author: Warwick, Sp. J.

text:
    Oliver vs. McClure.
    Execution Sales : To what redemption laios do not apply.

    The provisions of the Code of Civil Practice, secs. 691 to 693 inclusive, respecting the redemption of lands sold on exceution, do not apply to judgments rendered on contracts made before the adoption of the code; but sales under executions, on such judgments, are governed by the law in force at the time of the making of the contract between the parties.
    Legislature : Power of, to change remedy, etc.

    It is competent for the legislature to change remedies, process, etc., before judgment; but when the right is judicially ascertained, they cannot interfere with the process to enforce that right that materially renders the right less efficient than that inexistence when the contract was made. '
    APPEAL from Pulasjci Circuit Court.
    Hon. John Whytock, Circuit Judge.

      Farr & Fletcher and A. Ii. Garland, for appellant.

      T. D. W. Yonley, for appellee.
   Warwick, Sp. J.

On the 25th day of June, 1870, one Solomon Miller obtained judgment against William D. Pennington for the sum of $783.00 in the circuit court of Pulaski county. This judgment was based on a note given by Pennington to Miller in 1860.

On the 10th of February, 1871, Miller caused an execution to issue on said judgment against Pennington, by virtue of which W. S. Oliver, sheriff of Pulaski county, on the 2áth day of February, 1871, levied on certain real estate as the property of Pennington, and by him advertised for sale on the 18th day of March, 1871. At this sale John McOlure was the purchaser of certain of the lands so levied upon and sold.

At the May term, 1871, of the Pulaski circuit court, McClure filed a petition against Oliver, reciting the above facts, together with a full description of the land so bought by him, and praying a rule on the said Oliver to require him to execute a sheriff’s deed to McOlure for the property purchased by him.

To this petition the sheriff filed a demurrer for the reason “ that said plaintiff (McOlure) is not entitled to a deed until one year from the date of the sale therein (the petition) named.” Demurrer was overruled by the circuit court, and the sheriff ordered by the court to execute deed to McOlure for the lands described in the petition. From this ruling Oliver appealed to this court.

At the time the contract or note was made, to-wit: in 1860, by the laws of this state, the property of judgment debtors, both real and personal, when sold under execution, was sold absolutely, and all the title of the debtor passed to the purchaser. In the case of lands being sold, the sheriff executed a deed to the purchaser which passed all the title, legal aiid equitable,- of the judgment debtor, without any right of redemption.

Such remained the law until the adoption of the code, which was in force at the time of the rendition of the judgment of Miller v. Pennington, (June 1870), as well as when the sale was made. Section 691 of the code provides that “ when any real estate, or any interest therein, is sold under execution, the same may be redeemed by the debtor from the purchaser, or his vendees, or the personal representatives of either, within twelve months thereafter.” Sec. 692 provides the manner of redemption, and requires the purchase money to be deposited with the clerk with fifteen per cent, per annum thereon. Sec. 693 provides that the sheriff shall give the purchaser of any real property sold upon execution a certificate of sale, and that “ no conveyance shall be made to the purchaser, nor the possession delivered to him, until the time for redeeming has expired,” and if redeemed, the sale and certificate of purchase shall be null and void. Other sections provide that other judgment creditors may redeem, and the manner thereof.

The only question involved in this case is, whether the provisions of the code, above referred to, permitting the redemption of lands sold under execution, do or can constitutionally apply to judgments rendered on contracts made before the adoption of the code.

Under the law as it stood, when the contract between Miller and Pennington was made, a creditor, after obtaining a judgment against his debtor, had a right to subject his lands to absolute sale, and the purchaser received a deed from the sheriff, and at once entered upon the use and enjoyment; he purchased not an equitable or contingent estate, but all the estate that the judgment debtor had in the lands.

Whatever rights Miller had, in the case at bar, passed to the purchaser, McClure; and in the determination of the question it matters not that McClure, a stranger, purchased rather than Miller, for the purchaser of lands sold under exe* cution, to satisfy a judgment, stands in the place of the judgment creditor, and is entitled to all the rights and privileges growing out of that relation. Spindler v. Atkinson, 3 Md., 423; Scott v. Purcell, 7 Blackf., 66; 7 Md., 377; Harper v. Tapely, 35 Miss., 507; Hildreth v. Sands, 2 Johns. Ch., 35; Sands v. Hildreth, 14 Johns., 493; Ridegway v. Underwood, 4 Wash. C. C. R, 129.

The main inquiry then is, Did the law governing sales under execution, in force at the time, enter into and become a part of the contract between Miller and Pennington ?

Sec. 10 of art. I of the constitution of the United States provides that “ no state shall * * pass any bill of attainder, ex post facto law, or law impairing the obligation of con tracts., Sec. 13 of art. I of our constitution is to the some purport.

This provision has so often been under discussion in the federal and state courts, that we cannot do better than to-briefly review what has been held by the courts in cases similar to this.

In the case of Burton v. Bolander, 4 G. Greene (Iowa), 393, and Corriel v. Ham, id., 455, the court say that execution laws enter into and become a part of the contract, and in the latter case say that, so far as execution laws are merely remedial, they may be modified and changed at any time, but that while remedial directions to the. officers of the law for enforcing those rights may be changed, the substantial rights of parties, under the contract, cannot be changed or impaired by subsequent laws.

The case of Rosier v. Hale et al., 10 Iowa., 470, was one where the sheriff, by virtue of an execution, sold certain lands to the highest bidder, disregarding a statute in force at the date of judgment and sale, which required that on sales under execution the sheriff should cause the property to.be appraised, and requiring the property to bring two-thirds of its appraised value. The judgment in this case was rendered on a contract made prior to the appraisement law, and the court again held that the law in force at the time of making the contract governed, and that the appraisement law could not constitutionally apply to contracts made prior to its passage. Again in Malony v. Fortune, 14 Iowa, 417, the same court held that a redemption law, allowing redemption, within one year, on sales of property under foreclosure of mortgage, the same as on judgments at law, could not apply to' prior contracts of mortgage.

In Willard v. Longstreet, 2 Douglass (Mich.), 172, the court held the provisions of a statute prohibiting the sale of property on execution, unless it would bring two-thirds of its appraised value, so far as it applied .to the remedy to enforce preexisting contracts, unconstitutional and void, and that the judgment creditor hada right to insist on a sale in accordance with the law in force at the making of the contract. This rule has been subsequently affirmed by the courts of that state.

In Bungardner v. The Circuit Court of Howard County, 4 Mo., 60, which was mandamus to compel the issuance of an execution, on a judgment before, then obtained, the court held the provisions of a stay law, allowing a stay of execution for four months, to be unconstitutional.

Again in Stevens v. Andrews, Sheriff, 31 Mo., 205, the court, in discussing á stay law, affirmed the ruling in 4 Mo., 50, and held that stay laws could not constitutionally apply to prior contracts.

In a careful and well considered opinion by Judge Hay-"WOOD in 1 Peck. (Tenn.), 1, he says': “The contract is made by the parties, and if sanctioned by law, it promises to enforce performance, should the party decline performance himself. The law is the source of the obligation, and the extent is defined by tbe law in force at the time the contract is made. If this law direct a specific execution, and a subsequent act declares there shall not be a specific execution, the -obligation of the contract is lessened and impaired. The legislature may alter remedies, but they must not, so far as regards antecedent contracts, be rendered less efficacious or more dilatory than those ordained by the law in being when the contract was made.”

In Goenen v. Schroeder, 8 Minn., 387, the court say, it is clear that the party adopts the law in force at the time he makes the contract, and held that a law permitting redemption of mortgages, in a specified time after sale, could not apply, constitutionally, to prior mortgages.

Similar doctrine was held in 7 Mon., 542 and 587. In Scobey v. Gibson, 17 Ind., 572, the court, in construing an act providing for the redemption of real property sold irpon execution, etc., says, “ that so far,as the same was intended to apply to sales or judgments rendered upon contracts existing at and before its passage, it is in conflict with the provision of the constitution of the United States, which prohibits the passage of any law impairing the obligation of contracts.” “It is true,” says that court, “ that the state, for convenience, may change legal remedies; may vary times of holding courts; shift jurisdiction from one to another; change forms of action, of pleadings, of process, etc., and that-such legislation may, incidentally, delay somewhat the collection of given debts. But such is not the purpose of this statute; the legislature cannot, under the guise of legislating upon the remedy, intentionally in effect impair the obligation of contracts. Any legislation professedly directed to the remedy, which deprives the party of one subtantially as efficient as that existing at the making of the contract, does impair the obligation of the contract.” Beferring to 1 How., 319; 3 id., 707; 15 id., 304. This case was reaffirmed and followed in the case of Inglehart v. Wolfin, 20 Ind., 32 (1863).

