author: Robert H. Dudley, Justice.

text:
    Patricia Ann JACKSON, et al. v. Dale BRADEN, et al.
    86-56
    717 S.W.2d 206
    Supreme Court of Arkansas
    Opinion delivered October 13, 1986
    [Rehearing denied November 17, 1986.]

      Peel & Eddy, for appellants.

      Hardin, Jesson & Dawson, and Robert E. Irwin; and Street & Kennedy, by; Alex G. Street, for appellees.
   Robert H. Dudley, Justice.

The assets of the estate of Bob Bailey, Sr. included mineral interests. The executor of the estate filed a petition in probate asking authority to lease thirty mineral acres to some of the appellees and to sell ten mineral acres to other appellees. The probate court authorized the sale and the leases but there were no appraisals of the mineral interests, no reports of the leases or sale, and no confirmation of the leases or sale. Appellants are named beneficiaries in the will. In 1979, after the sale and leases, the executor issued each appellant a check written on the Bob Bailey Estate Account in the amount of $1,180.00 with the notation: “For one-fifth interest in one-half interest in sale of oil and gas interest in 10 acres and lease of 30 acres.” Each of the appellants endorsed and cashed his or her check. In 1982, production was commenced on a high volume gas well which had been drilled on a part of the mineral acreage.

In April 1982 appellants filed a petition in probate alleging there “was no appraisal prior to sale, no reason for the sale, mineral interests were not assets in the hands of the executor, there was no report of sale or order of confirmation of sale, no notice of filing of petition for sale or lease. . . .” and asking the court to refuse to confirm the sale and leases. Shortly thereafter, the appellants filed a complaint in chancery asking that the conveyances to appellees be set aside as a cloud on the title of the mineral interests owned by the estate.

After consolidating the cases for trial, the trial court found: (1) by accepting and cashing the checks with the detailed notations, the appellees ratified the action of the executor; (2) the executor leased and sold the mineral interests under a power of sale contained in the will; (3) the leases and sale were a valid exercise of the trustee’s authority. We affirm the trial court on the first ground and do not find it necessary to discuss the other two grounds.

Since there was no confirmation in accordance with Ark. Stat. Ann. § 62-2719 (Repl. 1971), the sale and leases of the mineral interests were not completed and binding, and their validity could be questioned in this case. Bell v. Green, 38 Ark. 78 (1881). However, the probate judge held that the appellants could not question the transactions because they had ratified them. We affirm the result, but for a different reason.

The appellees contend that the detailed notations on the estate checks showed that the appellants had full knowledge of the act of their agent, the executor, and, after receiving the benefits of such acts, cannot deny the agency but, instead, must be held to have ratified the act. They cite principal-agent cases in their argument. The trial judge accepted the argument as the basis of his decision. We reject the particular argument since there is a fundamental difference between an executor and an agent. An executor acts in his own name and directly parts with possession and control of the property, while an agent represents someone else, the principal, who normally has possession and control of the property. See 76 Am. Jur. 2d Trusts § 6 (1975). A principal can ratify the representations the agent makes on his behalf, but an executor does not make any representations on behalf of anyone else. Since the executor makes no representation on behalf of the heirs, there is nothing for them to ratify. Rather, we understand the rule to be that an heir who knowingly accepts and retains purchase money from a sale by a personal representative may be estopped from later attacking the sale, provided that, when he received the money he was aware of the facts surrounding the sale and consented to it.

Here, the detailed notations on the checks caused appellees to know, or to have sufficient facts to be put on notice, of the transaction and that, coupled with their cashing of those checks, shows an acquiescence in the sale and leases. That notice and the acquiescence from 1979 to 1982, when gas production was commenced, are sufficient to estop appellants from invalidating the sale and leases of the mineral interests. In Pope v. Pennzoil Producing Co., 288 Ark. 10, 701 S.W.2d 366 (1986), we pointed out that parties claiming an interest in oil and gas properties must show the utmost diligence. In that case we wrote:

We have consistently held that oil and gas properties are unusual and require diligence on the part of parties claiming a property interest. Walker-Lucas-Hudson Oil Co. v. Hudson, 168 Ark. 1098, 272 S.W. 836 (1925). In Sanders v. Flenniken, 180 Ark. 303, 21 S.W.2d 430 (1929), this court cited with approval the following language from Patterson v. Hewitt, 195 U.S. 309 (1904):
There is no class of property more subject to sudden and violent fluctuations of value than mining lands. A location which today may have no salable value may in a month become worth millions. Years may be spent in working such property, apparently to no purpose, when suddenly a mass of rich ore may be discovered from which an unusual fortune is realized. Under such circumstances, persons having claims to such property are bound to the utmost diligence in enforcing them, and there is no class of cases in which the doctrine of laches has been more relentlessly enforced.

Accordingly, on the basis of estoppel, we affirm the action of the trial judge in dismissing appellants’ petition in probate and complaint in chancery.

On cross-appeal it is argued that the appellant (crossappellees) violated a “no contest” clause in the will by filing these actions, and they should be excluded from participation in the estate. The argument is without merit.

The will contains a clause which prohibits attacks upon the will and further provides that if any beneficiary should attack the will, that beneficiary should be barred from receiving any benefits from the will. Such a clause is valid in Arkansas. Lytle v. Zebold, 235 Ark. 17, 357 S.W.2d 20 (1962). But here, the appellants were not attempting to defeat the will. In fact, the time to file a will contest had lapsed long before these suits were filed. Ark. Stat. Ann. § 62-2114 (Repl. 1971). The appellants acknowledged the validity of the will and, rather than attacking it, were questioning the actions of the executor for not complying with the probate code.

Affirmed on direct appeal. Affirmed on cross-appeal.


source: Caselaw Access Project

author: David Newbern, Justice.

license: Public Domain

text:
    Henry Chester TIMMONS v. STATE of Arkansas
    CR 86-86
    717 S.W.2d 208
    Supreme Court of Arkansas
    Opinion delivered October 13, 1986
    [Rehearing denied November 17, 1986.]

      William R. Simpson, Jr., Public Defender; Thomas B. Devine, 111, Deputy Public Defender, by: Jerry R. Sailings, Deputy Public Defender, for appellant.

      Steve Clark, Att’y Gen., by: Mary Beth Sudduth, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

We reversed the appellant’s first conviction for rape and remanded for a new trial because the trial court erred in failing to declare a mistrial for prosecutorial misconduct. Timmons v. State, 286 Ark. 42, 688 S.W.2d 944 (1985). The appellant argues he should not have been retried because a new trial was barred by the double jeopardy proscription of the Fifth Amendment to the U. S. Constitution. He also argues his retrial was in violation of his right to a speedy trial. We disagree, and thus we affirm the conviction resulting from his second trial.

1. Double jeopardy

At the first trial, a serologist was present to testify about evidence gathered from the alleged victim during a medical examination after the alleged rape had occurred. The appellant’s counsel objected to any testimony by the serologist, saying, “[m]y understanding is that the state is not going to be able to establish chain of custody on any of the materials that she examined. . . .” The court allowed the prosecutor to put the serologist on the witness stand even though the prosecutor had said, “[Defense Counsel] is correct. I can’t make my chain. It is obvious to the court that I can’t, and whenever he objects I’ll quit.” The witness was asked whether she had examined items taken from the alleged victim. The appellant’s counsel objected again, and the objection was sustained. The questions and answers at that point in the first trial are set out in a concurring opinion accompanying the majority opinion in the report of our decision on the first appeal. 286 Ark. at 45, 688 S.W.2d at 945 and 946.

The problem which ultimately caused reversal of the first conviction culminated during closing arguments. Counsel for the appellant made the most of the prosecution’s inability to introduce any physical evidence. Part of his argument was:

Thank you, Your Honor. May it please the Court, ladies and gentlemen of the jury, as ya’ll know we’ve all sat here and listened to the evidence in this case. We’ve been through the instructions and that we asked you about in voir dire to consider. I hope at this time you have not made your decision. I hope you are prepared to go into the jury room and deliberate amongst yourselves and discuss the evidence, raise questions that you may have about it and make a decision. That’s your job and we appreciate you for coming here today and listening to the evidence.
Now Mr. Adams [prosecutor] has referred to inconsistencies that I’m going to point out and I am going to point out those inconsistencies. First I want to talk about something else and that is a rape case in general and what we have here. It’s kind of a maxim in our business that rape is an easy charge to bring and a hard charge to defend. It often comes down to the word of one person. That’s why we have asked you to watch their demeanor and see what you think about their ability to testify consistently to convince you that what they say happened happened.
One thing that Mr. Adams hasn’t touched on that I’m to talk about first is the evidence that you will have to take into the jury room with you and examine during your deliberations. And that is none. For those of you who have had criminal experience or have any experience with crime and the results of crime and those of you who know from your own experiences what truth and lying is about, it’s very hard to fabricate a story and to get all the facts to fit. One of the problems when that happens is that we live in a physical world. Almost everything we do impacts on a physical world. What Fm saying to you is that crime (unintelligible) physical evidence. You have none. You have none to take back and look, none to consider in your deliberations. You have no medical evidence.
Now Mr. Adams has said that the only inconsistencies — let me see if I can reconstruct this — that they have no inconsistencies about the rape. Well, I would submit to you that those — that absence of inconsistencies is valid only if you are prepared to accept the State’s position and the way they are asking you to fill in the gaps in their proof. They say there’s no inconsistency in the elements of their case, sexual intercourse and forcible compulsion. The State has not even proved that there was any intercourse. Now let me add right here. Obviously Fm a lawyer advocating for my client. Fm not here to trick you and Fm not here to misstate the evidence. I notice that you have been paying attention but I didn’t see anyone taking notes. But Fm not here to tell you something saying that the evidence is not true because you will know that and you won’t believe me and Fm not very persuasive if I come up here and try to convince you the evidence is not what it is.
Mrs. Wiggins did testify that they had intercourse. And it’s really going to come down to Mrs. Wiggins’ statement, what you make of it and how you believe it. Fm going to discuss that at some length but before I do I just want to point out, there has been no evidence offered here today that you can look at in an objective way that would support her allegations. And I would point to several of those things. But I mention first of all, no medical evidence, no examination by a doctor saying that she had had the sex, no indication of trauma to her body, scars or bruises, scratches, nothing, nothing at all to substantiate her claim that she had sex with the man. Much of what I’m going to talk about is dealing with the State’s case because they have the burden and because I believe that their own case is the best evidence of the fact that they cannot make this case. And I don’t think they can convince you beyond a reasonable doubt.

