text:
    ROACH MANUFACTURING COMPANY et al v. Willadean COLE
    79-50
    582 S.W. 2d 268
    Opinion delivered June 11, 1979
    (In Banc)

      Laser, Sharp, Haley, Young & Huckabay, P.A., for appellants.

      Gardner & Steinsiek, for appellee.
   George Rose Smith, Justice.

In 1976 the General Assembly amended the workers’ compensation law to provide that death benefits are payable to persons who were “actually” dependent upon the deceased employee. Ark. Stat. Ann. § 81-1315 (c) (Repl. 1976). In the present case the Commission, construing the amendatory language, held that the appellee, as the widow of her deceased husband, Glenn Cole, was not entitled to death benefits for herself, because she was not actually dependent upon him at the time of his death, but she was entitled to recover benefits for the couple’s l()-year-old daughter, Sherri Lyn Cole, because she was actually dependent upon her father at the time of his death. The circuit court affirmed the Commission’s decision. An appeal and cross appeal bring both points to this court for review.

The basic facts are not in dispute. Glenn and Willadean Cole were married in 1965. Their daughter was born in 1966. In June, 1975, while the family was living in Rector, Arkansas, Glenn left his wife and child and moved to Memphis, Tennessee, where he married another woman without having divorced his wife. Willadean knew that her husband was in Memphis, but she supported herself and her daughter as best she could and made no attempt to obtain anything from her husband. Glenn was accidentally killed in the course of his employment on May 18, 1976.

The statute defines a widow as “the decedent’s legal wife, living with or dependent for support upon him at the time of his death.” It defines widower as “the decedent’s legal husband who, at the time of her death, was living with and dependent upon her for support and was incapacitated to support himself.” It defines a child as “a natural child, a posthumous child, a child legally adopted prior to injury of the employee, a stepchild, an acknowledged illegitimate child of the deceased or spouse of the deceased, and a foster child, ‘Child’ shall not include married children, unless wholly dependent upon the deceased.” § 81-1302.

Before the 1976 amendment to the statute death benefits were payable to persons who were “wholly dependent” upon the deceased employee. In quoting the 1976 amendment we have italicized the words that were added by the General Assembly:

Subject to the limitations as set out in Section 10 of this Act, compensation for death of an employee shall be paid to those persons who were wholly and actually dependent upon him in the following percentage of the average weekly wage of the employee, and in the following order of preference:
First. To the widow if there is no child, thirty-five percent (35%), and such compensation shall be paid until her death or remarriage. Provided, however, the widow shall establish, in fact, some dependency upon the deceased employee before she will be entitled to benefits as provided herein.
To the widower, if there is no child, thirty-five percent (35%), and such compensation shall be paid during the continuance of his incapacity or until remarriage. Provided, however, the widower shall establish, in fact, some dependency upon the deceased employee before he will be. entitled to benefits as provided herein.
Second. To the widow or widower if there is a child, the compensation payable under the First above, and fifteen percent (15%) on account of each child.
Third. To one child, if there is no widow or widower, fifty percent (50%). If more than one child, and there is no widow or widower, fifteen percent (15%) for each child, and in addition thereto, thirty-five percent (35%) to the children as a class, to be divided equally among them. [§ 81-1315 (c).]

As we have said, the statute formerly referred to persons who were “wholly dependent” upon the decedent, but we did not construe those words literally. The decisive case, which has been followed, is Chicago Mill & Lumber Co. v. Smith, 228 Ark. 876, 310 S.W. 2d 803 (1958). There the husband, at the time of his death, was not contributing to the support of his wife or children. The Commission disallowed the widow’s claim, on the ground that she was not a dependent, but allowed the claim of the children. We held that both the widow and the children were “wholly dependent,” upon this reasoning:

It would be possible to construe this provision of the Act as depriving a widow or child of any compensation when, as here, the husband and father was completely void of any sense of family obligation. But it is a rule that remedial legislation shall be liberally construed. We believe the Legislature used the term “wholly dependent” in the sense of applying to those ordinarily recognized in law as dependents, and this would certainly include wife and children.

We assume — under our settled law we must assume — that the legislature, in deciding to amend the statute, knew the meaning that we had attributed to “wholly dependent.” Williams v. Edmondson, 257 Ark. 837, 250 S.W. 2d 260 (1975). It unavoidably follows that the addition of the word “actually” was intended to change what amounted to a conclusive presumption of dependency under our prior cases. It follows at least that when, as here, the widow and child were not living with the employee at the time of his death, there must be some showing of actual dependency.

We have said, where there is no presumption of dependency, that dependency is a fact question to be determined in the light of surrounding circumstances. Smith v. Farm Service Cooperative, 244 Ark. 119, 424 S.W. 2d 147 (1968). The fact of dependency is to be determined in the light of prior events and not to be controlled by an unusual temporary situation. Nolen v. Wortz Biscuit Co., 210 Ark. 446, 196 S.W. 2d 899 (1946). Larson summarizes the rule applicable under statutes requiring actual dependency: “Proof of bare legal obligation to support, unaccompanied by either actual support or reasonable expectation of support, is ordinarily not enough to satisfy the requirement of actual dependency.” Larson, Workmen’s Compensation Law, § 63 (1976).

It was of course the responsibility of the Commission to decide the two issues of fact, as to the wife and as to the child. We find that both the Commission’s conclusions are supported by substantial evidence. The question, as we have frequently said, is whether the proof supports the finding that was made, not whether it would have supported the contrary conclusion. Mosley v. El Dorado Sch. Dist., 254 Ark. 326, 493 S.W. 2d 427 (1973).

With respect to the wife, she elected to attempt to support herself and made no effort during her husband’s 11-month absence preceding his death to enforce whatever legal right to support she may have had. Thus the Commission could find that she failed, in the language of the amended statute, to “establish in fact some dependency” upon her husband at the time of his death. On the other hand, the Commission could also find, with respect to a 10-year-old child who was being supported by her mother, that the same lapse of 11 months without legal action on the mother’s part did not demonstrate, in Larson’s language, that there was no longer any “reasonable expectation of support” on the part of the father. The child was not able to act for herself. Her necessary expenses would naturally increase as she grew older, with the concurrent possibility that her mother would not be able to maintain the child in “her accustomed mode of living,” as we expressed it in Smith v. Farm Service Cooperative, supra. Thus a reasonable expectation of future support could be found.

Affirmed.


source: Caselaw Access Project

author: John A. Fogleman, Justice.

license: Public Domain

text:
    Carl Dee GORDON et ux v. Barbara R. WELLMAN
    79-140
    582 S.W. 2d 22
    Opinion delivered June 11, 1979
    (Division II)

      Charles Mott, Jr. and J. Fred Jones, for appellants.

      Gannaway, Darrow & Hanshaw, by: Lance L. Hanshaw, for appellee.
   John A. Fogleman, Justice.

It is with some reluctance that we find it necessary to reverse the decree in favor of appellee and dismiss this action she brought for partition, based on her claim to a 1/3 interest in a tract of land which was owned by her former father-in-law, C. A. Wellman, who died testate in 1941. Under the terms of his will, the tract, consisting of 5.23 acres, descended to his three children — his son, Harry, and his daughters, Helen and Carmelita (Novara) — as tenants in common. Helen, a registered nurse, had lived with and cared for her father during the last year of his life. He had lived in a house on the property. She continued to live in the house situated on that tract until her death in June, 1975. There was evidence tending to show that she had made improvements on the property and had paid the taxes on it. In 1950, Helen caused quitclaim deeds to be prepared and sent to her brother and sister for signature. The deeds were executed by them and returned to her, and both of them were filed for record on February 27, 1951. Appellee, Barbara Wellman, was then the wife of Harry Wellman, having been married to him for over 20 years. Barbara did not sign that deed or relinquish her dower right in the property. It was executed by Harry on November 20, 1950. These deeds to Helen contained an error in the description of the land. Only the beginning point of a purported metes and bounds description was correct. The major error in the description was the omission of the first course and distance from what would have been a correct description. As a result, the courses described do not close and these deeds were obviously void for indefiniteness. Bailey v. Martin, 218 Ark. 513, 237 S.W. 2d 16.

Harry and Barbara were divorced by decree entered October 6, 1952. Barbara was represented by attorney Ward Martin and Harry by E. H. Bostic. A settlement in lieu of alimony was reached and Martin prepared two warranty deeds which Harry executed on that date, to carry the agreement into effect. One of them was a conveyance of Harry’s undivided 1/3 interest in the 5.23 acre tract to Barbara. The tract was correctly described in that deed. The deeds were recorded on the day the decree was entered and Harry was married to someone else on that same date. The decree recited that the deeds were given in lieu of alimony.

In May, 1953, Harry and Carmelita again executed quitclaim deeds to Helen. These deeds correctly described the property and contained a recitation that they were correction deeds. The deed drafted for execution by Harry was drawn for execution by the husband and wife as grantors and contained a clause for relinquishment of dower. Barbara did not sign this deed, and, if Harry’s wife to whom he was then married signed it, that fact is not disclosed by the record.

On July 28, 1953, Helen secured a $2,000 loan by executing a mortgage on the property to National Equity Life Insurance Company. There is testimony indicating that this loan was for improving the property. She continued in possession of the property until she sold all of it, except the house and the small lot on which it sat, to appellants, Carl Dee and Mary Frances Gordon, husband and wife, by warranty deed dated July 21, 1958. The part retained by Helen passed by will to her sister Carmelita and Carmelita’s husband. When the sale was made to the Gordons, the title was approved by their attorney who examined an abstract which erroneously showed that appellee had executed the correction deed with Harry and had thereby relinquished her dower. The Gordons took possession of the tract and commenced placing dirt on it.