The California supreme court, in Thorne v. San Francisco, 4 Cal., 128, declared that redemption laws could not apply to contracts made prior to their passage. This doctrine was reaffirmed, until in Moore v. Martin, 38 Cal., 428, they held to a different ruling, overruling Thorne v. San Francisco. This is the only case we are able to find which is at variance with the above cases.

We come now to examine the leading cases in the United States supreme court, and which have been the ruling authorities relied upon in all the state courts. Bronson v. Kinzie et al., 1 How., 311, was a bill brought in the cuircuit court of Illinois to foreclose a mortgage. After the mortgage was executed, and before the bill to foreclose was filed, the legislature of Illinois passed a law which provided that mortgagors and judgment creditors should have the same right to redeem mortgaged premises, sold by the decree of a court of chancery, that had been given to debtors and judgment creditors by a previous law of 1825. The law of 1825 authorized the party whose lands should be sold by execution after the law took effect, to redeem them within twelve months from the day of sale, and if the debtor did not redeem within the time limited, any judgment creditor was authorized to do so within fifteen months from sale. By another act passed after making the mortgage, it was directed that when any execution should be levied upon property, real and personal, it should be the duty of the officer to have the same appraised, and at the sale it should not be struck off unless two-thirds of the valuation should be bid therefor; and further provided that all sales of mortgaged property should be made in accordance with the act; held, that “a state law, passed subsequently to the execution of a mortgage, which declares that the equitable estate of tbe mortgagor shall not be extinguished for twelve months after a sale under a decree in chancery, and which prevents a sale, unless two-thirds of the amount at which the property has been valued by appraisers shall be bid therefor (as applied to prior contracts), is within the clause of the tenth section of the first article of the constitution of the United States, which prohibits a state from passing a law impairing the obligation of contracts.”

Chief Justice Taney, who delivered the opinion of the court, says that “ as concerns the obligations of the contract upon which this controversy has arisen, they depend upon the law of Illinois as they stood at the time the mortgage deed was executed. The mortgage, given to secure the debt, was made in Illinois, for real property situated in that state, and the rights which the mortgagee acquired in the premises depended upon the laws of that state. In other words, the existing laws of Illinois created and defined the legal and equitable obligations of the mortgage contract.”

Again, he says: “'Whatever belongs merely to the remedy may be altered according to the will of the state, provided the alteration does not impair the obligation of the contract. But if that effect is produced, it is immaterial whether it is done by acting on the remedy, or the contract itself. In either case it is prohibited by the constitution.”

“ There is no covenant (still quoting from the opinion) giving the mortgagor the right to redeem by paying the money after the day limited in the deed, and before he was foreclosed by the decree of the court of chancery. Yet no one doubts his right or his remedy; for, by the laws of the state then in force, this right and this remedy were a part of the law of the contract, without any express agreement by the parties. They were annexed to the contract at the time it was made, and formed a part of it, and any subsequent law, impairing the rights thus acquired, impairs the obligations which the contract imposed.”

It will be perceived that this case was not decided upon any of the covenants contained in the mortgage, but on the broad, general principle that the laws of the state entered into and formed a part of the contract, and any subsequent law which obstructed the rights thus conferred and acquired by the law itself, impaired the obligation of the original contract, and was void.

In the case of McCracken v. Hayward, 2 How., 608, the case of Bronson v. Kinzie was fully discussed and affirmed. This case was also from Illinois, and the question before the court was whether the appraisement law of that state could, constitutionally, apply to an execution on a judgment at law rendered on a contract made prior to the passage of the law; and the court held that it could not be made to apply. In this case the judge who delivered the opinion says: “The obligation of the contract between the parties in this case was to perform the promises and undertakings therein ; the right of plaintiff was to damages for the breach thereof, to bring shit and obtain judgment, to take out and prosecute an execution against the defendant till the judgment was satisfied pursuant to the existing laws of Illinois. These laws, giving these rights, were as perfectly binding on the defendant, and as much a part of the contract as if they had been set forth in its stipulations in the very words of the law relating to judgments and executions. If the defendant had made such an agreement as to authorize a sale of his property, which should be levied on by the sheriff, for such price as should be had for it at a fair public sale, on reasonable notice, it would have conferred a right on the plaintiff which the constitution made inviolable; and it can make no difference whether such right is conferred by the terms or law of the contract.”

In Howard v. Bugbee, 24 How., 461, the supreme court of the United States again affirm Bronson v. Kinzie and McCracken v. Hayward. This was a case from Alabama. A mortgage, given in 1836, was foreclosed in 1846, and, in 1848, Howard, a stranger to the mortgage and decree, standing in the same relation that McClure does in this controversy, became the purchaser under the decree. In 1842, the legislature of Alabama passed an act authorizing a judgment creditor of the mortgagor, at any time within two years after the sale under a mortgage, to redeem the land on certain conditions. Bug-bee, a judgment creditor, sought in the state court to redeem under the law; case appealed to United States supreme court. The only question involved was, whether the redemption law ■could apply to' debts and mortgages made prior to the law. The court held that the law could not, constitutionally, apply to prior contracts, citing the above cases in 1st and 2d Howard, and reaffirming them.

We can see no difference in the principle involved in the case at bar, and the one decided by the supreme court of the United Slates, and whatever might be our individual opinion, are bound to follow their rulings on any question regarding the federal constitution, as much as the inferior courts of this state are bound to follow ours.

While in the case of Bronson v. Kinzie, the contract under consideration was a mortgage, yet the court, in that case, expressly put it on the ground of the statute entering into the contract, and not by reason of any of the express conditions of the mortgage.

While it is true that the state may change and alter remedies, extend or limit the time that notice may be given — they might give the defendant to the second term of the suit brought to answer, and do many other things touching the remedy, yet they must not, in acting on the remedy, interfere l^with any right accruing under the contract, whether that right be by express stipulated contract, or be the result of the law. Counsel for the appellant insist that the legislature may alter and change the remedy ad libitum, and cite many authorities to that effect, which we have carefully examined, and with the exception of the case in 38 Cal., 438, they all seem to pertain to the remedy to ascertain a right, rather than to enforce one. Our conclusion from the authorities is, that it is competent for the legislature to alter and change remedies, process, etc., before judgment, but when the right is judicially ascertained, they cannot interfere with the process to enforce that right that materially renders the right less efficient than that in existence when the contract was made.

The provision of the Code for redemption, instead of allowing an absolute sale of the property, as was the law when Miller and Pennington made the contract, provides for a conditional sale, or in other words, it authorizes the sheriff to make a contract for the absolute sale of property after the lapse of one year’s time, unless such contract be defeated by the performance of a specified condition, to wit, the return of the purchase money paid, with interest, before the expiration of the year.

If the statute for the enforcement of the right enters intcP and becomes a part of the contract, and so we understand the supreme court of the United States, then if the contract be for the absolute sale of property, a law like unto the provisions of the Code materially impairs the obligation of that contract, and, as to such prior contracts, is void ; for the right to sell the absolute fee with immediate possession to the purchaser, is worth infinitely more, and much more likely to realize the fulfillment of the contract, to wit, the payment of the money, than the conditional sale provided for by the Code.^

Rinding no error in the record, the judgment of the court below is affirmed.

McClure, C. J., being disqualified, did not sit in this case.

Bennett and Stephenson, JJ., dissenting.


source: Caselaw Access Project

author: Gregg, J.

license: Public Domain

text:
    Bostick et al vs. Cox, Clerk.
    Docket Fee : Against whom adgudged, eta.

    Under section 775, Code of Civil Practice, only one docket fee is recoverable off of tbe same party in any one cause, whether litigated before one court or more than one, and is adjudged against the party losing costs, and such fee goes to the plaintiff or defendant as the case may be, and not to the attorney.
    PETITION to tax Costs.

      Clark & Williams, for petitioner.

      T. D. W. Yonley, for defendants.
   Gregg, J.

Upon the affirmance of the judgment of the court below, Messrs. Clark & Williams, attorneys for the appellees, filed their application for a rule against the clerk of this court, compelling him to tax an attorney’s docket fee against the appellant in this court.

Section 775 of the Code of Civil Practice provides that in all cases in the supreme, circuit and chancery courts, in which costs are recovered, the clerk shall tax as costs a docket fee, prescribing the amount to be taxed in the different courts, and in the different classes of cases. Also providing that but one docket fee shall be charged against the same party in the same action.

