text:
    Darrell Wayne HILL v. STATE of Arkansas
    CR 81-18
    644 S.W.2d 282
    Supreme Court of Arkansas
    Opinion delivered January 17, 1983

      Ray Hartenstein, for petitioner.

      Steve Clark, Atty. Gen., by: Leslie M. Powell, Asst. Atty. Gen., for respondent.
   Per Curiam.

The petitioner Darrell Wayne Hill was convicted of the capital murder of Donald Lee Teague and the attempted capital murder of E. L. Ward. He was sentenced respectively to death and life imprisonment for the two crimes. He was also found guilty of kidnapping and aggravated robbery in connection with the offense against Teague and kidnapping and aggravated robbery in connection with the offense against Ward. On appeal we affirmed the convictions for the offenses against Ward and the capital murder of Teague. We set aside the conviction for the lesser included offenses of kidnapping and aggravated robbery committed against Teague. Hill v. State, 275 Ark. 71, 628 S. W.2d 284 (1982). The United States Supreme Court denied petitioner’s petition for writ of certiorari on October 4,1982. Petitioner has filed a petition and an amended petition for postconviction relief under A.R.Cr.P. Rule 37.

I

Petitioner alleges that the Arkansas death penalty statute impermissibly penalizes petitioner’s exercise of his right to plead not guilty and to have a jury trial because only the jury may impose the death penalty, thus creating a situation whereby a defendant can be assured of escaping execution only by waiving his right to trial by jury. When this same argument was advanced in another capital case, we held that Ark. Stat. Ann. §§ 41-1301 — 1304 (Repl. 1977), which set forth the procedures governing jury trials for persons charged with capital murder, do not place an impermissible burden on the exercise of the constitutional right to trial by jury. Ruiz and Denton v. State, 275 Ark. 410, 630 S.W.2d 44 (1982), cert. denied,_U.S__(1982). § 41-1302 provides that the jury shall impose a sentence of death if it returns certain written findings, but the trial judge is not required to impose the death penalty in every case in which the j ury verdict prescribes it. Ruiz and Denton, supra, citing Collins v. State, 261 Ark. 195, 548 S.W.2d 106 (1977), cert. denied, 434 U.S. 977 (1977). The death penalty under Arkansas statutes has been consistently held constitutional. Hulsey v. State, 261 Ark. 449, 549 S.W.2d 73 (1977); Neal v. State, 261 Ark. 336, 548 S.W.2d 135 (1977); Collins, supra.

II

Petitioner asserts that the exclusion for cause of the veniremen with conscientious objections to the death penalty without a determination that their objections would preclude their finding petitioner guilty denied him his right to an impartial jury and to a jury that was representative of the community. The “death qualified” jury was approved by the United States Supreme Court in Witherspoon v. Illinois, 391 U.S. 510 (1968). Since Witherspoon, we have approved the procedure. Ford v. State, 276 Ark. 98, 633 S.W.2d 3 (1982); Ruiz and Denton v. State, 265 Ark. 875, 582 S.W.2d 915 (1979); Collins, supra; Westbrook v. State, 265 Ark. 736, 580 S.W.2d 702 (1979). Petitioner presents no new challenges to it.

Ill

On appeal, petitioner’s convictions for the kidnapping and aggravated robbery of Teague were set aside because they were lesser included offenses to the crime of capital murder. This was done despite the fact that no objection to the sentences was raised in the trial court because we will consider in a death case such errors argued for the first time on appeal. We declined to disturb the convictions for the lesser included offenses against Ward because petitioner was not sentenced to death for those crimes. He now asks that those sentences be set aside also, citing as precedent our decisions in Rowe v. State, 275 Ark. 37, 627 S.W.2d 16(1982) and Wilson v. State, 277 Ark. 219, 640 S.W.2d 440 (1982).

This Court has held that when a criminal offense by definition includes a lesser offense, a conviction cannot be had for both offenses under Ark. Stat. Ann. § 41-105 (1) (a) (Repl. 1977), Wilson, supra; Rowe, supra, Singleton v. State, 274 Ark. 126, 623 S.W.2d 180 (1981); Simpson v. State, 274 Ark. 188, 623 S. W.2d 200 (1981); Swaite v. State, 272 Ark. 128, 612 S.W.2d 307 (1981). The statute provides:

(1) When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense. He may not, however, be convicted of more than one offense, if:
(a) One offense is included in the other as defined in subsection (2);
(2) A defendant may be convicted of one offense included in another offense with which he is charged. An offense is so included if:
(a) it is established by proof of the same or less than all the elements required to establish the commission of the offense charged; or
(b) it consists of an attempt to commit the offense charged or to commit an offense otherwise included within it; or
(c) it differs from the offense charged only in the respect that a less serious risk of injury to the same person, property, or public interest or a lesser kind of culpable mental state suffices to establish its commission.

In petitioner’s case, it was necessary to prove the elements of aggravated robbery and kidnapping to prove the elements of attempted capital murder. In light of our holdings in regard to Ark. Stat. Ann. § 41-105 (1) (a) in Rowe, Wilson, Singleton, Simpson, and Swaite, we find that the conviction and sentence imposed on petitioner for aggravated robbery and kidnapping should be set aside. The conviction and sentence for attempted capital murder are not disturbed.

IV

Petitioner states that over his objection the trial court admitted evidence of at least five prior convictions for the purposes of enhancement of his sentence, when the amended information only alleged four prior convictions. He does not give a transcript reference to where the objection can be found in the record, and the state contends that no such objection was made. This Court will not search the record page-by-page to determine the accuracy or inaccuracy of petitioner’s assertion. Counsel for petitioners seeking post-conviction relief are cautioned to provide the Court with transcript references in support of allegations that require specific verification in the record. In any event, the issue was not raised on appeal. In this Court, issues which were not raised in accordance with controlling rules of procedure must be considered waived. Ruiz and Denton, supra. See also Moore v. Illinois, 408 U.S. 786 (1972); Stembridge v. Georgia, 343 U.S. 541 (1952); Hulsey, supra; Williams v. Edmondson, 257 Ark. 837, 520 S.W.2d 260 (1975); Orman v. Bishop, 245 Ark. 887, 435 S.W.2d 440 (1968).

V

In the penalty phase of the trial, the jury was presented with proof of an aggravating circumstance that petitioner had been convicted of first degree robbery and robbery with a firearm in Missouri and Oklahoma. Petitioner now argues that since no details of the crimes were provided, the jury could only speculate that the crimes involved a threat or risk of violence and thus were proof of an aggravating circumstance as required by Ark. Stat. Ann. § 41-1303 (Repl. 1977). The statute provides in part:

Aggravating’ circumstances. — Aggravating circumstances shall be limited to the following:
(3) the person previously committed another felony an element of which was the use or threat of violence to another person or creating a substantial risk of death or serious physical injury to another person; . . .

There is no requirement that the State try the prior felony convictions a second time or that it present evidence that an out-of-state conviction for robbery had as an element the use or threat of violence. Furthermore, inherent in the definition of “robbery” is a threat of violence. Also, the issue was not raised on appeal and was therefore waived.

VI

Petitioner alleges that the trial court unconstitutionally commented on the evidence when it instructed the jury that it could consider only the two prior robbery convictions as aggravating circumstances; Petitioner argues that this amounted to instructing the jury to accept the convictions as an aggravating circumstance. We find that the record does not support the allegation. The record shows that the court in accordance with AMCI instructed the jury that it could consider the convictions and that the jury was responsible for determining if the State had met its burden of proving beyond a reasonable doubt that one or more of the aggravating circumstances existed.

VII

Petitioner states that a motion was filed to sever offenses, but he does not tell us where it appears in the record and the issue was not raised on appeal.

A.R.Cr.P. Rule 22.2 provides:

(a) Whenever two (2) or more offenses have been joined for trial solely on the ground that they are of the same or similar character and they are not a part of a single scheme or plan, the defendant shall have a right to a severance of the offenses.

Petitioner contends that the denial of the motion was denial of his right to due process of law because (1) the State was allowed to. obtain convictions for four lesser included offenses in violation of Ark. Stat. Ann. § 41-105 (1) (a) (2) (a) (Repl. 1977); (2) the State was allowed to seek enhancement of punishment on five prior convictions when only the two prior robbery convictions were admissible as an aggravating circumstance; and (3) the State improperly argued petitioner’s criminal record as a basis for the death sentence.

As this Court found on direct appeal, the trial court instructed the jury that it was to consider only the two robbery convictions as an aggravating circumstance. The other three convictions were to be considered only for enhancement purposes on the non-capital crimes. Hill, supra at 87-88. Petitioner concedes that the trial judge also explained this to the jury. The jury was properly instructed on its consideration of petitioner’s prior crimes. The mere fact that the jury entered a finding of guilt on the lesser included offenses and was aware of five prior convictions does not in itself demonstrate prejudice. We also find no grounds for relief in petitioner’s allegation that the State improperly raised his criminal record. There was no objection to the State’s negating the mitigating circumstance that petitioner had no significant history of prior criminal activity. When an issue is not raised on direct appeal, as the issue of severance was not, the issue cannot be raised under Rule 37 unless the question is so fundamental as to render the judgment void and open to collateral attack. Neal, supra. Even questions of constitutional dimension are waived if not raised in accordance with the controlling rules of procedure. Collins, supra; Hulsey, supra. We find nothing in this petition that would render the judgment in petitioner’s case void.

VIII

Petitioner next asserts that the Arkansas death penalty statute is unconstitutional because capital felony mxirder and first degree murder are not distinguishable. This Court has rejected the argument raised by petitioner in several cases. Ford, supra; Wilson, supra; Cromwell v. State, 269 Ark. 104, 598 S.W.2d 733 (1980).

IX

Petitioner alleges ineffective assistance of counsel in the penalty phase of trial. He contends that counsel failed to secure available mitigating evidence. He alleges that petitioner’s records from the Vinita State Hospital in Oklahoma would have shown that antipsychotic medication had recently been prescribed for him and that the Oklahoma hospital’s diagnosis conflicted with the Arkansas State Hospital’s diagnosis. He also contends that Herbert Callison and Edna Staudinger would have testified if called to mitigating factors such as petitioner’s work with juvenile delinquents. He further asserts that counsel cut short his examination of witness Nixon without inquiring into petitioner’s history of drug abuse and his unhappy childhood. Petitioner contends that petitioner could also have testified to these things but counsel inexplicably failed to call him.