This suit for partition was filed on September 9,1958, by Ward Martin, as attorney for Barbara Wellman. Helen Wellman and the Gordons were defendants. The petition contained allegations that Barbara owned an undivided 1/3 interest in the 5.23 acre tract, that Helen and the Gordons owned an undivided 2/3 interest, and that Helen had been in possession since October 6, 1952. The prayer was that the property be sold and the proceeds divided, and that Barbara have judgment against Helen for $1,000, as one-third the rental value of the property. Helen Wellman filed an answer through her attorney O. D. Longstreth. This answer included a general denial and pleas of laches, adverse possession, and the statute of limitations specifically relating to the bar of a dower interest. The Gordons, through their attorney Shelby Blackmon, ansvyered by general denial, but did not plead the other defenses set out in Helen’s answer. They also cross-complained again jt Helen Wellman on her warranty of title and requested that the abstract company be made a party defendant.

After some sort of hearing before Chancellor Williams, of which no record was ever made, the litigation remained in virtual hibernation until August 31, 1971, when the Gordons filed a motion to dismiss for want of prosecution. Barbara’s attorney, Ward Martin, filed a response asserting that the case had been partially tried before Chancellor Williams, that certain matters were then left to be resolved, that the Chancellor had died before the case could be concluded and that Barbara had at all times been willing to close the matter, but not on the terms of the defendants. Appellee asked that the case be set for trial on December 13, 1971. It seems that a hearing on the motion had been set for some unspecified date, but according to the testimony of Blackmon, Martin caused the case to be taken off the docket, for reasons undisclosed, and it returned to a state of dormancy until March 9, 1976, when Martin was permitted to withdraw and appellee’s present attorneys were substituted. The motion to dismiss was heard and denied on April 8, 1977.

The cause of action against Helen Wellman was not revived within one year after her death, or at any time prior to trial on August 12,1977. Appellee’s present counsel appeared and announced that he was ready for trial after the motion to dismiss was denied on April 8, 1977. Appellants never amended their pleading first filed to plead adverse possession, laches, or the statute of limitations, prior to the actual trial.

We consider only one point for reversal, insofar as the disposition of this appeal is concerned. Appellants assert that appellee is barred by laches in the prosecution of her claim. Appellants admit that they have been unable to find any Arkansas case applying the bar of laches to the prosecution of a claim after suit has been filed. They rely upon the general principles of the doctrine and the decisions of other jurisdictions. We are not aware of any such decision by this court.

Of course, the court in which an action is pending is authorized by Ark. Stat. Ann. § 27-1405 (Repl. 1962) to dismiss a case, without prejudice to a future action, on motion of a defendant, where there are others whom the plaintiff fails to prosecute with diligence, where the plaintiff fails to appear for trial, or where the plaintiff has disobeyed an order concerning the proceedings in the action. None of these grounds has been clearly shown to exist, although appellants filed a motion to dismiss, as previously mentioned, and made some effort to obtain a dismissal by such a motion. In that motion, appellants alleged that, since the cause had remained dormant since they filed their answer and cross-complaint on September 26, 1958, without any further pleading or court order of record, it was subject to dismissal under § 27-1405 and Rule 10, Uniform Rules for Circuit and Chancery Courts. At a pretrial hearing on April 8, 1977, this motion was renewed. At that time, Blackmon, representing appellants, stated that an order of the court had not been carried out and that appellants had made efforts to have the case brought to a conclusion to the extent of writing letters to Chancellor Williams. He pointed out that in the response to the motion, appellee had asked that the case be set for trial on December 13, 1971. Blackmon stated that he appeared in court on that date, but that appellee, the plaintiff, did not appear. Nothing seems to have been done at that hearing, but Blackmon pointed out that the court file contained a copy of a letter he had written in 1962 to Martin in an effort to conclude the matter. The copy had been sent to Chancellor Williams, according to Blackmon. The letter related that the case had been partially tried and that the abstract company had agreed to pay for the amount of the dower interest awarded to Barbara. In the letter, Blackmon had stated his intention to apply to the court for dismissal on a certain date. The record is devoid of any evidence of any action on that date or at any time prior to March 9, 1976, when the chancery court permitted Ward Martin to withdraw and present counsel for appellee to be substituted.

We can well understand why the trial court did not grant the motion filed on the grounds stated in it. Both the statute and the rule relied upon provide only for a dismissal without prejudice. This would permit an immediate refiling. There is every reason to believe that the case would have been refiled, because it is clear from this record that appellee’s present counsel have pursued the matter aggressively and acted with reasonable diligence in bringing the matter to trial, particularly when we view the confusion that has resulted from the long delay after the hearing before Chancellor Williams.

Even though neither the statute nor the rule made the dismissal mandatory and neither would have terminated this fusty litigation, the power and duty of the court to dispose of such cases is not limited to, or by, the statute, much less the court rule, where there has been a lack of diligence on the part of a plaintiff. We recognized in Thompson v. Foote, 199 Ark. 474, 134 S.W. 2d 11, the inherent power of courts, independent of statute or rule, to dismiss a case because of failure to prosecute with due diligence. See also, Chandler v. Furlow, 209 Ark. 852, 192 S.W. 2d 764; Cowan v. Patrick, 247 Ark. 886, 448 S.W. 2d 336; Otwell v. Bolen, 261 Ark. 1, 545 S.W. 2d 634; Chalkley v. Henley, 178 Ark. 635, 12 S.W. 2d 18. In Thompson, we held that an order of dismissal by the trial court would not be reversed on appeal in the absence of a manifest abuse of discretion. The same rule should apply where a motion for dismissal is denied. That it will, may at least be inferred from Chalkley v. Henley, supra.

On the motion presented to the chancellor and the showing made in its support, we could not say that the court’s discretion was manifestly abused by denial of the motion. But the matter did not end there. Contrary to appellee’s assertion, appellants did raise the question of laches in the trial court, even though a pleading raising that defense was never filed by them. In the opening statement, appellants ’ present counsel stated that they were alleging laches and adverse possession, in addition to res judicata. He specifically stated that appellants contended that the case should have been dismissed for want of prosecution on account of laches and pointed out that Helen Wellman was dead and that the Gordons had made improvements on the property. Appellee made no objection to appellants’ raising these issues and did not claim surprise, even though her attorney had objected to the injection of res judicata into the case. Evidence was directed to the issue of laches in the trial. There is no indication that the trial court declined to permit the issue of laches to be raised. We find no objection during the trial to the evidence in support of the question of laches in prosecution of the suit. Objections were made and sustained on evidence in support of the plea of res judicata. Under these circumstances, we find that the issue was raised in the trial court. Ark. Stat. Ann. § 27-1160 (Supp. 1977); Parker v. Jones, 221 Ark. 378, 253 S.W. 2d 342; Nance v. Eiland, 213 Ark. 1019, 214 S.W. 2d 217. See also, Sarber v. McConnell, 64 Ark. 450, 43 S.W. 395; Old American Life Ins. Co. v. Harvey, 242 Ark. 720, 415 S.W. 2d 66.

As appellants point out, there is textbook authority, amply supported by cited cases, for application of the doctrine of laches where a plaintiff fails to prosecute his suit diligently, just as it may be applied where no suit has been begun. 30A CJS 44, Equity, § 115; Annot, 43 ALR 921, 923. It seems that the application of the doctrine of laches to a pending action where the plaintiff fails to prosecute it with diligence has wide support. Appellants appropriately place considerable reliance upon State v. District Court, Lewis & Clark County, 132 Mont. 377, 319 P. 2d 957 (1957), cert. den. 356 U.S. 931, 78 S. Ct. 773, 2 L. Ed. 2d 761 (1958). That court said:

It has long been recognized that the courts have authority to dismiss an action for lack of diligence in its prosecution. *** This is the rule throughout the country. *** [Citations omitted.]
Here the motion of Sanborn to set aside the order of Judge Horsky was not brought on for hearing until after the lapse of more than twelve years after it was filed. Courts have held a plaintiff guilty of laches in failing to prosecute his action with reasonable diligence on much shorter delay than that here. *** [Citations omitted.]
It is contended that if Sanborn was guilty of laches so was Johnstone. This contention is without merit for the courts hold that while defendant has the right to call a motion of plaintiff on for hearing it is not his obligation to do so, but the obligation to prosecute the action with diligence rests with the plaintiff. ***
*****
The matter may not be permitted to slumber for more than twelve years during which time Johnstone occupied the premises and during which time the claim for rentals multiplied.
We realize that ordinarily whether an action should be dismissed for want of diligence in its prosecution is a question that rests in the discretion of the court. However, here there were no facts asserted that tend in any way to furnish an excuse for the delay and hence there was nothing to move the discretion of the court. True the motion was filed in June, 1944, and Sanborn asserts that he made frequent demand upon Johnstone for possession of the land, but this does not show an excuse for not bringing the motion on for hearing.
For the unconscionable delay by plaintiff Sanborn in bringing his motion on for hearing for more than twelve years after it was filed, it must be held that he is, and has been, guilty of such laches as to bar relief and the court was in error in not sustaining Johnstone’s motion to dismiss the action. It should have granted the motion with prejudice.