We are of opinion the latter clause of this section discloses an intention on the part of the legislature to require but one docket fee off of the same party in any one cause, whether litigated before but one court or more than one.

If a plaintiff in a court of original jurisdiction loses his case, costs there go against .him, and of course the docket fee is recovered by the defendant; if he appeals and reverses the judgment and recovers costs, etc., of the original defendant, he is then allowed his docket fee in the appellate court and will recover the amount specified for that court; with such results there may be more than one docket fee taxed in the same case, because there may be judgment for certain costs against such party. Yet there is but one recovery of a docket fee against the same party.

With this construction, all parts of this section may have effect, but to hold that, under the first clause of the section a party could recover a docket fee each time he might recover other costs, would produce conflict between it and the last clause.

The counsel assume the docket fee is for the attorney. They have referred us to no law showing that they have any interest in this fee, more than they have in other moneys recovered by their clients, and we are of opinion there is no such law, and that the attorney has no right to such fee.

In this case it is not pretended that the appellees did not collect of the appellants a docket fee in the'court below, and as but one such fee can be adjudged against the same party in a suit, the rule upon the clerk is denied.


author: Richard B. Adkisson, Chief Justice.

text:
    Tim CARR v. SUZUKI MOTOR COMPANY and U.S. SUZUKI MOTOR CORP.
    83-9
    655 S.W.2d 364
    Supreme Court of Arkansas
    Opinion delivered June 27, 1983
    [Rehearing denied September 12, 1983.]

      James J. Leonard, Kenneth Clancy, John T. Haskins, and James F. Swindoll, for appellant.

      Davis, Cox «Sr Wright, for appellees.

      Hickman and Dudley, JJ., would grant rehearing.

   Richard B. Adkisson, Chief Justice.

Appellant, Tim Carr, was rendered a quadriplegic after he was thrown from a motorcycle manufactured and distributed by appellees, Suzuki Motor Company and U.S. Suzuki Motor Corporation. It was undisputed that only one of the bike’s two rear shock absorbers was functioning on the day of the accident. Suit was brought on the theories of negligence, breach of warranty, and strict liability. After a videotape was admitted into evidence showing a professional driver riding a motorcycle with two functioning shocks and then riding the same motorcycle with only one functioning shock, the jury returned a verdict for appellees. The only issue on appeal is whether the trial court erred in admitting the film in question. We reverse and remand.

The evidence introduced at trial revealed that the motorcycle appellant was riding on the day of the accident belonged to one of his friends. He and the friend had taken the bike to a motocross race in Searcy, Arkansas. The friend took the bike on several practice runs, but decided not to ride it in the race. He noticed the bike was acting “funny,” but asked if appellant wanted to race it and appellant said that he did. Appellant had completed two laps of the track when, while traveling between 30 and 35 m.p.h., he took a jump which was approximately 30 inches high. He testified at trial that he felt the bike “bottom out” as it came down and the seat hit him “on the bottom side” and threw him up in the air, although at that time he was still holding onto the handlebars. He was trying to regain control when he hit the second jump. This time he was thrown over the handlebars of the bike, landing on his head.

At trial, appellant’s expert testified that the accident had occurred because one of the two rear shock absorbers was dead; according to him the faulty shock failed to provide the usual damping effect which caused the bike to rebound upward with such force as to cause appellant to lose control. On the other hand, appellees’ expert witness testified that a rider would feel no difference between the rebound from landing with one bad shock absorber and that from landing with two good shock absorbers. In conjunction with this testimony a videotape of a test conducted by appellees’ expert witness was introduced into evidence. It consisted of a professional driver riding a motorcycle similar to the one in question over motocross-type terrain. On the first six runs both of the motorcycle’s shock absorbers were functioning; on the last six runs only one shock was functioning.

It is undisputed that the test did not duplicate the exact conditions of the actual accident. The rider in the test was a professional, an employee of Suzuki who had ridden in 500 major motocross events, whereas appellant was an amateur. The professional rider knew he was riding a bike with only one shock functioning; appellant did not. The test demonstrated only one jump of 18 inches, but appellant made two successive jumps of 30 inches. Furthermore, the springs on the two bikes were different. In spite of these differences the trial court admitted the film for the limited purpose of determining whether or not there was any perceptible difference in rebound of a motorcycle with one nonfunctioning shock as opposed to a motorcycle with both shocks functioning, regardless of the driver. After careful consideration we have concluded that it was error to admit this film.

It is well settled that when a test or experiment is an attempt to reenact the original happening, the essential elements of the experiment must be substantially similar to those existing at the time of the accident. Hubbard v. McDonough Power Equipment, 83 Ill. App. 3d 272, 404 N.E.2d 311 (1980); Payne v. Greenberg Construction, 130 Ariz. 338, 636 P.2d 116 (1981). We applied this same rule in Dritt v. Morris, 235 Ark. 40, 357 S.W.2d 13 (1962) where we held that although it was not necessary that conditions of an experiment be identical to those existing at the time of 'the occurrence, there must be a substantial similarity, and the variation must not be likely to confuse and mislead the jury.

However, if an experiment is designed to .show the general traits and capacities of a material involved in the controversy, it is admissible even though it does not conform to the conditions surrounding the litigated situation. Rayner v. Stauffer Chemical Co., 120 Ariz. 328, 585 P.2d 1240 (1978). For example, in Brandt v. French, 638 F.2d 209 (1981) á film illustrating a motorcycle’s angles of “lean” and radii for turns from different positions was held admissible even though it did not duplicate the accident conditions because its purpose was to show mechanical principles rather than depict the actual accident.

Here, however, the film was of questionable relevancy under Rule 402, Uniform Rules of Evidence, because, in effect, the film portrayed the riding skills of a professional driver rather than any mechanical principle associated with the rebound effect. Any deficiency in the operation of the motorcycle with only one good shock absorber could too easily have been masked by the skill and experience of the professional test driver.

In any event, assuming relevancy, the experiment should have been excluded as prejudicial and misleading under Rule 403, Uniform Rules of Evidence. Undoubtedly, the jury concentrated on the extraordinary skills of the test driver rather than the mechanics of the motorcycle. The conclusion is inescapable that, after viewing the film, the mind-set of the jury was that one shock would work just as well as two, not because of any perceptible difference in the mechanical performance of the motorcycle, but because the professional driver was not thrown over the handlebars as was appellant. The prejudicial impact of the film on the jury far outweighed any probative value it might have had. For this reason we reverse and remand for a new trial.

Reversed and remanded.

Hickman and Dudley, JJ., dissent.


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

text:
    Katherine C. GAY and Charles E. GAY, Her Husband v. Dr. Nancy A. RABON
    83-65
    652 S.W.2d 836
    Supreme Court of Arkansas
    Opinion delivered June 27, 1983
    [Rehearing denied July 18, 1983.]

      Marsha C. Woodruff of Pearson, Woodruff if Evans, for appellants.

      Walter B. Cox, of Davis, Cox if Wright, for appellee.

      Purtle, J., would grant rehearing.

   Frank Holt, Justice.

On September 24, 1979, the appellee inserted an intrauterine device (IUD) into the uterine cavity of appellant Katherine Gay, which allegedly was done in a negligent manner causing her to suffer pain and requiring eventual removal of the device by surgery. On September 4,1981, the appellants filed a complaint in circuit court alleging medical malpractice in connection with the insertion of the IUD and seeking compensatory damages. On September 25, the appellee answered, denying the allegations of negligence, and affirmatively asserting, which is admitted, that the appellants had failed to comply with the 60 day notice of intent to sue as required by Ark. Stat. Ann. § 54-2617 (Supp. 1981), thereby allowing the two year statute of limitations to expire. Ark. Stat. Ann. § 34-2616 (Supp. 1981). The appellants responded that § 34-2617, requiring notice to sue, is constitutionally invalid. The trial court held it valid and granted appellee’s motion for summary judgment based on the expiration of the statute of limitations. Hence this appeal.