A psychologist, who testified at length for the defense, mentioned that the results of his testing of petitioner were consistent with the conclusions of the Oklahoma hospital. It appears therefore that the Oklahoma records were used by the defense. Moreover, petitioner has not shown that his psychologist was not allowed to testify to any pertinent information.

There is a presumption of effective assistance of counsel. To overcome that presumption, a petitioner must show by clear and convincing evidence that the prejudice which resulted from the representation of trial counsel was such that he did not receive a fair trial. Blackmon v. State, 274 Ark. 202, 623 S.W.2d 184(1981). Petitioner has not shown that he was denied a fair trial by counsel’s failure to call any particular witness, including him, or his failure to question Nixon further. The calling of witnesses in a criminal trial is a matter which is normally within the realm of j udgment of counsel. Swindlerv. State, 272 Ark. 340, 617 S.W.2d 1 (1981), citing Leasure v. State, 254 Ark. 961, 497 S.W.2d 1 (1973). Likewise, questioning witnesses is ordinarily a matter of trial strategy about which advocates could disagree. Trial tactics, even if they prove unsuccessful, are not grounds for postconviction relief. Leasure, supra.

X

The aggravating circumstance that the murder was committed to avoid arrest or to effect escape from custody was submitted to the jury. Petitioner contends that the circumstance is vague and overbroad. We do not accept petitioner’s argument. Under the facts of the case the jury was justified in finding that petitioner shot Teague and Ward to increase his chances of avoiding arrest after he had robbed Ward’s service station. This same attack on the aggravating circumstance as being overbroad has also been rejected by the United States District Court. Pickens v. Lockhart, 542 F. Supp. 585 (E.D. Ark. 1982).

XI

Petitioner alleges that the jury arbitrarily and capriciously failed to consider mitigating evidence of petitioner’s mental disturbance and diminished capacity. Petitioner offers no support for the conclusory allegation, and we will not assume from the fact that petitioner was sentenced to death that the jury failed to consider all the evidence.

XII

In its closing argument the State sought to negate the mitigating circumstance, Ark. Stat. Ann. § 41-1304 (6) (Repl. 1977), that the defendant had no significant history of prior criminal activity by calling attention to petitioner’s extensive criminal record. Petitioner alleges that a criminal record is not a statutory aggravating circumstance and should not have been mentioned. This allegation was also raised in Point VII and found meritless. The jury was properly instructed as to aggravating and mitigating circumstances. No objection was made at trial and petitioner has not shown how he was prejudiced.

XIII

Petitioner contends that Ark. Stat. Ann. § 41-1302 (Repl. 1977), which sets out the findings required for a death sentence, is unconstitutional. There is no ambiguity in our statute. The statute clearly states that the aggravating circumstances must outweigh all mitigating circumstances beyond a reasonable doubt; and that after such consideration, the jury must find that the aggravating circumstances justify a sentence of death beyond a reasonable doubt. Even then, the trial judge is not required to impose the death penalty. The statute was not challenged at trial and petitioner cites no persuasive authority for his contention.

XIV

On appeal from a sentence of death, it is the practice of this Court to compare the sentence with sentences in other cases in which the death penalty was imposed. Collins, supra. Petitioner argues that in his case no comparative review was required or afforded by this Court, apparently because the opinion does not specifically state that it was.

While there is no absolute requirement under federal law that this Court make a comparative review of a death sentence, we have consistently afforded such a review since Collins, although our opinions do not so state in all cases.

XV

Finally, petitioner again challenges the constitutionality of the death penalty as it is imposed in Arkansas. The assertion is conclusory and does not warrant further discussion. Bosnick v. State, 275 Ark. 52, 627 S.W.2d 23 (1982); Smith v. State, 264 Ark. 329, 571 S.W.2d 591 (1978); Stone v. State, 254 Ark. 566, 494 S.W.2d 715 (1973); Cooper v. State, 249 Ark. 812, 461 S.W.2d 933 (1971).

XVI

In a thorough review of petitioner’s allegations, we find no constitutional error that would render the judgment void or evidence of ineffective assistance of counsel. Petitioner has fallen far short of making a showing that his trial was not fair or that the sentence was not properly imposed.

Petition denied.


source: Caselaw Access Project

author: Richard B. Adkisson, Chief Justice. John I. Purtle, Justice,

license: Public Domain

text:
    BILLABONG PRODUCTS, INC. v. ORANGE CITY BANK
    82-183
    644 S.W.2d 594
    Supreme Court of Arkansas
    Opinion delivered January 24, 1983

      Stephen Lee Wood of Kendall ir Schrantz, for appellant.

      Peter G. Estes of Estes, Estes & Estes, for appellee.
   Richard B. Adkisson, Chief Justice.

The Benton County Circuit Court refused to allow appellant, Billabong Products, Inc., to intervene in a lawsuit between appellee, Orange City Bank, and Lola and Donald Millar. On appeal, we affirm.

In April of 1980 Billabong, with Donald Millar acting as president, borrowed $10,000 from the Bank, giving the Bank a promissory note in exchange for the loan. The Millars, who own ninety percent of the Billabong stock, then personally guaranteed payment of any indebtedness of Billabong up to $25,000. Under the terms of the guaranty contract, if Billabong defaulted, the Bank could collect from the Millars without first proceeding against Billabong.

On August 12,1981, Billabong defaulted on the promissory note and the Bank filed suit against the Millars to collect under the guaranty contract. Billabong attempted to intervene, alleging that the $10,000 loan was only a part of a $25,000 line of unsecured credit to which the Bank had agreed. Billabong alleged that the Bank’s failure to loan the remaining $15,000 constituted breach of contract to loan money or, in the alternative, promissory deceit.

Appellant argues that it should have been allowed to intervene in the lawsuit between the Bank and the Millars under ARCP Rule 24 (a) (2) and (b) (2), Ark. Stat. Ann., Vol. 3A (Repl. 1979). This rule provides:

(a) Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action: ... (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.
(b) Permissive Intervention. Upon timely application anyone may be permitted to intervene in an action:... (2) when an applicant’s claim or defense and the main action have a question of law or fact in common. ... In exercising its discretion, the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.

To intervene as a matter of right under Rule 24 (a) (2) an applicant must show three things: (1) that he has a recognized interest in the subject matter of the primary litigation, (2) that his interest might be impaired by the disposition of the suit, and (3) that his interest is not adequately represented by existing parties. Edmondson v. State of Nebraska, 383 F.2d 123 (8th Cir. 1967). Here, Billabong has not claimed a sufficient interest relating to the transaction which is the subject of the suit between the Millars and the Bank. The transaction which is the subject of that action is a guaranty contract whereby the Millars guaranteed payment of a debt allegedly owed by Billabong. The transaction in Billabong’s motion to intervene is an alleged breach of contract to loan money or, in the alternative, an alleged promissory deceit.

Billabong is not so situated that disposition of the action between the Millars and the Bank may, as a practical matter, impair its ability to protect its claim against the Bank. Generally, if the one seeking intervention will be left with his right to pursue his own independent remedy against the parties, regardless of the outcome of the pending case, then he has no interest that needs protecting by intervention of right. Gregory v. Tench, 138 Ga. 219, 225 S.E.2d 753 (1976). No matter how the suit between the Millars and the Bank is decided, Billabong can still bring an action against the Bank for breach of contract to loan money or for promissory deceit in California. Since Billabong is not a party to the action, any judgment against the Millars would not be binding upon it under the principle of res judicata.

Billabong speculates that stare decisis will prevent it from prosecuting its claim in California and alleges that it is financially unable to bring the suit; however, those are insufficient reasons to allow intervention as a matter of right. Therefore, the trial court did not err in refusing to grant intervention under Rule 24 (a) (2).

The only remaining issue is whether or not permissive intervention should have been granted under Rule 24 (b). Permissive intervention is a matter resting within the sound discretion of the trial court and we will reverse only for abuse of that discretion. Here, the trial court denied permissive intervention after finding that there were no common questions of law or fact. We cannot say that the trial court abused its discretion in not allowing permissive intervention where the pleadings failed to establish any common questions between the guaranty and the alleged breach of contract to loan money or promissory deceit.

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. The majority fairly and accurately sets out the pertinent facts of this case. However, I disagree as to the application of the law as related to the facts. In my opinion the appellants had a right to intervene. The majority cites ARCP Rule 24 (a) (2) and (b) (2). It is clear to me that appellant comes under the requirements of Rule 24 (a) which, in part, reads:

Upon timely application anyone shall be permitted to intervene in an action: (1)... or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.

The language of the preceding statute is clearly mandatory, thus abuse of discretion cannot be involved. Appellant obviously claimed an interest in the transaction upon which the suit was filed. Appellant guaranteed payment of the loan to appellee. The allegations contend appellee breached the very same contract which gave rise to appellee’s claim against the Millars. It seems to me it would be impossible to try the present suit without proving or disproving the very facts upon which appellant relies in support of its cause of action. Certainly the appellees will do nothing to protect appellant’s claim. Appellant has set forth reasons which ". . . may as a practical matter impair or impede ...” its ability to protect an interest. The statutory language clearly says "may,” yet the majority holds that appellant’s statements are mere speculation. It is precisely this sort of reasonable speculation which the statute allows. Furthermore, the majority has promulgated no test or guidelines to guide future litigants through this newly constructed maze of what constitutes speculation or "insufficient reasons” as opposed to reasons which "may” impede a litigant’s ability to protect his rights under the law.

I would reverse and remand with instructions to allow appellant to intervene.


author: Richard B. Adkisson, Justice.

text:
    T. J. HAYES v. STATE of Arkansas
    CR 82-113
    645 S.W.2d 662
    Supreme Court of Arkansas
    Opinion delivered January 24, 1983
    [Rehearing denied February 28, 1983.]

      Leon N. Jamison of Jamison & Glover, for appellant.