The Supreme Court of Alabama pointed out in Creel v. Baggett Transportation Co., Inc., 284 Ala. 47, 221 So. 2d 683 (1969), that it always has been the practice of courts of equity to remain inactive where the party seeking relief has been guilty of unreasonable laches in making his application and that the doctrine applies with the same consequences where the person seeking relief fails in the prosecution of the suit as fully as it does when he delays the bringing of suit. In that case, the delay of eleven years was held to be unjustified on the basis of the excuse offered for it. The result reached in Segers v. Ayers, 95 Ark. 178, 128 S.W. 1045, is a close approach to the application of this doctrine.

Of course, it is well recognized that laches does not apply in such cases unless the opposing party has suffered prejudice as a result of the delay. Lawrence v. Potter, 91 W. Va. 361, 113 S.E. 266 (1922); Creel v. Baggett Transportation Co., Inc., supra. This is in keeping with our own application of the doctrine of laches in other situations. See Hendrix v. Hendrix, 256 Ark. 289, 506 S.W. 2d 848; Matlock v. McCracken, 251 Ark. 972, 479 S.W. 2d 508; McKim v. McLiney, 250 Ark. 423, 465 S.W. 2d 911. In Segers v. Ayers, supra, we adopted language of the United States Supreme Court in Mackall v. Casilear, 137 U.S. 556, 11 S. Ct. 178, 34 L. Ed. 776 (1890), that is peculiarly appropriate here, viz:

*** The doctrine of laches is based upon grounds of public policy, which require for the peace of society the discouragement of stale demands. And where the difficulty of doing entire justice by reason of the death of the principal witness or witnesses, or from the original transactions having become obscured by time, is attributable to gross negligence or deliberate delay, a court of equity will not aid a party whose application is thus destitute of conscience, good faith and reasonable diligence.

It is clear from our cases that the prejudice or disadvantage that makes the enforcement of a claim inequitable may lie in loss of evidence by death of principal witnesses or by other means, or the obscuring of original transactions attendant upon passage of time, among other things.

We have no difficulty in finding that the delay in this case was unreasonable and the disadvantage to appellants was such as to make it inequitable at this late date to enforce appellee’s claim to an interest in this real estate.

The issues were complex and numerous, to say the least, and the conclusion that their complexity was aggravated by the delay is inescapable. All parties to this litigation seem to agree that a hearing of sorts was held before the late Chancellor Guy Williams, soon after the case was at issue. No one seems to know just when this took place or what was done. There is testimony that some testimony was given at that time by Barbara Wellman. There is also testimony that no testimony was heard then. There was testimony that the chancellor had held that neither Helen Wellman nor the Gordons would lose the property, but that Barbara must be compensated for her interest and that the court left it to the lawyers to work out the amount. Some testimony indicated that only ten days were given. There is also testimony that indicates that no time limit was fixed. There is testimony that a representative of the abstract company that erroneously showed a relinquishment of dower by Barbara was present at the hearing and agreed to pay whatever amount was due Barbara. Blackmon testified that, as a result of this hearing, repeated assurances by Barbara’s and Helen’s attorneys that they would agree upon an amount, the abstract company representative’s assurance in open court, and the ensuing delay, the opportunity to obtain service on the abstract company and bring it into court as a formal party had been lost. Although it is clear that there were some communications among the parties during the hibernation of the law suit, their nature and content are not shown. It is also suggested that there were other hearings of some sort during this extended period, but the record discloses nothing to indicate when they were held or what took place. There seems to have been a disagreement as to the basis for compensating Barbara. It appears that one view was that she was entitled to a life estate in a one-third interest. This question was not resolved before the trial on August 12, 1977.

It appears that the parties all agree that a court reporter was present at the hearing before Chancellor Williams, but they appear to disagree on the question whether any of the proceedings were taken down by the reporter. It is difficult to see how any of the many issues in this case could have been resolved at that time, without hearing evidence. It might be inferred that the entire hearing was only a settlement conference. One witness said that it took place in the judge’s chambers.

The testimony of Longstreth and that of Martin would have been helpful. The testimony of Helen Wellman, appellants’ grantor, was almost indispensable. The nature of her possession of this real estate is a critical issue. No one else was as well informed on that subject as she would have been. No one else could know what disinterested witnesses were available to testify on that question. Only Ward Martin knows why no appearance was made on the date he chose for trial of the case, after it had already been pending for 13 years. His testimony was also badly needed on another question. Harry Wellman and Barbara Wellman disagree on the circumstances surrounding the execution of the deed to Barbara. Harry said he was coerced by Martin and that he signed it in Martin’s office. He also testified that Martin had discovered the error in the description of the first quitclaim deed to Helen and said so at the time, in Barbara’s presence, but demanded that Harry sign the warranty deed to Barbara anyway. Barbara denied that there was any such conversation in her presence and stated that she knew nothing of any conveyance by Harry to Helen. She testified that the deed was signed in the courtroom. There is a clear indication from the record that Martin, who had retired from the practice of law before the case was tried, was physically unable to testify. It is suggested that O. D. Longstreth is dead.

The fact that time had obscured memories is clearly indicated by Gordon’s reference to notes in testifying. It developed that he had, at some time, destroyed the notes he had taken at the hearing before Chancellor Williams, but he said he had copied them when he learned he was to have testified at a second trial, which had been scheduled, but not held. Later he admitted that his notes had been made some four or five years before the final hearing rather than at the time of the first hearing. He had also written something on the notes the day he testified. He called the notes “something he had pulled back from his memory.”

It was shown that appellants had built a house on the property and moved into it in 1962. This was done on assurance from Blackmon that, as a result of the first hearing, the understanding among him, Martin and Longstreth about the disposition of the case, and the commitment of the abstract company, there would be no risk involved.

This is a case which calls for the application of the doctrine of laches to appellee’s lack of diligence in the prosecution of her suit.

The decree is reversed and the cause dismissed.

We agree. Harris, C.J., and Byrd and Hickman, JJ.


text:
    Eugene Leroy JOHNSON v. Louise Marie JOHNSON
    79-14
    582 S.W. 2d 32
    Opinion delivered June 11, 1979
    (Division II)
    [Rehearing denied July 9, 1979.]

      Jeff Duty, for appellant.

      John E. Jennings, for appellee.
   John A. Fogleman, Justice.

This divorce suit, filed on July 30, 1976, resulted in a decree entered August 31, 1978, terminating a marriage that had existed since August, 1974. Both parties had been previously married, at least once. They had lived together in appellant’s home in apparent harmony for five weeks prior to the marriage, but discord seems to have commenced shortly after the marriage. Appellant was 58 years old and appellee, 46, at the time of the trial. The suit was brought by Eugene Leroy Johnson, the husband, appellant here, upon allegations of indignities toward him which rendered married life between the parties intolerable and impossible. Appellee countered with a general denial and a counterclaim for divorce, alleging a course of conduct constituting indignities consisting of rude and abusive treatment. She alleged that she was unemployed and without means of support, and sought a division of property, along with temporary allowances. The chancery court granted a divorce to appellant, denied appellee’s counterclaim and awarded appellee one-third of appellant’s personal property, which the court found to have a total value of $900, and one-third of appellant’s real estate for her iife. Appellant contends that the court erred in awarding the wife the interest in the husband’s property permitted by Ark. Stat. Ann. § 34-1214 (Repl. 1962) where a divorce is granted to the wife.

It has long been recognized that alimony may be awarded to a guilty wife. Pryor v. Pryor, 88 Ark. 302, 114 S.W. 700; Walker v. Walker, 248 Ark. 93, 450 S.W. 2d 1. It was clearly established that the chancery courts have the power to award a part of the husband’s real estate as alimony when divorce was granted to the husband by our decision in Cook v. Cook, 233 Ark. 961, 349 S.W. 2d 809. In Cook, we said that the award must be reasonable concerning the “nature of the case” as provided in Ark. Stat. Ann. § 34-1211 (Repl. 1962) governing alimony generally. That statute also requires consideration of the circumstances of the parties. We said in Cook that the amount of the award lay in the sound discretion of the trial court. Or, as put in Ferguson v. Ferguson, 251 Ark. 585, 473 S.W. 2d 869, such an award may be made when the equities call for it. It is clear from these cases that this court will reverse only for abuse of the trial court’s discretion. See also, Walker v. Walker, supra.

The question then is whether the chancellor abused his discretion in the matter. As in Cook, the husband was not totally blameless. The chancellor, in approaching the question, indicated that he considered the wife to be the greater offender. I’he chancellor pointed out that appellant had been evasive about his wife’s charges that he had been engaging in both selling and excessive drinking of alcoholic liquor at their home. The chancellor said that appellant was not to be complimented on his conduct and that the temper tantrums he had suffered at the hands of appellee may have been provoked by him. He felt that the equities justified the award.

It seems that during the pendency of the divorce suit, the court had directed appellant to provide Mrs. Johnson with a suitable place to live, but it seems that he did not do so. He was recalcitrant about payment of temporary alimony and seems to have paid it only when forced to do so on judgments for arrearages. At the time of the trial, more than a year had elapsed since he had made any payments at all. Mrs. Johnson testified that appellant had struck, kicked and beaten her. The only corroboration of physical violence inflicted on her was the testimony of her mother, who said that her daughter had bruises on her legs on two occasions and that once the daughter had a black eye. She admitted that she did not know the cause of either the bruises or the black eye.