Presumably responding to this argument, part of the prosecutor’s closing statement, and the objection and mistrial motion, were as follows:

[Prosecutor]: Now, no objective evidence. The evidence is unrebutted that she went to the Crime Lab for a rape examination. We put Lisa Cooper on the stand, the serologist. He’s doing his job. He objected to her testimony and we did not hear what that was. He’s doing his job.
[Defense counsel]: Your Honor —
[Prosecutor]: Keep that in mind.
The Court: One moment, Mr. Adams.
(Thereupon, out of the hearing of the jury the following discussion occurred between Court and counsel:)
[Defense counsel]: Your Honor, I think this is improper argument. And I want to object to it.
The Court: Ms. Cooper did not testify to anything, Mr. Adams.
[Prosecutor]: That’s correct. I didn’t say she did. I said she was put on the stand and she testified as to her job and he objected.
The Court: That’s correct. There’s no testimony.
[Prosecutor]: That’s correct.
The Court: It’s not proper for you to refer to it.
[Prosecutor]: He is the one who said there’s no evidence since —
The Court: That is correct, sir.
[Prosecutor]: All these things that he objected to —
The Court: The objection is sustained. You cannot refer to any evidence that was not admitted in this trial.
[Prosecutor]: I’m not referring to the evidence. I’m referring that she was on the stand and he’s the one who objected to it, not me.
The Court: It is sustained.
[Defense counsel]: I’m going to have to move for a mistrial also on the prejudicial nature of reference to evidence that is not before the jury.

In support of his contention that a mistrial based on prosecutorial misconduct raises the double jeopardy bar, the appellant relies on United States v. Martin, 561 F.2d 135 (8th Cir. 1977), in which the court of appeals took to heart obiter dicta from United States Supreme Court decisions in United States v. Jorn, 400 U.S. 470 (1970), and United States v. Dinitz, 424 U.S. 600 (1976). In those cases, respectively, it was said, although not held, that “prosecutorial overreaching” and “prosecutorial actions motivated by bad faith or undertaken to harass or prejudice the defendant” causing mistrial would bar retrial. In United States v. Martin, supra, a mistrial was granted because the prosecution read to the jury, at length, some highly prejudicial testimony taken in grand jury proceedings. The court of appeals held retrial was barred because “[i]t can best be described as prosecutorial error undertaken to harass or prejudice the defendant — prosecutorial overreaching [footnote omitted]. . . .”

The state’s only response to the appellant’s argument based on United States v. Martin, supra, is that here we have retrial after reversal rather than retrial after a mistrial. Although the state does not explain its position or cite authority to support it, based on our own research we agree.

One of the primary bases for applying the double jeopardy bar cited in United States v. Jorn, supra, was the interest of an accused in having his triál completed before the first jury selected to hear it. In that case, a mistrial was declared sua sponte by the trial judge because he felt some witnesses had not been given proper self-incrimination warnings and needed to consult their attorneys before testifying. In his plurality opinion announcing the judgment of the court, Mr. Justice Harlan wrote:

For the crucial difference between reprosecution after appeal by the defendant and reprosecution after a sua sponte judicial mistrial declaration is that in the first situation the defendant has not been deprived of his option to go to the first jury and, perhaps, end the dispute then and there with an acquittal. On the other hand, where the judge, acting without the defendant’s consent, aborts the proceeding, the defendant has been deprived of his “valued right to have his trial completed by a particular tribunal.” See Wade v. Hunter, 366 U.S., at 689, 69 S. Ct., at 837.
[400 U.S. at 484, footnote omitted].

Here there was no abortion of the first trial, sua sponte by the judge or otherwise. The appellant was not deprived of his chance to gain an acquittal from the first jury he faced by virtue of a premature ending of the trial caused by the misconduct of the prosecutor. The trial ended in a conviction, and the appellant has in no sense been released from jeopardy. His retrial resulted from reversal of his first conviction not from a premature ending of his first trial.

The landmark case on the law of double jeopardy is Ball v. United States, 163 U.S. 662 (1896). Several defendants were tried for murder based on an indictment later determined to have been defective. One defendant was acquitted. Two others were convicted. The government tried all three again. It was held that the defendant who had been acquitted at the first trial was entitled to the protection of the double jeopardy bar, and it was error to have retried him. As to the others, the court said a defendant who procures the setting aside of a judgment against him “upon an indictment to be set aside” may be tried anew for the same offense of which he was previously convicted. Although the opinion did not thoroughly explain the distinction, it is apparent that the court’s emphasis was on the fact that the defendants had secured the setting aside of the judgment against them by writ of error.

In United States v. Tateo, 377 U.S. 463 (1964), the appellant argued that, because he had his conviction overturned by a collateral proceeding in which he demonstrated he was coerced into pleading guilty in the midst of his first trial by the judge’s improper sentencing threats, he was entitled not to be retried. The Supreme Court found no reason to treat the case differently from a reversal by an appellate court, as in the case before us now, which does not prohibit retrial. In his opinion for the Supreme Court majority, Mr. Justice Harlan wrote:

Tateo contends that his situation must be distinguished from one in which an accused has been found guilty by a jury, since his involuntary plea of guilty deprived him of the opportunity to obtain a jury verdict of acquittal. We find this argument unconvincing. If a case is reversed because of a coerced confession improperly admitted, a deficiency in the indictment, or an improper instruction, it is presumed that the accused did not have his case fairly put to the jury. A defendant is no less wronged by a jury finding of guilt after an unfair trial than by a failure to get a jury verdict at all; the distinction between the two kinds of wrongs affords no sensible basis for differentiation with regard to retrial. [377 U.S. at 466-467, footnote omitted]

This language might be by analogy supportive of the notion that whether a trial ends by mistrial or a conviction is reversed because one should have been granted the same unfairness exists and the same result should obtain. However, the holding of United States v. Tateo, supra, appears in the last paragraph of the opinion: “We conclude that this case falls squarely within the reasoning of Ball and subsequent cases allowing the Government to retry persons whose convictions have been overturned. [377 U.S. at 468].”

Looking to the holdings of United States v. Jorn, supra, and United States v. Dinitz, supra, and to the cases following the fundamental proposition of Ball v. United States, supra, we do not feel compelled to extend the Eighth Circuit Court of Appeals decision in United States v. Martin, supra, so as to apply the double jeopardy bar in a case where the appellant’s conviction has been overturned on appeal as opposed to mistrial before conviction occurs.

2. Speedy trial

The appellant argued at his first trial that he had been deprived of his right to a speedy trial. The appellant was free on bond, and the trial was held within the eighteen-month limit prescribed by Ark. R. Crim. P. 28.1(c). The court ruled against him on this point, and he did not appeal that ruling. The appellant now argues that the delay caused the loss of some physical evidence taken during the alleged victim’s medical examination which would have been helpful to him in the second trial.

Assuming we are in a position to review this point, we would have to find a strong showing of prejudice to hold the delay short of the eighteen-month period was a violation of the speedy trial right. Matthews v. State, 268 Ark. 484, 598 S.W.2d 58 (1980). We find no such showing here. The appellant does not explain the manner in which his cross examination of the physician who took the evidence would have been enhanced had the evidence been available.

Affirmed.


author: Per Curiam.

text:
    James Edwin CLARK v. STATE of Arkansas
    717 S.W.2d 491
    Supreme Court of Arkansas
    Opinion delivered October 13, 1986

      Hanks, Gunn & Borgognoni, by: Mary Ann Gunn, for appellant.
    No objection.
   Per Curiam.

Appellant, James Edwin Clark, by his attorney, Mary Ann Gunn, has filed a second motion for rule on the clerk.

We denied the first motion because appellant’s attorney did no.t take responsibility for tendering the record late. Clark v. State, 289 Ark. 382, 711 S.W.2d 162 (1986).

This second motion admits that the record was not timely filed and it was no fault of the appellant. His attorney accepts full responsibility for not perfecting the appeal on time.

We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our Per Curiam opinion, In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979).

A copy of this opinion will be forwarded to the Committee on Professional Conduct.


text:
    Jerry Wayne PEMBERTON v. STATE of Arkansas
    717 S.W.2d 784
    Supreme Court of Arkansas
    Opinion delivered October 13, 1986

      Bill E. Ross, for appellant.
    No response.
   Per Curiam.

The record in case E-85-68 from Mississippi Circuit Court was tendered late and the clerk refused to file the record. The attorney for appellant, Bill E. Ross, admits responsibility for failing to timely file the record. That admission on the part of counsel constitutes good cause for granting the motion. Per Curiam Order of Feb. 5, 1979, 265 Ark. 964. The motion for a rule on the clerk is accordingly granted.

A copy of this order will be sent to the Committee on Professional Conduct.


author: Jack Holt, Jr., Chief Justice. John I. Purtle, Justice,

text:
    Charles Lee WHITE v. STATE of Arkansas
    CR 86-34
    717 S.W.2d 784
    Supreme Court of Arkansas
    Opinion delivered October 20, 1986
    [Rehearing denied November 17, 1986.]

      Goodwin, Hamilton & Moore, by: Donis B. Hamilton, for appellant.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.

