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

text:
    Johnny Lee NELSON v. STATE of Arkansas
    CR 81-30
    622 S.W. 2d 188
    Supreme Court of Arkansas
    Opinion delivered October 19, 1981

      Ray Baxter, for appellant.

      Steve Clark, Atty. Gen., by: Arnold M. Jochums, Asst. Atty. Gen., for appellee.
   Darrell Hickman, Justice.

The only issue in this case is the trial court’s decision that the State could use a witness when it failed to comply with a pretrial discovery request under Rules of Grim. Proc., Rule 17.1. The court was wrong and the judgment is reversed and the cause remanded for a new trial.

The defense filed a routine pretrial discovery request and the parties concede that the State failed to furnish the defense with the name of Sharon West as a State’s witness. No doubt the State’s action was inadvertent but the defense moved that she be prevented from testifying. The defense attorney said he was surprised and totally unprepared for her testimony, a statement that was not refuted. Without inquiry as to actual surprise or prejudice, the trial court ruled that the witness could testify because a subpoena had been issued eleven days before trial. No inquiry was made as to whether the defense actually knew that the subpoena had been issued.

Sharon West did testify and her testimony directly implicated the defendant in the crime.

In a line of cases we have consistently, without exception, held that the State must comply with the pretrial discovery rules. In Williamson v. State, 263 Ark. 401, 565 S.W. 2d 415 (1978), we ordered a new trial when the State failed to comply with Rule 17.1, saying:

We are persuaded that Rule 17.1 imposes a duty upon the state to disclose to defense counsel, upon a timely request, all material and information to which a party is entitled in sufficient time to permit his counsel to make beneficial use thereof. Any interpretation of Rule 17.1 to the contrary would indeed make a farce of a rule which has as its purpose to reduce delays during trial and taken as a whole lending more conclusiveness and completeness in the disposition of criminal cases and disclosure, indeed, alleviates docket congestion and permits a more economical use of judicial resources. It seems clear that disclosure in advance of the trial does not create any risks for the state inasmuch as any improper use of the disclosed material is virtually impossible.

In Williams v. State, 267 Ark. 527, 593 S.W. 2d 8 (1979), we ordered a new trial when the State failed to furnish the defense with the information that a police officer would testify as to a statement made by the defendant. We said:

The court must act in such a situation. The evidence must be excluded or a continuance granted. In the case of Hughes v. State, 264 Ark. 723, 574 S.W. 2d 888 (1978), we held it was not error if the court granted a recess so that the defendant’s attorney could question the witness. In this case the court gave the appellant no relief.
We are not saying the statement is inadmissible testimony. That is a separate question. The court’s error was its failure to enforce the rule of discovery that imposes upon the State an obligation to timely inform the defendant of all information it has been properly requested to furnish. In this case we do not feel that the information was timely furnished. The judge abused his discretion in admitting the statement and, therefore, we reverse the judgment and order a new trial. [Emphasis added.]

In Earl v. State, 272 Ark. 5, 612 S.W. 2d 98 (1981), we held that the court should have granted a mistrial, a drastic remedy, to cure the State’s failure to comply with the rule.

When the State violates the pretrial discovery rule the court has four options under Rule 19.7. They are: (1) The evidence may be excluded; (2) discovery or inspection may be ordered; (3) a continuance can be granted; and, (4) an appropriate order may be entered depending on the circumstances. The lower court imposed no such sanctions and granted'no appropriate relief. If prejudice will result, the court must take appropriate action to remove that prejudice.

It is suggested that because the prosecuting attorney suggested he could have the “witness available in twenty minutes,” a continuance was offered and this cured the error. That is not so. The court, without inquiry, immediately ruled that because a subpoena had been issued to Sharon West, that fact put the defense on notice, and cured any error, without any inquiry at all as to genuine surprise, prejudice or notice.

In one case we did imply that the State’s failure to comply with the rule might be cured by the court offering a recess or continuance. Dupree v. State, 271 Ark. 50, 607 S.W. 2d 356 (1980), we said:

It is quite possible that the trial court might have rendered the state’s failure to earlier furnish the names of the witnesses it used harmless by granting appellant a continuance or by recessing the trial until appellant’s attorney could have an adequate interview with the witnesses. See Rule 19.7, Arkansas rules of Criminal Procedure, Ark. Stat. Ann. vol. 4A (Repl. 1977); Hughes v. State, 264 Ark. 723, 574 S.W. 2d 888. But the court never gave any indication that this relief was available to appellant. The court’s overruling of appellant’s motion before his attorney could cross-examine the deputy prosecuting attorney was certainly not indicative of the availability of such relief. [Emphasis added.]

In Sumlin v. State, 273 Ark. 185, 617 S.W. 2d 372 (1981), the defendant sought to exclude the testimony of a witness called during the trial whose name had not been furnished to the defense. The trial court, instead of excluding the testimony, recessed the trial until the next day to give the defense an opportunity to talk to the witness. We said that this action cured any possibility of error. See also Hughes v. State, 264 Ark. 723, 574 S.W. 2d 888 (1978).

In this case there was no such offer by the trial court. In none of our cases have we placed on the defense the added burden of finding a solution to the prejudice created by the State’s failure to comply with the rules. Once properly raised and once it is clear that prejudice will exist, the trial court must act to remove that prejudice.

Reversed and remanded.

Adkisson, C.J., and Hays, J., dissent.

Richard B. Adkisson, Chief Justice,

dissenting. The majority is reversing this case on a technicality centered on appellant’s failure to respond to the State’s offer of a continuance. This is done although appellant has failed to show he was prejudiced as we required in Renton v. State, 274 Ark. 87, 622 S.W 2d 171 (1981), failed to make a timely objection, and failed to apprise the trial court of the action he sought after his original motion was denied.

It is important to review the facts in this case because, in any event, Sharon West’s testimony regarding the truck is harmless error since the evidence of guilt and other identification of the truck was overwhelming. After a trial by jury appellant, Jerry Lee Nelson, was convicted of burglary and misdemeanor theft of property and was sentenced to 40 years in the state penitentiary and one year in the county jail. On February 6, 1979, at approximately 2:30 a.m., Officer Wiley of the El Dorado Police Department observed a Ford pickup truck driven by a black male pull out from behind the Hickory House restaurant at a high rate of speed. The officer found that a window in the rear of the restaurant had been recently broken; he then radioed a detailed description of the pickup truck to officers in Union County advising them of a suspected burglary. The radio report described a Ford pickup truck camper with a CB whip antenna on the rear bumper, a red and white novelty plate on the front bumper, and “H” as the first letter on the license plate. Shortly thereafter a Union County Deputy Sheriff saw such a truck parked on the side of the road; it was occupied by Johnny Lee Nelson, a black male; and steam was rising from the tires and hood. The appellant was arrested and in plain view on the floorboard of the truck were 45 flat and uncrumpled one dollar bills.

A subsequent investigation of the Hickory House revealed that someone had broken into the jukebox which would accept flat and uncrumpled one dollar bills. One such one dollar bill was found near the jukebox, and a second was found in the jukebox money changer. The owner testified that the jukebox should have contained between $40 and $80.

A witness, Sharon West, testified that she worked at the Roadrunner [gas station] and, at approximately 2:30 a.m., she saw a brown pickup truck with a camper and whip antenna come off Calion Road at a high speed and cut between the “pumps and the signs.” The next day she identified the truck she had seen. The Roadrunner was located on the route that would usually be taken in traveling from the Hickory House to the location of appellant’s arrest. The truck occupied by the appellant and the truck identified by Sharon West were one and the same; it was registered in the name of Johnny Lee Nelson.

The majority holds that the trial court should have excluded the testimony of Sharon West. Appellant filed a motion to discover the names and addresses of all persons the State intended to call as witnesses at the trial. It is acknowledged that the State unintentionally failed to furnish appellant the name of this witness.

After the jury was sworn but prior to opening statements, defense counsel moved “in limine to exclude the testimony of Sharon West on the grounds that we filed a motion for discovery. ’ ’ Defense counsel stated that he did not find out about the witness until voir dire examination and at that time was furnished with a copy of her statement. He further stated that “we feel she must be excluded under the Rules of Criminal Procedure.”

Defense counsel stated that he was completely and totally unprepared as far as this witness was concerned. The prosecuting attorney then offered:

... to make this witness available within 20 minutes and he [defense counsel] can interview her. Her testimony is not complicated. It’s short and to the point. I think — We’d make her available and he could interview her and then he would then have the beneficial use of that information.

The court refused to exclude the testimony of the witness stating that a subpoena had been issued for her at least 11 days before trial.

Although appellant did not specifically state which rule in the Rules of Criminal Procedure he was referring to, it was apparently Rule 19.7 (a) which provides:

(a) If at any time during the course of proceedings it is brought to the attention of the court that a party has failed to comply with an applicable discovery rule or with an order issued pursuant thereto, the court may order such party to permit the discovery or inspection of materials not previously disclosed, grant a continuance, prohibit the party from introducing in evidence the material not disclosed, or enter such other order as it deems proper under the circumstances.

This Court has consistently held that in order to preserve an objection for review on appeal, it is necessary that the objection at trial be made at the first opportunity and the ground of the objection be sufficiently specific to apprise the trial court of the action which the objecting party desires the court to take. Rule 36.21, Ark. Rules Crim. Proc., Vol. 4A (Repl. 1977); Wicks v. State, 270 Ark. 781, 606 S.W. 2d 366 (1980); Turkey Express v. Skelton Motor Co., 246 Ark. 739, 439 S.W. 2d 923 (1969); Goodwin v. State, 263 Ark. 856, 568 S.W. 2d 3 (1978); Cf. Rules 46 & 51, Ark. Rules Civ. Proc., Vol. 3A (Repl. 1979).