      Steve Clark, Atty. Gen., by: Matthew Wood Fleming, Asst. Atty.Gen., for appellee.
   Richard B. Adkisson, Justice.

This is the second time that appellant, T. J. Hayes, has been convicted by a jury of the capital felony murder of his girlfriend, Catherine Carter, and a cab driver, J. W. Lunsford, and sentenced to death. On the first appeal we reversed and remanded, Hayes v. State, 274 Ark. 440, 625 S.W.2d 498 (1981). We now affirm.

At trial, the girlfriend’s parents testified that on the afternoon of July 16, 1979, appellant and their daughter, who were both black, were at their home in Pine Bluff. By previous agreement with the Yellow Cab Company, a cab was to pick the daughter up for work at about 2:30 p.m. each afternoon. On that particular day when the cab with a white male driver arrived, their daughter and appellant got into the cab. At approximately 2:30 p.m. that same afternoon a security officer on duty in front of the Arkansas Department of Correction Administration Building saw appellant and a black female in Yellow Cab No. 11, driven by a white male, pass by going about 20 miles per hour on Princeton Pike.

According to a statement appellant gave to the police, he told the cab driver to drive out on Princeton Pike where they stopped at an unoccupied house. All three got out, and appellant, who was armed with a .38 caliber pistol, told the cab driver to go back to town. The cab driver made a move as though he was attempting to disarm appellant, and appellant shot him twice. Appellant and the girlfriend then entered the house, where the girlfriend told him to forget her, that she did not want to see him anymore because she was interested in someone else. Appellant shot her twice. Appellant then drove the cab to Townsend Park and hid it in a wooded area.

At about 3:30 p.m. the security officer saw appellant driving the cab in which he had seen the three of them earlier. Later that day between 4:15 p.m. and 4:30 p.m. appellant walked into the Jefferson County Sheriff’s Office and announced that he wanted to turn himself in saying, “I think I just killed my girlfriend.” He then led officers of the Pine Bluff Police Department to the scene of the crime and to the place where he had hidden the cab. About 7:30 p.m. that evening, after being fully advised of his rights, he gave a statement to officers from the sheriff’s office, and signed a waiver form. We find sufficient evidence to support the jury’s finding that appellant was guilty as charged.

Appellant argues: that he was denied an impartial jury because the jury selected was “death qualified” and therefore was biased in favor of the prosecution; and that the Arkansas death penalty is unconstitutional. This court has consistently rejected each of these arguments. Coble v. State, 274 Ark. 134, 624 S.W.2d 421 (1981); Simpson v. State, 274 Ark. 188, 623 S.W.2d 200 (1981); Miller v. State, 269 Ark. 341, 605 S.W.2d 430 (1980), cert. denied, 450 U.S. 1035, 101 S. Ct. 1750 (1981) ; Williams v. State, 276 Ark. 399, 635 S.W.2d 265 (1982) . Collins v. State, 261 Ark. 195, 548 S.W.2d 106 (1977); Swindler v. State, 267 Ark. 418, 592 S.W.2d 91 (1979).

Appellant argues that he has not been accorded equal protection of the law in violation of the United States Constitution Amendment 14 because the speedy trial provisions of A.R.Cr.P. Rules 28.1 — 30.2, Ark. Stat. Ann., Vol. 4A (Repl. 1977) distinguish between persons serving a term of imprisonment on another conviction while awaiting trial on the principal charge (must be brought to trial within eighteen months), and persons incarcerated as a result of the principal charge to be tried (must be brought to trial within eighteen months, but entitled to release from incarceration after nine months). We reject this argument because neither is entitled to absolute discharge until after eighteen months under Rule 30. Furthermore, appellant has failed to show any prejudice resulting from his incarceration prior to trial.

Appellant’s other arguments regarding his right to a speedy trial were resolved on his first appeal, Hayes v. State, supra and will not be considered again.

Appellant argues that the trial court erred in admitting certain photographs and slides which were allegedly redundant and introduced solely to inflame the jury. Even inflammatory photographs are admissible in the sound discretion of the trial court if they tend to shed light on any issue or are useful to enable a witness to better describe the objects portrayed or the jury to better understand the testimony. Sumlin v. State, 266 Ark. 709, 587 S.W.2d 571 (1979). Here, the trial court could have concluded that the photographs and slides would help the jury to understand the crime scene, the sequence of events, and the nature of the wounds inflicted. Also, a photograph is not rendered inadmissible merely because it is cumulative. Prunty v. State, 271 Ark. 77, 607 S.W.2d 374 (1980). We will not reverse the decision of the trial court unless there is a clear abuse of discretion; no such abuse has been shown here.

Appellant argues that the trial court erred in not granting a mistrial when, during direct examination, a defense witness referred to the fact that appellant had been paroled:

[Mr. Jamison, Attorney for Appellant]
Q You did counsel Mr. Hayes personally on a few occasions.
[Witness Bessie Lancelin]
A Yes.
Q Just what does that entail — the counseling session?
A Well, it would depend. In his particular situation he had been referred to us by his probation officer at that time because he had been recently paroled. So it would vary with different people. And we had to set up a plan that was individualized that would meet his particular needs. You want to know what I said to him at the time that he came in?

After the witness had been cross-examined, the following exchange took place in chambers:

Mr. Jamison: Your Honor, I do have one more motion to make. During the testimony of Bessie Lancelin, and without my — I guess I did solicit the answer. Ms. Lancelin did refer to the fact that Mr. Hayes was on parole, and I did not do this in order to try to create some technicality for a new trial, but I do feel that that answer was — or the referral to Mr. Hayes’ being on parole was prejudicial, and for that reason I would move for a mistrial.
The Court: Of course, the Court heard the testimony and I’m willing to instruct the jury to totally disregard it and not consider it for any purpose whatsoever or any other reasonable request that you could make. Since the answer was elicited — Not directly, but it was a result of direct examination by a defense witness, to some extent, at least, it was invited. The witness probably should have been cautioned by counsel before testifying not to mention that fact. It of course came as a surprise to me. But at this time I’d be glad to instruct the jury or take whatever action necessary short of a mistrial. I would deny the motion for a mistrial.
Mr. Jamison: Your Honor, I do feel that regarding any more reference to that statement by her, I don’t think it should be brought to the jury’s attention. I do think that it would just invite more attention to that particular statement.
The Court: Okay.

The trial court also instructed the prosecutor to refrain from making any references to the fact that appellant was on parole.

The trial court is granted a wide latitude of discretion in granting or denying a mistrial, and its decision will not be reversed except for abuse of discretion or manifest prejudice. Cobb v. State, 265 Ark. 527, 579 S.W.2d 612 (1979). Here, we cannot say the trial court abused its discretion in denying the motion for mistrial where the undesired response was elicited by appellant’s attorney.

We find no evidence that the jury’s verdict was based on either passion or prejudice, nor do we find the imposition of the death penalty in this case to be arbitrary, capricious, or wanton. In our comparative review of death sentences, we find the sentence not excessive.

In the sentencing phase of the trial the jury received as evidence of aggravating circumstances three prior felony convictions, one for second degree murder and two for shooting with intent to kill or wound. This evidence supported the jury’s finding that appellant had previously committed another felony, an element of which was the use or threat of violence to another person. At appellant’s insistence his sister was not allowed to testify regarding mitigating circumstances; the jury found none existed. The jury’s finding that the aggravating circumstances outweigh beyond a reasonable doubt any mitigating circumstances is supported by the evidence.

We have examined all objections pursuant to Rule 11 (f), Rules of the Supreme Court, Ark. Stat. Ann., Vol. 3A (Repl. 1977) and find no error. See Earl v. State, 272 Ark. 5, 611 S.W. 2d 98(1981).

Affirmed.


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

text:
    Felver A. ROWELL, Jr. v. STATE of Arkansas
    CR 82-130
    644 S.W.2d 596
    Supreme Court of Arkansas
    Opinion delivered January 24, 1983
    Appellant, pro se; John Wesley Hall, Jr., of counsel.

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

In the course of a criminal trial in the Conway Circuit Court the present petitioner, Felver A. Rowell, Jr., a lawyer in the case, was fined $25 for contempt of court because he asked a witness a particular question after the circuit judge had instructed him not to ask the question. Mr. Rowell, evidently regarding the issue as a matter of principle, seeks a writ of certiorari to quash the court’s order, on the ground that the trial court “could not find petitioner guilty beyond a reasonable doubt of knowingly and intentionally violating an order of the court.” The Court of Appeals transferred the case to us. We uphold the trial court.

At the outset we observe that although the trial judge must be convinced beyond a reasonable doubt that a criminal contempt was committed, that is not the standard of review in this court. We view the record in the light most favorable to the trial court’s decision and formerly sustained that decision if supported by substantial evidence. Dennison v. Mobley, 257 Ark. 216, 221, 515 S.W.2d 215 (1974); Songerv. State, 236 Ark. 20, 364 S.W.2d 155 (1963). Now we sustain the decision unless it is clearly erroneous. ARCP Rule 52. We must also bear in mind the considerations mentioned in Dennison v. Mobley, supra:

Perhaps there is no case in which the [trial] court’s observation of the parties, and their demeanor and conduct, including their manner of speaking and tone of voice, their facial expressions and body movements, can be more important than on a charge of contempt, particularly criminal contempt, of which attitudes of the alleged contemnor can be such an integral part.

We have only a partial record of the two-day criminal trial, near the close of which the asserted contempt of court occurred. Apparently the Morrilton chief of police, Robyn Masingill, was being tried for having removed and converted to his own use certain cans of beer that had been seized and stored in the police department’s evidence room. Debbie Reynolds, a witness for the State, apparently testified that Charles Hesselbein, a former alderman, had also been involved in the removal of the beer. When the State rested its case the trial judge refused to allow Mr. Rowell, as defense counsel, to call Hesselbein as a witness, because his name had not been furnished to the prosecutor. The correctness of that ruling is not before us.

After the defense rested, the State recalled Debbie Reynolds as a rebuttal witness. On her direct examination her pertinent testimony was confined to a diagram which she had prepared, showing the evidence room and the location of the beer in that room. She did not mention Hesselbein’s name or the removal of the beer. On cross examination she was asked if she had testified (during the State’s case in chief) that she held the door of the evidence room open while Masingill and Hesselbein went in and got the beer. She answered that she had merely stood by the door and talked to someone else: “I never said that I held the door back while they got the beer.”

