which to correct or amend a petition for referendum was not considered or discussed in Townsend. Amendment 7 should be liberally construed in order to meet the purposes for which it was adopted. Armstrong v. Sturch, 235 Ark. 571, 361 S.W.2d 77 (1962). We cannot determine from the record whether any of the petitions had attached to them a copy of ordinance No. 1012. It is not necessary that a full and correct copy of the referred measure be attached to each sheet of the petition. Leigh v. Hall, 232 Ark. 558, 339 S.W.2d 104 (1960).

We must, therefore, affirm the decision of the lower court in directing the Russellville City Clerk to comply with Amendment 7 of the Arkansas Constitution.

Affirmed.


author: Robert H. Dudley, Justice.

text:
    Jerry STEELE v. Patrick MURPHY, Trustee of Tim Murphy Trust
    83-87
    650 S.W.2d 573
    Supreme Court of Arkansas
    Opinion delivered May 16, 1983

      Bradley, Coleman ir Boling, by: Jon R. Coleman, for appellant.

      Reid, Burge ir Prevalett, by: Robert L. Coleman, for appellee.
   Robert H. Dudley, Justice.

This case of first impression involves the interpretation of Ark. Stat. Ann. § 50-531 (Supp. 1981), a law significant to the farming community. This law, enacted in 1981 by the General Assembly, provides as follows:

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

Pursuant to this statute, the trial court held that the landlord, appellee, gave sufficient notice to the tenant, appellant, to terminate his tenancy in farm property at the end of 1981. The notice of termination was mailed by the appellee on June 29, 1981 by certified mail, but was not received by appellant, a tenant from year to year on a calendar year term, until July 3, 1981. We affirm. Jurisdiction is in this Court as this case requires the interpretation and construction of an act of the General Assembly. Rule 29 (1) (c).

Before considering whether the notice was timely, we must decide whether the act applies to tenancies from year to year. A comparison of the tenancy from year to year and the oral lease leads us to conclude that the General Assembly intended that this act be applied to tenancies from year to year.

At common law, one of the ways a tenancy from year to year could be distinguished from an oral one year lease was by the requirement of notice to vacate. A tenant holding under an oral one year lease was not entitled to notice of the landlord’s decision not to extend the lease for another year. Sigmon Forest Products, Inc. v. Scroggins, 247 Ark. 493, 446 S.W.2d 198 (1969). However, a tenant from year to year was entitled to six months’ notice to vacate. Gregory v. Walker, 239 Ark. 415, 389 S.W.2d 892 (1965). This distinction leads to three reasons which mandate that the act be applied to tenancies from year to year.

First, this Court has strictly construed the definition of six months’ notice in such tenancies. Thus, notice on July 1 has been held insufficient to terminate a tenancy running to December 31. Gregory, 239 Ark. at 417, 389 S.W.2d at 893. Obviously by supplying the date of “on or before June 30” the General Assembly gave landlords and tenants a clear, simple and codified method of determining a fixed date for the purpose of giving six months’ notice, at least as applied to calendar year tenancies from year to year.

Second, at common law in a tenancy from year to year the landlord alone is required to give notice to vacate. Similarly, the act does not provide for mutuality of notice but provides only for a method of notice by the landlord. This parallel circumstance indicates that the legislative intent was to provide for tenancies from year to year.

Third, oral notice, if timely given, has always been sufficient notice. However, disputes often arise over when oral notice was given. The act provides that the landlord may elect to use this form of written notice. Thus, the legislative intent could well have been to statutorily provide for an optional written method of proving when notice was given.

The appellant asks that we limit our construction of the act to its literal meaning. Clearly, the literal interpretation of the act is that it applies to “lands which are orally leased.” One writer in an excellent article opined that the act “requires, in the case of oral agreements, the same notice not to renew or extend as was previously applicable to tenancies from year to year.” Cathey, The Real Estate Installment Sale Contract: Its Drafting, Use, Enforcement and Consequences, 5 U. Ark. Little Rock L.J. 229, 237-38 (1982). The author of another fine article has written, “The Arkansas legislature has attempted to clarify the notice requirement for oral leases in Act 866 of 1981.” Looney, Legal and Economic Considerations in Drafting Arkansas Farm Leases, 35 Ark. L. Rev. 395, 426 (1982). We decline to give such a limited interpretation to the statute because the literal interpretation does not give effect to the legislative intent. It is the duty of this Court to give effect to the intent of the General Assembly, even though the true intention, though obvious, has not been expressed by the language employed when given its literal meaning. Berry v. Gordon, 237 Ark. 547, 376 S.W.2d 279 (1964). We conclude that a proper construction of the act renders it applicable to tenancies from year to year.