Here, appellant did not make his objection specifically and at the first opportunity to do so. Instead of objecting in the morning when he discovered the prosecutor’s mistake during voir dire examination, appellant waited until that afternoon after the jury had been sworn. Appellant was then offered a continuance by the State for the purpose of interviewing the witness. However, appellant not only failed to respond to this offer, but also failed to specifically request a continuance or otherwise apprise the trial court of what action he wanted it to take. The State had supplied appellant with a copy of the witness’s statement at voir dire several hours earlier. Under these circumstances only appellant knew whether a continuance would be beneficial to him, but he failed to object, move for a continuance, or nod in assent to the State’s offer of a continuance. We cannot presume error. Had appellant responded to the State’s offer and interviewed the witness he could have requested a continuance if he felt it necessary. Moreover, it can be said with certainty that the admittedly good faith mistake of the prosecutor was harmless since the evidence of guilt and identification of the truck was overwhelming.

Appellant has neither shown prejudice from the failure to disclose the name of the witness nor has he claimed that interviewing this witness would prove beneficial which we held was necessary on October 12, 1981, in Renton v. State, supra. The majority acknowledge that it must be clear that prejudice exists but overlook the fact that, here, it is not shown to exist and, in fact, it does not exist. Last week we required a showing of prejudice; this week we presume prejudice.

I am hereby authorized to state that Hays, J., joins in this dissent.


source: Caselaw Access Project

author: Robert H. Dudley, Justice.

license: Public Domain

text:
    WISCONSIN BRICK AND BLOCK CORP. v. John W. COLE, Judge
    81-107
    622 S.W. 2d 192
    Supreme Court of Arkansas
    Opinion delivered October 19, 1981

      Moses, McClellan & McDermott, by: Harry E. McDermott, for petitioner.

      Steve Clark, Atty. Gen., by: Rodney E. Slater, Asst. Atty. Gen., for appellee.
   Robert H. Dudley, Justice.

Malvern Brick and Tile Company, an Arkansas corporation, filed suit against petitioner, Wisconsin Brick and Block Corporation, in Hot Spring County alleging breach of contract. Wisconsin Brick had been ordering brick from Malvern Brick for a twenty-year period and on this occasion either called or mailed in the order. The bricks were to be sent “F.O.B. plant, car” which meant that Malvern Brick completed performance of the contract when it loaded the bricks on a railroad car at its plant. When the bricks arrived at their destination Wisconsin Brick would not accept them because they were damaged. After Malvern Brick filed suit, Wisconsin Brick’s attorney made a special appearance to deny personal jurisdiction. The Hot Spring circuit judge, respondent here, granted Wisconsin Brick’s motion to dismiss. Malvern Brick then filed a motion for rehearing and, upon rehearing, the motion to quash service was denied. Wisconsin Brick then filed a petition for a writ of prohibition to prevent the circuit court from hearing the suit, alleging lack of personal jurisdiction.

Prohibition will not lie unless the trial court is clearly without jurisdiction or has clearly acted without authority and the petitioner is clearly entitled to such relief. Karraz v. Taylor, 259 Ark. 699, 535 S.W. 2d 840 (1976). The purpose of the writ is to prevent a court from exercising a power not authorized by law when there is no other adequate remedy available. Streett v. Roberts, 258 Ark. 839, 529 S.W. 2d 343 (1975). It is never issued to prohibit an inferior court from erroneously exercising its jurisdiction but only where the inferior tribunal is wholly without jurisdiction, or is proposing or threatening to act in excess of its jurisdiction, Richards v. Maner, Judge, 219 Ark. 112, 240 S.W. 2d 6 (1951).

The personal jurisdiction of this cause of action turns upon whether the activities of Wisconsin Brick were sufficient to satisfy the “minimum contacts” test and whether these activities came within the Arkansas long-arm statute. Ark. Stat. Ann. § 27-2502 (C) (1) (a) (Repl. 1979) states that:

A court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a (cause of action) (claim for relief) arising from the person’s
(a) transacting any business in this State; . . .

The purpose of this section of the statute is to permit courts to exercise the maximum personal jurisdiction allowable by due process, and the statute should be liberally construed. In Hawes Firearm Co. v. Roberts, 263 Ark. 510, 565 S.W. 2d 620 (1978), this court notecl:

A non-resident defendant filing a motion to dismiss or quash [on grounds that there are not sufficient contacts within the state] has the burden of going forward and offering proof to sustain the allegations of the motion. If the motion is denied, this does not mean that the plaintiff is relieved from establishing jurisdiction; it merely means that at this point in the proceedings a prima facie case of jurisdiction sufficient to take the cause to trial has been made.

Whether the “minimum contacts” test has been satisfied is a question of fact. In cases where jurisdiction depends upon the establishment of facts, the issue of jurisdiction must be decided by the trial court, and even if that decision should be wrong, we correct that error on appeal and not on prohibition. Robinson v. Means, Judge, 192 Ark. 816, 95 S.W. 2d 98 (1936).

Writ denied.


author: Per Curiam.

text:
    Ernest L. WALKER v. STATE of Arkansas
    CR 81-73
    622 S.W. 2d 193
    Supreme Court of Arkansas
    Opinion delivered October 19, 1981

      Howard, Mann & Slaughter, by: George C. Howard, Chicago, 111., and Claude E. Lynch, Jr., for appellant.

      Steve Clark, Atty. Gen., by: Alice Ann Burns, Asst. Atty. Gen., and Dennis R. Molock, Deputy Atty. Gen., for appellee.
   Per Curiam.

The appellant, by his attorney, has filed a motion for an extension of time for the filing of a brief. Appellant’s attorney is a non-resident who is not licensed to practice law in this State. A non-resident attorney will be permitted to appear in the Arkansas courts by comity and courtesy only upon satisfying the conditions set forth in Rule XIV, Rules Governing Admission to the Bar, Ark. Stat. Ann. Vol. 3A (Repl. 1979). One of the conditions is:

A non-resident lawyer will not be permitted to engage in any case in an Arkansas court unless he first signs a written statement, to be filed with the court, in which the non-resident lawyer submits himself to all disciplinary procedures applicable to Arkansas lawyers.

The motion will be dismissed for non-compliance with the Rules Governing Admission to the Bar unless the nonresident attorney complies with the rules within twenty days.


author: Richard B. Adkisson, Chief Justice.

text:
    Lana HAWKINS et al v. Carl STOVER et al
    81-113
    622 S.W. 2d 667
    Supreme Court of Arkansas
    Opinion delivered October 26, 1981

      Ralph E. Faulkner of Faulkner, Goza & Rollins, for appellants.

      James J. Calloway, for appellees.
   Richard B. Adkisson, Chief Justice.

On March 3,1981, John Marlar, Ouachita County Judge, resigned from office. The quorum court, acting pursuant to Act 392 of 1981, appointed James Harvey Rumph interim county judge and called a special election to permanently fill the vacancy. This appeal is from a circuit court judgment declaring Act 392 unconstitutional and enjoining appellant from holding a special election. We affirm.

Amendment 55 of the Arkansas Constitution provides that “ ... the Quorum Court shall have the power to ... fill vacancies in elective county offices. ...” Act 392 of 1981 [Ark. Stat. Ann. § 17-3812 (Supp. 1981)] provides:

SECTION 1. All quorum courts are hereby authorized, in their discretion, to call special elections for the purpose of filling vacancies in the office of county judge.

Arkansas Constitution Amendment 29, generally, provides for the filling of vacancies in elective county offices. Amendment 55 changes this procedure only to the extent that the quorum court is substituted for the governor as the appointive authority. We held in McCraw v. Pate, 254 Ark. 357, 494 S.W. 2d 94 (1973) that under Amendment 29 the alternative of holding a special election to fill a vacancy is not available.

It is clear that Amendment 55, when read in conjunction with Amendment 29, is complete and self executing as to the manner of filling vacancies in county offices and, therefore, Act 392 of 1981 is constitutionally infirm. Judge Rumph was duly and regularly appointed in accordance with Amendment 55 and will serve until his successor is duly elected and qualified under Amendment 29. McCraw, supra.

Affirmed.


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

text:
    Charles Laverne SINGLETON v. STATE of Arkansas
    CR 80-69
    623 S.W. 2d 180
    Supreme Court of Arkansas
    Opinion delivered October 26, 1981
    [Rehearing denied November 23, 1982.]

      Robert B. Wellenberger, for appellant.

      Steve Clark, Atty. Gen., by: Victra L. Fewell, Asst. Atty. Gen., for appellee.
   Richard B. Adkisson, Chief Justice.

On October 30, 1979, after a trial by jury, appellant, Charles L. Singleton, was sentenced to death by electrocution for capital felony murder, and life imprisonment for aggravated robbery.

We affirm the conviction and sentence for capital felony murder, but set aside the lesser included offense of aggravated robbery. Ark. Stat. Ann. § 41-105 (1) (a) (2) (a) (Repl. 1977) prohibits the entry of a judgment of conviction on capital felony murder and the underlying specified felony. Swaite v. State, 272 Ark. 128, 612 S.W. 2d 307 (1981). Generally, this Court will not consider errors raised for the first time on appeal; however, we note that the judgment in this case was entered before our decision in Swaite. In death penalty cases we will consider errors argued for the first time on direct appeal where prejudice is conclusively shown by the record and this Court would unquestionably require the trial court to grant relief under Rule 37.