After the State had completed its rebuttal testimony Mr. Rowell said he wanted to call Hesselbein “as a witness on surrebuttal to rebut the location of Debbie’s drawing and also as to . . . which way the door opens and if he had ever been there or not.” The record then continues:

Mr. Tatum [the prosecutor]: Your Honor, I have no objection to him calling him for rebuttal purposes to rebut what was covered on direct.
By the Court: Surrebuttal, that’s right.
Mr. Tatum: But I think counsel should be cautioned to stay within those frameworks and those lines.
By the Court: All right.
Mr. Tatum: I would hate to see a mistrial at this late date.
By the Court: I think we all know the rules of rebuttal and surrebuttal and all that since our law school days, probably the second year of law school, so let’s stay within those boundaries.
Mr. Rowell: I want to, your Honor, but I want the Court to advise and to rule on with me as to how far I can go with reference to whether or not Chester Hesselbein had ever been in that evidence room since he and Robyn were there, I want to go that far.
By the Court: You can do that.

Hesselbein was then put on the stand as a surrebuttal witness. Mr. Rowell showed him Debbie’s drawing of the evidence room and continued:

Q.... [W]ere you ever outside this evidence room, right here?
A. No.
Q. Did Debbie Reynolds ever let you and Chief Masingill in this evidence room?
A. No, sir.
Q. All right, now did you ever enter this door into the evidence room with Robyn Masingill and while Debbie Reynolds was standing outside and carry anything out of that evidence room? [Our italics.]
A. No, sir.
Q. While you were in this evidence room —
Mr. Tatum: Your Honor, may I approach the bench?
By the Court: Yes.

During the ensuing colloquy the prosecutor asked that Mr. Rowell be held in contempt. The court took the motion under advisement.

Ata hearing two weeks later the circuit judge stated that “on two occasions I advised Mr. Rowell not to ask certain questions. Those questions were asked despite my telling Mr. Rowell not to ask them. I consider that to be an act giving rise to contempt, and I’m holding Mr. Rowell in contempt of court for deliberately asking questions I said would not be asked.” In response Mr. Rowell made a detailed statement: “My question went only to the location of the room and its contents, and not with anything else.” Actually the question was, did you carry anything out of that evidence room, which of course would include the beer. Mr. Rowell went on to say: “The question I asked Mr. Hesselbein did not make any direct reference to the beer. I asked him ... if he had ever been in the room and I asked him if he had ever taken anything from the room. . . . The response that I wanted to elicit from the witness, your Honor, was not that he took any beer or whiskey out of there, but whether or not there was a room for him to take anything out of. ... I thought that I could go that far as long as I did not make any direct reference to the beer or the whiskey, which I did not do.” The court evidently did not accept the suggestion that counsel meant to ask whether there was a room for anything to be taken out of — a fact never in dispute.

We have quoted the essential parts of the record and will let it speak for itself. We cannot say that the trial court was clearly in error in finding in its written order that “an act of contempt was committed in its presence by Mr. Felver Rowell by deliberately asking questions which he was instructed not to ask.” The trial judge was warranted in concluding that Mr. Rowell attempted to put before the jury Hesselbein’s statement that he had not carried out the beer, a statement not within the scope of the permitted surrebuttal.

We are not persuaded by the petitioner’s argument that the prosecutor should have objected to the pivotal question and that the judge should have warned Mr. Rowell more specifically than he did. The prosecution almost at once asked for permission to approach the bench to make his objection; the trial judge knew, as we do not, just how promptly that request was made. As for the warning, the court stated that on two occasions Mr. Rowell had been told not to ask certain questions. A third warning was not necessary. Finally, the finding of contempt did not take place in the heat of the trial. That finding was made two weeks after the trial, without any indication either then or earlier that the trial judge acted in anger or even with impatience. His disposition of the matter was not clearly erroneous.

Writ denied.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. I strongly disagree with the majority in this case. I think the opinion will have a chilling effect on most lawyers who represent people accused of a crime. So far as I am concerned the damage created by this opinion actually erodes the protection offered citizens of Arkansas and the United States by the Fifth and Sixth Amendments to the Constitution of the United States and Sections 8, 10, 13 and 21 of Article 2 to the Constitution of Arkansas.

When an attorney undertakes to represent an accused he must do so with all his ability except that which might impose upon truth and justice. The attorney representing a client owes that client his full loyalty as well as a pledge to put to the best possible use his learning, talents and judgment. One who gives less than this is not worthy of his hire and is not a credit to his profession as an advocate. The trial or appellate court which prohibits a lawyer from representing his client to the very best of his ability decidedly undercuts the adversary system as it should function.

I do not interpret the facts to be the same as those enumerated in the majority opinion. For example, I find neither in the briefs nor the abstracts where the trial court instructed the petitioner not to ask any particular question. The proceedings leading up to the contempt citation occurred during a rebuttal and surrebuttal phase in the trial. A witness testified (unexpectedly to the defense) that a certain city official had accompanied the accused to an evidence room where the missing items had been stored. The official mentioned had not been listed as a witness by the defense for the simple reason that they did not know he would be referred to in testimony elicited by the state. In any event, the pertinent part of the proceedings are set out verbatim in the majority opinion. The state clearly told the court there would be no objection to testimony rebutting “what was covered on direct.” The court then stated that everyone knew the rules of rebuttal and surrebuttal and had known them since their second year of law school. That does not provide much guidance to counsel, as I have never seen the rules about which the court spoke. Petitioner appeared to seek a more definite understanding of the court’s ruling by asking the following question and receiving an answer:

I want to, your honor, but I want the court to advise and to rule on with me as to how far I can go with reference to whether or not Chester Hesselbein had ever been in that evidence room since he and Robyn were there, I want to go that far.
By the court: You can do that.

It seems to me that the court permitted petitioner to ask Hesselbein any questions relating to the direct or rebuttal testimony of witness Debbie Reynolds. It was her testimony that placed the accused and Hesselbein in the evidence room from which they allegedly removed the beer. The proffered testimony of Hesselbein clearly indicates witness Debbie Reynolds told the jury she was present when the accused took the beer from the evidence room and handed it to Hesselbein. It is also abundantly clear that the defense was never furnished any information indicating Hesselbein would be named in any manner at the trial. In fact Debbie Reynolds refused to be interviewed by the petitioner prior to trial. During the testimony of Debbie Reynolds she stated the diagram she made represented the evidence room at the time the beer was delivered. She further testified she had a key to the evidence room and told about many other details including which direction the door opened and where she stood while the accused and Hesselbein took the beer from the evidence room. No doubt the state knew Reynolds intended to implicate Hesselbein when she testified and that her accusations would require Hesselbein to either silently admit his involvement or take the stand and attempt to rebut her testimony. This placed the defense in an untenable position. As they were not possessed of clairvoyant powers, they could not discover the unknown, witness in time to furnish the name to the state, which already knew it anyway. The court refused to allow Hesselbein to give direct defense testimony because his name had not been furnished to the state prior to the trial.

An additional fact in this case is that the accused was advised by letter from the state that any attempt on his part to contact any witnesses about the ongoing investigation of the police department might result in a tampering charge. It seems to me that the accused’s hands were tied behind his back while he fought to defend himself.

Furthermore, it was the state that instituted the charge of contempt against petitioner. Whatever the conduct of petitioner was, it was not obvious at the time to the court or at least the court did not interrupt petitioner until the state moved to hold him in contempt. I submit that most lawyers and j udges would be hard put to write down the rule relating to surrebuttal. In any event petitioner was neither cautioned nor admonished by the court prior to the state’s motion.

Debbie Reynolds testified before the jury that the accused and Hesselbein were together in or at the evidence room and took the beer. Petitioner had been given express permission to question Hesselbein on matters testified to by Reynolds in direct testimony or in rebuttal. In my opinion petitioner was definitely within the bounds of proper surrebuttal.

Members of the bar should be encouraged to represent their clients with vigor and should be allowed to do so without fear of punishment for contempt except in cases where it disrupts the process or reflects upon the judiciary or officers of the court. The majority opinion reflects adversely upon the necessary degree of devotion an attorney may use to protect his client’s rights, and in so holding impinges upon the rights of every attorney in this state to defend his clients. I would not have them looking constantly over their shoulders and wondering if their defense would bring a contempt charge down upon them.


author: Frank Holt, Justice.

text:
    Dave BRIDGER, Jr. v. J. M. MOONEY
    82-152
    644 S.W.2d 929
    Supreme Court of Arkansas
    Opinion delivered January 24, 1983
    [Rehearing denied February 21, 1983.]
    Appellant, pro se.

      Young ¿r Finley, by: James K. Young, for appellee.
   Frank Holt, Justice.

The appellant has failed to comply with Rule 9 (d) of the Rules of the Supreme Court, so we affirm the trial court. The abstract contains neither the pleadings, the requests for admissions, the exhibits, nor the decree of the court. The defects in the abstract are almost identical to those that caused the appeal to be affirmed in Bank of Ozark v. Isaacs, 263 Ark. 113, 563 S.W.2d 707 (1978). Here, as there, it is impossible, for us to read the abstracted pages of the testimony with any comprehension of the issues that were before the trial court or how the trial court ruled on those issues.

We recognize that the appellant, who is not a lawyer, represented himself in this appeal. However, our rules do not provide for relaxed standards for pro se briefs. Furthermore, the appellant has represented himself before this court on two prior occasions, once successfully, so he should not be a stranger to the rules governing appeals to this court.

Affirmed.


author: Darrell Hickman, Justice. Richard B. Adkisson, John I. Purtle, Justice,

text:
    Katie NICHOLS & Nick NICHOLS v. INTERNATIONAL PAPER COMPANY et al
    82-184
    644 S.W.2d 583
    Supreme Court of Arkansas
    Opinion delivered January 24, 1983

      Barnes, Laney, Gaughan & Singleton, by: Tim A. Womack and Honey & Rodgers, by: Charles L. Honey, for appellants.