The appellants contend that the Arkansas Medical Malpractice Act, Act 709 of 1979 (Ark. Stat. Ann. §§ 34-2613 et seq. [Supp. 1981]), is unconstitutional in its entirety because it denies equal protection of the laws to victims of medical malpractice, it constitutes special legislation, and because it denies or delays a remedy to medical malpractice victims. They assert that the Medical Malpractice Act violates the Fourteenth Amendment to the Constitution of the United States, as well as Art. 2 § 3; Art. 2, § 18; Art. 2, § 13; and Amendment 14 to the Constitution of Arkansas (1874). In addition to the notice of intent to sue provision, the Medical Malpractice Act contains provisions relating to the burden of proof, expert testimony, the elimination of the ad damnum clause from the complaint, and limitations on damages recoverable, all of which are attacked by the appellants. However, we will consider only appellants’ challenge to § 34-2617, the notice of intent to sue provision. That provision is the only challenged portion of the Medical Malpractice Act that has been applied to their detriment. Accordingly, the appellants have standing to challenge only § 34-2617. Sweeney v. Sweeney, 267 Ark. 595, 593 S.W.2d 21 (1980); Carter & Burkhead v. State, 255 Ark. 225, 500 S.W.2d 368 (1973); and Lienhart v. Bruton, 207 Ark. 536, 181 S.W.2d 468 (1944). It is well settled that no constitutional issues are decided except those necessary to a decision in the specific case at hand. Winston v. Personal Finance Company of Pine Bluff, Inc., 220 Ark. 580, 249 S.W.2d 315 (1952). The narrow issue decided today is whether the notice requirement of § 34-2617 is constitutional.

Ark. Stat. Ann. § 34-2617 (Supp. 1981) provides as follows:

No action for medical injury shall be commenced until at least sixty (60) days after service upon the person or persons alleged to be liable, by certified or registered mail to the last known address of the person or persons allegedly liable, of a written notice of the alleged injuries and the damages claimed. If the notice is served within sixty (60) days of the expiration of the period for bringing suit described in Section 4 [§ 34-2617], the time for commencement of the action shall be extended seventy (70) days from the service of the notice.

The purpose of the act is reflected by the emergency clause.

It is hereby found, determined and declared by the General Assembly that the threats of legal actions for medical injury have resulted in increased rates for malpractice insurance which in turn causes and contributes to an increase in health care costs placing a heavy burden on those who can least afford such increases and that the threat of such actions contributes to expensive medical procedures to be performed by physicians and others which otherwise would not be considered necessary and that this Act should be given effect immediately to help control the spiraling cost of health care.

The appellants argue that the notice requirement of the act bears no reasonable relationship to the purpose of the legislation and gives the health care provider here special privileges and immunities not accorded to other tortfeasors. In Carter v. Hartenstein, 248 Ark. 1172, 455 S.W.2d 918 (1970), we were presented with a similar constitutional challenge. It was asserted that Ark. Stat. Ann. §§ 37-237 et seq. (Supp. 1981) (4 year statute of limitations) violated due process, equal protection, and the prohibition against special and local legislation. As we stated there, the question was whether the legislative action is arbitrary and capricious in granting a protection (4 year statute of limitations) to one class of tortfeasors, limiting actions for deficiencies in design, planning and supervision of construction of improvements to real estate, and not granting it to other tortfeasors such as materialmen and owners. We found no infringement upon the various constitutional provisions. The vital question is one of reasonableness. Owen v. Wilson, 260 Ark. 21, 537 S.W.2d 543 (1976). See also Phillips v. Giddings, 278 Ark. 368, 646 S.W.2d 1 (1983) and Burt v. Ark. Livestock & Poultry Comm’n, 278 Ark. 236, 644 S.W.2d 587 (1983). Here, it does not appear to us that the legislative action is arbitrary and capricious. We cannot say the legislature was in error when it determined that medical malpractice insurance rates were increasing and placing a heavy burden of medical expense on those who could least afford it. Furthermore, it appears that the requirement that a potential plaintiff send notice of his intent to sue at least sixty days in advance of filing the suit is reasonably related to the legislative goal of reducing medical malpractice insurance costs. The sixty day notice requirement makes it possible for the insurance carrier and the potential defendant to attempt to arrive at a settlement with the aggrieved person without the necessity of the parties incurring the expense of litigation. The statute in question bears a fair and substantial relation to the object of the legislation, which is to encourage the resolution of claims without judicial proceedings, thereby reducing the cost of resolving claims and consequently the cost of insurance. Furthermore, the giving of notice is neither onerous nor difficult. A mere letter by certified or registered mail suffices. In fact, when notice is given within 60 days of the expiration of the two year statutory limit, the notice requirement benefits the plaintiff in that the limitation period is then extended by 70 days from the date of service of the notice. We do not perceive this notice requirement to be an unreasonable burden nor a delay of the remedy due a claimant. Neither do we consider it to be a trap for the unwary. The notice provision (§ 34-2617) follows immediately the section of the act which provides for a two year limitation (§ 34-2616). Thus, we cannot say that § 34-2617 is unreasonable.

There is a presumption of validity attending every consideration of a statute’s constitutionality; every act carries a strong presumption of constitutionality; before it will be held unconstitutional the incompatibility between it and the constitution must be clear; and any doubt as to the validity must be resolved in favor of its constitutionality. S. Cen. Dist., Pente. Costal Ch. v. Bruce-Rogers Co., 269 Ark. 130, 599 S.W.2d 702 (1980); Carter & Burkhead v. State, supra; Williams v. State, 253 Ark. 973, 490 S.W.2d 117 (1973); and Davis v. Cox, 268 Ark. 78, 593 S.W.2d 180 (1980). The heavy burden of demonstrating the unconstitutionality of a statute is upon the one attacking it. Carter & Burkhead v. State, supra. It is within the wisdom of the legislature to enact experimental and innovative legislation so long as there is a rational basis for doing so. Applying these well recognized rules as to statutory validity, we cannot say that the trial court erred in holding valid the notice provision of Act 709 of 1979, Ark. Stat. Ann. § 34-2617 (Supp. 1981).

We note that recent statutes providing special pretrial procedures in medical malpractice actions, such as the mandatory requirement that a claim for medical malpractice be submitted to a review board before filing an action, have been enacted in a number of states and it appears that a majority of courts have upheld them. Lacy v. Green, 428 A.2d 1171 (Del. Super. 1981) and cases cited therein. Obviously, this precondition is more burdensome and delaying than the 60 day notice in issue here.

The appellants further contend that the legislature has no authority to decide procedural matters and that § 34-2617 is superseded by ARCP Rule 3. This issue was not presented to the trial court. Being raised for the first time on appeal, we do not consider it.

Affirmed.

Hickman and Purtle, JJ., dissent.

Darrell Hickman, Justice,

dissenting. The provision is arbitrary, a legal trap, and a procedural rule in conflict with this court’s authority to decide procedural matters.

John I. Purtle, Justice,

dissenting. I disagree particularly when the majority states, “We cannot say the legislature was in error when it determined that medical malpractice insurance rates were increasing and placing a heavy burden of medical expense on those who could least afford it.” I think such a statement is completely unfounded and I have seen nothing which would change this impression.

The 60 day notice requirement of this act in no manner increases the potential for settling a claim. The same story could be used if a claimant were required to give notice 360 days in advance. The claims of no other tortfeasors are given this privilege. The record did not reflect that the cost of insurance was reduced, or that this act did, indeed, help control the spiraling cost of health care. The mere fact that a person can place MD or any other title after his name should not place him in a special category for the purpose of receiving more favorable treatment than any other person similarly situated.

I can find no rational basis for treating medical providers any differently than food providers or any other group. At the very least the appellant should have been allowed to go to trial on the allegations of the complaint. This legislation was enacted as a result of good lobbying and not because the poor are suffering. The majority states that this was experimental and innovative legislation. I would choose other words to describe it, two of which appear very prominently in Amendment 14 to the Arkansas Constitution, those being “special” and “local.” I would reverse and remand.


author: Darrell Hickman, Justice.

text:
    Joseph Ewell BYRD et al v. Rubye R. BRADHAM et al
    83-149
    655 S.W.2d 366
    Supreme Court of Arkansas
    Opinion delivered June 27, 1983
    [Rehearing denied September 12, 1983.]

      Anderson, Crumpler ir Bell, P.A., for appellants.

      Keith, Clegg ir Eckert, for appellees.
   Darrell Hickman, Justice.

This is an oil and gas lease case and the question is whether a lease should be cancelled because of a violation of an implied covenant to develop the leasehold interest for production of oil or gas. The chancellor found that the lessors had failed to prove a violation of the implied covenant and refused cancellation of the lease. We disagree and reverse.