      Purtle, J., would grant rehearing.

   Jack Holt, Jr., Chief Justice.

The primary issue presented in this appeal is whether voluntary intoxication constitutes a defense to second degree murder, as it negates the existence of the requisite intent. We hold that voluntary intoxication is no longer available as a defense to criminal prosecutions, overruling our previous decisions to the contrary and those of the Arkansas Court of Appeals.

The appellant, Charles Lee White, was charged with first degree murder for the January 15, 1985, beating death of his wife, Joyce Cummings White. He was also charged with being an habitual offender. A jury convicted White of second degree murder and he was sentenced to 40 years imprisonment. Our jurisdiction is pursuant to Sup. Ct. R. 29(l)(b).

I. VOLUNTARY INTOXICATION

Appellant argues on appeal that the trial court erred by failing to give his requested instruction on the defense of voluntary intoxication as set out in AMI Criminal, 4005.1, and by instructing the jury that voluntary intoxication was not a defense to the crime of second degree murder. The underlying question concerns the very existence of the defense of voluntary intoxication in light of an act of the Arkansas Legislature designed to eliminate the defense of self-induced or voluntary intoxication.

We recognized in Mosier v. State, 285 Ark. 67, 684 S.W.2d 810 (1985) that “some confusion surrounds the defense of voluntary intoxication” and we stated that we might re-examine our position in the appropriate case. As the issue is squarely presented in this case, we now take the opportunity to resolve the confusion.

At common law, evidence of voluntary intoxication, while no excuse for a crime, could be admitted to show the defendant was incapable of forming the specific intent necessary for the crime. Wood v. State, 34 Ark. 341 (1879). See also Olles & Anderson v. State, 260 Ark. 571, 542 S.W.2d 755 (1976). With the adoption of the 1976 Criminal Code, the statutory defense of voluntary intoxication was created, fashioned in part on common law. Act 280 of 1975, codified at Ark. Stat. Ann. § 41-207 provided: “[s] elf-induced intoxication is an affirmative defense to a prosecution if it negates the existence of a purposeful or knowing mental state”.

Two years later, with Act 101 of 1977, the Arkansas Legislature amended § 41-207 to delete this subsection. Act 101 was entitled “An Act to. . . Eliminate Self-Induced Intoxication as a Defense to Criminal Prosecution. . . .”

The Act included an emergency clause which read:

It is hereby found and determined by the General Assembly that the defense of voluntary intoxication is detrimental to the welfare and safety of the citizens of this State in that criminals are at times excused from the consequences of their criminal acts merely because of their voluntary intoxication and that this Act is necessary to eliminate the defense of self-induced or voluntary intoxication. . . .

This court first interpreted the Legislature’s action in eliminating voluntary intoxication as a defense in Varnedare v. State, 264 Ark. 596, 573 S.W.2d 57 (1978) where we held:

By amending § 41-207 to remove self-induced intoxication as a statutory defense, the legislature, in effect, reinstated any prior Arkansas common law on the subject . . .
Therefore, under either the statutory provisions, of § 41-207, as the parties involved thought them to be, or under the case law, as expressed in Olles & Anderson v. State, the defense of self-induced intoxication was available to the appellant, if it rendered him incapable of forming the intent that was a necessary element of the crime.

This viewpoint has been consistently followed by this court. See Morgan v. State, 273 Ark. 252, 618 S.W.2d 161 (1981); Harmon v. State, 277 Ark. 265, 641 S.W.2d 21 (1982).

The Arkansas Court of Appeals, in considering voluntary intoxication as a defense, has drawn a distinction between crimes committed “knowingly” and crimes committed “purposefully.” Bowen v. State, 268 Ark. 1088, 598 S.W.2d 447 (Ark. App. 1980). In Bowen the court stated that a crime with “knowingly” as the requisite mental state does not require a specific intent, and the common law defense of voluntary intoxication is only available as a defense to specific intent crimes. A crime requiring proof that it was committed “purposefully”, however, is a specific intent crime, according to the court. Accord: Menard v. State, 16 Ark. App. 219, 699 S.W.2d 412 (1985).

Here, the trial court followed the reasoning of the court of appeals in refusing to recognize voluntary intoxication as a defense to second degree murder because the state is just required to prove that the crime was committed “knowingly.” Ark. Stat. Ann. § 41-1503 (Repl. 1977).

After re-evaluating our cases and those of the Court of Appeals, we are now convinced that our court was wrong in Varnedare when we held that the elimination of § 41-207 reinstated the common law defense of voluntary intoxication.

It is a principle of statutory construction that a statute will not be construed as overruling a principle of common law, “unless it is made plain by the act that such a change in the established law is intended.''’ (emphasis added) Starkey Const., Inc. v. Elcon, Inc., 248 Ark. 958, 457 S.W.2d 509 (1970). In Barrentine and Ives v. State, 194 Ark. 501, 108 S.W.2d 784 (1937) we said:

It has long been the rule in this state that ‘A statute will not be taken in derogation of the common law unless the act itself shows such to have been the intention and object of the legislature.’

It is also a general principle “that the repeal of a statute which abrogates the common law operates to reinstate the common-law rule, unless it appears that the legislature did not intend such reinstatement.” 73 Am Jur 2d Statutes § 384, pp. 505-06 (1974); Johnson v. Olson, 142 P. 256 (Kan. 1914). Furthermore, the courts have no power to perpetuate a rule of law which the legislature has repealed. Id.; Singer, Statutes & Statutory Construction, § 23.07 p. 326 (4th ed. 1985); State v. Tennyson, 2 N.W.2d 833 (Minn. 1942).

In Patapsco Guano Co. v. North Carolina Board of Agriculture, 171 U.S. 345 (1898) the U.S. Supreme Court considered an act of the North Carolina Legislature requiring inspection of fertilizers and fertilizing materials, and payment of the costs of the inspection. The argument was made that certain earlier acts were revived by the repeal of other statutes but the Court disagreed, holding:

It is impossible to impute to the general assembly the intention, in repealing parts of the code which had been declared unconstitutional, to revive earlier laws which might render the amended law liable to the same objections.

The intention of the Arkansas Legislature in repealing § 41-207(a) is apparent from the title and emergency clause of the act: they intended to eliminate the defense of self-induced intoxication in criminal prosecutions. By reinstating the common law rule, which permitted voluntary intoxication as a defense to crimes requiring a specific intent, this court has perpetuated a rule of law which the legislature effectively repealed. We now reverse our position and declare voluntary intoxication is not a defense in criminal prosecutions. Likewise, the distinction made by the court of appeals between crimes committed with a “knowing” mental state and crimes committed with a “purposeful” mental state is of no consequence because this defense is no longer available.

Since the error complained of here is that the trial court failed to instruct the jury that voluntary intoxication is a defense to second degree murder, we affirm the trial court’s holding.

The appellant raises several other issues in this appeal including the admissibility and voluntariness of a statement he gave to police officers; the presentation of that statement at the trial; the admission into evidence of certain items; and the court’s failure to appoint a psychiatrist to examine him. They are all without merit.

II. APPELLANT’S CONFESSION

The appellant contends that his confession was not voluntarily and intelligently made and therefore should not have been admitted.

We independently review the totality of the circumstances surrounding a confession to determine whether an accused knowingly, voluntarily and intelligently waived his constitutional rights. Orr v. State, 288 Ark. 118, 703 S.W.2d 438 (1986). Among the factors considered in determining the validity of a confession are the age, education, and intelligence of the accused, the advice or lack of advice of his constitutional rights, the length of detention, the repeated or prolonged nature of the questioning, or the use of mental or physical punishment. Id. We do not reverse the trial court’s holding unless it is clearly against a preponderance of the evidence. Harvey v. State, 272 Ark. 19, 611 S.W.2d 762 (1981).

As to the enumerated factors, White was 47 and illiterate. He was advised of his rights twice; he was not detained for any length of time prior to confessing, but rather began making statements immediately after officers arrived at his home; and there was no allegation that the questioning was prolonged or that there was mental or physical punishment. There was conflicting testimony about whether White was still intoxicated when he gave his statement. Conflicts in testimony are for the trial court to resolve and we defer to the superior position of the trial judge in that regard. Harvey v. State, supra.

Based on the totality of the circumstances, the trial court’s decision to admit the confession was not against a preponderance of the evidence.

In a related attack on the admissibility of his confession, appellant contends he consistently told officers he could not recall what happened after he and his wife became intoxicated. In response to repeated questions about what happened, appellant made several statements that he “guessed” he hit and kicked his wife, but he could not remember. Appellant claims these statements were not based on any recollection but were rather speculation and were produced by leading questions from the officers.

Although the officers did ask leading questions during the interrogation, the appellant displayed an independent recollection of the events. He admitted that he and his wife had gotten into a fight after the two of them drank two fifths of whiskey, and that he hit and kicked her and, specifically, that he remembered hitting her in the jaw and making her lip bleed. Also, when the appellant awakened the next morning and discovered that his wife, who was in bed with him, was dead, he told his landlord to call the sheriff and an ambulance because he had killed his wife. This argument is without merit.

In appellant’s final attack on the admissibility of his confession, he objects to a pretrial ruling that a reference in his statement to a prior fight between him and the victim was admissible. That portion of the statement provided:

Q: Did she ever tell you that you hurt her real bad?
A: I, she didn’t tell me that I hurt her last night before we got into a fight she told me I hurt in here real bad she was hurting so I asked her if she wanted to go to Jonesboro to the Emergency Room because we owed so much down here at the hospital she said yeah I’ll take her over there that morning at Jonesboro over there at the Emergency Room she had four ribs broke and one of them was sticking in her lung over there and it had been draining or leaking or something I forget now what he said.
Q: The time that you had, this was, this was a fight that you have previous to the fight last night, right?
A: Yes.
Q: You had this some weeks ago?
A: Yes.
Q: During that fight you had hit her and broke some of her ribs?
A: Yes sir.
Q: And one of them was severe enough that it had punctured a lung for?
A: Hum-ah.
Q: Ok and you took her to the hospital in Jonesboro then?
A: Yes sir I went to Emergency Room.