      Wright, Lindsey ir Jennings, by: Edwin L. Lowther, Jr., for appellees.
   Darrell Hickman, Justice.

The only question on appeal is whether the trial court was wrong in directing a verdict in favor of the appellee, International Paper Company, at the close of the plaintiff-appellants’ case. The trial judge, in his ruling, considered the evidence in a light most favorable to the appellants and found no substantial evidence of negligence on the part of International Paper Company. We conclude he was correct and affirm the judgment. See Midwest Bus Lines, Inc. v. Williams, 243 Ark. 854, 422 S.W.2d 869 (1968).

The Nicholses were injured when their car was struck by falling logs from a vehicle driven by Tony Nelson. These logs are called billets in the pulpwood industry, and are approximately six feet in length and eight inches in diameter. Nelson had a contract to haul loads of billets for International Paper Company using his own tractor and an International Paper Company trailer. It is undisputed that it was the duty of International Paper Company to load the billets on the trailer and then Nelson’s duty was to secure the load with a chain and deliver it. It was during such a trip, about fifteen miles from the woodyard that the accident occurred. The Nicholses sued Nelson and International Paper Company for damages. Nelson’s insurance carrier settled his case before trial, but it went to trial as though no settlement had taken place. The trial court directed a verdict on International Paper Company’s behalf after the plaintiff-appellants rested their case.

The appellants argue that Nelson testified there were only three things that could have caused the accident: Improper loading, hauling, or binding; the jury could have inferred International Paper Company was negligent in the loading. Nelson testified that he knew he had properly bound the wood and was not negligent in hauling it, and that he accepted the load as properly loaded. Portions of his exact testimony are pertinent.

Q. Okay, I’m sure, Mr. Nelson, that this played on your mind many times since this accident. Do you know what went wrong, what caused that load of wood to fall?
A. No, sir, I do not.
Q. At what phase do you think something did go wrong?
A. It would only be speculation and I don’t know what it could be.
# # #
Q. Can you tell the jury what happened to make that load go off?
A. No, sir, I can’t.
Q. You have no explanation?
A. None at all.
Q. And it was loaded properly? You looked at it?
A. Yes, sir.
Q. And you were not driving too fast?
A. No, sir.

It is argued that since the trailer was picked up by Nelson after working hours it is possible that the load was not leveled or “bumped” by the International Paper Company employees and that Nelson took the load anyway. Bumping is a procedure which balances the billets evenly on the trailer so that they extend the same distance on each side of the trailer. Nelson testified he could tell the load had been leveled and bumped; he saw marks on the billets where a grapple was used to level the load. He had been hauling billets for ten years and to him it was obviously level and balanced. He said he never had and would not accept a load that was not properly loaded.

Herman Terrell Lasiter, a foreman for International Paper Company, testified he was in charge of loading trucks and watched parts of the loading operation that day. He said there was no doubt in his mind Nelson’s truck was properly loaded. When asked what happened, he replied that he had no idea.

A state trooper, who investigated the accident, testified that Nelson told him he was traveling fifty-five miles per hour and that he found no evidence that Nelson was speeding. Nelson said up until the accident he had checked the load visually in his mirrors, had seen no problems, and did not stop at any time to check the load and see if it had settled. It was not unusual for a load to settle en route and need adjustment. Nelson said he could tell when such an adjustment was needed because the chain would loosen and he could see that in his mirrors. Nelson started losing logs in an 80 degree curve when the accident occurred. At the same time he saw the Nicholses’ vehicle entering the curve on the opposite lane. He said he began using his trailer brakes when he saw he was losing his load, rather than jamming his truck brakes, to avoid jackknifing. His vehicle came to rest about 600 or 700 feet beyond where the first billets were lost.

It is the appellants’ argument that this evidence is sufficient to allow a jury to infer that the cause, or one cause of the accident, was the negligence of International Paper Company in loading the trailer. If the jury did so find, it would be speculation that it was International Paper Company’s negligence which caused the accident.

It is true that the plaintiffs were apparently not guilty of any negligence and they did prove that an accident happened. But that is not enough. In W. PROSSER, LAW OF TORTS § 39, the burden of the plaintiff in such a case is explained.

The mere fact that an accident or injury has occurred, with nothing more, is not evidence of negligence on the part of anyone. . . . What is required is evidence, which means some form of proof; and it must be evidence from which reasonable men may conclude that, upon the whole, it is more likely that the event was caused by negligence than that it was not.

The evidence in this case was Nelson’s testimony that the load was properly loaded and bound, and that he was not negligent in driving. He knew of no cause of the accident. The yard foreman’s testimony confirmed Nelson’s testimony on loading. The plaintiffs simply did not offer one fact or any proof from which the jury could reasonably conclude International Paper Company was guilty of any negligence that was the cause of the accident. The appellants have made a legal conclusion the accident was caused from improper loading with no fact to base that conclusion on.

The trial judge considered the possibility that the plaintiffs may have sustained their burden of proof under thie theory of res ipsa loquitur. The trial judge was correct in finding that the doctrine does not apply in this case. First it must be shown that the accident which occurred ordinarily would not have happened in the absence of negligence and it must be caused by an agent or instrumentality within the exclusive control of the defendant. The load was not under the exclusive control of the defendant. The load was not under the exclusive control of International Paper Company at the time of the accident.

It must be shown that the defendant was responsible for all reasonably probable causes of the accident.

It is never enough for the plaintiff to prove merely that he has been injured by the negligence of someone unidentified. Even though there is beyond all possible doubt negligence in the air, it is still necessary to bring it home to the defendant. On this too the plaintiff has the burden of proof by a preponderance of the evidence; and in any case where it is clear that it is at least equally probable that the negligence was that of another, the court must direct the jury that the plaintiff has not proved his case. The injury must either be traced to a specific instrumentality or cause for which the defendant was responsible, or it must be shown that he was responsible for all reasonably probable causes to which the accident could be attributed.

PROSSER, supra; see Dollins v. Hartford Accident if Indemnity Co., 252 Ark. 13, 477 S.W.2d 179 (1972)

There was not any evidence which would allow the j ury to eliminate all causes of this accident other than an improper loading of the trailer. Therefore, res ipsa loquitur could not be applied in this case.

Affirmed.

Adkisson, C.J., and Purtle, J., dissent.

Richard B. Adkisson,

Chief Justice, dissenting. Testimony was that the accident could not have occurred but for either: (1) improper loading, or (2) improper tying of load, or (3) improper driving. Testimony was that tying of load and driving were proper. The question is: Was there substantial evidence from which jury could have found improper loading? The answer is yes, when evidence viewed in light most favorable to the nonmoving party.

John I. Purtle, Justice,

dissenting. I dissent because I think there was sufficient evidence presented from which the jury could have found International Paper Company guilty of negligence which proximately caused the damages suffered by the appellants. Herman Lasiter, agent of International Paper and Tony Nelson, the truck driver, both testified that the accident would not have happened if: (1) the truck were properly loaded, (2) the load were properly tied down, and (3) the truck were properly driven. All parties admit the appellants were not at fault in any manner. Neither is it disputed that the load spilled from the truck and proximately caused appellants’ injuries. The foreman for International Paper, who was responsible for loading the billets stated, according to the abstract: “I didn’t load this load. I wasn’t standing there every minute the load was being loaded. I am reasonably sure nothing went wrong in the loading.”

It is true that the mere happening of an accident is not evidence of negligence on the part of anyone. However, when there is testimony that one of three things could cause an accident and an accident happens in a manner consistent with one of the three then there is evidence of negligence, in my opinion. Only the jury could determine whether the truck was improperly loaded and driven or whether the pulpwood was properly stacked. Under the testimony presented one of the three acts of negligence occurred. It is up to the finder of facts to decide which of these acts, if any, caused the accident. It seems to me that the majority of this court, like the trial judge, took it upon themselves to weigh the evidence and decide the jury questions. Therefore, I would reverse and remand for a trial by the jury.


author: Darrell Hickman, Justice.

text:
    Ann PINKSTON v. Paul PINKSTON
    82-269
    644 S.W.2d 930
    Supreme Court of Arkansas
    Opinion delivered January 24, 1983
    [Rehearing denied February 21, 1983.]

      Perroni ir Rauls, P.A. by: Stanley D. Rauls, for appellant. .

      William C. McArthur, for appellee.
   Darrell Hickman, Justice.

This is a divorce case certified to us by the Court of Appeals because of a question of the sale of corporate property to satisfy personal debts. As it turns out that is actually not a significant issue in this case. But we have decided to dispose of the case in the normal course of review rather than return it to the Court of Appeals.

Ann and Paul Pinkston were married in 1961 and remained together until May of 1980. She filed for divorce in June, 1980. She was granted a divorce and the only basis for disagreement that remains between the parties is the property settlement order that was entered. The parties had acquired extensive personal and real property, some through an inheritance by Ann Pinkston from her family and the balance through their joint efforts and the efforts of Paul Pinkston. They acquired considerable realty, including a farm in Lonoke County which consists of 318 acres, a hardware store known as Deese Hardware, a laundromat, and numerous vehicles, farm equipment and other personalty. A master was appointed by the chancellor to hear evidence on the extent of the ownership of the property by the individual parties and to make recommendations as to the disposition according to Arkansas law. Extensive hearings were held during which both parties were represented by attorneys. An appraiser was employed who testified as to the market value of all the real estate. The master confirmed exactly how the parties acquired each separate parcel of realty and it is not disputed that Ann Pinkston was entitled to credit for her inherited portion of the property. The master approached the problem by determining the total value of the property and then dividing it according to a percentage each should be entitled to in the total property. Neither party asked for the property to be sold. The master found that Ann Pinkston was entitled to 56% of the property and Paul Pinkston 44%. The master listened to the testimony of the parties and submitted a detailed, extensive order of findings of fact and recommendations. He recommended that the property be divided in kind as to the real estate. Most of the personalty had already been ordered sold and the proceeds divided, or the parties were allowed to keep certain personalty. The chancellor ordered that each party would have ten days in which to submit a proposal to the court of an in kind division of the realty. Only the appellee, Paul Pinkston, submitted such a proposal, and the chancellor essentially adopted that proposal. The farm was divided in half, Ann Pinkston to receive the north half and Paul Pinkston to receive the south half. She argues on appeal that she was entitled to more than half of the land since she was to receive 56% of the property. She does not argue that the property should be sold, she only argues that she should be given more credit or more property as a result of the chancellor’s order. The chancellor made no finding as to the value of the farm but no doubt took into consideration that there was evidence that the north half of the farm was more valuable than the south half; the north half was more suitable to agriculture and residential development and was bordered on one side by a paved road. If that factpr was considered then the chancellor was justified in entering his order and we cannot say he was clearly wrong.