The second issue is whether this notice was given in time to terminate the tenancy at the end of 1981. The notice was mailed on June 29 and received on July 3, 1981. At common law this would not have been timely notice for the year ending in 1981 since the tenant was entitled to receive six months’ notice. See Gregory v. Walker, supra. However, the act does not require that the tenant receive notice on or before June 30. It provides that the landlord give notice to the tenant on or before June 30. In using the word “give,” as distinguished from “receive,” the General Assembly may well have intended that we be guided by the definitions of these words in the Uniform Commercial Code. Ark. Stat. Ann. § 85-1-201 (26) (Supp. 1981) provides:

A person “notifies” or “gives” a notice or notification to another by taking such steps as may be reasonably required to inform the other in ordinary course, whether or not such other actually comes to know of it. A person “receives” a notice or notification when
(a) It comes to his attention; or
(b) It is duly delivered at the place of business through which the contract was made or at any other place held out by him as the place for receipt of such communications.

These definitions comport with the definitions of the giving of notice contained in the legal encyclopedias. They agree that where the giving of notice by way of a specified form of mail is prescribed by statute, notice is effected when the written notice is properly addressed and placed in the mail. See 66 C.J.S. Notice § 18 (3) (1950); 58 Am. Jur. 2d Notice% 27 (1971).

Rule 5 (b) of the Arkansas Rules of Civil Procedure is also supportive of an interpretation that notice is effectively given when mailed. ARCP 5 (b) provides that when service is allowed to be made by mail, “Service by mail is presumptively complete upon mailing.”

We conclude that the General Assembly did intend to change the common law to the extent that the giving of notice on or before June 30 is sufficient when service by mail of that notice is promptly completed. We recognize that a different issue would be before us if service had not been completed but we reserve judgment on that issue until it is properly before us. See, e.g., Escher v. Morrison, 278 N.W.2d 9 (Iowa 1979).

Affirmed.


text:
    Leonard E. RIDENHOUR v. STATE of Arkansas
    CR 83-55
    650 S.W.2d 575
    Supreme Court of Arkansas
    Opinion delivered May 16, 1983

      Way land A. Parker, for appellant.

      Steve Clark, Atty. Gen., by: Leslie M. Powell, Asst. Atty. Gen., for appellee.
   Steele Hays, Justice.

Leonard Ridenhour, appellant, was charged with violation of our “hot check” law, Ark. Stat. Ann. § 67-720 (Supp. 1981 ) and raises issues on appeal that require our interpretation of that statute.

On three separate occasions in February and March of 1982, Ridenhour purchased cattle from the Montgomery County Auction, Inc. He took possession of the cattle and charged the purchases to his account. On three subsequent dates in February and March, he wrote checks for each of the previous purchases. All three checks were returned for insufficient funds. On March 23, 1982, Ridenhour delivered to Montgomery a check for $25,147.77, the total amount of the three smaller checks he had written. This check was also returned for insufficient funds. An information was filed on April 5,1982, charging Ridenhour with violation of § 67-720 for the $25,147.77 check. The jury found him guilty and fixed his punishment at ninety days imprisonment and a fine of $1,000.00.

Appellant raises two issues on appeal, both of which have merit. He first contends that his motion to dismiss should have been granted, as the check for $25,147.77 was only evidence of a debt for a sale on an open account which would not be a violation of § 67-720. We note first that the original statute, prior to a 1977 amendment, specifically included “pre-existing debts” as a violation. That phrase, however, was deleted by the 1977 amendment. That the pre-existing debt under the circumstances of this case does not come within § 67-720 as it reads today, is bolstered by our decision in Sharpensteen v. State, 222 Ark. 519, 261 S.W.2d 537 (1953). Under similar facts, the appellant was charged under our “hot check” statute (67-717) for checks drawn on out-of-state banks. This statute, like our current § 67-720, does not include pre-existing indebtedness and we found that there was no violation in Sharpensteen. The appellant in that case had purchased some chickens in Missouri, which were delivered to him the next day in Arkansas. A few days later the seller came to appellant’s place of business in Arkansas and picked up the check for the chickens. The check was drawn on a bank in Oklahoma and returned for insufficient funds. We found that under the wording of that statute, no violation had occurred:

Obviously, on the facts here, appellants had bought and received the chickens in Missouri three or four days before they delivered their check to Edwards in Arkansas. By delivering this check to Edwards, appellants secured nothing in Arkansas in addition to the chickens which they already had, which had been purchased in Missouri, and there delivered to them a few days before. This sale and delivery in Missouri constituted, in effect, an open account. Sharpensteen at 522.