The lease in question was executed in 1952 and concerns 80 acres of land in Columbia County, Arkansas. For 28 years the lessees, who are the appellees in this case, failed to take any action to develop 75 acres of the leasehold. The lease was for a primary term of ten years, and in 1958 a well was drilled just west of the leasehold estate. Five of the 80 acres in question were included in a unitization agreement for the purpose of drilling that well. Those five acres are not in dispute but the appellants seek to set aside the lease on the remaining 75 acres. The only evidence of any activity on the part of the appellees during this 28 year period was testimony by Rubye R. Bradham, one of the appellees, who said in 1962 she had a geologist look at her oil and gas interests to determine the potential profitability of drilling. She said she was “reasonably sure” that he looked at the leasehold in dispute. She said he did not recommend drilling anywhere that he had inspected.

This is the only evidence that the appellees took any action regarding the leasehold until the spring of 1981. In April, Joseph Byrd, one of the appellants, wrote Bradham a letter asking her to release the 75 acres. About this time Bradham contacted a drilling contractor about bidding on some wells on her land which included a well on the 75 acres in question. She said she contacted the drilling contractor before she ever received the letter from Byrd. But the drilling contractor could not definitely confirm that. A company named Samson Resources had tried to buy Bradham’s interest to the lease in November, 1980. They also contacted Byrd and offered him a greater royalty interest than he would receive under the lease in question. Byrd said that he talked to Mrs. Bradham casually in 1976 about drilling the land and believed that the conversation was a request on his part for Bradham to develop the property. Mrs. Bradham said she did not take it as such but thought he was merely inquiring about the 75 acres. As it turns out, Byrd did not know that the 75 acres was still under the control of Bradham through the production of the well on the adjacent property, although Bradham was aware of it.

In oil and gas leases where royalties constitute the chief consideration, an implied covenant exists that the lessee will explore and develop the property with reasonable diligence. Smart v. Crow, 220 Ark. 141, 246 S.W.2d 432 (1952). The duty to explore extends to the entire tract, and this is especially true where paying quantities of oil have been found on a part of the tract. Standard Oil Co. of Louisiana v. Giller, 183 Ark. 776, 38 S.W.2d 766 (1931).

Of course, due deference must be given to the judgment of the lessee in determining whether to drill, but the lessee must not act arbitrarily. Ezzell v. Oil Associates, Inc., 180 Ark. 802, 22 S.W.2d 1015 (1930); Smart v. Crow, supra. Furthermore, the lessee must act not only for his own benefit but also for the benefit of the lessor. Amoco Production Co. v. Ware, 269 Ark. 313, 602 S.W.2d 620 (1980). The lessee’s obligation to explore is a continuing one, even after paying quantities of oil are discovered, in order to effect the purpose of the lease. Ezzell, supra. Production on only a small portion of the leased land does not justify allowing the lessees to hold the entire leasehold indefinitely, thus depriving the lessor of receiving royalties from another arrangement. Nolan v. Thomas, 228 Ark. 572, 309 S.W.2d 727 (1958).

Mrs. Bradham and the other lessees in this case have not been diligent enough in performing their duty under the implied covenant to develop the lease. Appellants, in effect, are receiving absolutely no consideration for their lease of the 75 acres. While Mrs. Bradham did take some steps to drill on the leasehold in 1981, we are satisfied that she did this only when she saw that the lessors were insistent upon some kind of action.

Mrs. Bradham’s position was two-fold. First of all she contended she was under no obligation to develop this land because it would require a “wildcat” well, in other words it would be a pure gamble. Next, she argues that she was just about to drill a well when suit was filed. As to her first argument, if there is nothing for her to gain, then she has lost nothing by cancellation of the lease. See Skelly Oil Co. v. Scoggins, 231 Ark. 357, 329 S.W.2d 424 (1959). As to her second argument, twenty-eight years is too long to do nothing towards performance of her duty under the lease.

It is suggested that demand for performance of the implied covenant must be made before cancellation of a lease will be ordered. That might ordinarily be true but demand is not always necessary and was not required in this case. In Mansfield Gas Co. v. Parkhill, 114 Ark. 419, 169 S.W. 957 (1930), no demand was made or required because we found that there was total inactivity by the lessee for 10 years, which was an unreasonable length of time under those facts. We find here, too, that there was inactivity for an unreasonable length of time. Therefore, the lease should be cancelled as to the seventy-five acres in dispute.

Reversed.


author: Per Curiam.

text:
    BOARD OF EDUCATION OF FRANKLIN COUNTY, Arkansas and PLEASANT VIEW SCHOOL DISTRICT NO. 4 v. OZARK SCHOOL DISTRICT NO. 14
    83-147
    655 S.W.2d 368
    Supreme Court of Arkansas
    Opinion delivered June 27, 1983

      Edgar A. Woolsey, Jr.; A. Jack King and Neva Belcher King, for appellant Board of Education of Franklin County.

      James F. Dickson, for appellant Pleasant View School District No. 4.

      Jonah T. Yates and Gregory P. McKenzie, for appellee.
   Per Curiam.

This case involves a boundary dispute between appellee, Ozark School District, and appellant, Pleasant View School District, over 240 acres of land which is currently within the Pleasant View district. The land was transferred into what is now the Pleasant View district by a 1941 Franklin County court order.

In 1979 Ozark requested the Franklin County Board of Education to transfer the property to it, but the Board refused to do so, and Ozark appealed to the Franklin County Circuit Court. The trial court found in favor of Ozark, and the Board of Education appealed to the Arkansas Court of Appeals. The Court of Appeals remanded, holding that Pleasant View was a necessary party to the action. Upon remand, the trial court again ruled in favor of Ozark, holding that the 1941 County Court order was void ab initio for the following reasons: (1) the County Court was without jurisdiction on May 19, 1941, to change school district boundaries; (2) the land description contained in the order was so ambiguous it could not be determined; and (3) the jurisdictional facts recited in the order did not set out that a majority of electors had submitted their written consent and request as required by the law then in effect.

On appeal, Pleasant View and the Franklin County Board of Education argue that the trial court erred in all of its findings, but we do not reach the merits of their arguments since appellants have failed to properly abstract the record as required by Rule 9 (d), Rules of the Supreme Court, Ark. Stat. Ann. Vol. 3A (Repl. 1979). This rule requires that the abstract consist of a condensation of only such material parts of the record as are necessary to an understanding of the case. Any prior appeal is to be included in the abstract but it too should be condensed.

Appellants’ abstract is a flagrant violation of this rule. An examination of the abstract reveals that appellants have done little more than reproduce substantial portions of the record from both the prior appeal and this appeal. No attempt was made to condense either record to include only material necessary to an understanding of the case. Instead, the abstract contains verbatim reprints of almost every document in both records, including summonses, statutes, pleadings, tax records, and minutes from school board meetings.

A reprint of a transcript is not an abstract. Harris v. Arkansas Real Estate Commission, 274 Ark. 537, 627 S.W.2d 1 (1982). An abstract that is a mere reprint of the record, or a substantial part of it, may be such a violation of the rule as to preclude the court from reversing the judgment on its merits. Gray v. Ouachita Creek Watershed Dist., 239 Ark. 141, 387 S.W.2d 605 (1965). Since this case falls into that category, we must affirm the trial court under Rule 9 (e) (2) as we have done in numerous cases. Bank of Ozark v. Isaacs, 263 Ark. 113, 563 S.W.2d 707 (1978); Smith v. Bullard, 271 Ark. 794, 610 S.W.2d 888 (1981).

Affirmed.


text:
    Edward Lewis WALKER v. STATE of Arkansas
    CR 83-51
    655 S.W.2d 370
    Supreme Court of Arkansas
    Opinion delivered July 5, 1983

      Holmes, Holmes ér Trafford, for appellant.

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

After a trial by jury, appellant was convicted of three counts of forgery in the second degree and one count of theft of property. The Jefferson County Circuit Court sentenced him as a habitual offender to 20 years on the first count of forgery, 10 years on the second count, 20 years on the third count, and 10 years for theft of property. The sentences were to run consecutively. On appeal from this conviction we affirm.

The testimony at trial reflects that the victim knew appellant and allowed him to stay with him on the night of February 20, 1982. The victim left for work the next morning, and when he returned that afternoon, appellant was gone. The victim then noticed that some of his clothing and his wallet, which contained a Department of Correction I.D., were missing, and later he realized that his checkbook was also gone. He notified the bank that his checkbook was missing on February 23, 1982.