On appeal we review a chancellor’s decree in a divorce case to determine if it was clearly erroneous. Arkansas law provides that jointly held property should be divided equally unless specific findings are made that would justify a departure from an equal division. Ark. Stat. Ann. § 34-1214 (Supp. 1981). In this case the master found that Ann Pinkston was entitled to more than a half interest because she inherited some of the property and through that inheritance contributed more than half. Paul Pinkston was given credit because of his unusual contribution as a trader and an energetic worker. Certainly we cannot substitute our judgment on appeal as to what exact interest the parties should have. McCray v. McCray, 256 Ark. 868, 514 S.W.2d 219 (1974). We can only look to see if the order was clearly wrong. Ark. Rule of Civil Procedure, Rule 52.

It is suggested that the order of the chancellor to withhold a certain property of the parties to pay debts, of what amounted to a corporation, was contrary to the law. The court found that “the debts of the business . . . are the debts of the parties-and should be paid from the assets of the parties.” Those debts no doubt were of Deese Hardware and the laundromat. Ann Pinkston, Paul Pinkston and their children no doubt formed a corporation and held those businesses in the name of that corporation. But the record is silent on the names and the extent of the corporate control. This is not a case where corporate assets are being ordered sold to pay personal debts or personally held property is being sold to satisfy corporate debts. The chancellor’s finding was that the debts owed were the debts of the parties and we have no evidence at all on which we can make a finding that this was an erroneous finding of fact. It is simply argued that it was error. There was evidence that Ann Pinkston had not cooperated with the master. Her counsel, no doubt as instructed, objected to most of the procedures before the master and after the chancellor entered his order, a general objection was made as to his findings. But we cannot say that any of his findings should be set aside as clearly wrong. Therefore, the judgment is affirmed.

Affirmed.


author: John I. Purtle, Justice.

text:
    Joe BURT v. ARKANSAS LIVESTOCK AND POULTRY COMMISSION
    82-185
    644 S.W.2d 587
    Supreme Court of Arkansas
    Opinion delivered January 24, 1983

      Walters, Davis é Cox, P.A., for appellant.

      Steve Clark, Atty. Gen. by: Roger W. Giles, Asst. Atty. Gen., for appellee.
   John I. Purtle, Justice.

The chancellor issued a mandatory injunction which required appellant to assemble his cattle for the purpose of testing for brucellosis by the Arkansas State Livestock and Poultry Commission. The injunction was stayed pending this appeal.

On appeal appellant contends the statutes and regulations involved herein are unconstitutional inasmuch as they deny him due process and equal protection of the law. We hold that the statutes and regulations do not deny appellant due process or equal protection either on their face or as applied in the case now before us.

The facts of this case disclose that the Arkansas Livestock and Poultry Commission determined that some cattle in Franklin County had contracted brucellosis. Therefore, the commission declared Franklin County to be an area test county. Pursuant to that order appellant was ordered to assemble his cattle for testing on a specific date. He refused to assemble his two herds claiming that the commission was acting in an unconstitutional manner. Appellant’s herds are the only ones in the county which have not been inspected.

The appellant argues the statutes and regulations are violative of due process by failing to provide for a hearing on the matter of declaring a county to be a test area and in that the decision to test lies solely with the commission. One result of a positive test is that the animal is branded and ordered disposed of immediately. Diseased animals are usually sold at nearby auction barns. Such cattle are safe for human consumption. The owner receives the sale price and also is paid a certain sum by the United States Department of Agriculture. It is urged that a minimum requirement of due process requires reasonable notice and an opportunity to be heard. We agree with this argument. Public hearings were held on the statutes prior to their enactment and implementation. Admittedly, no notice was given nor were local hearings held in Franklin County before the commission employees commenced testing cattle.

Ark. Stat. Ann. § 78-434 (Repl. 1981) provides:

(a) Whenever the Livestock Sanitary Board [Arkansas Livestock and Poultry Commission] shall declare a county in this State to be a Brucellosis control area, the Board [Commission] shall proceed to conduct such tests and enforce such reasonable rules and regulations as may be necessary to qualify said county for certification or re-certification as a Modified Certified Brucellosis free county as outlined in the uniform rules and regulations of the United States Department of Agriculture. A county may be certified as a Brucellosis free area when not more than one per cent (1%) of cattle and not more than five per cent (5%) of cattle herds are positive to the official agglutination test.
(b) Whenever seventy-five per cent (75%) or more of the counties of this State have been certified by the Livestock Sanitary Board [Arkansas Livestock and Poultry Commission] as Brucellosis free areas, all other counties not so certified shall automatically become Brucellosis control areas.

Ark. Stat. Ann. § 78-435 (Repl. 1981) states:

In order to carry into effect the provisions of this act [§§ 78-433 — 78-435], the Livestock Sanitary Board [Arkansas Livestock and Poultry Commission] may make such rules and regulations and require such reports and records as may be necessary.

We have upheld the testing of cattle by the state in the case of State, Ex Rel. Hale, Prosecuting Attorney v. Lawson, 212 Ark. 233, 205 S.W.2d 204 (1947). The language in Lawson dealt with what was then called “Bangs disease” which is now referred to as brucellosis. Whichever name is applied is of no moment as cattle sometimes transmit the disease to humans in a form known as undulant fever. Certainly, as we held in Lawson, the state may exercise its powers to safeguard the health, safety and welfare of its citizens. There we stated:

We find and hold that the regulation that reactors be segregated and be so branded as to indicate that they were found to be reactors is not an unreasonable or arbitrary rule.
Upon the whole case we conclude that the regulations of the State Board of Health are reasonable and a valid exercise of the state’s police power, and that a proper method to enforce them is to prevent the sale of milk produced in their violation.

If any individual owner is to be allowed the right to refuse to allow his cattle to be inspected and/or vaccinated then our laws and regulations may as well never have been enacted. The only manner by which the disease may be eradicated is by such enactments.

The Texas Court of Appeals considered the same question in the case of Nunley v. Texas Animal Health Commission, 471 S.W.2d 144 (Tex. Civ. App. 1971). The owner in Nunley argued that the Texas brucellosis program (very similar to the Arkansas program) amounted to a taking of property without just compensation. He had been ordered to pen his cattle for testing and if any were found to have the disease they must be sold for slaughter or otherwise destroyed within 15 days. Nunley argued the cost of penning the cattle and the danger of injury were property rights which would not be compensated for under the plan. In holding the Texas statutes and regulations valid the court stated:

It is well settled that neither a natural person nor a corporation can claim damages on account of being compelled to render obedience to a police regulation designed to secure the common welfare [citing] Chicago, B. & O. R. Co. v. Chicago, 166 U.S. 226 (1897).

The Texas Court of Appeals further stated:

If the brucellosis control program is otherwise valid as an exercise of the police power, the fact that it deprives the property of its most beneficial use does not render it unconstitutional.

When the health and welfare of the public is involved, individual rights must yield to the superior rights of the public, even if it means the reduction in value of property. Hadacheck v. Sebastian, 239 U.S. 394 (1915). If any of appellant’s cattle are found diseased, he will receive the regular slaughter price plus a scheduled amount from the Department of Agriculture. There does not appear to have been a taking of property other than the cost of rounding up the herds and possible injury of some cattle. Employees of the commission have offered to assist in herding and separating the cattle. Even if there is a reduction in value caused by the taking of property pursuant to the exercise of valid police powers, there is no absolute right to indemnity for such reduction in value. Hadacheck v. Sebastian, supra.

The appellant argues he has not been afforded equal protection of the laws. Apparently this argument is bottomed on the indemnity schedule established by the United States Department of Agriculture pursuant to 21 U.S.G.A. 114 (a). The schedule provides for payment to the owner for cattle he has disposed of because of brucellosis as follows: $50 per head for non-registered beef cattle; $250 for registered cattle; $150 for non-registered dairy cows; and $25 for heifer calves nursing reactor cows.

There is no disagreement that all citizens are to be treated equally but there is nowhere any guarantee that all people will be equally situated in place and property. We also agree that the state cannot create different classifications on the basis of criteria wholly unrelated to the purpose for which the classification is established. The classification must not be arbitrary and must have a fair and substantial relationship to the purposes requiring such classification. We were presented the question of equal protection in the case of Corbitt v. Mohawk Rubber Co., 256 Ark. 932, 511 S.W.2d 184 (1974), and we quoted with approval from another case that a classification must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike. Thus treating all beef cattle owners alike is valid even though they are not treated the same as all dairy cattle owners. Dairy and beef herds are clearly kept for different purposes. This distinction is properly within the bounds of the equal protection provisions of the United States and Arkansas Constitutions.

The purpose of the rules and regulations here under consideration is to prevent and eradicate, if possible, the disease of brucellosis in cattle and thereby prevent the contagious disease of undulant fever in people. There could hardly be a more suitable case for exercise of the state’s police powers. Therefore, the remaining question to be resolved is whether the classification meets the above-stated test. We think it clearly meets the criteria necessary to prevent unequal protection of the laws. All cattle in Franklin County are included in the order for testing. There is no way in which the classification could be made more broad. The objection relating to the price the agriculture department pays for infected animals is almost as broad inasmuch as all cattle owners in the test area are treated exactly alike. Appellant has not shown he will incur any loss at all, but in any event he has clearly not demonstrated that his classification is different or more burdensome than that of any other cattle owner in the test area.