Additionally, our investigation of other decisions reveals that those jurisdictions with similar “hot check” statutes hold generally that payment of a pre-existing debt by a worthless check is not a violation of those statutes. See 59 ALR 2d 1160.

The second contention is that the trial court erred in not granting a directed verdict for lack of evidence that Ridenhour obtained anything of value through his actions, as required by § 67-720. The question went to the jury on whether Ridenhour, by exchanging the one large check for the three smaller ones, had procured something of value. The state offers three ways in which the appellant obtained something of value through this exchange. First, they suggest, that had Montgomery not given up the three smaller checks, the drawee bank would have honored any of the smaller checks singly, if there were sufficient funds, whereas after the exchange, Ridenhour was protected from the sellers collecting on any one of them. However, at the time of the exchange — the record shows that there were insufficient funds to cover any one of the three smaller checks — and this was true throughout the remainder of the month of March. Thus, both Montgomery and Ridenhour remained in the same position they had been in prior to the exchange of the three smaller checks for the one larger one.

The state argues that by the exchange of the three checks, Ridenhour gained relief from any threatened legal action. This argument ignores the fact that Montgomery could have sued at any time on the underlying debt, whether it was holding three smaller checks or one larger one.

The state’s last point is that Ridenhour testified he had asked Montgomery to hold the check until he could make it good. This testimony was contradicted by Montgomery. Were we to accept Ridenhour’s testimony, the state argues that Ridenhour was buying time and thereby gained an extension of credit by having Montgomery hold the check. Again, the state ignores the fact that this would be true whether Ridenhour had asked Montgomery to hold the smaller checks or the large check. Nothing of value was either given or received by the exchange of checks, the parties remained in exactly the same position as they were before the exchange.

Reversed and dismissed.

Hickman, J., dissents.

       67-720. Obtaining property with check drawn on insufficient funds. — It shall be unlawful for any person to procure any article or thing of value, or to secure possession of any personal property to which a lien has attached or to make payment of any taxes, licenses or fees, or for any other purpose to make or draw or utter or deliver with intent to defraud, any check, draft or order, for the payment of money, upon any in-state or out-of-state bank, person, firm or corporation, knowing at the time of such making, drawing, uttering or delivering, that the maker, or drawer has not sufficient funds in, or on deposit with, such bank, person, firm or corporation for the payment of such check, draft or order, in full, and all other checks, drafts or orders upon such funds then outstanding.

      (Statute in force at time of Sharpensteen decision).§ 67-717. Drawing a check or draft on bank outside State with insufficient funds. — It shall be unlawful for any person in this State to secure any goods, wares, and merchandise, credit, or anything of value by means of a check or draft drawn upon any bank or institution outside of the State of Arkansas when said check or draft shall be dishonored or payment refused on account of the giver of such draft or check not having sufficient funds on deposit in said bank to pay said check or draft.


author: Per Curiam. Richard B. Adkisson, Chief Justice,

text:
    Robert DOUGLAS et al v. Florence Albertine JONES
    83-63
    651 S.W.2d 69
    Supreme Court of Arkansas
    Opinion delivered May 16, 1983

      Henry & Mooney, by: John R. Henry, for appellants.
    No response by appellee.
   Per Curiam.

Appellant’s motion for belated appeal is granted.

Richard B. Adkisson, Chief Justice,

dissenting. I would deny the appellants’ “Request For Late Filing Due to Improper Handling in the U.S. Mail.” Appellants’ excuse for late filing is merely that their brief mailed in Newport, Arkansas, on April 14, 1983, was not delivered to this court on the filing deadline, April 15, 1983, as they had expected.

If deposit in the mail is to be considered delivery to this court, then I would simply change the rules to say so. The rule change would then apply equally to all parties and attorneys.