As in Cook, the chancellor saw and heard these people on more than one occasion and was in a superior position to assess blame and to judge the equities. The mere fact that he awarded appellee personal property worth $300 and a one-third life interest in six tracts of real estate from which appellant had rental income of $465 per month is not indicative of an abuse of the trial court’s discretion.

Of course, it is clear that this decree is not affected by Act 705 of 1979 on the subject of ali'mony and distribution of property in divorce cases and the previous decisions of this court on alimony, such as that involved here, may have little bearing on the subject in cases affected by that act.

The decree is affirmed.

We agree. Harris, C.J., and Hoi.t and Hurtle, JJ.

Byri>, J., dissents.


author: Co.ni.ky Byrd, Justice. John A. Fogleman, Justice, Darrell Hickman, Justice.

text:
    Mary Lou STONER v. Louis B. HOUSTON et ux
    78-321
    582 S.W. 2d 28
    Opinion delivered June 11, 1979
    (In Banc)

      James L. Sloan, for appellant.

      John R. Elrod, of Elrod, Elrod, Elrod <3? Lee, for appellees
   Co.ni.ky Byrd, Justice.

This is an appeal of an action for trespass and damage to timber that was heard in the Benton County Circuit Court. The appellant, Mary Lou Stoner, was found to have trespassed and damaged timber on the land of the appellees, Mr. and Mrs. Louis Houston. The jury awarded the Houstons damages for the timber damage in the sum of $1,000.00; for the trespass, $1.00 actual, and $10,000.00 punitive damages. The trial judge tripled the award for timber damages to $3,000.00. The judgment was for $13,-001.00.

'Fhe issues raised on appeal by Stoner are: There was no malice proved and the trial court improperly tripled the $1,-000.00 award; the punitive damages were improper because they were based on a nominal award of $1.00; the two awards were unconstitutional because they amounted to a double recovery; and, the $10,000.00 award was excessive.

We find two errors requiring reversal: The court erroneously tripled the jury’s verdict of $1,000.00, and the verdict did amount to a double recovery based on the same incident. We will discuss these and the other errors alleged that might arise on a rehearing.

'Fhe relevant facts are as follows: Mrs. Stoner owned two tracts of land, a 40 acre and a 17 Zi acre tract. The 17 Vz acre tract, which she occupied, was completely surrounded by the Houstons’ land. The road Mrs. Stoner used as access to her property had been a source of contention between the parties, involving several court appearances, in fact, it ran right by the Houstons’ house. Their respective rights were determined by court order. Mrs. Stoner claimed access from her 40 acre tract to her 17 Vz acre tract also through the Houstons’ land, over an old logging road.

Without consulting the Houstons, Mrs. Stoner hired a bulldozer and directed it to drive down two old logging roads, clearing out existing trees, saplings and brush. The dozer blade was used as a drag and the dozer was backed down the roads. Small trees along the roads were knocked down, or pushed over.

The Houstons were quite upset and there was a confrontation between the parties. According to one version of the testimony, Mrs. Stoner gave the Houstons a cursing; also, she had a pistol in evidence.

The Houstons filed this suit for damages to their trees and land. The trees were all small, but, according to one exhibit, numbered over 100. The damage to the land was claimed to be the bulldozing of dirt. The Houstons contended it was the beauty of their land that was damaged. Mrs. Stoner did not have permission to do this act; she claimed she was merely maintaining the roads.

An expert witness testified the Houstons’ land was damaged $1,000.00 to $1,200.00. (Two measures of damages are allowed for an action under Ark. Stat. Ann. § 50-105 [Repl. 1975 j; the value of the timber, or the damage to the market value of the land.) See Laser v. Jones, 116 Ark. 206, 172 S.W. 1024 (1915).

Mostly, Mrs. Stoner’s evidence was that the roads were open, the damages were none, and she had a right to clean them out.

The Houstons offered proof that the road to the 171/’ acres was grown up, impassable to the ordinary car or truck; it was only a trail, and Mrs. Stoner had no right to even use it. Mrs. Stoner offered testimony the road was grown up, but passable, and that was precisely why she ordered it cleaned out. The other logging road was more passable.

The jury agreed with the Houstons and returned a verdict totaling $11,001.00. The judge added $2,000.00 more as we had indicated.

'['here is substantial evidence to support the jury’s finding that Mrs. Stoner acted with malice. The parties had been in court several times over one road. Both parties’ rights thereto were defined by court order. There had been other confrontations over fences and acreage. Knowing all this, Mrs. Stoner proceeded to have the bulldozer go to work, widening the old logging roads. The good faith argument by Mrs. Stoner was a question of fact for the jury. According to some testimony, Mrs. Stoner gave the Houstons a cursing and declared she would eventually own their property and they would be sorry they ever heard of Siloam Springs.

Malice, as the court instructed the jury, is the intentional doing of a wrongful act without justification or excuse.

In our judgment, the trial judge improperly tripled the jury’s $1,000.00 award. The statute the Houstons claimed under authorized treble damages for malicious destruction or removal of timber. Ark. Stat. Ann. § 50-105 (Repl. 1975). However, the jury had been instructed, “. . . If you find that the Houstons’ trees were maliciously destroyed by Mrs. Stoner . . . you will triple the amount of actual damages, if any, suffered by the Houstons and award them that amount.” (Emphasis added.) The jury was given interrogatories and first found Mrs. Stoner had unlawfully destroyed trees; next they found “the damages” to be Si,000.00; and, finally, they found Mrs. Stoner’s conduct malicious.

The trial judge, no doubt, decided the jury had only returned a verdict for actual damages and had not tripled them. The only evidence of monetary damages was the expert’s testimony of SI ,000.00 to $1,200.00. Consequently, the judge tripled the SI,000.00 award. That was an assumption that cannot be made in the fact of an unequivocal instruction for the jury to decide the damages and then triple them. A jury may return a verdict for less than the evidence shows, and we have upheld such verdicts. Pickett Lake Farms v. Sullivan & Jones, 245 Ark. 709, 434 S.W. 2d 88 (1968).

The appellees argue there was no objection to the instruction and interrogatories, and, therefore, this issue cannot be argued on appeal. There was nothing wrong with the instruction or the interrogatories. We have approved either the jury or the court tripling damages, although the better practice is for the court to triple the damages. Memphis & Little Rock Railroad Co. v. Carlley, 39 Ark. 246 (1882).

Since there was no need to object to the instruction or interrogatories, the appellees’ argument is without merit.

The Houstons’ lawsuit was for damages to timber under Ark. Stat. Ann. § 50-105 (Repl. 1975), and common law trespass. The statute allows triple damages, which are punitive in nature, and the Houstons sought punitive damages in connection with the trespass. They were awarded both. In this case, under the facts recited, it amounted to a double punitive recovery for the illegal act. The elements of damages were the same, and such a recovery is prohibited. 25 C.J.S. Damages, § 3. See, also, John Mohr & Sons, Inc. v. Jahnke, 55 Wis. 2d 402, 198 N.W. 2d 363 (1972).

The Houstons on a retrial may elect which remedy they want, but, unless they have other evidence, they cannot recover both.

While it is not necessary to deal directly with the argument that a $1.00 award as damages cannot support a $10,-000 punitive verdict, it may arise on a rehearing. The law is settled that exemplary or punitive damages is dependent upon the recovery of actual damages. Kroger Grocery & Baking Co. v. Reeves, 210 Ark. 178, 194 S.W. 2d 876 (1946); Williams v. Walker, 256 Ark. 421, 508 S.W. 2d 52 (1974). Nominal damages will not support a punitive award. Manhattan Credit Co., Inc. v. Skirvin, 228 Ark. 913, 311 S.W. 2d 168 (1958). Was the $1.00 award in this case nominal? We would have to say yes. But this is in view of the facts of this case. We have found $10.00 to be a nominal award. Manhattan Credit Co., Inc. v. Skirvin, supra. But obviously each case is different. See Ray Dodge, Inc. v. Moore, 251 Ark. 1036, 479 S.W. 2d 518 (1972).

We do not rule on the issue of excessive damages because we cannot speculate on what a jury may decide actual damages would be on a retrial.

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

John A. Fogleman, Justice,

concurring in part, dissenting in part. I agree with the majority’s conclusion that the trial court erred in tripling the jury’s verdict of $1,000 for timber damage. I certainly do not agree that the verdict amounted to a double recovery, and I thoroughly disagree with the statement that it was based on the same incident. The recovery of triple damages under Ark. Stat. Ann. § 50-105 (Repl. 1971) is for damages to the value of the thing damaged, broken, destroyed, or carried away, with costs. The things covered by the statute are trees, timber, rails, wood, stone, ground, clay, turf, mold, fruit, plants, grass, grain, corn, cotton, tobacco, hemp, or flax. The statute also covers glass in a building broken by the trespasser. It does not cover any other damages resulting from a trespass. This statute covers a particular kind of damage to a particular kind of property. It does not cover other trespasses. The appellees sought to recover for appellant’s trespass committed by entering their land and using a bulldozer to scrape the earth. It takes a stretch of the imagination to say that Ark. Stat. Ann. § 50-105 covers that kind of trespass.