On February 21, 1982, appellant cashed an $85 check drawn on the account of the victim and on February 24 appellant withdrew $350 from the victim’s savings account. On February 26 he attempted to withdraw another $425 from the savings account. He fled the bank when the bank clerk took a long time to complete the transaction, leaving the withdrawal slip and the victim’s Department of Correction I.D. with the clerk. Bank employees gave the police a description of appellant, and he was picked up in the vicinity of the bank shortly thereafter.

For reversal, appellant argues that the trial court erred in not granting a continuance of his trial because one of appellant’s material witnesses was not present. The record reflects that this witness was in prison at the time of the trial and that a subpoena was served on him by the Lincoln County Sheriff’s Office on November 19, 1982. It was returned to the Jefferson County Circuit Clerk on November 29, 1982, the day of the trial.

At trial, the following exchange took place in chambers regarding this witness:

MR. HOLMES: [Defense Attorney] [I] don’t have that many witnesses and that is one thing now I wanted to get in to the record what one witness would testify that was subpoenaed who is not here and apparently he’s down at Cummins and this subpoena was sent down to
MR. BROWN: [Deputy Prosecuting Attorney] Who’s that?
MR. HOLMES: Stanley Anderson. I would like to dictate into the record what this witness would testify to in the event he was here in court.
MR. BROWN: That’s fine with me. Go ahead.
MR. HOLMES: If Stanley Anderson were here to testify, according to the defendant, he states that Stanley Anderson was present at a time when [the victim] stated, ‘Whatever I’ve got is yours. Here is a passbook or here is the checks. Go cash a check if you need some money. Go get some money.’ He states that Stanley Anderson is a witness to this occurrence that would verify that the defendant had permission to cash these checks.
MR. BROWN: As I understand it, Mr. Anderson is in the State pen. Down at Cummins?
MR. HOLMES: I would imagine because I sent the subpoena to Star City, Lincoln County and advised them that he was in the Department of Corrections. I don’t think they returned the service, but he shouldn’t be hard to find down there.
MR. BROWN: When did you send it down there?
MR. HOLMES: About three weeks ago.
MR. BROWN: Did you attempt to get an order to deliver?
MR. HOLMES: No.
MR. BROWN: Just a subpoena?
MR. HOLMES: Just a subpoena.
MR. BROWN: Did you go down there and talk to Stanley?. . .
MR. HOLMES: I have not talked with him.

We cannot agree that reversible error occurred. Appellant argues that the trial court should have granted a continuance, but the record as set out above reflects that no request for a continuance was ever made. A party must make known to the trial court the action which he desires the court to take. Robinson v. State, 256 Ark. 675, 509 S.W.2d 808 (1974).

Although the record reflects that a subpoena was served on the witness, Ark. Stat. Ann. § 43-2022 (Repl. 1977) provides for a court order to obtain the presence of a witness who is presently incarcerated:

Prisoner from state penitentiary as witness. — Hereafter, any Circuit Court of the State of Arkansas, having jurisdiction of any criminal offense involving a felony, pending for trial in such court, may, upon presentation of petition duly verified and for good cause, by the Prosecuting Attorney, or interested defense counsel, have jurisdiction and authority to provide by proper order the presence in court and for the trial and as a witness, any person incarcerated in the State Penitentiary whose testimony would be material either for the State of Arkansas or the defendant sought to be tried upon a felony in the Court having jurisdiction.

No such order was ever obtained. Under these circumstances appellant’s conviction must be affirmed.

Affirmed.


author: George Rose Smith, Justice.

text:
    Betty ANGEL v. Thomas ANGEL et al
    83-148
    655 S.W.2d 373
    Supreme Court of Arkansas
    Opinion delivered July 5, 1983

      Wood, Smith ér Schnipper, by: Ray S. Smith, Jr., for appellant.

      Steven B. Jordan, and Richard F. Hatfield, for appellee.
   George Rose Smith, Justice.

This is a will construction case. The testator, A. C. Angel, who died at age 88, was survived by the four children (or their issue) of his first marriage. He was also survived by his second wife, the appellant Betty Angel, who filed the present petition for a construction of her husband’s will. Under the probate judge’s decision Betty receives two properties that are not in dispute: The family home, valued at $71,000, and all the jointly owned personal property, valued at $97,000. She does not, however, receive her husband’s separately owned personal property, valued at $26,000. She contends that she is also entitled to that personal property, leaving nothing for the testator’s children and grandchildren. We think the probate judge was right in his conclusion.

Three paragraphs of the will are pertinent:

I hereby give, devise, and bequeath to my wife, Betty, the house and lots which comprise our residence at the time of my death.
I further give, devise, and bequeath to my wife, Betty, one-third of all other assets and properties which I own, or in which I may have an interest at my death, but expressly subject to the following conditions and provisions: The assets may be selected by my said wife, Betty, but in calculating the evaluation of my said property and property interests from which the one-third is to be selected, all properties jointly owned by me and my said wife, or in which we may have an interest, save and except the properties referred to in Paragraph 1, shall be included in arriving at that evaluation.
I hereby give the rest and remainder of my property, which I may own, or in which I may have an interest at my death as follows: [One fourth each to the testator’s four children or their descendants.]

For reversal Betty Angel argues that the trial court erred in basing his decision on the stipulated handwritten notes of the lawyer who prepared the will. His notes recited in part: “Leave home place and lots to wife, Betty, plus l/3rd of all other assets. The value of any properties jointly owned shall be first credited.” The will itself says nothing about crediting the jointly owned property; so the notes were not admissible to show what the lawyer thought the testator intended to say, as distinguished from the express language in the will. Hardy v. Porter, 245 Ark. 729, 434 S.W.2d 61 (1968); Wyatt v. Henry, 121 Ark. 479, 181 S.W.2d 297 (1915).

Nevertheless, we must affirm the judgment of the trial court if it is correct in its result, even though the trial judge gave the wrong reason for his conclusion. The appellant argues in effect that we should consider only the second of the three paragraphs, disregarding the rest of the will and disregarding the testator’s property holdings when he executed the will in 1974. The argument is that by the second paragraph the testator directed that the value of the property jointly owned at his death, $97,000, be added to the value of the property separately owned by him at his death, $26,000, making a total of $123,000, and that Betty must receive from his individually owned estate one third of that amount, or $41,000. Hence, the argument runs, Betty is entitled to all the rest of the estate, because it amounts to only $26,000.

When a will is subject to a twofold construction, it is our duty to consider the will as a whole and to reach “the real purpose and intention of the testator.” Union Trust Co. v. Madigan, 183 Ark. 158, 35 S.W.2d 349 (1931). We have no doubt that the mathematical formula inserted in Paragraph 2 was intended to insure Betty’s entitlement to a minimum of one third of the total family property, not to give her the entire estate to the exclusion of the testator’s own descendants. Four separate considerations point to this conclusion: First, when the will was executed in 1974, the husband owned $159,500 worth of property individually, with only $9,800 being jointly owned. Thus the formula was necessary to give Betty the minimum one-third dower interest provided by law. Second, the will twice expressed the testator’s basic intent to give Betty one third of the family property, not the whole of it. Third, Betty’s one third was to be “selected” from the estate, with the corresponding implication that she was not to take everything. Fourth, the remainder of the estate was left to the testator’s children, again implying that Betty was not to take the whole estate. As it works out, Betty receives the jointly owned property, valued at $97,000, and the home place, valued at $71,000. We are not convinced that the testator intended for her also to have the remaining $26,000 of personal property, leaving nothing for his own descendants.

Affirmed.


author: George Rose Smith, Justice. John I. Purtle, Justice,

text:
    Argil HENRY et al v. STATE of Arkansas
    CR 83-81
    655 S.W.2d 372
    Supreme Court of Arkansas
    Opinion delivered July 5, 1983

      Robert S. Blatt, James E. Shoffey, and Douglas W. Parker, for appellants.

      Steve Clark, Atty. Gen., by: Theodore Holder, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

The question: May state and local police officers, upon entering a motel room under the authority of a search warrant and finding the expected dice game to be in progress, lawfully seize as contraband all the money in the possession of the participants in the game? We disagree with the circuit court’s decision that such a seizure is lawful.

On September 24, 1982, the police raided the game in question and took all the currency in the possession of the eleven men present, giving each man a receipt for his money. Some of the participants, including the man who had the dice in his hand, have not sought the return of their money. The six appellants were all found guilty of betting on a gaming device. Ark. Stat. Ann. § 41-3255 (Repl. 1977). They filed a motion for the return of their $3,639, of which a total of $3,229 was in the pockets of four of the men and the other $410 was being held in the hand by three of the men. The circuit court refused to order the return of the money, holding that it was contraband within the meaning of Ark. Stat. Ann. § 41-1401 (2) (a).