The victim, Mary Lou York, was murdered in York’s Grocery Store at Hamburg on June 1, 1979. She died from loss of blood as a result of two stab wounds in her neck.

The evidence of guilt in this case is overwhelming. Patti Franklin saw her relative Singleton enter York’s Grocery at approximately 7:30 p.m. on the day of the crime. Shortly after he entered Patti heard Mrs. York scream, “Patti go get help. Charles Singleton is killing me.” Patti then ran for help. Another witness, Lenora Howard, observed Singleton exit the store and shortly thereafter witnessed Mrs.. York, who was ‘‘crying and had blood on her,” come to the front door. Police Officer Strother was the first to arrive at the scene and found Mrs. York lying in a pool of blood in the rear of the store. The officer testified Mrs. York told him that Charles Singleton “came in the store, said this is a robbery, grabbed her around the neck, and went to stabbing her.” She then told Officer Strother that “there’s no way I can be all right, you know I’m not going to make it. I’ve lost too much blood.” Mrs. York was taken to the hospital in an ambulance and was attended by her personal physician, Dr. J. D. Rankin. While enroute to the hospital, she told Dr. Rankin several times that she was dying and that Singleton did it. Mrs. York died before reaching the emergency room of the hospital. Officer Strother also testified that during examination of the premises, he found a money bag on the floor near the cash register which was empty, except for about $2.00 in change. He also stated that the cash register had only a small amount of change in it.

Appellant contends the trial court committed reversible error by failing to excuse for cause veniremen Waldrup, Goyne, Taylor, and Estelle. Appellant exercised a peremptory challenge on each of these prospective jurors but made no showing of record that he would have struck any other juror who actually sat on the trial of the case had he had a peremptory challenge remaining. Under such circumstances we have consistently held that appellant has shown no prejudice since he is unable to show that an objectionable juror was forced upon him without his having the privilege of exercising a peremptory challenge. Conley v. State, 270 Ark. 886, 607 S.W. 2d 328 (1980); Arkansas State Highway Comm. v. Dalrymple, 252 Ark. 771, 480 S.W. 2d 955 (1972); Green v. State, 223 Ark. 761, 270 S.W. 2d 895 (1954). In Glover v. State, 248 Ark. 1260, 455 S.W. 2d 670 (1970) the defense in exhausting his peremptory challenges used some of his challenges to remove unacceptable veniremen, then stated for the record that had he not been required to use his challenges on jurors that should have been excused for cause, a particular juror who was seated and actually served would have been challenged. In Glover we found that the error had been preserved and reversed the judgment.

Appellant argues for the first time on appeal that he would have exercised peremptory challenges on two specific jurors had the court granted his challenges for cause. The record does not reflect that the two jurors specified were biased or otherwise unqualified to serve. This Court has consistently held that it will not consider alleged errors raised for the first time on appeal. Wicks v. State, 270 Ark. 781, 606 S.W. 2d 366 (1980).

Appellant next argues that the trial court erred in admitting as hearsay the statements made by the victim. The statements of the victim were admissible under two separate exceptions to the rule against hearsay. Rule 803 (2), Uniform Rules of Evidence, Ark. Stat. Ann. § 28-1001 (Repl. 1979) provides:

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(2) Excited utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.

And, Rule 804 (b) (2), Uniform Rules of Evidence provides:

(b) Hearsay Exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
(2) Statement under belief of impending death. A statement made by a declarant while believing that his death was imminent, concerning the cause or circumstances of what he believed to be his impending death.

All of the victim’s statements were related to Singleton cutting her throat and, as a result, her dying. These statements clearly fall under the excited utterance exception to the rule against hearsay since they were made under the stress of the event.

The victim cried out to Patti Franklin that Singleton was killing her. She told Officer Strother that she was not going to make it because she had lost too much blood, and she repeatedly told her physician, Dr. Rankin, that she was dying. It is clear that all of her statements were made under the dying declaration exception to the rule against hearsay. Each of these statements were made concerning the cause or circumstances of what she believed to be her impending death.

It is argued that there was no showing by the state that Mrs. York had firsthand knowledge of the identity of the appellant. This is unsupported by any reasonable view of the evidence.

Finally, appellant asserts the trial court erred in its rulings regarding photographs of the crime scene and the victim. Appellant seems to base his argument on two primary allegations: (1) that it was error to allow Chief Kennedy to refer to photographs of the crime scene previously held inadmissible as inflammatory and, (2) that the prosecutor was guilty of misconduct in attempting to introduce a photograph of the victim’s body after the trial court had ruled it inadmissible, defense counsel having stipulated to the cause of death.

Chief Kennedy testified that he took the photographs when he arrived at the crime scene. He referred to the pictures to refresh his memory of the scene while testifying at the triai. The record does not disclose a specific objection regarding Kennedy refreshing his memory. Defense counsel did state that the prosecutor’s handling of the pictures was calculated to prejudice his client and asked for a mistrial. Thus, the only objection seems to be a vague allegation of prosecutorial misconduct. Rule 612, Uniform Rules of Evidence, Ark. Stat. Ann. § 28-1001 (Repl. 1979) provides that a witness may refer to an object or writing to refresh his memory while testifying.

The prosecutor attempted to introduce a photograph of the victim’s body to show the location of the stab wounds. Defense counsel objected on the grounds that the court had ruled the photograph of the deceased was inadmissible since defense counsel had stipulated to the cause of death. There were at least three in-chambers hearings regarding the introduction of a photograph of the deceased. The prosecutor maintained he never stipulated that the photograph should not be introduced, a position which seems to be supported by the record. The defense counsel argued that there was a stipulation that the photograph of the deceased would not be admissible and, regardless of the stipulation, the trial court’s ruling should have precluded the prosecutor from attempting to introduce the photograph. The trial judge did rule that the photograph would not be admissible if the cause of death was stipulated. But, the prosecutor maintained that he did not so stipulate and that he had a right and duty to prove every essential element of the charge, and he was only attempting to show the nature and extent of the wounds and not the identity of the victim or that she was, in fact, dead.

In any event, we can say beyond a reasonable doubt that under the facts of this case no prejudice resulted to the defendant from the prosecutor’s attempt to introduce a picture of the deceased. The court sustained defense counsel’s objection, and none of the pictures were ever viewed by the jury. Some confusion did exist due to the prosecutor’s position that he was entitled to prove his case as fully as possible, but this confusion does not constitute reversible error.

Where life imprisonment or death was imposed in the court below, the Supreme Court reviews the entire record for errors prejudicial to the rights of the appellant. Rule 36.24, Ark. Rules Crim. Proc., Ark. Stat. Ann., Vol. 4A (Repl. 1977). To facilitate this review, Rule 11 (f), Rules of the Supreme Court, Ark. Stat. Ann., Vol. 3A (Repl. 1979) was promulgated:

[T]he appellant must abstract all objections that were decided adversely to him in the trial court together with such parts of the record as are needed for an understanding of the objection. The attorney general will make certain that all objections have been so abstracted and will brief all points argued by the appellant and any other points that appear to him to involve prejudicial error.

This means that both the counsel for appellant and counsel for the State must examine the record page by page to be certain that all objections are brought to the Court’s attention. For many years the members of this Court made that examination in capital cases before the rule was amended to read as it does now. Earl v. State, 272 Ark. 5, 612 S.W. 2d 98 (1981); Curry v. State, 270 Ark. 570, 605 S.W. 2d 748 (1980).

We have examined all objections and find no error.

Affirmed in part; reversed in part.

Hickman and Dudley, JJ., dissent in part.

Darrell Hickman, Justice,

dissenting. I respectfully dissent to the majority’s holding which recognizes an error raised for the first time on appeal.

First, the error can hardly be described as prejudicial requiring our action. The defendant was sentenced to die and we affirmed that sentence. The defendant will be hard pressed to understand how we find prejudicial error and ignore the obvious — he gets no relief.

Next, the mere fact we would act on a petition for Rule 37 relief is presumptive and premature. We should only act when and if we are confronted with that reality. Appellate courts should not act on their own by recognizing errors not argued below. Wicks v. State, 270 Ark. 781, 606 S.W. 2d 366 (1980).

The reasons are manifold — a systematic orderly review that can be relied upon; fairness to all parties; fairness to the trial court; only answering questions properly before us. It is a recognition of our proper role in a judicial system.

I find no reason in this case to depart from past practice.

Dudley, J., joins in this dissent.


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

text:
    Raymond Allen COBLE v. STATE of Arkansas
    CR 81-28
    624 S.W. 2d 421
    Supreme Court of Arkansas
    Opinion delivered October 26, 1981
    [Supplemental Opinion on Denial of Rehearing December 21, 1981.]

      Lessenberry & Carpenter, by: Thomas M. Carpenter; Barrett, Wheatley, Smith & Deacon, by: Tom D. Womack, and Anthony Bartels, for appellant.

      Steve Clark, Atty. Gen., by: William C. Mann, III, for appellee.
   Richard B. Adkisson, Chief Justice.

Following a trial by jury appellant, Ronald A. Coble, was convicted of capital felony murder and sentenced to life imprisonment without parole.