As appellees point out, the trespass by cutting the trees lay in the act of cutting apd destroying them, not in the entry on the land and the scraping with the bulldozer blade. There was testimony that Mrs. Stoner had used a bulldozer to widen the road through appellees’ property, in the course of which a portion of appellees’ yard had been cut out. The soil was disturbed elsewhere, according to this testimony. Mr. Houston also testified that, before the bulldozing, the property was beautiful and scenic, but that it is now scarred with two ugly gashes across it. If the jury accepted this testimony, appellees were entitled to common law damages for this damage in addition to the treble damages for destruction of trees. It is quite clear that the jury arrived at damages on the two items separately. The interrogatories submitted separated the damage to the trees and the damage for the trespass on the land. In my opinion this was proper.

I agree with my brother Hickman that the rule that nominal damages will not support a punitive award is improper and subversive of the very purposes for which punitive damages are awarded. I would point out that in Manhattan Credit Company, Inc. v. Skirvin, 228 Ark. 913, 311 S.W. 2d 168, relied upon by the majority, we were treating Texas law, not Arkansas law. In that same case we pointed out that the authorities are hopelessly in conflict on this question, but said that Texas law applied because the conversion took place in Texas. Not only does the majority fail to cite any other case to support its position, appellant cited no other case supporting that position. Other cases cited by the appellant were cases where no actual damages were found. I do not think that we should follow our neighbor Texas in the application of an unsound and inappropriate rule.

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

Darrell Hickman, Justice.

My main disagreement with the majority is regarding its statement that punitive damages will not be awarded if only nominal damages are awarded.

Quite often punitive damages are the only remedy available to an individual to stop impermissible conduct. 1 would not like to preclude any litigant from being able to go to court and punish another person for outrageous conduct such as a willful trespass that might result in only nominal damages. For a more detailed explanation of the reasons lor punitive damages see Ray Dodge, Inc. v. Moore, 251 Ark. 1036, 479 S.W. 2d 518 (1972).


author: Frank Holt, Justice.

text:
    Donald Paul FAUNA v. STATE of Arkansas
    CR 79-7
    582 S.W. 2d 18
    Opinion delivered June 11, 1979
    (Division II)

      Michael Dabney, for appellant.

      Steve Clark, Atty. Gen., by: Robert J. DeGostin, Jr., Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

Following a jury trial, appellant was sentenced to 14 years for robbery and 8 additional years for the use of a firearm. For reversal he contends that the court unduly restricted his voir dire examination of the jurors. We must agree.

The scope of voir dire examination by counsel is largely within the sound judicial discretion of the trial court, and his limitation of that examination is not reversible on appeal unless it is a clear abuse of discretion. Finch v. State, 262 Ark. 313, 556 S.W. 2d 434 (1977). See also Ark. Stat. Ann. § 39-226 (Repl. 1962). This rule has not been materially affected by Ark. Stat. Ann. 4A, Rules of Crim. Proc., Rule 32.2 (Repl. 1977), which requires that the trial judge permit such questions by the defendant or his attorney as the judge deems reasonable and proper. Finch v. State, supra.

Here the appellant interposed insanity as a defense. Appellant’s attorney sought to elicit from individual jurors their attitude toward this defense and the required proof. The court sometimes curtailed this examination by asking the juror or jurors if they would follow his instructions as to the law. In Griffin v. State, 239 Ark. 431, 389 S.W. 2d 900 (1965), we said:

The court should have permitted counsel to question the veniremen as indicated. The mere fact that they stated that they would follow the law as given by the court was not necessarily sufficient to enable counsel to determine whether peremptory challenges should be exercised. There are very few people bold enough to say that they will not follow the law ... In many instances, counsel decides whether to use a peremptory challenge not so much on what a venireman may say, but on how he says it.

See also Cochran v. State, 256 Ark. 99, 505 S.W. 2d 520 (1974). Here we are of the view that the jurors’ assurances to the court that they would follow the law did not focus their attention or attitude upon the issue of insanity sufficiently to permit trial counsel to exercise his right of peremptory challenges.

Appellant also asserts that the court erred in instructing the jury concerning the crime of robbery. No objection was made to the instruction. In the absence of an objection, we do not reach this assignment of error. Ark. Stat. Ann. Vol. 3A, Uniform Rules for Circuit and Chancery Courts, Rule 13 (Supp. 1977); and Bousquet v. State, 261 Ark. 263, 548 S.W. 2d 125 (1977). However, since it is possible that the alleged error might occur again at retrial, we observe the instruction was an incorrect statement of the law. Other alleged errors are not likely to reoccur and, therefore, we need not reach them.

Reversed and remanded.

We agree: Harris, C.J., and Fooi.eman and Purti.e, JJ.


author: John I. Purtle, Justice.

text:
    Paul LEONARD v. STATE of Arkansas
    CR 78-148
    582 S.W. 2d 15
    Opinion delivered June 11, 1979
    (Division II)

      McArthur & Lassiter, P.A., for appellant.

      Steve Clark, Atty. Gen., by: Robert J. DeCostin, Jr., Asst. Atty. Gen., for appellee.
   John I. Purtle, Justice.

Appellant was convicted in the Sebastian County Circuit Court of possession of marijuana with intent to deliver, a violation of Ark. Stat. Ann. § 82-2617, on March 29, 1978. He was sentenced to 10 years in the Arkansas Department of Correction. From the verdict and judgment appellant brings this appeal.

In c ooperation with the Sebastian County sheriff a confidential informant named Paul Miller contacted appellant and arranged to purchase marijuana from him. During the course of the conversation the informant initiated a conversation as to whether or not appellant was interested in pills. This conversation, of course, had no specific relation to the agreement to sell marijuana even though it was during the same conversation that it was discussed. The recording of this conversation was introduced at the trial, and over the objection of the appellant the conversation relating to possible purchase of “pills” was presented to the jury. Appellant also requested that the jury be instructed not to consider the portion of the conversation relating to pills. The court overruled this request. Also, the state presented information showing Paul Miller, the confidential informant, had been convic ted of the sale of marijuana. The information about the informant was to the effect that the informant would rendezvous with a certain party in Fort Smith in order to pick up a load of marijuana. All of the details of this transaction were given. The evidence included the fact that the informant and one Mendoza were arrested for this episode. At the time this evidence was presented the state indicated it would put on evidence showing relevancy at a later time. No such evidence was presented, unless you consider the informant’s testimony that he had known appellant all his life as connecting the incident to the facts of this case. The court allowed this testimony although it admonished the prosecutor that he must tie in the testimony or run the risk of a mistrial. The testimony included the fact that the informant had been in jail for several months on a charge of possession with intent to deliver marijuana.

At the time of appellant’s arrest he was asked if he had a weapon and responded in the affirmative. The weapon was delivered to the sheriff and later introduced in evidence at the trial.

Appellant contends that the pistol should not have been introduced as it bore no relevancy to the charge of possession with intent to deliver. We have previously held that the introduction of a handgun was not prejudicial when it was found in the possession of one accused of possession with intent to deliver. Freeman v. State, 258 Ark. 496, 527 S.W. 2d 623 (1975) , and Derrick v. State, 259 Ark. 316, 532 S.W. 2d 431 (1976) . Appellant relies upon another line of cases wherein we held the introduction of handguns constituted error. He cites the cases of Everett v. State, 231 Ark. 880, 333 S.W. 2d 233 (1960); Rush v. State, 238 Ark. 149, 379 S.W. 2d 29 (1964); and Botany v. State, 258 Ark. 866, 529 S.W. 2d 149 (1975). We understand appellant’s contention in this case because there is a rather fine line of distinction between the two types of cases. We have decided each case in the light of its relevancy to the offense committed. In Freeman and Derrick we held the handguns were relevant to show the intent to deliver when considered in view of all of the circumstances. In Everett, Rush and Botany the offenses charged were of an entirely different nature and the handguns offered into evidence under the circumstances in these cases bore no relation to the intent of the accused for the offense charged. Here we believe the reasoning in this case is controlled by the facts and is more closely related to Freeman and Derrick. Therefore, we hold there was no reversible error in admitting the handgun into evidence.

The second point appellant argues is that the portion of the tape relating to the conversation about the pills should have been deleted. The reasoning is based upon Alford v. State, 223 Ark. 330, 266 S.W. 2d 804 (1954), and other cases holding that evidence of other crimes and criminal activity is not relevant for the purpose of showing intent. Although we do not see the relevancy of the conversation about the pills, we cannot say it was prejudicial error. Rule 401, Uniform Rules of Evidence, states:

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

We cannot see where the testimony about the pills made the act of possession of marijuana with intent to sell more probable or less probable than it would have been without the testimony. Nevertheless, we do not deem it prejudicial error.

The third point argued by appellant for reversal is that the court erred in admitting the testimony of past criminal involvement of the informant, Paul Miller. This appears to be a case of first impression insofar as it relates to the detailed information of the past criminal activities of a witness for the prosecution. We consider it in light of Rule 401. We fail to see the relevancy of the details of the prior criminal activities of informant Paul xMiller to the case being tried. If there is any relevancy it seems to us that such relevancy would be outweighed by the prejudicial effects it likely had on the jury. .Since the only purpose of the introduction of Paul Miller’s past criminal activity would be to show the intent of the appellant, such relevancy escapes us. Paul Miller’s past criminal activities, which did not involve appellant, simply do not shed any light on the intent of the appellant; neither do they tend to make the facts more probable nor less probable than they would be without such testimony. Under the circumstances of this case we feel this testimony, coupled with Miller's testimony that he had known appellant all his life, tends more to show the bad character of appellant than it does to prove intent. Therefore, under the circumstances of this case, we hold that such testimony was irrelevant and, constituted prejudicial error. Therefore, for this reason the case is reversed and remanded for a new trial.