The trial court held that testimony by the record clerks at the hospitals visited by the victim would not be admitted, but the appellant’s confession concerning the prior beating would be admitted.

Uniform R. Evid. 404(b) provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident (emphasis added).

Although in the past we have approached the question of admissibility under Rule 404(b) by the “fairly mechanical approach” of searching for one of the listed exceptions, Price v. State, 267 Ark. 1172, 599 S.W.2d 394 (Ark. App. 1980); Alford v. State, 223 Ark. 330, 266 S.W.2d 804 (1954), we think the better practice and the one intended by the drafters of Rule 404(b) is to consider the list of exceptions to be exemplary only and not exhaustive. Accordingly, we find the testimony about the prior beating admissible so long as it is for some purpose other than to prove the character of the person in order to show he acted in conformity therewith.

Rule 404(b) permits introduction of testimony of other criminal activity if it is “independently relevant to the main issue —relevant in the sense of tending to prove some material point rather than merely to prove that the defendant is a criminal —then evidence of that conduct may be admissible with a proper cautionary instruction by the court.” Price v. State, 268 Ark. 535, 597 S.W.2d 598 (1980), quoting Alford v. State, supra. Inasmuch as we agree with the trial court that the testimony was admissible, the appellant would have been entitled to a limiting instruction on the purpose for which the testimony was to be considered. Because such an instruction was not requested, appellant cannot now claim error. Miller v. State, 269 Ark. 341, 605 S.W.2d 430 (1980).

The fact that appellant’s wife was the victim in both incidents is the basis for its admissibility as it reflects a specific propensity to commit the particular sort of crime in question with the same person. In this regard, the situation is analogous to child abuse and incest cases where we have permitted evidence of prior similar acts with the same child or other children in the household because, as here, they show a proclivity toward a specific act with a person or class of persons with whom the accused has an intimate relationship. Our reasoning in those cases provides:

The testimony in question was not introduced for the purpose of proving a substantive crime, but to show the relation and familiarity of the parties, their disposition and antecedent conduct towards each other, and as corroborative of the testimony of the prosecuting witness touching the crime charged in the indictment. It showed the intimacy of the parties, and was admissible as characterizing the previous acts and conduct of the parties in regard to the particular offense charged.

Johnson v. State, 288 Ark. 101, 702 S.W.2d 2 (1986), quoting Williams v. State, 103 Ark. 70, 146 S.W. 471 (1912). See also, Limber v. State, 264 Ark. 479, 572 S.W.2d 402 (1978); Van Sickle v. State, 16 Ark. App. 143, 698 S.W.2d 308 (1985); and Collins v. State, 11 Ark. App. 282, 669 S.W.2d 505 (1984).

The statement by appellant that, approximately two weeks prior to her death he severely beat his wife, is probative of the appellant’s participation in the crime charged and is therefore admissible under Rule 404(b). The only remaining question is whether or not this evidence should have been excluded because the prejudice brought about by exposition of this other offense was not sufficiently balanced by its probative value. See Rule 403. We hold that the probative value of the evidence outweighed any prejudice.

III. PRESENTATION OF CONFESSION

The appellant claims it was error for the court to permit Lieutenant Allan Hicks, of the Greene County Sheriffs Department, to summarize his confession for the jury prior to the playing of the recorded statement. Appellant objects to this as “double dipping” and maintains that Hicks embellished the statement and created a danger of unfair prejudice which outweighed the probative value of the evidence.

It is within the sound, judicial discretion of the trial court to limit the introduction of cumulative testimony and this discretion is not controlled unless it has been manifestly abused. McMillan v. State, 229 Ark. 249, 314 S.W.2d 483 (1958), quoting Sheppard v. State, 120 Ark. 160, 179 S.W. 168 (1915). In Beed v. State, 271 Ark. 526, 609 S.W.2d 898 (1980), we explained the test to be used by the trial judge in deciding whether to exclude cumulative evidence:

The first consideration for a trial judge is whether evidence which makes the existence of a fact more probable creates a danger of unfair prejudice. The secondary consideration is whether the danger of the unfair prejudice substantially outweighs the probative value of the evidence.

It was unquestionably error on the part of the trial court to permit Hicks to summarize the confession when the actual confession was about to be played for the jury and we strongly caution against such practice. It was inexcusable to permit the officer to paraphrase the statement and embellish the appellant’s words. The embellishment complained of occurred when Hicks quoted appellant as saying he beat his wife “extremely bad”, when no such statement was made. Lt. Hicks also elaborated on the specific blows that were allegedly struck by appellant. Standing alone, such comments could have prejudiced the appellant. However, the jury was apprised of the embellishment by defense counsel in closing argument and heard a recording of the appellant’s confession, enabling them to assess the accuracy of Hicks’ comments for themselves. For these reasons, we hold that the trial court’s error did not substantially affect the fairness of the trial, and was, under the circumstances, harmless. In so holding it should be noted that nothing about Hicks’ testimony conflicts with the state medical examiner’s findings as to the injuries sustained by the victim. This fact, coupled with appellant’s admission that he beat her that night, lessened the likelihood of any unfair prejudice resulting from Hicks’ improper comments.

IV. ADMISSION OF EVIDENCE

The appellant maintains that six items of evidence were erroneously admitted in light of a break in the chain of custody of those items. Hicks testified that he gathered the items, which included a pillow, shirt, pillow cases, and sheets, put them in a bag, and sealed it with evidence tape. He gave the items to a Mr. Pervis, an employee of the medical examiner’s office. Hicks identified the items when they were admitted. Mr. Edward Vollman, the forensic serologist who did the testing, stated that when he received these items, the bag was opened and he therefore could not ensure that no tampering had occurred.

The purpose of establishing the chain of custody is to prevent the introduction of evidence which is not authentic. Wilson v. State, 277 Ark. 43, 639 S.W.2d 45 (1982). To prove authenticity, the State must demonstrate a reasonable probability that the evidence has not been altered in any significant manner. Id. We explained in Munnerlyn v. State, 264 Ark. 928, 576 S.W.2d 714 (1979):

To allow introduction of physical evidence, it is not necessary that every moment from the time the evidence comes into the possession of a law enforcement agency until it is introduced at trial be accounted for by every person who could have conceivably come in contact with the evidence during that period. Nor is it necessary that every possibility of tampering be eliminated; it is only necessary that the trial judge, in his discretion, be satisfied that the evidence presented is genuine and, in reasonable probability, has not been tampered with, (citations omitted)

When an object is subject to positive identification, proof of the chain of custody need not be as conclusive as it should be with respect to interchangeable items, such as blood samples or drugs. Brewer v. State, 261 Ark. 732, 551 S.W.2d 218 (1977). The effect of minor discrepancies in the chain of custody are for the trial court to weigh. Id.

Most recently in Douglas v. State, 286 Ark. 296, 692 S.W.2d 217 (1985), we explained that where there is little likelihood that an exhibit has been tampered with it may be admitted. We then quoted Gardner v. State, 263 Ark. 739, 569 S.W.2d 74 (1978) as follows:

It is not necessary that the . . . [state] eliminate every possibility of tampering, if the trial court is satisfied that in reasonable probability the evidence had not been tampered with. In such matters, the trial judge is accorded some discretion, in the absence of evidence indicating tampering with the evidence, and we will not reverse the trial judge’s ruling unless we find an abuse of discretion.

See also Wickliffe & Scott v. State, 258 Ark. 544, 527 S.W.2d 640 (1975).

Here, the items in question were all identified by Hicks and Vollman and there was no actual allegation of tampering. The chain of custody was sufficient.

The appellant also objects to the admission of physical evidence on which there were human blood stains not capable of being typed. The evidence included a pair of blue jeans, a shirt, tissue paper, glass, a towel, and a coat. Since the blood could not be typed it could not be traced to the victim or to the appellant, making it irrelevant according to appellant.

We have long held that the introduction of bloodstained clothing and similar items worn by a victim is permissible as within the sound discretion of the court and is relevant when it is helpful in indicating to a jury the location of the wounds. Farrar v. State, 240 Ark. 447, 400 S.W.2d 289 (1966), Bracey v. State, 231 Ark. 647, 331 S.W.2d 870 (1960); Bly v. State, 267 Ark. 613, 593 S.W.2d 450 (1980).

In Brewer v. State, 269 Ark. 185, 599 S.W.2d 141 (1980), a rape case, the state was allowed to introduce underwear belonging to the appellant, together with testimony that there were human blood stains inside the front fly area of the underwear. This was in spite of the fact that no attempt was made to determine when or how the blood got there or from whom it had come.

The appellant in that case contended the clothing and stains were not in any way related to any consequential fact or material proposition at issue in the case. This court disagreed, finding the evidence corroborated other testimony and was relevant in spite of the fact there was no evidence the blood was the victim’s. We further found appellant’s argument went to the weight of the evidence rather than to its relevancy.

Similarly, the presence of blood on the clothing and bed linens corroborates the medical examiner’s report of the victim’s injuries and the appellant’s confession. It was relevant and admissible.

V. APPOINTMENT OF PSYCHIATRIST

The appellant maintains the court erred by refusing to retain for him at state expense a private psychiatrist.

The appellant first filed a motion asking to be committed to the state hospital for a period of observation because he might be entering a plea of not guilty by reason of insanity. That motion was granted and appellant was evaluated by a staff psychiatrist at the George Jackson Community Mental Health Center in Jonesboro. The diagnosis was alcohol abuse, continuous; and antisocial personality disorder. The psychiatrist found appellant capable of assisting his attorney in his defense and recommended a more extensive evaluation at the State Hospital.