On the afternoon of January 28,1980, at approximately 6:30 p.m., the body of Mrs. Bell Lloyd was found by her husband in their home near Jonesboro, Arkansas. She had been shot in the neck and upper chest with a .12 gauge shotgun. The victim’s white Chevrolet automobile, a .32 caliber pistol, and approximately $100 worth of old coins were missing from the premises. The description and license number of the car were immediately broadcast over the police radio.

The owner of a liquor store in nearby Poinsett County heard this broadcast on his police scanner and realized the license number matched one that he had jotted down about 5:00 p.m. that afternoon. He had become suspicious when a man purchased a six-pack of Budweiser in bottles with old silver coins. He copied down the license number of the white Chevrolet which the man was driving. Upon hearing the broadcast he reported the incident to the police.

The description of a hitchhiker seen in the vicinity of the Lloyd residence at approximately 2:00 p.m. that afternoon was reported to the police. Later that evening officers learned that two men were selling old coins at the Dew Drop Inn at Marked Tree. The description of one of the men selling the coins matched the description of the hitchhiker seen near the Lloyd’s residence at about the time of the crime. Having apparently determined that it was Coble who was selling the coins, Officers Graves, Morphis, Taylor, and Hallmark proceeded to Coble’s residence, arriving there at about 12:30 a.m. Mrs. Gray, appellant’s mother-in-law, answered the door. The officers asked to speak with the appellant. Mrs. Gray invited them in, they declined, but they waited on the porch after being told that Coble was in bed.

After about 15 minutes, Coble came to the porch. He went with the officers to a car parked in front of the residence to talk. It was determined that this car belonged to James Gray, Coble’s brother-in-law, who also lived in the house. Officer Taylor asked Gray about a pistol that had been seen in the floorboard of Gray’s car; Gray stated that the pistol belonged to Coble but that he had not seen Coble with the pistol before that night. The officers confirmed by radio that this pistol fit the description of the one taken from the Lloyd residence. The officers then placed Coble in custody and transported him and James Gray to the Trumann Police Department where Gray was released and advised to come back in the morning to make a statement.

Later Coble was transported to the Craighead County Jail in Jonesboro. A lineup was held around noon on January 29, and Coble was identified by J. L. Windley as the hitchhiker he had dropped off near the Lloyd residence. The owner of the liquor store also viewed the lineup but was unable to identify the appellant.

Shortly after the lineup, while he was being fingerprinted and processed, Coble told Deputy Sheriff Howell that he wanted to speak with someone in authority. Howell called Sheriff Floyd Johnson. At 2:27 p.m. Sheriff Johnson, Deputy Prosecuting Attorney Parker, and Deputy Howell fully advised Coble of his rights under Miranda v. Arizona, 384 U.S. 436 (1966) and took his statement. Before the statement was taken, they asked appellant several times if he would like to speak to Attorney David Rees or some other attorney but Coble refused the offer.

Appellant first argues that the trial court erred in failing to suppress the statement given by the appellant. He contends he was arrested without a warrant in his home in violation of the Fourth Amendment and relies on Payton v. New York, 445 U.S. 573 (1980) and Dunaway v. New York, 442 U.S. 200 (1979).

In Payton the police, with probable cause but no arrest warrant, used crowbars to break open the door and enter the defendant’s home when there was no response to their knock. The Court held that the Fourth Amendment prohibits police from making a warrantless and nonconsensual entry into a suspect’s home in order to make a routine felony arrest. In a companion case, Riddick v. New York, 445 U.S. 573 (1980), the Court held there was probable cause for an arrest but the Fourth Amendment was violated when the police entered defendant’s residence without consent and without an arrest warrant when a three year old child opened the door. In both of these cases evidence seized on the premises was suppressed as being the fruit of an illegal arrest.

In Dunaway the Supreme Court held that the police violated the defendant’s Fourth Amendment rights when they seized him without probable cause and transported him to the police station for interrogation. The defendant’s statement was suppressed as being the exploitation of an illegal arrest. The Court found no intervening event of significance to break the causal connection between the illegality and the confession. See Brown v. Illinois, 422 U.S. 590 (1975).

Here, however, Coble voluntarily came out of his residence to talk with police officers and voluntarily spoke with them in the car. There is no nonconsensual police conduct which characterized Payton and Riddick; neither is there an absence of probable cause which characterized Dunaway.

Although it is not clear from the record whether there was a stipulation that probable cause existed at the time of Coble’s arrest, the record does reflect that there was, in fact, probable cause. Probable cause exists where the facts and circumstances within the officers’ knowledge and of which they had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed by the person to be arrested. Brinegar v. United States, 338 U.S. 160 (1949); Carroll v. United States, 267 U.S. 132 (1925); McGuire v. State, 265 Ark. 621, 580 S.W. 2d 198 (1979). When the officers went to Coble’s residence they were able to verify the description they had of the hitchhiker seen in the vicinity of the victim’s home, as well as the description of the person selling coins at the Dew Drop Inn. These facts, coupled with Gray’s statement regarding the pistol and the fact that the pistol found in the car at Coble’s residence matched the description of the pistol taken from the victim’s home, gave the officers probable cause to arrest Coble.

Appellant also argues that his statement should be suppressed because his attorney was not notified that he wished to make a statement. It is not clear from the record whether Coble had counsel other than for purposes of the lineup, but we need not make this determination because Coble not only waived his right to counsel but also initiated the contact with the police that produced the statement. An accused can waive his right to counsel if it is done voluntarily, knowingly, and intelligently. Johnson v. Zerbst, 304 U.S. 458 (1938). The admissibility of statements obtained after a person in custody has decided to remain silent depends, under Miranda, on whether his right to cut off questioning was scrupulously honored. Michigan v. Mosley, 423 U.S. 96 (1975). Also, although a person has counsel or invokes his right to counsel, he may be further interrogated if he initiates further communication, exchanges, or conversations with the police. See Edwards v. Arizona, 451 U.S. 477, 101 S. Ct. 1880 (1981); Rutledge v. State, 263 Ark. 781, 567 S. W. 2d 283 (1978); Escobedo v. Illinois, 378 U.S. 478 (1964).

The evidence is undisputed that during fingerprinting Coble initiated contact with the police by asking if he could speak with someone in authority. The deputy contacted Sheriff Johnson who arrived some 30 minutes later. Again the evidence is undisputed that the sheriff fully advised Coble of his Miranda rights. The sheriff and deputy prosecuting attorney repeatedly and earnestly advised Coble of his right to have an attorney present before questioning. Deputy Prosecutor Parker specifically asked appellant, “Do you want David Rees here during your statement, or would you prefer to give your statement without him? Just what do you want to do?” Appellant replied, “I will just give it without him.”

When an in-custody statement is challenged, the State has the burden of proving by a preponderance of the evidence that it was voluntarily given. This determination is made based upon the totality of the circumstances surrounding the taking of the statement. Giles v. State, 261 Ark. 413, 549 S.W. 2d 479(1977). On appeal, we make an independent determination of this issue and affirm the finding of the trial court unless we can say its ruling was clearly erroneous. Degler v. State, 257 Ark. 388, 517 S.W. 2d 515 (1974). The trial court’s finding that appellant’s statement was voluntarily given is supported by substantial evidence and is not erroneous.

The appellant argues that Ark. Stat. Ann. § 41-1501 (1) (a) (Repl. 1977) and Ark. Stat. Ann. § 41-1502 (1) (a) overlap and are, therefore, unconstitutionally vague. These statutes are not vague, since they clearly set out what acts are prohibited. We have found no constitutional infirmity in the overlapping of the two sections because there is no impermissible uncertainty in the definition of the offenses. Cromwell v. State, 269 Ark. 104, 598 S.W. 2d 733 (1980); Earl v. State, 272 Ark. 5, 612 S.W. 2d 98 (1981).

Next appellant contends that the trial court erred in allowing the jury to be qualified under the procedure set forth in Witherspoon v. Illinois, 391 U.S. 510 (1968) because first, a death qualified jury is more conviction prone and second, because such a jury is not composed of a fair cross section of the community. Appellant also contends he is entitled to have two juries sit in his case — the first to decide the issue of guilt and the second to determine punishment. After reviewing the evidence in this case, we cannot say that the trial judge’s findings on these points were clearly erroneous. All of these issues have been previously, in some way, considered by this Court. Giles v. State, supra; Venable v. State, 260 Ark. 201, 538 S.W. 2d 286 (1976); Hobbs v. State, 273 Ark. 125, 617 S.W. 2d 347 (1980).

Finally, appellant asserts that he is entitled under Ark. Stat. Ann. § 43-2006 (Repl. 1977) to reimbursement for expenses for the use of expert witnesses in his behalf. There is no evidence in the record that a subpoena was issued for witnesses under this statute, therefore, the issue is not reviewable on appeal.

This Court has reviewed all objections pursuant to Rule 36.4, Ark. Rules Crim. Proc., Vol. 4A (Repl. 1977) and Rule 11 (f), Rules of Supreme Court, Vol. 3A (Repl. 1979) and finds no error.

Affirmed.

Purtle, J., concurs.

John I. Purtle, Justice,

concurring. I concur in the result reached in this case but for what I believe to be a different reason. I am unable to determine from the majority opinion the exact reason for affirmance. The exclusionary rule is discussed in general terms; however, I cannot understand its exact application to the facts of this case. The Fourth, Fifth and Sixth Amendments to the United States Constitution and Art. 2 §§ 8 through 15 of the Arkansas Constitution provide generally for the protection of the rights and lives of citizens. These rights were not, generally speaking, strictly enforced until such decisions as Mapp v. Ohio, 367 U.S. 643 (1961); Miranda v. Arizona, 384 U.S. 436 (1966); Escobedo v. Illinois, 378 U.S. 478 (1964); Jackson v. Denno, 378 U.S. 368 (1964); and Witherspoon v. Illinois, 391 U.S. 510 (1968), were handed down by the United States Supreme Court. We are bound by the decisions of the Supreme Court of the United States.