Reversed and remanded.

We agree. Harris, C.J., and Fooi.kman and Hour, J J.


text:
    Charles O. FINNIE v. STATE of Arkansas
    CR 79-42
    582 S.W. 2d 19
    Opinion delivered June 11, 1979
    (Division II)

      James E. Davis, for appellant.

      Sieve Clark, Atty. Gen., by: Catherine Anderson, Asst. Atty. Cíen., for appellee.
   John I. Purtle, Justice.

Appellant was convicted of second degree murder in the Miller County Circuit Court on September 19, 1977. During the trial he was defended by counsel of his own choosing. After the sentencing the appellant and retained counsel obtained approval by the trial court of an appeal bond. The trial court very meticulously explained to the appellant that he had the right to appeal his conviction within 30 days from entry of judgment. The appellant informed the court he understood his right of appeal. Being unable to post the appeal bond at the time, appellant was placed in the county jail where he remained for some time. During the time he was in jail his retained counsel attempted to get approval of a bondsman on the appeal bond but was unable to do so. Counsel then wrote appellant at the county jail that this particular bondsman was unable to make the bond and requested the appellant to get in touch with him for further instructions concerning the appeal. Also, retained counsel wrote appellant’s wife and asked her to come in to discuss the appeal. Subsequently, appellant was transferred to the Cummins Unit of the Arkansas Department of Correction where he was immediately transferred to the hospital in Pine Bluff. The record reveals no further efforts on the part of anyone to perfect the appeal to the supreme court. After appellant was released from the hospital and returned to Cummins he learned that he might be entitled to appointed counsel for appeal purposes. More than 30 days had elapsed when the appellant requested a transcript at public expense. The request was dated November 9, 1977, and filed in the court on November 29, 1977. The trial court denied the request for a transcript on December 5, 1977. No appeal was taken from this ruling. On February 3, 1978, appellant filed a motion pursuant to Rule 37 in which he sought a belated appeal. On the same date the court entered an order appointing an attorney to represent appellant on his Rule 37 request. The appointed attorney filed a motion for a new trial on August 23, 1978. On November 7, 1978, the court considered both motions and denied them. The order denying the motions was dated December 5, 1978, and it is from this order this appeal is taken.

When an accused is represented by retained counsel at the trial, he should be notified if counsel intends to withdraw from the case. In the present case the retained counsel was successful in getting an appeal bond set. However, neither counsel nor appellant were able to obtain the appeal bond and appellant remained in jail until he was transferred to the Department of Correction. Subsequent testimony at the Rule 37 hearing indicated the retained counsel offered to handle the appeal for $2500 but the appellant was unable to pay the fee. In fact, the record discloses appellant was unable to finish paying the agreed fee for his attorney’s services at the trial. It w'ould appear from the record that appellant became indigent prior to time to lodge the appeal. We think that a fair interpretation of Rule 11 (h) of the Rules of the Supreme Court of Arkansas places upon the attorney representing an accused at the trial the duty to do certain things if he intends to withdraw from the case. Part of the duties of such attorney is to obtain permission from the trial court to withdraw from the case and such request to withdraw should contain a statement of the reasons therefor. The appellant should receive a copy of the request for withdrawal and, if granted, a copy of the order allowing the withdrawal. In the present case retained counsel apparently made no request to the trial court for permission to withdraw nor did he notify the appellant he was withdrawing from the case. Neither was appellant told by the court, which had no specific duty to do so, nor retained counsel, that he might be entitled to be represented by appointed counsel for the purpose of his appeal. Effective assistance of counsel is a fundamental requirement which cannot be denied any person accused of or convicted of a serious crime.

We agree with the learned trial judge that he had no authority to accept an appeal or appoint counsel for appellant for the purpose of appeal after the expiration of 30 days. However, this does not mean that appellant has lost his right of appeal. Rule 36.9, Rules of Criminal Procedure, states:

. . . Notification of the filing of the notice of appeal shall be given to all other parties or their representatives involved in the cause by mailing a copy of the notice of appeal to the parties or their representatives, but failure to give such notification shall not affect the validity of the appeal. Failure of the appellant to take any further steps to secure the review of the appealed conviction shall not affect the validity of the appeal but. shall be ground only for such action as the Supreme Court deems appropriate, which may include dismissal of the appeal. The Supreme Court may act upon and decide a case in which the notice of appeal was not given or the transcript of the trial record was not filed in the time prescribed, when a good reason for the omission is shown by affidavit . . .

Even though the trial court was without authority to grant the appeal, this Court had such authority. No request has previously been made to this Court for belated appeal. We held in Goodwin v. State, 261 Ark. 926, 552 S.W. 2d 233 (1977) that filing of notice of appeal within the time prescribed by Rule 36.9 is not jurisdictional as to this Court. See also Harkness v. State, 264 Ark. 561, 572 S.W. 2d 835 (1978), wherein we held that tardiness of counsel in filing an appeal amounted to ineffective assistance of counsel and would be a denial of appellant’s constitutional rights if we fail to grant the appeal.

It is apparent that appellant did not learn he may have been entitled to appointed counsel on appeal until it was too late to perfect his appeal under the Rules of Criminal Procedure. It is likewise clear that so far as appellant is concerned he had a good reason for not filing the notice in the time required. He was without money, had no knowledge of his rights, and was physically in the hospital when time for notice expired. We believe under these circumstances he was and is entitled to a belated appeal.

We do not reach the points argued in the present appeal in view of the fact we are treating this appeal as a request for belated appeal. Therefore, the request of appellant for belated appeal is hereby granted.

Belated appeal granted.

We agree. Harris, C.J., and Foglkman and Holt, JJ.


author: PER CURIAM

text:
    Harold Eugene ROGERS v. STATE of Arkansas
    CR 74-59
    582 S.W. 2d 7
    June 11, 1979
    (In Banc)

      Howard & Jameson, by: George Van Hook, Jr., Nathaniel R. Jones and James l. Meyerson, New York; and George Howard, Jr., for petitioner.
    No brief for respondent.
   PER CURIAM

Petitioner Harold Eugene Rogers was convicted by a jury of rape and was sentenced to life imprisonment in the Arkansas Department of Correction. We affirmed, Rogers v. State, 257 Ark. 144, 515 S.W. 2d 79 (1974), and the Supreme Court of the United States denied certiorari, Rogers v. Arkansas, 421 U.S. 930 (1975). Several years later petitioner filed a petition for writ of habeas corpus in the United States District Court, Eastern District of Arkansas, alleging, inter alia, the allegations contained in his present petition filed in this Court. The district court dismissed with prejudice petitioner’s claims attacking his conviction; however, the court reserved its ruling regarding petitioner’s claim attacking his sentence, pending the outcome of his application to state courts, for failure to exhaust state remedies. 28 U.S.C.A. § 2254 (c). On April 13, 1979, petitioner filed his present petition for permission to proceed in circuit court under Criminal Procedure Rule 37 for postconviction relief in this Court presenting a two-pronged argument attacking the validity of his sentence. Petitioner invokes jurisdiction under Rule 37.2(a), Rules of Criminal Procedure (1976) and the opinion and order of the United States District Court dated March 7, 1979, which is attached as an exhibit. Petitioner's application for postconviction relief is denied for the reasons hereinafter discussed.

On December 18, 1978, we amended Rule 37.2, Rules of Criminal Procedure, by adding the following:

(c) A petition claiming relief under this rule must be filed in circuit court or, if prior permission to proceed is necessary as indicated in paragraph (a), in the Supreme Court within three (3) years of the date of commitment, unless the ground for relief would render the judgment of conviction absolutely void.

The basis for the promulgation of this rule at once becomes obvious upon the filing of the present petition. The information recites that the rape occurred on October 31, 1972. Petitioner was sentenced and committed on November 5, 1973. More than five years have passed since petitioner’s commitment, and it has been almost four years to the day since the United States Supreme Court denied certiorari, Rogers v. Arkansas, supra. We take judicial notice of the fact that the circuit judge who presided over petitioner’s trial, Honorable Paul Wolfe, is deceased and, therefore, is unavailable to testify regarding petitioner’s allegations. If a grave injustice was committed, why did petitioner wait so long to file his petition? Petitioner is not claiming relief under some new law that has been applied retroactively but his allegations could easily have been raised five years ago in a motion for new trial. He could have filed his petition for post-conviction relief as soon as the mandate affirming the judgment was issued by this Court. We would be hesitant to encourage the practice of vacating judgments upon the basis of allegations relating to matters that cannot be defended against, not because of substance or truth but because witnesses are unavailable, memories are faulty and, in some cases, records are destroyed, when a petitioner waits an unnecessary and unexplained length of time to file his petition. However, due to the fact that petitioner’s allegations can be disposed of by reading the record and our original opinion, Rogers v. State, supra, and applying existing state law, we address the substance of the allegations. However, we question the invoking of jurisdiction in this Court on the basis of the order of the United States District Court.

We also note at the outset that the record discloses that petitioner was represented at the trial, which extended over a seven day period, by three capable and competent attorneys, two of which continue to represent petitioner in this proceeding. The transcript contained 951 pages.