Appellant filed a second petition requesting a psychiatrist to aid in determining whether an insanity defense was viable. The appellant was then evaluated at the State Hospital and the supervising forensic psychologist there diagnosed appellant as having a continuing problem with alcohol abuse and an antisocial personality disorder. The report said:

Defendant appears to be aware of the nature of the charges and proceedings taken against him. He is capable of cooperating effectively with an attorney in the preparation of his defense.
At the time of the commission of the alleged offense, defendant did not lack capacity to appreciate the criminal ity of his conduct or to conform his conduct to the requirements of the law.

When the appellant still requested that a private psychiatrist be retained, the court found he failed to make a threshold showing that the defense of insanity would be a serious issue at trial and that the state is not required to provide appellant access to a psychiatrist’s assistance for his defense of voluntary intoxication.

A defendant claiming insanity is required to be examined at the state hospital or at a regional mental health facility pursuant to Ark. Stat. Ann. § 43-1301 (Supp. 1985). Appellant has been examined at both institutions. Since the state did furnish the services of the staffs of two mental health institutions, the state is not required to furnish expenses for appellant to shop from doctor to doctor until he finds one who considers him mentally incompetent. Andrews v. State, 265 Ark. 390, 578 S.W.2d 585 (1979); see also Finney v. State, 253 Ga. 346, 320 S.E.2d 147 (1984); Graham v. State, 441 N.E.2d 1348 (Ind. 1982); and State v. Aguilar, 325 N.W.2d 100 (Iowa 1982).

Appellant cites Ake v. Oklahoma, _ U.S __, 105 S. Ct. 1087 (1985) as supporting his position, but that case holds that when an indigent defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at the trial, the state must at a minimum assure the defendant access to a competent psychiatrist who will conduct appropriate examinations and assist in the evaluation, preparation and presentation of the defense. The Supreme Court went on to say:

This is not to say, of course, that the indigent defendant has a constitutional right to choose a psychiatrist of his personal liking or to receive funds to hire his own. Our concern is that the indigent defendant have access to a competent psychiatrist for the purpose we have discussed, and as in the case of the provision of counsel we leave to the State the decision of how to implement this right.

Although the defense of voluntary intoxication and not the defense of insanity was ultimately raised by appellant, the diagnoses indicate that appellant’s problem with alcohol abuse and his intoxication at the time the crime were committed were taken into account by the examining mental health personnel. The appellant’s request for a third examination was properly denied.

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. I disagree with the majority opinion because it attempts to legislate on the matter of voluntary intoxication, to overrule prior case law, and to scramble the law on the introduction of prior bad acts to prove the present case.

Voluntary intoxication was designated as an affirmative defense in the Arkansas Criminal Code which became effective in 1976. The majority opinion correctly quotes the Code and Act 101 of 1977, which eliminated the affirmative defense of voluntary intoxication. The result of this action is where I most strongly disagree with the opinion. Act 101 in part reads as follows:

Section 1. Section 207 of Act 280 of 1975, the same being Arkansas Statutes Annotated § 41-207, is hereby amended to read as follows:
Section 207.(1) Intoxication that is not self-induced is an affirmative defense. . . .
(2) (a) “intoxication” means. . . .
(b) “self-induced intoxication” means intoxication caused by a substance which the actor knowingly introduces into his body, the tendency of which to cause intoxication he knows or ought to know.
Section 2. All laws and parts of laws in conflict with this act are hereby repealed.
Section 3. [The emergency clause which is quoted in the majority opinion.] [Emphasis added.]

Simply stated, Act 101 of 1977 deleted the affirmative defense of voluntary intoxication established by Act 280 of 1975. The question thus presented is what is the effect of the repeal. Technically, the legislative action was not a repeal, but rather it was an amendment. The text clearly states that Act 280 “is hereby amended to read as follows.” Voluntary intoxication was simply removed from the statute. What is left in the statute to relate to self-induced intoxication? Only the definition. The part which the 1977 act excised from the Criminal Code (Act 280 of 1975) read as follows:

Section 207.(1) Self-induced intoxication is an affirmative defense to a prosecution if it negates the existence of a purposeful or knowing mental state.

The foregoing section was simply removed from the original act and the remaining sections were renumbered.

The majority has construed a statute which is clear and unambiguous. The basic and fundamental rule of statutory construction is that we give the words of a statute their usual and ordinary meaning. If there is no ambiguity, we give a statute effect just as it reads. Chandler v. Perry-Casa Public Schools, 286 Ark. 170, 690 S.W.2d 349 (1985); City of North Little Rock v. Montgomery, 261 Ark. 16, 546 S.W.2d 154 (1977). The present statute clearly and unequivocally states that intoxication which is not self-induced is an affirmative defense. There is not a word, or group of words, in the statute which even remotely indicates that self-induced intoxication is or is not any form of defense. In other words, the legislature removed from the law a single provision of its prior enactment. There is nothing to construe. The intent of the legislature is not to be considered unless there is ambiguity.

The great problem created by the majority opinion is that it establishes a pool of unwritten law. Hereafter if the court desires a particular result, it need only find that the legislature, by repeal, intended to achieve a different result.

I think this Court was correct in Varnedare v. State, 264 Ark. 596, 573 S.W.2d 57 (1978), where we stated: “[b]y amending § 41-207 to remove self-induced intoxication as a statutory defense, the legislature, in effect, reinstated any prior Arkansas common law on the subject.” This is the only logical result so far as I am concerned. The present law, in my opinion, is the same as existed prior to any legislative enactment. Therefore, from my viewpoint, the giving of the instruction that voluntary intoxication is not a defense was prejudicial error, as is all error in criminal cases, unless it is later determined to be nonprejudicial.

I will now discuss what I perceive as errors concerning the “confession.” The questions and answers set out verbatim in the majority opinion clearly show that the appellant was still drunk at the time of the so-called confession. A suspect who is intoxicated during an interrogation cannot possibly knowingly, voluntarily, and intelligently waive his constitutional rights. See Orr v. State, 288 Ark. 118, 703 S.W.2d 438 (1986). The “confession” is impossible to follow as it frequently relates to a prior incident which occurred several weeks earlier, in which he broke his wife’s ribs. To compound the error the court allowed an officer to inaccurately summarize the statement before the statement itself was presented to the jury.

The majority addresses the admissibility of that part of the statement concerning the previous criminal act in several ways. First it states, “[accordingly, we find the testimony about the prior beating admissible so long as it is for some purpose other than to prove the character of the person in order to show he acted in conformity therewith.” The opinion continues by stating that a prior bad act is admissible pursuant to A.R.E. Rule 404(b) “if it is ‘independently relevant to the main issue — relevant in the sense of tending to prove some material point rather than merely to prove that the defendant is a criminal — then evidence of that conduct may be admissible with a proper cautionary instruction by the court.’ ” Price v. State, 268 Ark. 535, 597 S.W.2d 598 (1980), quoting Alford v. State, 223 Ark. 330, 266 S.W.2d 804 (1954). The opinion further argues that “[tjhe fact that the appellant’s wife was the victim in both incidents is the basis for its admissibility as it reflects a specific propensity to commit the particular sort of crime in question.” The majority cites as analogous our decisions in child abuse and incest cases where we have permitted evidence of prior similar acts with the same child or other children in the household “because, as here, they show a proclivity toward a specific act with a person or class of persons with whom the accused has an intimate relationship.” Finally the Court concludes that the prior act “is probative of the appellant’s participation in the crime charged and is therefore admissible under Rule 404(b).” The opinion then holds that A.R.E. Rule 403 is the real test to be applied and that the probative value of this evidence outweighed any prejudice.

The relationship of husband and wife, by definition, shows intimacy. The intimacy of the parties was not an issue in this trial. The prior bad act, therefore, cannot be said to have been introduced for the purpose of showing intimacy. This evidence simply does not fall within the exception to the general rule in cases of carnal abuse and incest. See Alford, supra, at 335.

My interpretation of the majority opinion is that it overrules Alford as to the fundamental rule of exclusion which forbids the prosecution from proving the commission of one crime by proof of the commission of another. In Alford we stated:

The rule itself has been announced in some fifty decisions of this court and is so familiar that we need not discuss at length the reasons for its acceptance by every English and American court. Basically, the rule rests upon that spirit of fair play which, perhaps more than anything else, distinguishes Anglo-American law from the jurisprudence of other nations. Our theory is simply that a finding of guilt should rest upon proof, beyond a reasonable doubt, that the accused committed the exact offense for which he is being tried. We do not permit the State to bolster its appeal to the jury by proof of prior convictions, with their conclusive presumption of verity, and still less is there reason to allow the jury to be prejudiced by mere accusations of earlier misconduct on the part of the defendant. . . .
What has happened is that the emphasis has shifted from evidence relevant to prove intent to evidence offered for the purpose of proving intent, by showing that the defendant is a bad man. If this transfer of emphasis is permitted the exclusionary rule has lost its meaning. [Emphasis in original.]

In prior decisions we have held that it is the general rule that proof of prior bad acts is never admitted when its only relevance is to show that the defendant is a man of bad character. The evidence of the first beating was not relevant to prove intent, but rather was offered for the purpose of proving intent, by showing that the defendant was a bad man.

The issue at trial was not whether he had beaten his wife before, but rather whether he intended to murder her. The defendant admitted beating his wife, although he denied any intent to kill her. The fact of the first beating might have been relevant to prove a second beating, but this evidence was in no respect relevant to establish any intent to murder. The evidence of the first beating should have been excluded because, clearly, its prejudicial effect substantially outweighed any probative value on the issue of intent. See A.R.E. Rule 403.

I would reverse and remand for a new trial.