Based upon the more recent decisions of Dunaway v. New York, 442 U.S. 200 (1979) and Payton & Riddick v. New York, 455 U.S. 579 (1980), it may be stated that a person’s home cannot be invaded without a search warrant or arrest warrant, absent exigent circumstances, even if probable cause is absolutely known to exist. Neither may a person ordinarily be seized without probable cause. Therefore, if the officers had probable cause to arrest the appellant before they went to his home, they were required to obtain a warrant. Although both the state and the appellant appear to agree that probable cause existed prior to the trip to appellant’s home, I do not believe the record supports this statement. On the other hand, if they did not have probable cause at the time they took custody of the appellant, then the arrest was likewise illegal. Violation of the above rules of law would exclude all evidence and statements obtained by such illegal seizure as it would be in violation of the Fourth Amendment. Even if the Miranda warning and all implications of the Fifth Amendment were fairly and accurately given to the appellant, the confession would not be legalized and therefore would not be admissible if the arrest was in violation of the Fourth Amendment.

Supplemental Opinion on Denial of Rehearing delivered December 21, 1981

In my opinion, the statement given by appellant was properly admitted only because probable cause developed when the officers went to appellant’s house and discovered a pistol which fit the description of the murder weapon. This discovery, along with other prior suspicious circumstances, gave rise to probable cause. The only reason the arrest is not in violation of the Fourth Amendment is because of the exigent circumstances which existed at the time. The officers were 25 miles from the nearest magistrate and it was in the middle of the night. It was very probable that if they left to obtain a warrant the suspect would not have been there when they returned. Thus, we have an exception to the exclusionary rule. Had the probable cause been developed as a result of seizing the appellant or taking him into custody then the exclusion would still apply. See Dunaway v. New York, supra.

Per Curiam.

Petition for Rehearing denied as to the merits of the case. The trial court is reinvested with jurisdiction to determine the issue of partial reimbursement of expenses of out-of-state witnesses.


author: George Rose Smith, Justice.

text:
    T. H. EPPERSON & SON, INC. et al v. Rosezetta ROBINSON
    81-114
    622 S.W. 2d 688
    Supreme Court of Arkansas
    Opinion delivered October 26, 1981

      Barber, McCaskill, Amsler, Jones ir Hale, for appellants.

      Thweatt ér Bayne, by: James J. Bayne, and Randell L. Gammill, for appellee.
   George Rose Smith, Justice.

This is an action by the appellee for personal injuries sustained in a collision on Highway 11. The plaintiff was driving north when she met the defendants’ truck and trailer, traveling south at about 40 miles an hour and transporting a house 24 feet 5 inches wide. The plaintiff’s car was struck by the oncoming house at a point on the plaintiff’s side of the road, the roadway being only 22 feet 6 inches wide. The jury awarded the plaintiff $20,000. We need not detail the testimony, which was amply sufficient to support the verdict.

The complaint was based only on various allegations of negligence. Midway in the trial, however, the court permitted the plaintiff to rely also on a recent Highway Commission regulation applicable to persons transporting houses on the highway under a permit. The regulation provides that “the defendant [house mover] shall assume absolute liability and pay for any and all damages to persons or private property resulting from the movement of such oversized house.” The court announced that the regulation would be submitted to the jury, as in fact it was, in the format of AMI 903. AMI Civil 2d (1974). The defendants objected on the ground that the plaintiff was being permitted to bring in a new theory either of strict liability or of a duty on the part of the defendants to exercise the highest possible degree of care.

The objection should have been sustained. Civil Procedure Rule 15 (b), copied from the corresponding Federal Rule, provides that amendments of the pleadings may be allowed during the trial within the court’s discretion. One test of prejudice is whether the defendant has a fair opportunity to defend after the amendment. 3 Moore’s Federal Practice § 15.13 (1980). Here the prejudicial effect of the plaintiff’s change in the theory of her case can hardly be doubted. The defendants came to court expecting to have to rebut assertions of mere negligence and were confronted instead with a regulation that told the jury in effect that the defendants had assumed absolute liability and had agreed to pay for all damages to the plaintiff’s person or property resulting from the movement of the house. The defendants’ preparations for trial would be materially different in the two situations; so the change of theory during the trial was unfair.

The appellee makes no attempt to answer the appellants’ argument on the merits, insisting instead that the court’s instruction to the jury was not abstracted. The abstract does show, however, that the court stated its intention to submit the regulation within AMI 903, and the regulation itself is quoted once in the appellants’ abstract and twice in their brief. We have had no difficulty in understanding the facts and the argument without recourse to the record.

The appellants also argue that the regulation is unconstitutional as going beyond the regulatory authority delegated to the Highway Commission, but the only objection made below was that the instruction imposed a higher standard than that of ordinary care. Constitutional questions cannot be raised for the first time on appeal. Wilson v. Wilson, 270 Ark. 485, 606 S.W. 2d 56 (1980).

Reversed and remanded for a new trial.


author: Darrell Hickman, Justice.

text:
    Lester LANCASTER v. THE DAILY BANNER-NEWS PUBLISHING CO., INC.
    81-96
    622 S.W. 2d 671
    Supreme Court of Arkansas
    Opinion delivered October 26, 1981

      Anderson, Grumpier & Bell, P.A., for appellant.

      Woodward, Kinard ¿r Epley, Ltd., and Vincent Foster, Jr. of Rose Law Firm, for appellee.
   Darrell Hickman, Justice.

This is a defamation case. Lester Lancaster, a policeman for the City of Magnolia, Arkansas, sued the local newspaper, The Daily Banner-News, alleging that he was defamed in a series of editorials the paper ran in 1975. The newspaper filed a motion for summary judgment with affidavits setting forth the actual knowledge the writers had when the editorials were written. Lancaster countered with his affidavit, and numerous, lengthy depositions, mostly of people the writers for the Banner-News had named as their sources. The trial court granted summary judgment finding that no substantial evidence of actual malice existed.

Lancaster appeals alleging two errors: The court was wrong in granting summary judgment and wrong in denying Lancaster’s motion to require the newspaper to answer certain allegations. We affirm the judgment.

Lancaster concedes that he is a “public official,” the editorials were about his official conduct, and the issue is reduced to one of actual malice. Since he is a public official, he is less protected in a defamation case than a private citizen. Time, Inc. v. Firestone, 424 U.S. 448 (1976).

The rule all courts must follow in a defamation case involving a public official was announced in New York Times Co. v. Sullivan, 376 U.S. 254 (1964). Sullivan was one of three city commissioners of Montgomery, Alabama; the publication was a full page advertisement. The Court found that the first amendment to the United States Constitution “prohibits] a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he preoves that the statement was made with ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” New York Times Co. v. Sullivan, supra, at pp. 279, 280.

The Supreme Court has set some boundaries of what “actual malice” is and what it is not. Actual malice means that “ . . . the utterance was false and that it was made with knowledge of its falsity or in reckless disregard of whether it was false or true.” It would be a “ . . . lie, knowingly and deliberately published about a public official...” Garrison v. Louisiana, 379 U.S. 64 (1964).

It is not material that the speaker has a personal motive. In Garrison v. Louisiana, supra, the Court said: “Debate on public issues will not be uninhibited if the speaker must run the risk that it will be proved in court that he spoke out of hatred; even if he did speak out of hatred, utterances honestly believed contribute to the free interchange of ideas and the ascertainment of the truth.”

Actual malice is more than a negligent act. In St. Amant v. Thompson, 390 U.S. 727 (1968), a political candidate read on television an affidavit containing certain defamatory accusations against a deputy sheriff. The Court held that since the defendant relied on an affidavit, even though he could have and did not investigate the charges himself, there was no actual malice. The Court declared: "[R]eckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication... Failure to investigate does not in itself establish bad faith.” At 731, 733.

In Beckley Newspapers Corp. v. Hanks, 389 U.S. 81 (1967), a newspaper published an editorial criticizing an elected official. The newspaper admitted that it did not investigate the charges. The Court reversed the lower court’s judgment for the official, ruling that failure to investigate did not amount to the high degree of awareness of probable falsity demanded by New York Times Co. v. Sullivan, supra.

The federal rule requiring actual malice is based on the premise that freedom of expression must enjoy some legal privilege from fear of punishment for misstatements about public officials. Quoting, with approval, from a previous concurring opinion by Justice Brennan, the Court in Sullivan said:

Those who won our independence believed . . .that public discussion is a political duty; and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infracton; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; . . .

The Court described the atmosphere that must be allowed to exist if free speech is to be a meaningful constitutional guarantee: The “ ... debate on public issues should be uninhibited, robust, and wide-open, and ... it may well include vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials.” Free debate must be protected if the freedom of expression is to have the “breathing space that [it] needs ... to survive.” New York Times Co. v. Sullivan, supra, at 721.

With these principles in mind we examine the facts in this case.