We hold that the statutes and the regulations considered herein are constitutional as applied to the facts of this case. Therefore, appellant is bound under the law to assemble his cattle for testing as directed.


author: Robert H. Dudley, Justice.

text:
    Billy H. CATES and Sandra CATES, and W. J. HIGHTOWER v. Roy BROWN and Gaylor THOMAS
    82-167
    645 S.W.2d 658
    Supreme Court of Arkansas
    Opinion delivered January 24, 1983
    [Rehearing denied February 28, 1983.]

      Guy Jones, Jr., P.A., for appellants.

      Laser, Sharp, Haley, Young ir Huckabay, P.A., for appellees.
   Robert H. Dudley, Justice.

The issues in this case are governed by the law of torts. Appellee Roy Brown was the operator of a logging truck belonging to appellee Gaylor Thomas. The truck held a full cargo of pulpwood logs on its bed and was parked unattended on a descending slope in a line of trucks to be unloaded at the Arkansas Kraft Corporation in Conway. One of the appellants, Billy H. Cates, a carpenter, was engaged in construction work downhill from the unloading area. Either the gear became disengaged or the braking mechanism failed, or both, and the truck rolled toward Cates. He was injured while attempting to avoid being hit. He and his wife, Sandra, filed suit in tort. The jury awarded $2,000 to Billy Cates and $300 to Sandra Cates. They appeal. In addition to the Cates occurrence the appellee’s logging truck struck a pickup truck belonging to W. J. Hightower. He intervened in the suit and asked for damages for the loss in value to his pickup truck. The jury awarded him $1,000 and he also appeals. Jurisdiction is in this Court pursuant to Rule 29 (1) (o). We affirm as to Sandra Cates and W. J. Hightower but reverse and remand as to Billy H. Cates.

Billy H. Cates alone argues the first four points of appeal. He initially assigns as error the refusal by the trial court to give his requested instruction on loss of future earnings. Although the trial court’s ruling on this point was correct, we discuss it because there is a likelihood the matter will again come up on retrial.

Loss of earnings and loss of earning capacity are two separate elements of damage. A.M.I. Civil 2d 2201, 2206 and 2207; Check v. Meredith, 243 Ark. 498,420 S.W.2d 866 (1967). Judge Henry Woods, who served as chairman of the Supreme Court Committee on Jury Instruction which authored the book Arkansas Model Jury Instructions, Civil 2d (1974), thoroughly discusses the two elements of damages in Earnings and Earning Capacity as Elements of Damage in Personal Injury Litigation, 18 Ark.L.Rev. 304 (1965). Briefly stated, damage resulting from loss of earning capacity is the loss of the ability to earn in the future. A.M.I. 2d 2207. The impairment of the capacity to earn is the gravamen of the element. It is sometimes confused with permanency of the injury but is a separate element. Woods, supra, at 305. However, an instruction on this element is normally given only in the event of a permanent injury. Id. at 305 n. 12. Proof of this element does not require the same specificity or detail as does proof of loss of future wages. Coleman v. Cathey, 263 Ark. 450, 565 S. W.2d 426 (1978). The reason is that a jury can observe the appearance of the plaintiff, his age and the nature of the injuries which will impair his capacity to earn. In addition, proof of specific pecuniary loss is not indispensable to recovery for this element. Id.

Conversely, the element of loss of future earnings must be proven with reasonable certainty. Swenson & Monroe v. Hampton, 244 Ark. 104, 424 S.W.2d 165 (1968). An instruction on this element is normally given only when the plaintiff will lose wages in the future but has sustained no injury which will impair his earning capacity. Woods, supra, at 305. In the case before us, the damage from loss of future earnings would be the loss of wages from the date of the trial until the plaintiff is able to return to full employment. Confused terminology does appear in some of our cases prior to the publication of the Arkansas Model Jury Instructions book. Id. at 305 n. 13.

Here, appellant Cates asked for the instruction on the loss of future wages, A.M.I. 2d 2206. He was entitled to the instruction only if he proved this element with reasonable certainty. Loss of future earnings is proved with reasonable certainty by evidence involving two basic factors: (1) the amount of wages lost for some determinable period, for example, $100 per month; and (2) the future period over which wages will be lost, for example, 18 months. The jury is able, then, to calculate the product of the two factors which, reduced to its present value, represents the loss of future earnings.

Even though his testimony was controverted, appellant Cates supplied the first factor for the jury’s consideration. He testified that from the date of the accident until the date of the trial, a period of 20 months, he had been unable to work for 684 hours as a result of his injuries, which amounted to lost wages of $5,745.37. However, he did not testify about a period of lost future wages. His supervisor testified that because of the injury appellant was unable to perform as well as he had in the past and that because of the injury Cates, while injured, would be the last hired on a new job and the first discharged on an existing job. Thus, his supervisor’s testimony on the second factor was that there was some undetermined period of loss of future wages, but that testimony still allows only sheer speculation on the second factor. This failure of proof was not supplied by any of the other witnesses who testified on the subject. The three other witnesses were physicians and not one of them testified that appellant Cates would suffer any future loss of wages. Indeed, two of the orthopedic surgeons testified that Cates had no disability and could return to full work whenever he chose. The third testified that appellee’s figure of physical impairment would not exceed five percent of the body as a whole but he offered no testimony about a future loss of wages. He stated: “A test of time is the only thing that would answer that accurately.” We need not decide whether this testimony would have been , sufficient to require an instruction on loss of future earning capacity because appellant did not request such an instruction and does not raise the issue on appeal. We need only determine whether the jury should have been instructed on the loss of future earnings and that, in turn, is determined by whether the jury could have reached a conclusion, without speculation, on a future period of time over which wages would be lost. The answer is obvious. The second factor was not proven. Conjecture and speculation cannot be permitted to replace proof. Check v. Meredith, supra. Thus, the trial court was correct in refusing to give the requested instruction on loss of future earnings.

Billy Cates next contends that the trial court committed reversible error by the giving of an instruction on the standard of care for a contractor. A.M.I. Civil 2d 1204. There is no basis in the record for the instruction and it should not have been given. However, the verdict rendered the error harmless since the jury found against appellees on the issue involved in the instruction. The giving of an erroneous instruction is harmless error where the jury was not misled or the jury rejects the theory of the instruction. Bussell v. Missouri Pacific Railroad Co., 237 Ark. 812, 376 S.W.2d 545 (1964).

Billy Cates’ third point is that the trial court committed reversible error by giving the pattern instruction on circumstantial evidence, A.M.I. 2d 104. The instruction was proper because the case did involve circumstantial evidence. Ford Motor Company v. Fish, 233 Ark. 634, 346 S.W.2d 469 (1961). As an example, appellant Cates gave direct evidence that he was injured when logs rolled off the bed of appellee’s truck. The testimony was vigorously disputed by one of appellee’s witnesses who testified to evidence which circumstantially indicated that Cates could not have been struck by the logs.

Appellant Billy Cates’ last point is that the trial court erred in allowing questions about deductions from wages. The contention has merit. Cates’ employer was called to the stand to dispute Cates’ prior testimony about the loss of wages up until the time of trial. He testified three times that he had given the gross amount of wages paid to Cates. Even after that, the following took place:

Q. [Appellees’ attorney]. That does not include the necessary deductions that would come out of a man’s hourly wages?
A. No, sir.
Q. No taxes; no social security?

Appellants’ attorney then objected on the specific ground that an award for lost wages should not be reduced by taxes or social security. The trial court overruled the objection and allowed the witness to answer: "It does not include any deductions for taxes and Social Security and so forth.”

Curiously, we were not presented the issue of deducting taxes in computing any type of personal injury awards until this year. We then held that the trial court should not instruct the jury that the plaintiff’s recovery for personal injury is tax free. Bashlin v. Smith, 277 Ark. 406, 643 S.W.2d 526 (1982); see Sexton, Damages Income Tax as a Factor in Measuring Personal Injury Awards, 8 Ark. L. Rev. 174 (1953). This case presents a corollary issue in computing awards for lost wages. We adopt the preferable rule which is that the measure of damages for a wage loss is the gross amount of wages. See Woods, supra, at 307; Deduction of Taxes in Computing Damages for Impairment of Earning Capacity, 51 Colum.L.Rev. 782 (1952). Therefore, taxes, Social Security, retirement contributions or other with-holdings may not be used to reduce a plaintiff’s recovery for lost wages. However, the question, “No taxes; no social security?” as used in this case was not a valid inquiry to establish that the wages were gross wages for that fact had been established three times. Rather, the question unfairly injected into the trial the issue of taxation. The loss of earnings should have been decided solely on material issues and taxation is not such an issue. Accord Seely v. McEvers, 115 Ariz. 171, 564 P.2d 294 (1977). Thus, the evidentiary ruling was erroneous. An error in the admission of evidence must be considered to be prejudicial unless absence of prejudice is shown. Arkansas State Highway Com’n. v. Roberts, 246 Ark. 1216, 441 S.W.2d 808 (1969). Absence of prejudice has not been demonstrated in this case. Therefore, we reverse as to appellant Billy H. Cates.

The final point is raised by appellant Hightower. He contends that “the trial court erred in excluding evidence offered about the history and value” of his pickup truck. The trial court excluded testimony about modifications or changes made by appellant to the vehicle and about its original cost. Appellant contends this is relevant history about the vehicle and should have been admitted. However, there was no proffer of the witnesses’ testimony. An exclusion of evidence cannot be reviewed in the absence of a proffer showing what the evidence would have been. The point was not preserved. Boyd v. Brown, 257 Ark. 445, 373 S.W.2d 711 (1963).

However, the second phase of this point was preserved. Appellant Hightower’s attorney properly asked him what the fair market value of his pickup truck was immediately before the accident. He did not answer that question, but instead responded: “In my opinion, I wouldn’t have took twenty-five hundred dollars for it.” The trial court subsequently advised the jury to disregard the answer. Appellant then testified that the value of the vehicle immediately before the accident was $1,500. The trial court was correct. Damages to a vehicle are correctly measured as the fair market value immediately before and immediately after the occurrence. Ark. Stat. Ann. § 75-191 (Repl. 1979); Beggs v. Stalnaker, 237 Ark. 281, 372 S.W.2d 600 (1963). Therefore, we affirm as to W. J. Hightower.

Sandra Cates also gave notice of appeal, but she neither assigns a point of error nor does she make an argument about an error in her $300 award. Affirmed as to appellant Sandra Cates.