Petitioner first alleges that, prior to sentencing, the trial court failed to afford his right to allocution, as provided in Ark. Stat. Ann. § 43-2303 (Repl. 1977). We disagree.

Ark. Stat. Ann. § 43-2303, supra, provides:

Proceedings before pronouncing judgment. — When the defendant appears for judgment, he must be informed by the court of the nature of the indictment, his plea and verdict thereon, if any; and he must be asked if he has any legal cause to show why judgment should not be pronounced against him.

We have held that failure of the trial court to afford the right of allocution is error. Tate v. State, 258 Ark. 135, 524 S.W. 2d 624 (1975) and Smith v. State, 257 Ark. 781, 520 S.W. 2d 301 (1975). However, in this case petitioner was afforded the opportunity to address the court before sentencing, and we find the procedure used was in substantial compliance with Ark. Stat. Ann. § 43-2303, supra. After the jury returned its verdict, the following transpired:

THE COURT: Mr. Howard, Mr. Myerson, and Mrs. Miller, what 1 have in mind at this moment is — under the law a defendant, after a jury trial and a finding of guilty, is entitled to forty-eight hours, 1 believe it is, from the time of the announcement of the verdict to the time of sentencing. I am wondering, in view of the fact that each of you are from a distant place, if you would desire to waive that. forty-eight hour period and have the sentence imposed at this time..
MR. HOWARD: May I confer with my associates.
THE COURT: Yes, sir.
MR. HOWARD: If it pleases the Court, I have checked with my associates, I have also checked with the defendant and I checked with his mother and grandmother. At this time it is the desire of all concerned to have the Court impose sentence at this time, and we would therefore waive the forty-eight hours.
THE COURT: Thank you, Mr. Howard, Mr. Rogers, would you and your attorneys please come before the Court? Mr. Rogers, you have heard the verdict of the jury, and it now becomes my duty, as you understand, to impose sentence in conformity with the verdict of the jury. I would ask you first if you have anything to say-before sentence is pronounced?
MR. ROGERS: No, sir.
THE COURT: I do wish to note at this time that throughout the past week, as we progressed with this trial, and today and at the moment, that I have observed Mr. Rogers’ behavior. I feel that he has shown perfect composure and understanding of this situation and the proceedings. That is, I feel that you understand what this has all been about throughout. Am I correct in this, Mr. Rogers?
MR. ROGERS: Yes.
1’HE COURT: I would ask counsel if they’ve seen anything to the contrary.
MR. HOWARD: We have not.
THE COURT: You have nothing to say of record before sentence is pronounced, and it is therefore my duty to say, sir, that having been found guilty as charged, that it is the judgment and sentence of the Court that you serve in the State Penitentiary under the Department of Correction for the State of Arkansas, for the period of your natural life. Mr. Rogers, you know. I’m sure, that you have a right to appeal this verdict, this judgment, this sentence that you received here today. And I’m glad you have such fine counsel. And I would like to compliment each of you, Mr. Howard, Mrs. Miller and Mr. Myerson, for the fine manner in which you have represented Mr. Rogers. Mr. Rogers, regardless of everything, you owe a debt of gratitude to these three people who have endeavored so much in your behalf. Do you agree with me about this?
MR. ROGERS: Yes.

The sentencing procedure in this case is remarkably similar to the procedure in our recent case of Clark v. State, 264 Ark. 630, 573 S.W. 2d 622 (1978). In Clark appellant was convicted of two counts of capital felony murder and sentenced to death by electrocution. On appeal he alleged he had been denied his right to allocution. After the verdicts were returned, the trial court had asked appellant: “Do you have anything that you wish to say?” After a discussion about appeal, the court then inquired: “You understand everything that is going on?” W'hen appellant responded affirmatively, the court pronounced sentence. Holding appellant had demonstrated no prejudicial error regarding allocution, we stated:

The purpose of a statute such as ours is to give the accused, upon sentencing, an opportunity to show any cause why sentence should not be pronounced. Where a question is addressed to the defendant which affords him an opportunity to express why sentencing should not be pronounced, it is unnecessary that the precise language of the statute be used. (Citations omitted| I lere the question asked by the court upon sentencing of the appellant gave him the unfettered right to state any cause, legal or otherwise, as to why sentence should not be pronounced. The appellant’s response was not restricted in any manner.

For the reasons enunciated in Clark coupled with the fact that the trial court afforded petitioner with more than ample opportunity to be heard, we find that petitioner was not denied his right to allocution.

Furthermore, as we also noted in Clark, petitioner was present with counsel at sentencing, and there was no objection raised to the procedure. In addition, no objection was raised by motion for new trial or on direct appeal. Even now petitioner has failed to allege the cause of his failure to object to the procedure employed by the trial court and to demonstrate the prejudice that resulted, which are required when raising an underlying constitutional issue for the first time in a postconviction proceeding when no objection was raised at trial. Wainwright v. Sykes, 433 U.S. 72 (1977). Petitioner does not, even now, state what he desired to have presented to the trial court.

Secondly, petitioner alleges that he was arbitrarily, capriciously and freakishly sentenced to life imprisonment without parole and that the imposition of such a sentence in the context of his rape conviction is cruel and unusual punishment. Petitioner’s allegation is inaccurate. He was not sentenced to life imprisonment without parole, a sentence that was not within the range of punishment for the offense or submitted to the jury for its consideration, but to life imprisonment.

Petitioner was convicted of first degree rape, in violation of Ark. Stat. Ann. § 41-3401 (Supp. 1973), as having engaged “in sexual intercourse with a female: (a) by forcible compulsion; ...” Ark. Stat. Ann. § 41-3401, supra, was a codification of Act 362, 1967 Ark. Acts, which also provided punishment as follows: “Any male, upon conviction of first degree rape, shall be subject to death or thirty (30) years to life imprisonment in the State Penitentiary.” Ark. Stat. Ann. § 41-3403 (Supp. 1973). However, Act 438, 1973 Ark. Acts, codified as Ark. Stat. Ann. §§ 41-4701 — 16 (Supp. 1973), which was in effect at the time petitioner was sentenced, abolished the death penalty for first degree rape and also established a new classification of felonies and a new sentencing procedure called “life imprisonment without parole.” However, this new sentence was not included in the range of punishment for first degree rape. Ark. Stat. Ann. § 41-4701 (Supp. 1973) reclassified felonies in the following manner:

Categories offelonies. — Felonies are classified for the purpose of sentence, and for any other purpose specifically provided by law, into the following categories:
(a) capital felony;
(b) life felony without parole;
(c) life felony; and
(d) felony

Ark. Stat. Ann. § 41-4702 (Supp. 1973) defined capital felonies, and rape was not included as a capital felony. Ark. Stat. Ann. § 41-4703 (Supp. 1973) provided that when any person was convicted of a capital felony defined in § 41-4702 and the jury found that existing mitigating circumstances, which were set forth in § 41-4712, precluded the imposition of the death penalty, the crime should be a life felony without parole and punishable as provided in § 41-4707, as follows:

Conviction of life felony without parole Punishment. — A person convicted of a life felony without parole shall be imprisoned in the Arkansas State Penitentiary for the remainder of his life and shall not be released except pursuant to a commutation, pardon, or reprieve of the Governor, conducted and granted in accordance with Section 14 [§ 41-47Í4] hereof.

Furthermore, Ark. Stat. Ann. § 41-4706 (Supp. 1973) provided that a sentence of life imprisonment without parole could be imposed on a person convicted of a capital felony, under a procedure set out in § 41-4710 which provided for aggravating and mitigating circumstances. So it can be seen that Act 438 created a capital felony, which was subject to a sentence of life imprisonment without parole, and a life felony without parole. Ark. Stat. Ann. § 41-4715 (Supp. 1973) provided:

Parole Persons ineligible. — A person sentenced for a capita! felony to life without parole or for a life felony without parole shall not be eligible for parole and shall not be paroled.

Ark. Stat. Ann. § 41-4716 (Supp. 1973) provided:

Parole Sentence commuted to a term of years Effect- — If a person sentenced to life without parole or for a life felony without parole has his sentence commuted by the Governor to a term of years, such person shall not be paroled, nor shall the length of his incarceration be reduced in any way to less than the full term of years specified in the order or commutation or in any subsequent orders of commutation.

We have taken the time to distinguish between a capital felony, with a sentence of life imprisonment without parole, and a life felony without parole only to emphasize the fact that petitioner was not charged, tried, convicted or sentenced under either.

Petitioner was sentenced under Ark. Stat. Ann. § 41-4704 and § 41-4708 (Supp. 1973) which provided, respectively:

Life felonies. — All other offenses for which life imprisonment or death in the electric chair is presently prescribed by Arkansas law shall be life felonies and shall be punishable as provided in Section 8 |§ 41-4708] hereof.
Conviction of life felony Punishment. — A person convicted of a life felony shall be imprisoned in the State Penitentiary for the remainder of his life and shall not be released except pursuant to a commutation, pardon, or reprieve of the Governor or pursuant to parole procedures now or hereafter established by law.

Petitioner may be released on parole under the conditions of Ark. Stat. Ann. § 43-2807 (Repl. 1977), which provides:

(b) Life Imprisonment. (1) Individuals sentenced to life imprisonment prior to March 1, 1968, and those sentenced to life imprisonment after the effective date (February 12, 1969] of this Act, shall not be eligible for release on parole unless such sentence is commuted to a term of years by executive clemency. When such life sentence has been commuted to a term of years, the individual shall be eligible for release on parole after having served one-third (1/3) of the time to which the life sentence was commuted, with credit for good time allowances.