The editorials, a series of eleven, were about the state of law enforcement in the City of Magnolia, Arkansas. Lancaster was no doubt specifically attacked for his conduct as a policeman. The first editorial, dated April 16,1975, was run after a trial in municipal court during which a local citizen, Walter Crabtree, testified that Lancaster and another policeman had beaten and abused him. The municipal court found Crabtree guilty of resisting arrest, and using profane and abusive language; he was found not guilty of assault and battery and public drunkenness. This editorial generally related the testimony given at the trial, giving credit to conflicting stories of Crabtree and the two officers, it stated, “it was established, however, that Crabtree was struck at least once by a blackjack by Lancaster in the Police Chief’s private office and knocked to his knees ... the situation got completely out of hand... with Crabtree, who weighs about 145 .. . pounds — being blackjacked, allegedly being hit in the mouth by McKinnis . . . while handcuffed.”

A follow-up editorial was published April the 22nd and related a separate incident of violence. It said a Magnolia businessman had seen a Magnolia City patrolman strike a youth; the editorial related that according to the report the blow was not justified. No mention was made of who the policeman was. It stated that the Mayor had talked to the two police officers involved and that they denied striking the youth.

On July 10, 1975, an editorial summarized the previous editorials about Lancaster and the city government’s action, it concluded:

What is going on in our police department?
Reports and rumors have been circulating for some time now about brutality, vindictive actions, intimidations, violations of individual constitutional rights, inefficiency, lack of continuing in-service training, illegal searches of both autos and homes, botched up investigations and arrests, lack of adequate supervision and direction on the top level, among other things.

Then finally on September 22, 1975, an editorial specifically directed toward Lancaster was published. It is the main basis of Lancaster’s action and in relevant part it reads:

Magnolia’s controversial city policeman, Lester Lancaster, continues to flaunt the constitutional rights of individual citizens in his self-styled goal to clean up the city of Magnolia.
Already under investigation by the U.S. Justice Department when he and another policeman allegedly beat up a Magnolia man in the private office of Police Chief James Cleaver in an accident that was highly questionable from the beginning to the disastrous end. Lancaster evidently believes he has the power (not the right, but the power) to violate the constitutional rights of any person as he so chooses.
Reports of illegal arrests, illegal searches, brutality, intimidation, among other things, regarding Lancaster have been made not by one Magnolia citizen but by several.
Lancaster evidently believes he has unlimited authority to pursue whatever matter he wishes in Magnolia and even out of the city, which he has done illegally on several occasions.

R. W. Chowning, the general manager of the Banner-News, and Steve Ford, the managing editor, wrote the editorials. It was undisputed that they attended the municipal court trial and that the first editorial followed that trial. It is not specifically pointed out where the editorial was false, rather it is argued that the paper slanted the editorial by ignoring the court’s findings that the “victim” was indeed found guilty of two crimes.

Ford’s affidavit and deposition reflected that he was told by Lynn Keith, a local Magnolia businessman, about the incident referred to in the April 22nd editorial concerning a youth being struck by Lancaster. There is no evidence that Ford misrepresented what he was told.

The editorials, including the final one, were justified on the basis of numerous conversations with local citizens, officials, named and unnamed, and an accumulation of sources. In all, Ford and Chowning listed no less than thirteen people as named sources, in addition to personally attending the trial. For example, a local attorney, Joe Woodward, related to Chowning that Lancaster had been on his farm, ten miles outside the city limits, “staking out” a building. According to Woodward, Lancaster said he was there because he had found a stolen wheelbarrow nearby; Lancaster said he had gained entrance to the building and checked the cracks in the floor for evidence. Lancaster did not explain to Woodward by what authority he was on the place or gained entrance to the private structure. An alderman related an instance where Lancaster was involved in a road block outside the Magnolia city limits, which to his knowledge was illegal.

The city attorney, in his deposition, conceded that “over coffee” he had talked about at least two cases in which charges were dismissed because of searches conducted by Lancaster that were not proper. He conceded that Ford was present but disputed the imputation Ford had given to his remarks.

Several people told the writers about instances of young people’s vehicles being searched without consent or without otherwise being “legal.”

It is not pointed out exactly where the editorials were factually incorrect and the newspaper concedes no factual errors. Instead Lancaster argues about the accuracy of the stories told to the writers, whether their written observations were accurate reflections, and whether the proper conclusions were drawn. He claimed that, he had never beaten anyone or violated any rights. Actually it is irrelevant whether the articles were factually correct. The issue was and is, did Lancaster prove the writers knowingly printed false defamatory statements, maliciously so, in total disregard of the truth. Decidedly no, when the Sullivan test is applied.

Besides denying he ever violated anyone’s rights, Lancaster in his affidavit also zeroed in on what he perceived to be the cause of the editorials: Chowning’s longstanding desire to get him fired.

Lancaster had arrested Chowning’s son for possession of marijuana in 1970. The charges were dropped by the prosecuting attorney because, as he still remembered in 1978, there was an evidentiary problem connected with the arrest. Lancaster arrested Chowning’s son again ih 1972 for possession of marijuana; the son pleaded guilty and was placed on probation. He was again arrested in April, 1974, by Lancaster on the same charge. It had not been disposed of at the time of this trial. There is no doubt that Chowning did not care for Lancaster and blamed him for some of his son’s problems. Both the Mayor of Magnolia and. the Chief of Police stated that Chowning came to them at one time and demanded that Lancaster be fired. Both of them said that Chowning told them that the drug and liquor laws should be relaxed or simply not enforced. A former employee of the newspaper testified that she knew Chowning wanted Lancaster fired. Chowning never conceded that he made the statements that the Mayor and the Chief of Police attributed to him but he did not deny that he had indicated to others that Lancaster was not "temperamentally suited to be a policeman.”

Lancaster’s main argument to the trial court and to this court is that the reason for the editorials was Chowning’s grudge against him, and that amounted to actual malice. Actual malice is a term of art. Cantrell v. Forrest City Publishing Co., 419 U.S. 245 (1974). Its definition is found by studying relevant decisions. In the case of New York Times Co. v. Sullivan, supra, it was demonstrated that the New York Times did not even check its own files to determine whether a statement was true. As it turned out it was false. That was not actual malice. In St. Amant v. Thompson, supra, a political candidate made charges against a deputy sheriff without investigating the source of his information. That was not actual malice.

In the case of Garrison v. State of Louisiana, supra, the Court considered a Louisiana statute which punished false statements made with "ill will.” The statute was overruled because ill will is irrelevant when the constitutional standards are applied to süch a publication. It is immaterial that the writer is biased against the official, has ill will towards him, or intended to inflict harm upon him. Garrison v. Louisiana, supra; Rosenblatt v. Baer, 383 U.S. 75 (1966). The test is not one of ordinary care or mere negligence or intention but reckless disregard for the truth. New York Times Co. v. Sullivan, supra.

The other argument relates to certain interrogatories which the newspaper declined to answer. The trial court upheld the newspaper’s objections. One was a request for the identity of the stockholders of the newspaper. Another asked for any changes in stock ownership since the last stockholders meeting before April 25, 1975. The trial court properly ruled that the newspaper did not have to answer these interrogatories. The reason given for the request was that potential jurors might be biased or prejudiced because they were stockholders. Obviously such prospective jurors would be weeded out during the voir dire process. The subject was not one for discovery at this stage of the lawsuit.

The other request was whether the writer had knowledge of other law enforcement officials in Columbia County, Arkansas, other than Lancaster who had reputedly struck a citizen. This information sought to prove that Chowning had bad faith in writing the editorials and was engaged in a personal vendetta against Lancaster. The trial court ruled it irrelevant and we agree for the reasons we have stated.

Affirmed.

Holt, J., not participating.


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

text:
    Joseph Verser SWAITE v. STATE of Arkansas
    CR 81-50
    625 S.W. 2d 176
    Supreme Court of Arkansas
    Opinion delivered October 26, 1981

      Webb & Inboden and L. D. Gibson, for appellant.

      Steve Clark, Atty. Gen., by: Leslie M. Powell, Asst. Atty. Gen., for appellee.
   Darrell Hickman, Justice.

This is a companion case to Swaite v. State, 272 Ark. 128, 612 S.W. 2d 307 (1981).

Two men wearing ski masks tried to rob a liquor store at Harrisburg, Arkansas on January 4, 1980. Two others were charged as participating in the scheme. A shoot-out between the men and Bill Junkin, the owner and operator, resulted and the robbery attempt was thwarted. Junkin’s wife and child were in the store when the shooting occurred.

Joseph Verser Swaite, the appellant, received a separate trial from Walter Swaite and Tommy Swaite, both of whom were charged with the defendant. Their case is reported in Swaite v. State, supra. Joseph Verser Swaite was convicted of attempted capital murder, aggravated robbery and two counts of aggravated assault. He was sentenced to thirty years on the first count, thirty years on the second, and ten years for each aggravated assault. The judge ordered him to serve two forty year sentences concurrently. On appeal he argues three errors, none of which have merit.

First, he concedes that no objections were made at the trial to his being charged with and convicted of both attempted capital murder and aggravated robbery. He argues on appeal that being charged with both of those offenses violates the double conviction prohibition of Ark. Stat. Ann. § 41-105 (1) (a) (2) (a) (Repl. 1977). Thatargument was made by counsel for the two other Swaites in Swaite v. State, supra, and was found to be meritorious. Their convictions were reversed and remanded. Swaite argues that we should deal with the question even though the trial court was given no opportunity to rule on the issue, asking us to adopt the ‘‘plain error” rule. He cites a dissenting opinion in Shelton v. State, 271 Ark. 342, 609 S.W. 2d 18 (1980) as his authority. We do not recognize the so-called ‘‘plain error” doctrine.