As far as this case is concerned, that statute defines contraband as “any article possessed under circumstances prohibited by law.” It also provides that contraband capable of lawful use shall be sold at public auction; otherwise it shall be destroyed. Neither disposition seems to be appropriate when the asserted contraband is currency. More important, however, the appellants were charged merely with betting on a gambling device, a misdemeanor punishable by a fine of from $50 to $100. § 41-3255, supra. No one questions the officers’ right to seize the twenty-dollar bill that was on the dice table when the game was raided. That bill might perhaps be regarded as contraband. But the statute does not prohibit a person from having currency in hfs hand or pocket while waiting to make a future bet; so here the money was not, in the language of the statute, “possessed under circumstances prohibited by law.”

Reversed, the money to be returned.

Purtle, J., concurs.

John I. Purtle, Justice,

concurring. I concur in the well reasoned majority opinion although I cannot agree with the dicta which states a $20 bill may be regarded as contraband. Ark. Stat. Ann. § 41-1401 (Repl. 1977) does not state money is contraband. It does state that contraband shall be destroyed or sold. It is illegal to destroy currency and if it were sold it would be sold in exchange for the same thing. I simply do not want to imply that we will or might in the future declare cash money to be contraband. It may, however, be confiscated under certain circumstances, such as here. No one is contesting the right of the state to keep the $20 bill.


author: Frank Holt, Justice. John I. Purtle, Justice,

text:
    John T. MOSS v. STATE of Arkansas
    CR 82-160
    655 S.W.2d 375
    Supreme Court of Arkansas
    Opinion delivered July 5, 1983
    [Rehearing denied September 12, 1983.]

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

      Steve Clark, Atty. Gen., by: Michael E. Wheeler, Asst. Atty. Gen., for appellee.

      Purtle, J., would grant rehearing.

   Frank Holt, Justice.

The appellant was convicted of capital felony murder and sentenced to life imprisonment without parole. He raises three points on appeal. We affirm.

The appellant first argues that the trial court erred in failing to excuse for cause venireman Brien Breckenridge. The appellant excused Breckenridge peremptorily. He later exhausted his peremptory challenges, which, he claims, forced him to accept an unwanted juror when the jury was finally selected. Breckenridge’s mother had previously been accepted as a juror, without objection from either party. The appellant contends that the relationship between Breckenridge and his mother is so close that it constituted implied bias, and, therefore, the court’s refusal to excuse Breckenridge for cause was prejudicial error. However, no case is cited to us holding that family members may not serve on the same jury in the absence of any indication of bias on the part of at least one of them. Breckenridge was a 39 year old farmer with a family of his own. He left home when he was 17 years old. He stated unequivocally that he would not be influenced by his mother’s presence on the jury. He said "I absolutely do my own thinking,” and that he would be a fair and impartial juror. As we have said on many occasions, the qualification of a juror is within the sound judicial discretion of the trial court, which has the opportunity to observe the veniremen that we do not have, and the trial court will not be reversed unless the appellant demonstrates an abuse of discretion. Hobbs v. State, 277 Ark. 271, 641 S.W.2d 9 (1982); Beed v. State, 271 Ark. 526, 609 S.W.2d 898 (1980); Satterfield v. State, 252 Ark. 747, 483 S.W.2d 171 (1972). Here, we hold that appellant has not met his burden of demonstrating an abuse of discretion.

The appellant next asserts that the trial court erred in failing to declare a mistrial inasmuch as the state intentionally placed inadmissible evidence before the jury. The appellant testified on direct examination that he did not kill the robbery victim, that he did not have a gun on the night of the robbery/murder, he did not know that one of his confederates had a gun, and he did not like guns. On cross-examination the prosecutor asked, “Mr. Moss, you told this jury right here in Sharp County, Arkansas, that you didn’t like guns, so I want you to look at that jury and tell them about that .38 pistol you carried out in Arizona.” Following a negative answer, the appellant’s prompt objection to the question was sustained. The trial court, however, refused to grant the appellant’s motion for a mistrial and admonished the jury to disregard the question. Appellant argues there is no good faith basis for the prosecutor’s question. It appears the record is silent with respect to the absence of good faith. Suffice it to say that since this argument was not addressed to the trial court and it is raised for the first time on appeal, we do not consider it. Pace v. State, 265 Ark. 712, 580 S.W.2d 689 (1979); Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980); and Hill v. State, 275 Ark. 71, 628 S.W.2d 285 (1982). Furthermore, as indicated, the trial court admonished the jury to disregard the question, give it no consideration, and “[t]reat it as though it had not even been uttered.” Even so, appellant insists that the admonition did not remove the prejudice. The declaration of a mistrial is a drastic remedy and should be resorted to only when it appears that any possible prejudice is not removed by an admonition or cautionary instruction to the jury. The trial court is entrusted with a wide latitude of discretion in granting or denying a mistrial, and its decision will not be reversed absent an abuse of that discretion or a manifest prejudice to the defendant. Hill v. State, supra; and Chaviers v. State, 267 Ark. 6, 588 S.W.2d 434 (1979). In the circumstances we find no abuse of discretion nor a manifest prejudice to the appellant.

Finally, the appellant argues that the trial court erred failing to submit the affirmative defense provided for in Ark. Stat. Ann. § 41-1501 (2) (Repl. 1977) as a simple or ordinary defense without the burden of proof being placed on him. The appellant was convicted of a violation of Ark. Stat. Ann. § 41-1501 (1) (a), which provides, in pertinent part, as follows:

A person commits capital murder if:... acting alone or with one or more other persons, he commits or attempts to commit... robbery, burglary,... and in the course of and in furtherance of the felony, or in immediate flight therefrom, he or an accomplice causes the death of any person under circumstances manifesting extreme indifference to the value of human life----

Section 41-1501 (2), primarily in issue here, provides as follows:

It is an affirmative defense to any prosecution under subsection (1) (a) for an offense in which defendant was not the only participant that the defendant did not commit the homicide act or in any way solicit, command, induce, procure, counsel, or aid its commission.

Ark. Stat. Ann. § 41-110 (4) provides:

The defendant must prove an ‘affirmative defense’ by a preponderance of the evidence.

Here, two persons, in addition to the appellant, burglarized a motel. Arthur Garner, who lived in a room in the back of the motel office with his wife, Florence, was fatally shot during the course of the burglary and robbery. Florence also was shot, but she survived. The appellant admitted being present at the time these events occurred, but he contended he was not involved in the robbery scheme and was an unwitting participant in the alleged offense. He raised the affirmative defense set forth in § 41-1501 (2). On appeal he contends that the statute unconstitutionally shifts to the defendant the burden of proof as to elements of the crime and, therefore, he was denied due process of law. He relies on the cases of Mullaney v. Wilbur, 421 U.S. 684 (1975), and In re Winship, 397 U.S. 358 (1970). In those cases, the Supreme Court held that due process requires that criminal statutes place upon the state the burden of proving each element of any criminal offense beyond a reasonable doubt, and the burden of disproving any element of an offense cannot be shifted to the defendant. However, we do not think those cases are controlling here, because the statute in question does not absolve the state of the duty of proving any element of capital felony murder beyond a reasonable doubt. Here, the jury was instructed that the state must prove beyond a reasonable doubt each element of the offense charged; that the defendant is not required to prove his innocence; and that the defendant is presumed to be innocent. When the trial court instructed the jury with respect to the affirmative defense as defined by the statute, he also told the jury, “Whatever may be your finding as to this defense, you are reminded that the State still has the burden of establishing the guilt of John Thomas Moss [appellant] upon the whole case beyond a reasonable doubt.” To establish the affirmative defense, a defendant must prove that he was not the only participant (assuming the state first proves he was one of the participants); that he did not commit the homicide act; and that he did not in any way solicit, command, induce, procure, counsel, or aid in the commission of the homicide act. Obviously, none of these elements are elements of the crime of capital felony murder, and the burden on the defendant to prove the affirmative defense does not arise until the state has met its burden of proof as to elements of the alleged offense. See Wilson v. State, 271 Ark. 682, 611 S.W.2d 739 (1981).