Affirmed as to W. J. Hightower and Sandra Cates. Reversed and remanded as to Billy H. Cates.


author: Steele Hays, Justice. John I. Purtle, Justice,

text:
    Roosevelt ABERNATHY v. STATE of Arkansas
    CR 82-121
    644 S.W.2d 590
    Supreme Court of Arkansas
    Opinion delivered January 24, 1983

      William R. Simpson, Jr., Public Defender, and Howard R. Koopman, Chief Deputy Public Defender, by: Deborah R. Sailings, Deputy Public Defender, for appellant.

      Steve Clark, Atty. Gen., by: Alice Ann Burns, Asst. Atty. Gen., for appellee.
   Steele Hays, Justice.

The appellant was charged with the capital felony murder of Sue Bradley, who had earlier charged him with rape. He allegedly broke into the victim’s home and shot her twice in the head as she slept. On June 16, 1982, a jury found him guilty and sentenced him to life without parole. Appellant raises four points for reversal, none of which have merit.

Appellant first argues the merger doctrine as applied to the felony murder rule: he urges the felony murder charge should not lie when the underlying felony is included in the charge of murder. Here, the underlying felony, burglary, is in fact included in the homicide. Although we doubt its soundness, given our statutory scheme and the facts in this case, we do not reach the merits of the issue as the argument was not first presented to the trial court. The only possible foundation for the argument on appeal is pointed to by the appellant in his motion to quash the capital murder information. The state had nolle pressed a first degree murder charge and refiled an information charging appellant with capital murder. Appellant objected to this procedure in his motion to quash, and in his final point states:

10. The allegation of the commission of a burglary in the above information is a subterfuge by the state to proceed as a capital felony murder charge and seek the death penalty.

The preceding points in the motion make it clear appellant was objecting to the procedure used by the prosecutor, which is the basis for his second argument for reversal, discussed below. However, to be preserved on appeal, an objection must be made to the trial court with sufficient clarity that the trial court has a fair opportunity to discern and consider the argument. Wilson v. State, 277 Ark. 43, 639 S.W.2d 45 (1982) and Hobbs v. State, 277 Ark. 271, 641 S.W.2d 9 (1982). The argument now raised was not sufficiently presented to the trial court. Only by severely straining the wording of the motion to quash, beyond logic and common sense, could we say the merger doctrine in capital felony crimes was presented to the trial judge. We therefore find no proper foundation below and we do not consider appellant’s first argument.

In appellant’s second point for reversal he submits the trial court erred in permitting the prosecutor to nolle prosse a first degree murder charge and then file a new information charging appellant with capital felony murder. Appellant points to Ark. Stat. Ann. § 43-1024 (Repl. 1977):

Amendment of indictment — The prosecuting attorney or other attorney representing the State, with leave of the court, may amend an indictment, as to matters of form, or may file a bill of particulars. But no indictment shall be amended, nor bill of particulars filed, so as to change the nature of the crime charged or the degree of the crime charged. All amendments and bills of particulars shall be noted of record.

Appellant contends the procedure used by the prosecution allowed indirectly that which cannot be done directly by Ark. Stat. Ann. § 43-1024. The appellant cites as authority our decision in State v. Washington, 273 Ark. 82, 617 S.W.2d 3 (1981). There, we refused to allow the State to dismiss charges by nolle prosse in order to file new charges, when the purpose was to avoid the defendant’s right to a speedy trial. We find the facts in the instant case present an entirely different situation. Here, there was no attempt to circumvent a constitutional right and no prejudice to the defendant is evident or claimed. In Washington, the procedure followed was perfectly permissible — it was only because the results of that procedure worked to prejudice the defendant that we found it to be improper. There is no comparable prejudice in this case.

We have interpreted Ark. Stat. Ann. § 43-1024 to relate to matters of notice and prejudice. See Harmon v. State, 277 Ark. 265, 641 S.W.2d 21 (1982); Swaite v. State, 274 Ark. 154, 623 S.W.2d 176 (1981). We recognize the importance of this statute in preventing eleventh-hour amendments and amendments made after trial has begun. The application of the statute was recently demonstrated in Harmon, supra. There, the defendant was charged with murder in the course of kidnapping, but the information was amended to charge in the alternative, murder in the course of robbery. We found error in the trial court’s allowing the amendment to be made the morning of the trial, after the jury had been sworn in. It is this sort of prosecutorial action that constitutes prejudice to a defendant that § 43-1024 prohibits.

Alternatively, the prosecution must be afforded a reasonable degree of flexibility in order to effectively carry out its function. If we were to interpret Ark. Stat. Ann. § 43-1024 so restrictively as to prevent the procedure used in this case, the prosecution would be powerless to change a charge, regardless of the reason, if the change resulted in any alteration of the nature or degree of the crime. In Harmon, supra, applying § 43-1024, we concluded:

That amendment was not permissible in the absence of any notice to Harmon that he was to be required to defend an essentially different charge of capital murder. Ark. Stat. Ann. § 43-1024. It is hardly even arguable that a person can fairly be sentenced to death upon a charge that was not made until the morning of trial, leaving no possibility for thorough preparation of a defense upon both the facts and the law. Harmon at 270.

In light of the language of the statute and our previous interpretations of it, we find the above to be a fair statement of the purpose to be served by § 43-1024. We cannot say that this principle conflicts with the procedure employed in this case so long as the defendant is given notice and adequate time for preparation. Additionally, the two procedures are distinguishable. If a decision is made to nolle prosse and a new information is subsequently filed, the prosecution must begin a new proceeding which, absent unusual circumstances or prosecutorial abuse, in itself provides the defense with notice and adequate time for preparation. Here the appellant was charged with the new information on February 19, 1982 and went to trial on June 14, 1982. The appellant did not claim surprise of prejudice, nor does any appear. We find no error in the trial court’s action.

For his third point, appellant argues that the capital felony murder statute is unconstitutional because it overlaps with the first degree felony murder statute. We have reviewed this argument a number of times and found it lacking. See Simpson v. State, 274 Ark. 188, 623 S.W.2d 200 (1981); Ruiz and Van Denton v. State, 273 Ark. 94, 617 S.W.2d 6 (1981); Earl v. State, 272 Ark. 5, 612 S.W.2d 98 (1981); Cromwell v. State, 269 Ark. 104, 598 S.W.2d 733 (1980).

In appellant’s last point he challenges the death-qualification of the jury as depriving him of an impartial jury. Again, we have considered this argument before and rejected it. See Perry v. State, 277 Ark. 357, 642 S.W.2d 865 (1982); Ruiz, supra.

In compliance with Rule 11 (f) RSC, we have reviewed the entire record for errors below not argued on appeal and find none that are prejudicial to the appellant.

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. The majority accurately states that an objection must be made to the trial court with sufficient clarity that the court has an opportunity to consider the argument. In the present case the motion to quash the information quoted in the majority opinion was filed by the appellant on March 19, 1982. Another motion to quash the information was filed on April 12, 1982, which motion questioned the issue of appellant’s charge of capital murder as related to the burglary charge giving rise to the capital felony provisions. The trial court held an omnibus hearing on May 17,1982, at which time the court denied both motions to quash the information. A review of the record indicates the trial court had a fair opportunity to both discern and consider the arguments presented in both motions to quash and after due consideration denied these motions. Nowhere in the record, abstracts or briefs is there even any allegation that the trial court was not afforded an opportunity to fairly consider these arguments. Furthermore, in the case of Ward v. State, 272 Ark. 99, 62 S.W.2d 118 (1981), this court stated, “When a motion in limine is overruled, no further objection is needed.” This court has subsequently held in the case of Smith v. State, 273 Ark. 47, 616 S.W.2d 14 (1981):

If a sufficiently specific motion is overruled, then it may not be necessary for counsel to renew his objection if the specific prejudicial matter is later introduced.

In light of these previous decisions I feel that it is not necessary that the defendant re-raise these issues at trial in order to preserve the points for consideration on appeal.

A square is a rectangle but a rectangle is not necessarily a square. The overwhelming evidence in this case against the appellant was that he went to the home of the victim with a clear intent to murder her or otherwise cause her serious bodily harm. The facts indicate that the appellant arrived at her residence and found that she was asleep inside. In furtherance of his objective he entered the residence, shot her while she slept and escaped from the residence. The prosecutor initially filed charges of first degree murder against the appellant but later changed his mind and decided to go for the ultimate by filing an information charging him with capital murder. Our capital murder statute, Ark. Stat. Ann. § 41-1501 (Repl. 1977), states in pertinent part:

A person commits capital murder if:
(a) Acting alone ... he commits or attempts to commit . . . burglary . . . and in the course of and in the furtherance of the felony . .. he ... causes the death of any person under circumstances manifesting extreme indifference to the value of human life ...

It is abundantly clear in my mind that the appellant was not “in the course of and in the furtherance of” the burglary when he shot and killed his victim. In any other context, the above-quoted phrase is without meaning. The actions of the defendant involved a single episode which would come under the provisions of Ark. Stat. Ann. § 41-105 (Repl. 1977) establishing burglary as a lesser included offense of first degree murder in this case. Ark. Stat. Ann. § 41-1502 states:

(1) A person commits murder in the first degree if:
(a) .. .
(b) with the premeditated and deliberate purpose of causing the death of another person, he causes the death of any person.

The evidence presented in this case clearly establishes that the appellant was guilty of first degree murder. The jury considered the evidence and found the appellant guilty of killing his victim. The law states that this is first degree murder. I feel that this court should take it upon itself to change the appellant’s conviction to first degree murder in deference to the law and the facts of this case and reduce his sentence to life in prison which would be the proper conviction and sentence under our statute.

The state in this case attempted to bootstrap lesser charges into greater charges without respect to the clear wording of our statutes and the considerations of our judicial system. The prosecutor is an officer of the court just as is a defense counsel. It should be the duty of the officers of the court to put into practice the clear intent and wording of our laws and not to overreach the statutes. The appellant in this case clearly was not committing a burglary which incidentally resulted in the death of another person. Quite to the contrary, in the cómmission of a first degree murder he committed the burglary. I must respectfully dissent.