As we plainly said in Wicks v. State, 270 Ark. 781, 606 S.W. 2d 366 (1980):

... In Arkansas, however, we do not have such a rule. Smith v. State, 268 Ark. 282, 595 S.W. 2d 671 (1980). To the contrary, in hundreds of cases we have reiterated our fundamental rule that an argument for reversal will not be considered in the absence of an appropriate objection in the trial court. Citations to that familiar principle are unnecessary.

That even applies to questions of constitutional magnitude, Williams v. Edmondson, 257 Ark. 837, 250 S.W. 2d 260 (1975). We did acknowledge in Wicks four possible exceptions to the rule, but none of them apply to this case.

The United States Supreme Court has, on occasion, noticed errors not raised in the court below. But that has been in the exercise of their discretionary power only. United States v. Atkinson, 297 U.S. 157 (1936); Weems v. United States, 217 U.S. 349 (1909).

In Rowe v. State, 271 Ark. 20, 607 S.W. 2d 657, cert. denied, 101 S. Ct. 1764 (1981), the appellant tried to raise on appeal, but not at trial, the issue of double j eopardy because two offenses were charged, one of which may well have been a lesser included offense. The charges in Rowe were attempted capital murder and aggravated robbery. We held that the arguments could not be heard on appeal because it was not argued below.

Swaite’s second argument, which is two-pronged, goes to the enhancement of his sentence. The information charged six crimes and in two separate paragraphs asked that Swaite receive additional punishment because he had used a firearm in connection with three specified aggravated assaults and because he had three prior felony convictions.

At Swaite’s request, before trial, the court struck counts five and six. Count five charged Swaite with aggravated assault against a deputy sheriff with a pistol and count six charged him with possession of a firearm as a convicted felon.

Swaite’s argument is that the two paragraphs seeking enhancement were listed on the information immediately following counts five and six, and were a part of counts five and six. He argues that since counts five and six were stricken, these paragraphs were also stricken. The trial court held that the enhancement paragraphs were not stricken and rightly so. They were separate and distinct allegations from counts five and six and not at all dependent upon those counts for their validity.

The trial court struck one prior conviction but allowed two others in evidence which alleged that Swaite was convicted in Jefferson County, Kentucky in 1968 of armed robbery and willful murder. As it turns out these convictions were reversed by the appellate court and remanded. Swaite was subsequently found guilty of the same offenses so that the convictions, for these same offenses, were actually dated “1973” rather than “1968” as alleged in the information.

It is argued that the state should be prohibited from using the convictions because of the variance of the date and the fact that the defendant had inadequate notice of the alleged convictions. The trial court, finding that the prosecution’s file had been open for months to the defense, and finding no prejudice as a result of the variance of the dates, overruled the objections. We uphold that decision. In Finch v. State, 262 Ark. 313, 556 S.W. 2d 434 (1977), we found no prejudicial error when the prosecuting attorney was allowed, during the trial, to amend the information to allege previous convictions. The appellant is correct that it is a matter of notice and prejudice, but in this case the prosecution’s file showed that the convictions were evidently overturned and then reinstated in 1973, a fact that removes any possibility of prejudice.

Finally, it is argued the prosecuting attorney’s remarks during the trial were prejudicial and can only be cured by granting a new trial.

During opening remarks the prosecuting attorney said:

The overwhelming proof in this case will prove beyond any reasonable doubt that Mr. Swaite on the evening of January 4, 1980, along with three other persons, Tommy Swaite, Walter Swaite, two persons who have already had their day in court...”

An objection to these remarks was sustained and the judge admonished the jury to disregard them but denied a motion for mistrial. The defense had filed a motion in limine to prevent any reference to the conviction of the other Swaites. Although no order was granted, evidently some understanding was reached between counsel that the jury would not be told of the other Swaites’ conviction. Any error was cured by the court’s admonition. Parker v. State, 265 Ark. 315, 578 S.W. 2d 206 (1979).

The other remarks objected to were during closing when the prosecuting attorney said:

I, of course, agree with what Mr. Webb said in some instances and disagree quite hard in others. I would agree with him that you made promises to us in the voir dire that you would decide this case based upon the evidence you heard from the witness stand. That’s what you told him and all of us that you would do. You’ve heard a total of 9 witnesses. He talked to you, I think, kind of tongue and cheek. I know K. W. [Webb], well, he’s got a job to do and it’s probably a difficult job for him to do in this particular case.

A motion for mistrial was denied and no request for an admonition was requested or given. This is a discretionary matter and we cannot say the judge abused that discretion. The remarks were no more than the usual unnecessary banter that counsel often feel compelled to engage in.

Affirmed.

Purtle, ]., dissents.

John I. Purtle, Justice,

dissenting. I dissent primarily on the grounds set out by this court in Swaite v. State, 272 Ark. 128, 612 S.W. 2d 307 (1981). This is the same case but a different appellant. We reversed the double conviction in the first Swaite and affirm it in the present case. The majority hang their decision on the fact that the trial attorney in the present case failed to make a specific objection to being convicted twice for the same conduct. It seems to me the only reason the majority does not invalidate the double sentencing in the present case, as they are doing in a case being handed down today, Singleton v. State, 274 Ark. 126, 623 S.W. 2d 180 (1981), is that they are afraid they will be accused of adopting the “plain error” rule. This should cause no concern because this rule has long ago been adopted even though it may not be specifically referred to as “plain error.” See Wilson & Dancy v. State, 261 Ark. 820, 552 S.W. 2d 223 (1977); Wicks v. State, 270 Ark. 781, 606 S.W. 2d 366 (1980); and by all means look at Earl v. State, 272 Ark. 5, 612 S.W. 2d 98 (1981), where we clearly held that it was plain error, or whatever you call it, to convict Earl of capital felony murder and aggravated robbery. Earl was convicted of capital felony murder and sentenced to life without parole. He was also given 50 years for aggravated robbery. In Earl we held that since aggravated robbery is established by proof of less than all the elements required to establish the commission of capital felony murder, the trial court erred in entering a judgment of conviction on more than one of the offenses. Other cases holding the “plain error” theory are Bell v. State, 223 Ark. 304, 265 S.W. 2d 709 (1954), and Hayes v. State, 269 Ark. 47, 598 S.W. 2d 91 (1980).

A fundamental reason for this court to take notice and correct the error is that it would prevent another Rule 37 hearing as we reasoned in Singleton v. State, supra, and an appeal from that and another opinion by this court. In addition to the waste of time and expense, the appellant will have prolonged the finality of his sentence. We have complained about undue delays in the administration of criminal justice. This decision only upholds such delay.

Needless to say, if aggravated robbery was a lesser included offense in Earl v. State, supra, it is the same in the present case where the charge is attempted capital felony murder with a firearm. As we clearly stated in Earl, the Arkansas statute prevents a double conviction when the same conduct of a defendant establishes more than one offense. In the present case the information charged the appellant with the crime of attempted capital felony murder by the use of a firearm. The court allowed the appellant to be convicted pursuant to Ark. Stat. Ann. § 41-1004 (Repl. 1977) which states:

(1) If a defendant is convicted of a felony and the trier of fact finds that the person so convicted employed a firearm in the course of or in furtherance of the felony, or in immediate flight therefrom, the maximum permissible sentence otherwise authorized by section 901 (§ 41-901) or section 1001 (§ 41-1001) shall be extended by fifteen (15) years.
(2) Subsection (1) shall not apply to a defendant convicted of a felony, an element of which is:
(a) employing or using, or threatening or attempting to employ or use, a deadly weapon; or . . .

Therefore, the above statute on its face would not allow for the enhancement of the sentence because by the very nature of the charge he used a deadly weapon. It was necessary to prove the use of the deadly weapon before he could be convicted of attempted capital felony murder as charged in the present case. Therefore, there are two reasons why appellant’s rights against double jeopardy have been violated. He has in reality been sentenced three times for the same conduct. In the case of Harris v. Oklahoma, 433 U.S. 682 (1977), the petitioner had been convicted of felony murder based on the accomplice’s killing of a victim during the course of an armed robbery. Subsequently petitioner was convicted on a separate information with the crime of robbery with a firearm. His motion to dismiss on the ground of double jeopardy clause of the Fifth Amendment was denied by the Oklahoma court. The United States Supreme Court reversed the conviction. In a per curiam the United States Supreme Court in Harris stated:

When, as here, conviction of a greater crime, murder, cannot be had without conviction of the lesser crime, robbery with the firearm, the double jeopardy clause bars prosecution of the lesser crime after conviction of the greater one.

It is only natural that it would bar conviction at the same time because he would still be placed in jeopardy twice for the same offense.

I would reverse because I believe the appellant has been punished three times for the same conduct. Therefore, a new trial should be granted.


text:
    Loyd Dwayne JAMES v. STATE of Arkansas
    CR 81-62
    622 S.W. 2d 669
    Supreme Court of Arkansas
    Opinion delivered October 26, 1981

      Michael Dabney, Public Defender, by: Denny Hyslip, Deputy Public Defender, for appellant.

      Steve Clark, Atty. Gen., by; Arnold M. Jochums, Asst. Atty. Gen., for appellee.
   Darrell Hickman, Justice.

Loyd Dwayne James was convicted of burglary and sentenced to thirty-three years in prison. His sentence was enhanced because he had four prior convictions. His five allegations of error are without merit and we affirm the judgment.