Hopefully, any confusion that may exist regarding petitioner’s actual sentence is eliminated.

We turn now to petitioner’s allegations, substituting the sentence of life imprisonment, as if petitioner had made the same allegations as to that sentence as he made to a sentence of life imprisonment without parole. Petitioner alleges that imposition of the sentence in the context of his rape conviction is cruel and unusual punishment. To support his allegation petitioner states that he was a “youth of tender age” (16 years old when the crime was committed and 17 years old when he was convicted) and had no prior involvement with the law. He further states that the victim was an adult (21 years old at the time of the conviction, so apparently 20 years old at the time of the offense) and sustained no permanent injuries — physical or psychological, which is apparently a matter of speculation. He further states that the victim was “not tortured or subjected to any vile or inhuman treatment.” Assuming arguendo that we will review the sufficiency of the evidence in this case, which we will not, Houser v. United States, 508 F. 2d 509 (8th Cir. 1974), we can think of few offenses more vile than the offense of rape.

We think it necessary to point out that petitioner is not challenging the constitutionality of the statute under which he was sentenced, which imposes a maximum sentence of life imprisonment, as being cruel and unusual punishment, which would be a ground of relief cognizable under postconviction proceedings. Houser v. United States, supra. Petitioner is alleging that the imposition of a life sentence by a jury under the facts and circumstances of this particular case is cruel and unusual punishment.

Postconviction relief was not designed to permit an attack upon a sentence which is within the statutory limits, Credit v. State, 247 Ark. 424, 445 S.W. 2d 718 (1969). The constitutional prohibition of cruel and unusual punishment is directed toward the kind of punishment, not its duration. The fact that punishment is severe does not make it cruel and unusual. Hinton v. State, 260 Ark. 42, 537 S.W. 2d 800 (1976). The imposition of a maximum sentence for an offense is not cruel or unusual punishment. Johnson v. State, 214 Ark. 902, 218 S.W. 2d 687 (1949). As we stated in our original opinion, Rogers v. State, supra, “if a sentence is within the limits established by the legislature, it is valid even though it is insisted that the punishment is unconstitutionally excessive.”

Petitioner broadens his allegation that the punishment imposed was cruel and unusual by stating that due to a lack of guidelines to assist the jury in its sentencing determination, the discretion of the jury in imposing the sentence resulted in an arbitrary, capricious and freakish sentencing. Petitioner is apparently trying to avail himself of the dicta enunciated in Collins v. State, 261 Ark. 195, 548 S.W. 2d 106 (1977), and the other cases involving the death penalty that followed. We do not think Collins went that far. In the first place, Collins addressed the constitutionality of our death penalty statute, which we consider to be a unique situation. We there stated that our statute complied with the necessary safeguards required to prevent an arbitrary, capricious, wanton or freakish imposition of the death penalty by a jury. The substance of our opinion was directed to the constitutionality of the statute itself. We find no requirement that a jury be given guidelines for the imposition of any sentence other than when an accused is charged with a capital felony. As long as the sentence is within the range of punishment authorized by statute, the jury may exercise its discretion in imposing the sentence.

In Collins we recognized the power of the trial court, Ark. Stat. Ann. § 43-2310 (Repl. 1977) and this Court, Ark. Stat. Ann. § 43-2725.2 (Repl. 1977), to modify or reduce sentences. Ark. Stat. Ann. § 43-2310, supra, provides:

Reduction of verdict. — The court shall have power, in all cases of conviction, to reduce the extent or duration of the punishment assessed by a jury, if, in the opinion of the court, the convicion is proper, and the punishment assessed is greater than, under the circumstances of the case, ought to be inflicted, so that the punishment be not, in any case, reduced below the limit prescribed by law in such cases.

There can be no doubt that the trial court had the power to reduce petitioner’s sentence after the verdict was returned, but it did not do so. However, after petitioner’s valid sentence had been put into execution and an appeal was taken to this Court, the trial court was without jurisdiction to modify, amend or revise it, either during or after the term at which it was pronounced. Shipman v. State, 261 Ark. 559, 550 S.W. 2d 424 (1977). The trial court now would only have jurisdiction to review petitioner’s sentence, if prior permission were granted by this Court, under Rule 37, Rules of Criminal Procedure, supra, not under Ark. Stat. Ann. § 43-2310, supra. In other words, the scope of review would be limited to the provisions found in Rule 37, and the jurisdiction of the trial court to reduce petitioner’s sentence under Ark. Stat. Ann. § 43-2310 has expired. Again, we call attention to the fact that neither petitioner nor his attorneys invoked Ark. Stat. Ann. § 43-2310 at any time after the verdict was rendered, either before or after sentencing.

In Collins we also discussed the power of this Court to reduce a sentence on appeal. Ark. Stat. Ann. § 43-2725.2, supra, provides that a sentence of an appellant may be reduced if it is deemed excessive. However, reiterating our holding in Abbott v. State, 256 Ark. 558, 508 S.W. 2d 733 (1974), we emphasized the fact that reduction of a sentence deemed to be excessive by this Court must be predicated on legal error and preserved the distinction between executive clemency and appropriate judicial review where there is error pertaining to the sentence. In Abbott we stated that the statutory provisions whereby we are vested with authority to reduce an excessive sentence, Ark. Stat. Ann. § 43-2725.2, supra, do not empower this Court to reduce a sentence that is otherwise proper and within statutory limits. The power to reduce a sentence must have legal justification, and

[tjhere is a vast difference in reviewing a sentence for error (including error resulting from insufficient evidentiary support) in the sentencing procedure and reviewing a sentence resulting from a proper and legal sentencing procedure where sufficiency of the evidence is not a basis for review. Collins v. State, supra.

Subsequent to Collins, in Giles v. State, 261 Ark. 413, 549 S.W. 2d 479 (1977), we reduced a capital felony conviction imposing the death penalty to a conviction of life felony-murder without parole with a sentence of life imprisonment without parole. This was not done because in our judgment the facts of the case did not warrant the death penalty, but because the jury found no existing mitigating circumstances when the evidence clearly indicated appellant was impaired as a result of mental disease or defect. We stated that the jury was not free to arbitrarily disregard testimony where there was no conflicting testimony and there was no issue of credibility to be resolved. Since in our judicial capacity we could not weigh the mitigating circumstance and the existing two aggravating circumstances, as that function is for the jury, we reduced the conviction and sentence. However, the reduction was based upon objective evaluation of legal error and not on a subjective determination that the facts of the case did not warrant the imposition of the death penalty.

In Collins we stated that the arbitrary, capricious, wanton or freakish imposition of the death penalty would seem to be a ground for modification of sentence under Rule 37. However, the penalty is, as we stated earlier, unique, and Collins did not create an extended review under Rule 37 of all sentences that are alleged to be excessive under the particular facts of the case. If the penalty assessed against petitioner is too severe under the facts of the case, it is a matter that addresses itself to executive clemency and not to this Court. Randle and Wright v. State, 245 Ark. 653, 434 S.W. 2d 294 (1968). Most importantly, however, this issue, including an argument that the jury did not arrive at a determination devoid of passion and prejudice, was raised on appeal, decided adversely to petitioner, Rogers v. State, supra, and is not cognizable in a petition for postconviction relief. Houser v. United States, supra.

In conclusion, we address the opinion of the United States District Court wherein petitioner’s second allegation in this Court was discussed. The district court said:

A sentence to life imprisonment without parole may not literally be ‘life without hope,’ as Rogers argues, but it is close. He is an exile from life, forever excluded from its enjoyment. He may hope for clemency — either pardon, or far more likely, commutation — but the hope is a thin reed. Executive clemency is a matter of grace. It is a prerogative that need never be exercised, and the chance that it will be exercised in any given case cannot be measured. There is no right to parole, either, and life with the possibility of parole can turn out in practice to be literally imprisonment for life, but parole is a much less remote contingency than clemency. Parole is granted in most cases before the expiration of a full term of imprisonment. The death penalty is unique, but so is life without parole. It is the loss, not of life itself, but all that makes life worth living.

Apparently, the district court was also under the mistaken impression that petitioner’s sentence was life imprisonment without parole instead of life imprisonment. It is true that before petitioner can be subject to be released on parole, his sentence must be commuted to a term of years by executive clemency, Ark. Stat. Ann. § 43-2807, supra; however, that possibility is not a “remote contingency.” We take judicial notice of the fact that 30 life sentences have been commuted to a term of years by the Governor of Arkansas in less than five years. See Governor’s Clemency Proclamations, November 19, 1974, to March 15, 1979, Nos. 2579, 2580, 2583, 2586, 2587, 2588, 2589, 2591, 2599, 2610, 2611, 2612, 2613, 2614, 2615, 2618, 2619 & 2632, 2621,2624, 2625, 2637, 2642, 2644, 2659, 2695, 2704, 2705, 2740, 2762 and 2767. Office of the Secretary of State of Arkansas.

It appears to us that the number of years petitioner will have to serve on his life sentence now rests, first, in his hands, in relation to his conduct while imprisoned, and, second, in the hands of the executive branch, not the judicial branch, of government.

Accordingly, petitioner’s present petition for permission to proceed under Criminal Procedure Rule 37 is hereby-denied.

Petition denied.

      Unless the Attorney General had requested, within 17 days, a remand for a new trial.