In Patterson v. New York, 432 U.S. 197 (1977), which followed Mullaney v. Wilbur, supra, the Supreme Court held:

We thus decline to adopt as a constitutional imperative, operative countrywide, that a State must disprove beyond a reasonable doubt every fact constituting any and all affirmative defenses related to the culpability of an accused. Traditionally, due process has required that only the most basic procedural safeguards be observed; more subtle balancing of society’s interests against those of the accused have been left to the legislative branch. We therefore will not disturb the balance struck in previous cases holding that the Due Process Clause requires the prosecution to prove beyond a reasonable doubt all of the elements included in the definition of the offense of which the defendant is charged. Proof of the nonexistence of all affirmative defenses has never been constitutionally required; and we perceive no reason to fashion such a rule in this case and apply it to the statutory defense at issue here.

There, the court also noted that Mullaney had been misunderstood and should not be read to discourage legislation that would permit a defendant accused of felony murder to prove by a preponderance of the evidence the affirmative defense that the homicide was neither a necessary nor a reasonably foreseeable consequence of the underlying felony, which is very similar to the affirmative defense provided here. We recognized the import of Patterson v. New York, supra, in Hobgood v. State, 262 Ark. 725, 562 S.W.2d 41 (1978), where we said, “Any doubts raised by Mullaney v. Wilbur, supra, were laid to rest in Patterson v. New York...” See also Hulsey v. State, 261 Ark. 449, 549 S.W.2d 75 (1977).

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. In my opinion it was error to allow a mother and son to sit on the same petit jury. Although the son finally answered all the voir dire questions right, it still has the appearance of impropriety. No doubt the victim’s relatives would have answered the voir dire in the right manner as well. The point is, there comes a time when the black letter record will not stand alone to prove the facts stated therein. Therefore, I would start now and hold that two or more members of an immediate family should not be allowed to sit on the same trial, if for no other reason than to avoid any future appearance of impropriety. Suppose there were twelve members of the same family selected to serve on the same jury. Would that be proper? I think not. One per family is enough. It is a puzzle to me why many trial judges seem to try to qualify a juror as though there were no more people to serve. It only takes a few minutes, in most cases, to qualify another juror. This is preferable to trying the whole case again.

The majority finds no prejudicial error in the state’s attorney asking the appellant to tell the jury “about that .38 pistol you carried out in Arizona.” The whole defense was based upon the theory that the appellant did not have a handgun at the time of the homicide. There was no showing whatsoever that there was a basis for the question. In my opinion the question was not asked in good faith but was a brazen attempt to gain for the state unfair advantage before the j ury. So far as I am concerned the state should be required to try the case again because its attorney deliberately violated the rules of evidence. Ordering the jury to disregard the question is like firing a pistol in their presence and then admonishing them to forget the ringing in their ears.

Finally, I agree with appellant that Ark. Stat. Ann. § 41-1501 (2) (Repl. 1977) is unconstitutional in that it requires the accused to prove his innocence in this case. The statute in question requires an accused to prove an affirmative defense by a preponderance of the evidence. It seems to me an instruction should be given which provides that the state is required to prove the homicide was committed by the accused or he aided the commission of it by soliciting, commanding, inducing, procuring, counseling, or aiding another or others to commit the offense. Such an instruction would not place the burden on an accused to prove anything and it would require the state to prove the whole case which, as I understand it, is a constitutional requirement.


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

text:
    Janis M. CARTER v. STATE of Arkansas
    CR 83-19
    655 S.W.2d 379
    Supreme Court of Arkansas
    Opinion delivered July 5, 1983
    [Rehearing denied September 12, 1983.]

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

      Steve Clark, Atty. Gen., by: Michael E. Wheeler, Asst. Atty. Gen., for appellee.

      Purtle, J., would grant rehearing.

   Darrell Hickman, Justice.

The only issue in this case is whether the State had good cause for seeking and obtaining a nolle prosequi of a murder charge against the appellant, Janis Carter. If so, it is conceded by both parties that Carter’s conviction for killing her husband and sentence to two years imprisonment must stand; if not, then her conviction must be set aside because she was not brought to trial within the time required by our rules. A.R.Cr.P., Rule 28.2.

Just before Carter was to be tried in November, 1980, it was learned for the first time that her daughter, Melissa, who was fourteen at the time of the killing, would testify it was she, not her mother, the appellant, that killed Mr. Carter, Melissa’s father. She had told the police her mother did it.

Learning this, the State asked to nolle prosequi the charge; the defense sought an outright dismissal with prejudice, a motion that cannot be granted before trial. The judge took the matter under advisement and later granted the motion to nolle prosequi.

Subsequently, the daughter was charged in Juvenile Court regarding the killing, and on August 6, 1981, it was determifted there was insufficient evidence to find her a juvenile delinquent. Almost immediately the State refiled the murder charge against Mrs. Carter. Just before her trial on July 1,1982, the defense filed a motion to dismiss for lack of a speedy trial. The judge found good cause existed for the nolle prosequi and, therefore, the period of delay, occasioned by the nolle prosequi, was excluded under A.R.Cr.P. Rule 28.3 (f) (Supp. 1981). The State had good reason in this case to seek the nolle prosequi and there is no indication the State simply sought to evade the speedy trial requirement. See State v. Washington, 273 Ark. 82, 617 S.W.2d 3 (1981). The appellant suggests the State must show good cause when it seeks a nolle prosequi, not when the question arises later regarding a speedy trial issue. Obviously the showing should be made when it is relevant.

We cannot say the trial court’s ruling was clearly erroneous and affirm the judgment.

Affirmed.

Purtle, J., concurs.

John I. Purtle, Justice,

concurring. I concur because it should be clearly understood that the state cannot be allowed to use a nolle prosequi for the purpose of extending the time within which a trial must be held. The nolle prosequi may not be used as a subterfuge to give the state more time. Our speedy trial rules were neither written in haste nor without due consideration for the rights of the state and the people. Individual rights as guaranteed by the state and federal constitutions must be protected. If it sometimes causes the state to do a little extra work then so be it.

Under the special circumstances of this case, I agree with the majority that good cause was shown for the nolle prosequi, and that therefore the period of delay was ex-cludable under A.R.Cr.P., Rule 28.3 (f).


text:
    William Walter PERRY v. STATE of Arkansas
    CR 83-37
    655 S.W.2d 380
    Supreme Court of Arkansas
    Opinion delivered July 5, 1983

      William R. Simpson, Jr., Public Defender, Richard E. Holiman, Deputy Public Defender, by: Deborah R. Sailings, Deputy Public Defender, for appellant.

      Steve Clark, Atty. Gen., by: William C. Mann, III, Asst. Atty. Gen., for appellee.
   Darrell Hickman, Justice.

The appellant, William Walter Perry, was convicted of the first degree murder of his wife and sentenced to life in prison. The sole question presented by his appeal is whether inculpatory statements Perry made to his minister were confidential and, therefore, privileged. We hold that Perry waived his right to any privilege and affirm the trial court.

Lynn Perry, the appellant’s wife, was shot through the head on June 9, 1982. At approximately 7 p.m., June 10th, Perry called Betty Tyner, his mother-in-law, in Pocahontas, Arkansas, and told her that he had killed Lynn. Then, evidently, he called the Pulaski County Sheriff’s Department about 7:15 that same evening, said that he had killed his wife and arranged to meet some of the sheriff’s employees and lead them to the body. Perry then called Marlin Howe, the minister of a church Perry had been attending for a short while. Howe was not home and Perry told Mrs. Howe that he had to speak to the minister, that he had killed his wife. Mrs. Howe got in touch with her husband and Mr. Howe called Perry at a number he had left with Mrs. Howe, and Perry confessed to the murder. Perry met with Howe and an elder from the church at a shopping center and spoke with them for thirty minutes where, again, he said he had killed his wife. They followed Perry to his rendezvous with the sheriff’s department and Perry led the group to his wife’s body, where he again told all present, about six or seven people, he shot his wife.

Prior to his trial Perry moved to suppress his statements to Howe, Mrs. Howe and the church elder. The trial judge, after an omnibus hearing on the matter, held that Perry had waived his right to have his confidences to Howe remain privileged by disclosing them to others. We agree with the trial court that Perry told about everyone he could about killing his wife and, therefore, waived any privilege he might claim.

Ark. Stat. Ann. § 28-1001, Rule 505 (Repl. 1979), does provide for the exclusion from evidence of statements made in confidence to clergymen under certain circumstances. Ark. Stat. Ann. § 28-1001, Rule 510 provides, however, that the privilege is waived if the holder of the privilege voluntarily discloses a significant part of the privileged matter, except where that disclosure itself is privileged. See, e.g., Sumlin v. State, 273 Ark. 185, 617 S.W.2d 372 (1981).

We reviewed the record for other errors, as we are required to do, and found none.

Affirmed.