       Section 41 -1503 also provides that a person commits second degree murder if they act with the “purpose” of causing death or serious physical injury. The trial court, however, based their decision on the fact that a “knowing” state of mind was all that was required, not all that was applicable.


author: Jack Holt, Jr., Chief Justice.

text:
    Tracy STANDRIDGE v. STATE of Arkansas
    CR 86-144
    717 S.W.2d 795
    Supreme Court of Arkansas
    Opinion delivered October 20, 1986

      John W. Settle, by: J. Fred Hart, Jr., for appellant.

      Steve Clark, Att’y Gen., by: Robert A. Ginnaven, III, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

In this appeal we are asked to decide whether a term of probation begins to run from the day it is ordered in court or from the day the judgment is filed. Our jurisdiction to hear this case is pursuant to Sup. Ct. R. 29(4) (b) as the court of appeals certified this case to us because it involves an issue of first impression in the law of sentencing. We hold that a sentence is in effect from the time it is pronounced in open court.

The appellant pled guilty in open court on October 2,198 5 to burglary, attempted burglary, and attempted theft of property and was placed on supervised court probation for one year, fined $1,000 plus court costs, payable at the rate of $100 monthly, beginning November 1, 1985, and imposition of sentence was suspended for a period of five years. The judgment was not filed until October 8. Also on October 8, a petition to revoke the suspended imposition of sentence was filed alleging that appellant failed to report to his probation officer on October 4. On November 25, 1985 an amended petition to revoke was filed alleging that appellant committed the offense of forgery on October 3,1985. A hearing was held on November 27,1985, after which appellant’s suspended imposition of sentence was revoked and he was sentenced to a term of five years imprisonment. Appellant claims the trial court was without jurisdiction to revoke the suspended imposition of sentence for an act occurring on October 3, since the judgment ordering probation and suspending imposition of sentence was not filed with clerk of the court until October 8. He also challenges the sufficiency of the evidence to revoke.

Prior to the adoption of the criminal and civil rules of procedure it was generally accepted that a judgment was effective from the date it was rendered and not from the date it was entered of record since the pronouncement of the judgment in court was the act of the judge, and the ministerial act of recording the judgment was the act of the clerk. American Investment Co. v. Hill, 173 Ark. 468, 292 S.W. 675 (1927); McConnell v. Bourland, 175 Ark. 253, 299 S.W. 44 (1927).

In civil matters, the Arkansas Rules of Civil Procedure now provide that a judgment or decree is effective only when entered. Rule 58. This rule of law is not applicable, however, in criminal cases.

Although this issue has not previously been decided in Arkansas, inferences can be drawn from our rules of criminal procedure, statutory provisions, and case law.

Arkansas R. Crim. P. Rule 36.4 provides that upon a finding of guilty, sentence may be pronounced and the judgment of the court may then and there be entered, or sentencing and the entry of the judgment may be postponed to a date certain. Since the sentence may be pronounced immediately it necessarily follows that it becomes effective as of the date of rendition.

Arkansas Stat. Ann. § 41-1206(1) (Repl. 1977) provides, “a period of suspension or probation commences to run on the day it is imposed.” The commentary after the statute states that “[previous statutory authority was silent as to when a probationary period began to run and provided that a period of suspension began to run from the date of the plea or verdict of guilty.” The commentary interprets subsection (1) as starting “a period of suspension or probation on the date the court orders such action. This coincides with the rule that a term of imprisonment begins to run on the day sentence is imposed. Ark. Stat. Ann. § 43-2813 (Supp. 1973).” Although we are not bound by the commentary to the criminal code, we have held that it should be adopted “unless we are clearly convinced that it is erroneous or that it is contrary to the settled policy of this state, as declared in the opinions of this court.” State v. Reeves, 264 Ark. 622, 574 S.W.2d 647 (1978). This provision is not contrary to public policy.

Similarly, our statutes require that a person shall not have a judgment rendered against him in case of felony, except in his presence, Ark. Stat. Ann. § 43-2302 (Repl. 1977), and that the law in relation to the sentence he faces and the sentence shall be read to him in court and the consequences fully explained “so that such person convicted and sentenced, shall in no instance be deemed ignorant of the sentence pronounced on him.” Ark. Stat. Ann. § 43-2305 (Repl. 1977). The statutes clearly contemplate that judgment shall be pronounced in open court and that any period of imprisonment, suspension or probation shall also be imposed at that time.

In Lovett v. State, 267 Ark. 912, 591 S.W.2d 683 (1980) we explained that, although Ark. R. Crim. P. Rule 36.4 provides that sentencing may occur immediately or be postponed within a specified time frame, “there is no provision indicating that a failure to observe this stipulation in any way affects the validity of the proceedings resulting in the conviction of a defendant.” We then found it permissible for the court to enter a nunc pro tunc judgment setting out the conviction. This is permissible because the operative act is the oral pronouncement of sentence.

In holding that a sentence is effective from the date it is imposed we align ourselves with treatises and with the courts of other states. See e.g., 4 Wharton’s Criminal Procedure § 609 pp. 201-202 (12th ed. 1976), “A judgment of guilty becomes final when sentence is pronounced. The judgment must be rendered in open court . . 49 C.J.S. Judgments § 106 p. 229 (1947), “[T]he great weight of authority is that the entry of judgment is a ministerial or clerical act, . . . and consists of placing a judgment previously rendered on the record, . . 21 Am Jur 2d Criminal Law § 534 p. 884 (1981), “The rendition of a sentence or judgment is the judicial act of a court as distinguished from the entry of the judgment which is a ministerial act of spreading it on the record”; Flowers v. State, 351 So.2d 387 (Fla. App. 1977), “[T]he completion and filing of the authorized form of judgment and sentence [are not] a condition to a valid sentence. The judgment of guilt must... ‘be rendered in open Court and in writing, signed by the judge, filed, and recorded’. . . . That requirement should not be read as suspending the effect of the sentence pronounced in open court until the paper is filed. . . .”

Accordingly, we hold that appellant’s first point is without merit as the trial court had jurisdiction to revoke the suspended imposition of sentence for an act occurring after the date the sentence was declared in court. The date the judgment was filed is inconsequential in this instance.

Appellant next contends that there was not sufficient evidence to revoke. “[A] suspension may be revoked if the court finds by a preponderance of the evidence that the defendant has ‘inexcusably’ failed to comply with a condition of the suspension. ... In reviewing an order of revocation we affirm unless we find the court’s order to be clearly against the preponderance of the evidence.” Cogburn v. State, 264 Ark. 173, 579 S.W.2d 658 (1978), citing Ark. Stat. Ann. § 41-1208(4) (Repl. 1977); Murphy v. State, 269 Ark. 181, 599 S.W.2d 138 (1980).

Appellant pled guilty to the offenses of burglary, attempted burglary, and attempted theft of property and was sentenced on October 2,1985. The petition to revoke and an amended petition to revoke alleged that appellant failed to report to his probation officer on October 4 and committed the offense of forgery on October 3. Both, if true, are violations of the terms of appellant’s probation. It is the sufficiency of the evidence of the crime of forgery that is being questioned in this appeal.

The evidence was sufficient. Linda Jordan, a teller at First National Bank in Fort Smith, testified that appellant presented her with a check payable to Brent Atkins and drawn on the account of Cindy McHenry on Oct. 3,1985. Appellant also gave her Brent Atkins’ driver’s license. The computer indicated that the check had been stolen. Appellant left the bank driving a red Volkswagen before the branch manager could confront him.

Cindy McHenry testified that a book of her checks had been stolen and that the signature on the check appellant presented to the teller was not hers.

Detective David Chapman testified that he interviewed Brent Atkins and discovered that he did not own a red Volkswagen and that he had lost his driver’s license at a Food 4-Less. A handwriting sample revealed that, in the officer’s opinion, Atkins’ signature did not resemble that on the check. The detective also testified that appellant’s brother was employed at a Food 4-Less and he occasionally let appellant borrow his red Volkswagen.

Sheila Hickey testified that she is also a teller at First National Bank and that, on a different date, the appellant counter-endorsed a check payable to James Stewart and drawn on the account of Cindy McHenry. Ms. Hickey stated that another person was with appellant who identified himself as the payee of the instrument.

Appellant testified in his own behalf that he did counter-endorse the check to help an acquaintance known to him only as “Jim”. He denied the other transaction.

The court’s finding as to the offense of forgery was not against a preponderance of the evidence.

Affirmed.


author: George Rose Smith, Justice.

text:
    William STREET v. Allen D. KURZINSKI and AMERICAN MACHINE BUILDERS, INC.
    717 S.W.2d 798
    Supreme Court of Arkansas
    Opinion delivered October 20, 1986

      Harkey, Walmsley, Belew & Blankenship, by: Leroy Blankenship, for appellant.
    No response.
   George Rose Smith, Justice.

When the appellant sought to appeal this case by filing the record, the clerk refused to accept it, explaining that the appellant had filed two notices of appeal and that it was not clear which one was controlling in the calculation of the time for lodging the appeal. The clerk suggested to Street’s attorney that he file a motion under Rule 5 to require the clerk to docket the case. That motion is now before us. Since the fact situation has not previously been ruled upon, this opinion is written to explain why the tender of the record in this case was too late.

Street brought this action for defamation against Kurzinski and his employer, American Machine Builders. Street obtained a verdict against Kurzinski, but the trial judge directed a verdict in favor of AMB for want of proof that Kurzinski was acting in the scope of his employment in defaming Street. The two-day trial ended on September 17,1985, but apparently as a result of post-trial motions the final judgment was not entered until January 17. During the interval, Street filed a motion for judgment n.o.v., which the court denied in an order filed on December 31. On November 27 Kurzinski filed a motion for judgment n.o.v. or alternatively for a new trial, but the record discloses no action of any kind on that motion during the 30 days allowed by Rule 4(c) of the Rules of Appellate Procedure. Consequently the motion was deemed under that rule to have been denied at the expiration of 30 days after its filing, and the court lost jurisdiction to act upon it. Smith v. Boone, 284 Ark. 183, 680 S.W.2d 709 (1984); Coking Coal v. Arkoma Coal Corp., 278 Ark. 446, 646 S.W.2d 12 (1983). It is immaterial that the motion was filed before the entry of judgment, for it is plain that the trial court can grant or deny a motion for judgment n.o.v. or a motion for a new trial before a formal judgment on the verdict is entered. That procedure is not uncommon.

On January 17 the court entered a final judgment upon the verdict in favor of Street. The judgment awarded $35,000 in damages against Kurzinski and. recited that the plaintiffs cause of action against AMB had previously been dismissed (by the order denying the plaintiffs motion for judgment n.o.v.). Street promptly filed a notice of appeal, on January 28.

On January 29 the court entered an order stating that Kurzinski’s motions for a new trial and for judgment n.o.v. “are hereby set for hearing on February 11.” After that hearing the court’s order denying the motions was entered on February 21. On March 3 counsel for Street filed a second notice of appeal reciting, as did the first notice of appeal, that it was from that part of the judgment of January 17 which denied Street a judgment against AMB.

On May 7 the appellant filed a motion for an extension of time for filing the record on appeal. The motion recites that judgment was entered on January 17 and that “subsequently” the defendant Kurzinski filed a motion for a new trial. The latter statement is not supported by the record, which shows that Kurzinski’s motion was filed on November 27 and was not acted upon until the court on February 11 set it for a hearing. The motion for an extension of time was granted on May 9.

Rule 5 of the Rules of Appellate Procedure provides that the record shall be filed with our clerk “within ninety days from the filing of the first notice of appeal,” or an extension of time must be obtained within the 90 days. The reference to the “first” notice of appeal removes any possible doubt when both parties file notices of appeal or when one party files notices of appeal from different orders. Here the 90 days began to run from the filing of the first notice of appeal on January 28, not only because of the wording of the statute but also because the filing of the second notice was manifestly superfluous. Kurzinski’s motion for a judgment n.o.v. or for a new trial was deemed to have been denied after 30 days when the court made no written record of any action upon the motion within that time. As we have seen, after the lapse of the 30 days the court had no jurisdiction to act upon the motion. The court’s order of January 29, setting the motion down for a hearing, could not have extended the time for filing a notice of appeal even for Kurzinski, who filed the motion, much less for Street, who successfully resisted it. What we said in Coking Coal, supra, is applicable here: “The purpose of Rule 4 [of the Rules of Appellate Procedure] is to accelerate the appellate process, not to delay it.” The clerk was right in not accepting the record in this case, for it was tendered after the expiration of 90 days from the filing of the first notice of appeal.

The motion for a rule on the clerk is denied.


author: Darrell Hickman, Justice.

text:
    Kenneth PARKER v. STATE of Arkansas
    CR 86-78
    717 S.W.2d 800
    Supreme Court of Arkansas
    Opinion delivered October 20, 1986

      Patrick H. Hays, for appellant.

      Steve Clark, Att’y Gen., by: William F. Knight, Asst. Att’y Gen., for appellee.
   Darrell Hickman, Justice.

Kenneth Parker shot and killed Henry Rogers at a pool hall in England, Arkansas, on the evening of April 13, 1985. He was convicted of first degree murder and sentenced to life imprisonment. On appeal he argues there was no substantial evidence that he deliberately and with premeditation shot Rogers. Also he argues that a photograph of Rogers with his young son was introduced by the state solely to prejudice the jury. We find no error and affirm the conviction.

Parker stipulated that he fired the .32 caliber pistol that resulted in Rogers’ death. Nobody testified as to why Parker shot Rogers. Witnesses said Rogers and Parker were at the pool hall about thirty minutes before the shooting. Parker was inside when Rogers arrived. Rogers lingered outside and then went inside. Parker fired at least four times, three bullets striking Rogers and killing him. Parker then left. The state proved that Rogers did not threaten or provoke Parker, and he had no weapon. Parker just killed him. In the defense’s case, some evidence was introduced of prior trouble between the men.

Did the state produce sufficient evidence of first degree murder which requires a deliberate and premeditated act? First, such intent may and often must be inferred from circumstantial evidence. Smith v. State, 264 Ark. 874, 575 S.W.2d 677 (1979). Such intent does not have to be conceived for any particular period of time. Westbrook v. State, 265 Ark. 736, 580 S.W.2d 702 (1979). Premeditation and deliberation may be inferred from the type of weapon used, the manner of its use, and the nature, extent, and location of the wounds. Williams v. State, 289 Ark. 69, 709 S.W.2d 80 (1986).

In this case there was no provocation. Both Parker and Rogers were present at the pool hall about twenty minutes when Parker deliberately shot Rogers four times killing him. This evidence is substantial that Parker deliberately and with premeditation killed Rogers. His motive for killing Rogers is not something the state must prove. Lair v. State, 283 Ark. 237, 675 S.W.2d 361 (1984).

Parker’s argument regarding the photograph of the deceased is also without merit. The state argues that the photograph was necessary to “identify” the deceased. The appellant argues it was purely to inflame the jury. It really made no difference in the outcome of the trial. Therefore, it could not have been so inflammatory as to require a new trial. Cotton v. State, 276 Ark. 282, 634 S.W.2d 127 (1982); Gruzen v. State, 267 Ark. 380, 591 S.W.2d 342 (1979). The state could have proved its case without this evidence, but we do not preclude the state from proving a matter simply because it is stipulated. Spillers v. State, 272 Ark. 212, 613 S.W.2d 387 (1981). The state could have routinely brought out who Rogers was and the fact that he was a father.

Since this is a life imprisonment case, we have considered other possible errors. See Ark. Stat. Ann. § 43-2725 (Repl. 1977). We find none.

Affirmed.


author: John I. Purtle, Justice.

text:
    Michael Brent JACKSON v. STATE of Arkansas
    CR 86-106
    717 S.W.2d 801
    Supreme Court of Arkansas
    Opinion delivered October 20, 1986

      William R. Simpson, Jr., Public Defender, Donald Campbell, III, Deputy Public Defender, by: Deborah R. Sailings, Deputy Public Defender, for appellant.

      Steve Clark, Att’y Gen., by: William F. Knight, Asst. Att’y Gen., for appellee.
   John I. Purtle, Justice.

The appellant was convicted of kidnapping and terroristic threatening. Having three prior felony convictions, he was sentenced to life imprisonment for kidnapping and 12 years for terroristic threatening. We do not agree with the appellant’s sole contention on appeal that there was insufficient evidence to support the conviction for kidnapping.

On March 22, 1985, the appellant opened the door of the victim’s vehicle and ordered her to move over to the passenger side. He told her he had a knife, which he pressed to her side, and threatened to kill her. He tried to hold the victim in the car and drive away at the same time. During the struggle she was able to open the door on the passenger side and attempted to get out. The appellant grabbed her by the hair and pulled her back into the car. He made a number of additional threatening statements in which he said he would kill her if she moved. The victim continued to struggle and the commotion attracted the attention of a man in the parking lot. The witness heard the victim screaming and pleading for help. He ran to the car as she yelled, “Please help me, save me, he’s trying to kill me.” The appellant then got into another vehicle and left. The witness took down the license number of the vehicle which appellant was driving and turned the number in to the police.

The only argument on appeal is that the evidence was insufficient to support the appellant’s conviction for kidnapping. Kidnapping is defined in Ark. Stat. Ann. § 41-1702(1) (Repl. 1977) as follows:

A person commits the offense of kidnapping if, without consent, he restrains another person so as to interfere substantially with his liberty with the purpose of: . . .
(e) terrorizing him or another person. . . .

There is no question but that the victim was restrained. Substantial interference with the liberty of another person does not necessarily require that the interference be for a substantial period of time. In the case of Cook v. State, 284 Ark. 333, 681 S.W.2d 378 (1984), we held that confinement for a few minutes was sufficient to support a conviction for kidnapping.

To prove kidnapping the State must only prove that the accused restrained the victim so as to interfere substantially with the victim’s liberty, without the victim’s consent, for a specific purpose outlined by the statute. Ellis v. State, 279 Ark. 430, 652 S.W.2d 35 (1983). The purpose of the restraint is the question to be decided in this case. Appellant argues there was not a scintilla of evidence to prove the intent to terrorize. It is true that no statement of intent was expressed by the appellant. Such intent, however, may be inferred from circumstantial evidence. Johnson v. State, 276 Ark. 56, 632 S.W.2d 416 (1982). Further, one is presumed to intend the natural and probable consequences of his act. Rhine v. State, 184 Ark. 220, 42 S.W.2d 8 (1931); Pate v. State, 206 Ark. 693, 177 S.W.2d 933 (1944).

Although Rhine was decided prior to the adoption of the Arkansas Criminal Code, the fundamental rule is carried into the present law as Ark. Stat. Ann. § 41-203(1) (Repl. 1977). This statute declares that, “[a] person acts purposely with respect to his conduct or a result thereof when it is his conscious object to engage in conduct of that nature or cause such a result.” In Chaviers v. State, 267 Ark. 6, 588 S.W.2d 434 (1979), addressing an argument similar to the one in the present appeal, we stated: “[b]y the nature of things, one’s intent or purpose, being a state of mind, can seldom be positively known to others, so it ordinarily cannot be shown by direct evidence, but may be inferred from the facts and circumstances shown in evidence.”

There is no question but that the victim was terrorized. Without other logical explanation it is presumed he intended the result of his acts. In reviewing the sufficiency of the evidence we need only determine whether there was any substantial evidence to support the verdict. Nichols v. State, 280 Ark. 173, 655 S.W.2d 450 (1983). From the facts stated above we hold that there was substantial evidence to support the conviction for kidnapping.

Affirmed.


text:
    Michael Curtis CROOK v. STATE of Arkansas
    CR 86-149
    717 S.W.2d 803
    Supreme Court of Arkansas
    Opinion delivered October 20, 1986

      Lloyd R. Haynes, for appellant.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

Appellant, Michael Curtis Crook, appeals from his conviction for possession of cocaine and argues that the trial court erred in failing to dismiss the charge. The argument is meritorious. The Court of Appeals certified the case to this Court under Rule 29(1 )(c) as it involves the interpretation of A.R.Cr.P. Rule 21.3.

On June 16, 1984, in a connected series of occurrences, a policeman saw appellant and another man smoking marijuana while they were sitting in a parked car. The two were arrested, and in a search of the car, a pistol was found in a holster. As the officer took the pistol out of the holster, a plastic bag containing cocaine fell out. In addition, it was discovered that the car was stolen.

On August 20,1984, appellant was charged by information with theft by receiving (the car), and being a felon in possession of a firearm (the pistol). At that time, appellant was not charged with possession of a controlled substance (the cocaine). On February 15, 1985, seven months later, the information was amended to add the charge of possession of a controlled substance. Appellant was not notified at the time of the amended information.

The charge of felon in possession of a firearm was dismissed and, on February 28, 1985, appellant was tried, convicted and sentenced on the charge of theft by receiving.

It was not until July 22, 1985, nearly five months after his trial for theft by receiving that appellant received notice the Amended Information had been filed charging him with possession of a controlled substance. Appellant filed a Motion to Dismiss the charge of possession of a controlled substance, based upon A.R.Cr.P. Rule 21.3, arguing that all offenses arising out of the June 16, 1984 series of occurrences should have been joined and tried at the same time. The motion was denied. Appellant waived a jury trial and, in a trial to the court was found guilty of possession of cocaine.

A.R.Cr.P. Rule 21.3 provides in pertinent part:

(c) A defendant who has been tried for one (1) offense may thereafter move to dismiss a charge for a related offense, unless a motion for joinder of these offenses was previously denied or the right of joinder was waived as provided in subsection (b). The motion to dismiss must be made prior to the second trial, and shall be granted unless the court determines that because the prosecuting attorney did not have sufficient evidence to warrant trying this offense at the time of the first trial, or for some other reason, the ends of justice would be defeated if the motion were granted.

Rule 21.3 is contained in Article VI of the Arkansas Rules of Criminal Procedure. The commentary to Article VI provides:

The provisions of this rule are also designed to encompass a situation in which a defendant, having been tried for one offense, finds himself confronted with a related charge of which he was unaware prior to the other trial. Again, if the ends of justice would not be defeated — for example, because the prosecuting attorney does not have sufficient evidence to warrant trying the offense — the defendant is entitled to a dismissal of the charge.

Clearly, unless the “ends of justice” would be defeated by doing so, the rule requires the trial court to grant a motion to dismiss when a defendant has been tried for one offense and then later learns that he is to be tried for a related charge of which he was unaware prior to the first trial. Those are the circumstances presented by the instant case. In exercising its discretion to determine whether the “ends of justice” would be defeated, the trial court must do so with the purpose of accommodating reason and justice with the facts of particular cases. See commentary to Article VI of the Arkansas Rules of Criminal Procedure. In Cozzaglio v. State, 289 Ark. 33, 709 S.W.2d 70 (1986), we emphasized that the state ought to charge a defendant in one case with all possible charges arising out of a single episode. The trial court did nqt explain its reasons for denying the motion except to note that the failure to include the possession of cocaine charge in the first place was due to clerical oversight. Clerical oversights do not justify denying appellant’s motion to dismiss.

Reversed and dismissed.


author: Steele Hays, Justice.

text:
    Lonnie Ray JOHNSON v. STATE of Arkansas
    CR 86-49
    717 S.W.2d 805
    Supreme Court of Arkansas
    Opinion delivered October 20, 1986
    [Rehearing denied November 24, 1986.]

      Compton, Prewett, Thomas & Hickey, P.A., by: Robert C. Compton, for appellant.

      Steve Clark, Att’y Gen., by: Joel O. Huggins, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

Lonnie Ray Johnson has appealed from two life sentences imposed on his convictions for the rapes of Sandra Johnson and Shelly Davis. We affirm the judgment of the trial court.

Johnson first argues the trial court should have granted his motion in limine to prevent his being asked on cross-examination, should he have elected to take the stand, whether he had been convicted of the crime of rape. The trial court denied the motion and Johnson did not take the stand. He urges that the prejudicial aspect of an earlier conviction, in 1980, for the same crime for which he was being tried would be particularly prejudicial and would outweigh any probative value. Arkansas Rules of Evidence 403; Price v. State, 268 Ark. 535, 597 S.W.2d 598 (1980). However, we need not decide whether the trial court correctly balanced the competing interests in denying the motion in limine, because neither Johnson nor his attorney represented to the trial court that if the motion were upheld he would testify in his own behalf.

In Simmons v. State, 278 Ark. 305, 645 S.W.2d 680 (1983), we recognized that a defendant may file a motion in limine for an advance ruling that he not be cross-examined about previous convictions when, in fact, he had no intention of testifying at all, hoping to lead the trial judge into reversible error. Our solution was to adopt the course approved in United States v. Cook, 608 F.2d 1175 (9th Cir. 1979):

In future cases, to preserve the issue for review, a defendant must at least, by a statement of his attorney: (1) establish on the record that he will in fact take the stand and testify if his challenged prior convictions are excluded; and (2) sufficiently outline the nature of his testimony so that the trial court, and the reviewing court, can do the necessary balancing contemplated in Rule 609.

Here, Johnson did not assert he would take the stand and made no record of what his testimony would be, even though the trial court took the motion under advisement until the state had rested. The point, therefore, was not preserved for review.

Johnson’s counsel concedes in oral argument his failure to follow the steps set out in Simmons v. State, supra, but insists the record itself establishes that Johnson would have taken the stand in his own behalf but for the threatened cross-examination. He cites page 184, where we find remarks of the prosecutor, arguing to the trial court against the motion in limine:

You have a set of witnesses that say one thing happened, the rape occurred, and Mr. Johnson if he elects to testify, would say the rape did not occur. (Our italics).

This conjectural observation by a prosecutor speculating as to what the defendant might say if he were to testify, is not what was contemplated by the opinion in Simmons v. State, supra. The defendant must, in good faith, assure the trial court he intends to testify and must outline the gist of his testimony so that the trial court and appellate court, if need be, can assess the merits of the motion.

Johnson next maintains the two counts of rape should have been severed “to promote a fair determination of the defendant’s guilt or innocence of each offense.” A.R.Cr.P. 22.2(b) (i). Citing Laird v. State, 251 Ark. 1074, 476 S.W.2d 811 (1972) and Teas v. State, 266 Ark. 572, 587 S.W.2d 28 (1979), he concedes the crimes were of a similar character, but denies they were part of a single scheme or plan.

The state’s proof included the testimony of Sandra Johnson, Shelly Davis and Nord Bonner, eyewitnesses to the events of that evening. Their testimony was notably in agreement in substance and in detail. Nord Bonner said he, Johnson, Ricky Westbrook and Robert Tatum drove to Tale’s, a beer joint in El Dorado, in Tatum’s Cadillac. After drinking beer for two or three hours they went to the Continental Club. There Bonner stayed in the car listening to the radio while the others went inside. Later, Johnson came out and said he had Tatum’s permission to use the car, so Johnson and Bonner drove around. Eventually, they picked up Sandra Johnson and Shelly Davis outside another night spot and Johnson drove toward Strong where he said he could get some marijuana.

Bonner said Johnson was driving fast and acting strangely. The girls, he said, began “hollering and carrying on” and asked to be taken back to El Dorado. Johnson refused and told them to be quiet or he’d kill them, reaching under his seat as though to retrieve a gun. Bonner said he too was afraid.

At the end of a dark road Johnson ordered both women to take off their clothes, again reaching under the seat when they hesitated. Johnson alternately raped and sexually abused both women. One of the victims managed to escape by running into the woods and Johnson drove to another location where he raped the other victim once more and ordered her to perform oral sex on Bonner over Bonner’s protest. She, too, finally escaped. One of the victims was picked up by motorists and the other ran to a dwelling for assistance. Both reported the crimes immediately and exonerated Bonner of any involvement. Bonner also went directly to the police.

Clearly, these offenses were part of a single criminal episode. The victims were picked up together, ordered simultaneously to remove their clothing, driven together to a remote location where they were by turn raped and otherwise abused until one escaped. A.R.Cr.P. Rule 21.1(b) permits the joinder of two offenses when they “are based on the same conduct or on a series of acts connected together. . . .” The Commentary to Rules 21, 22 and 23 states they are designed “to promote expeditious disposition of criminal cases” without resulting in prejudice to the defendants and without unreasonably restricting the trial court’s discretion in finding the right balance between the two opposing interests. We think the offenses here were plainly connected in time, situs, and character, and were subject to joinder. Henry v. State, 278 Ark. 478, 647 S.W.2d 419 (1983), cert. denied, 464 U.S. 835 (1983); Ruiz and Denton v. State, 273 Ark. 94, 617 S.W.2d 6 (1981).

Finally, Johnson complains that his cross-examination of Sandra Johnson was curtailed in that he was not permitted to ask how she supported herself and a daughter, being unemployed and unmarried. Whether the question was disallowed on the basis of relevancy or the rape shield statute (Ark. Stat. Ann. §41-1810.1 et seq. (Repl. 1977 and Supp. 1985) is not clear; however, an in-chambers proffer showed that Ms. Johnson was supported by her fiance, thus the excluded proof was of no consequence whatever. Arkansas Rules of Evidence 103(a).

Affirmed.