First, the trial court did not abuse its discretion in denying a continuance. James was appointed counsel with his co-defendant Fullerton in May, 1980. On September 4, 1980, his trial date, Fullerton pleaded guilty and James was granted a continuance to find other counsel. The public defender had been acting for both Fullerton and James. James contacted a lawyer but on September 26th that lawyer notified the court that he would not represent James at the trial which had been set for November 7th. The court notified the public defender on November 2nd or 3rd to be ready for trial. A motion for a ten day continuance was filed and denied. The court said that the trial had been pending for six months, there was adequate time to investigate it, and one continuance had already been granted. We cannot say this decision was an abuse of discretion. McCree v. State, 266 Ark. 465, 585 S.W. 2d 938 (1979); Golden v. State, 265 Ark. 99, 576 S.W. 2d 955 (1979).

Before trial the defense counsel filed a motion to preclude the state from using prior convictions to impeach James if he testified. It was argued that Ark. Stat. Ann. § 28-1001, Rule 609 (Repl. 1969) required the trial court to exercise discretion and weigh the prejudicial effect those prior convictions would have against their probative value. As it turned out the four prior convictions used all involve dishonesty. One was for grand larceny, another for theft of property and two for forgery. According to Rule 609 there is no requirement that the trial court weigh and consider the prejudicial effect the use of such convictions may have. That consideration is only required when a prior conviction is admissible because of the seriousness of the offense, and the offense does not involve dishonesty. Ark. Stat. Ann. § 28-1001, Rule 609; Cf. Gustafson v. State, 267 Ark. 278, 590 S.W. 2d 853 (1979) and Rule 608.

James wanted to voir dire the jury concerning sentencing only after the jury had returned a guilty verdict. What James actually wanted was to be able to qualify the jury twice; once before the guilt or innocence phase and again before sentencing. James had four prior convictions and these were presented to the jury after he was found guilty. There is no provision to allow a second voir dire in the Arkansas law and James cites us no authority for such proposition.

During the sentencing phase of the trial James took the stand and attempted to testify that an arresting officer had said that James needed help with his drug problem. The court sustained an objection to this testimony as hearsay. James argued that he was prevented from presenting mitigating evidence during this stage of the trial. We find no abuse in the trial court’s discretion having decided this matter in the case of Heard & Ferguson v. State, 272 Ark. 140, 612 S.W. 2d 312 (1981).

Finally, James argues that the evidence was insufficient to support his conviction. His accomplice, Fullerton, testified that they burglarized a business in Fayetteville in the early morning hours of the 9th day of May, 1980. Fullerton went in the place and handed out three pieces of stereo equipment. Officers came to the scene during the burglary and James was found outside the building crawling off through high grass and was apprehended. His story was that he did not participate in the burglary and did not intend to. Stereo equipment was found two or three hundred feet from the point of entry and since Fullerton testified that he never left the building through that route, the jury could easily conclude that James participated in the burglary.

Affirmed.


text:
    James L. DAUER v. Andrew G. PONDER, Circuit Judge, Third Judicial District
    81-195
    623 S.W. 2d 3
    Supreme Court of Arkansas
    Opinion delivered October 26, 1981

      James L. Dauer, pro se.

      Steve Clark, Atty. Gen., by: Rodney E. Slater, Asst. Atty. Gen., for respondent.
   Per Curiam.

The petitioner has filed what is styled a Petition for a Writ of Mandamus. It is denied because the record, such as it is, does not reflect a cause of action has been filed. The first “pleading” reads:

IN THE CIRCUIT COURT OF RANDOLPH COUNTY, ARK.
JAMES L. DAUER PLAINTIFF
VS. NO. CIV-81-6-
RANDOLPH COUNTY MEDICAL CENTER, INC. DEFENDANT
O-P-I-N-I-O-N
As a Tax Paying Citizen of Randolph County do: I have under the Freedom of Information Act of 1967 — 12-2801—12-2807 the right to examination and right to copy the records of Public Meetings both formal or informal, special or regular of the Randolph County Medical Center, Inc., (Randolph County Board of Governors).
James L. Dauer
James L. Dauer, Plaintiff

Thereafter the record contains a pleading styled “Temporary Restraining Order,” signed by Dauer, and several letters. The correspondence reflects the trial court avoided advising Dauer about the correctness or worth of his lawsuit. In that regard the judge was decidedly correct. It is not the role of a trial judge to inject himself into an adversary proceeding in the aid of either party. To the contrary such action can be unethical. People who choose to represent themselves, as the petitioner has, necessarily must succeed or fail on their knowledge or ability.

Petition denied.

Dudley, J., not participating.


author: George Rose Smith, Justice. Steele Hays, Justice,

text:
    ARKANSAS STATE HOSPITAL v. Charles Robert GOSLEE, Guardian for Inez Rachel Boxer, Incompetent
    81-80
    623 S.W. 2d 513
    Supreme Court of Arkansas
    Opinion delivered November 2, 1981
    [Rehearing denied December 7, 1981.]

      Hall, Tucker, Lovell, Alsobrook <¿r Moudy, for appellant.

      Ridgeway, Bartness, Switzer, P.A., by: Robert D.

      Ridgeway, Sr., for appellee.
   George Rose Smith, Justice.

This is an attempt by the State Hospital to collect accumulated charges for the maintenance of one of its patients. In 1971 Inez Boxer, charged with first-degree murder, was committed by the circuit court to the State Hospital for 30 days’ observation. Upon the hospital staff’s finding that Mrs. Boxer was insane, the circuit court permanently committed her to the State Hospital on April 26, 1971. She is still a patient there. The murder charge was dismissed by the circuit court on April 30, 1971. In 1972 the Garland Probate Court found Mrs. Boxer to be incompetent and appointed a guardian for her estate. The appellee is the present guardian. His 1979 accounting valued his ward’s estate at $125,190.45.

The State Hospital made no attempt to collect monthly charges for Mrs. Boxer’s maintenance until January 10, 1980, when it filed the present claim against the guardian for $95,094.50, representing maintenance charges from April 26, 1971, through October 31, 1979. After a hearing the probate court denied the claim on two grounds: First, under the statutes the Hospital has no authority to collect maintenance charges for persons permanently committed by a circuit court upon a finding of insanity in a criminal proceeding. Second, when the Hospital filed its claim in January, 1980, the only statute that might arguably authorize the collection of such charges had been inadvertently repealed by Act 817 of 1979. This appeal is from the denial of the claim. We agree with the trial court on both counts.

On the first ground our discussion of the statutes must start with Act 433 of 1971, which as its title indicated was a comprehensive revision and codification of the laws relating to the State Hospital and to mental health. Chapter 3 of the act codified the law governing admissions to the Hospital and the collection of hospital costs. Section 1 of Chapter 3 provided that any resident of the state who became mentally ill should be admitted to the State Hospital for diagnosis, care, and treatment. Ark. Stat. Ann. § 59-401 (Repl. 1971). That section referred to patients committed by the probate courts, but it made no reference whatever to patients committed by the circuit courts in criminal proceedings. Sections 2 and 3 provided that if a patient admitted to the Hospital was found to possess an estate more than sufficient for the support of his or her dependents (Mrs. Boxer’s two grown sons are not dependent on her), the Business Office of the hospital should render monthly statements of the hospital’s charges and collect them from the patient’s estate. §§ 59-402 and -403. Sections 11 through 14 of Chapter 3 specified the procedure for the commitment, continued confinement, and discharge of persons charged with a crime, but there was no indication that such persons were to be charged for their maintenance. §§ 59-411 through -414. Chapter 6 of this comprehensive act contained detailed provisions for the circuit court’s commitment of persons charged with a crime, but the only reference to possible liability for their maintenance was in Section 7 of Chapter 6, which required the county of the committed person’s residence to pay the State Hospital’s charges for not more than 90 days’ maintenance. § 43-1301 (Repl. 1977). Again there was no reference to liability of the patient or his estate.

Act 433 was a comprehensive revision of the law and must therefore be read as a whole. It contained separate provisions governing civil commitments on the one hand and criminal commitments on the other. Only the civil commitments, governed by Chapter 3, contemplated private liability for the patient’s maintenance. There was no similar provision in Chapter 6, governing criminal commitments, the only pertinent provision being that which required the county to bear the expense for the first 90 days. Quite possibly the legislature, had the issue been presented to it, might have required reimbursement from criminally committed patients, but the act is silent on that point. Inasmuch as a criminal commitment is often involuntary and certainly protects the public as well as the person to be confined, the legislature may have decided that the public should bear the expense.

The Hospital’s argument on this first issue is not supported either by Section 4 of Chapter 3 of Act 433 (§ 59-404) or by our decision in Ark. State Hospital v. Kestle, 236 Ark. 5, 364 S.W. 2d 804 (1963). Section 4 dealt only with the responsibility of persons jointly liable with the patient, which is not the situation before us. In fact, that section contained an explicit proviso that it should not be construed to require any person to pay for the hospitalization of a person committed to the State Hospital by the circuit court for a determination of sanity in a criminal proceeding, which is precisely the manner in which Mrs. Boxer’s confinement originated.

In Kestle we merely held that the State failed to meet its burden of proving joint liability under an earlier statute, because there was no proof that the patient had any estate at all. The State Hospital, in its third point for reversal listed in the Kestle opinion, made essentially the same argument now presented, but we found it unnecessary to consider that issue.

The second ground for the trial court’s decision is the 1979 repeal of the first 14 sections of Chapter 3 of Act 433, which included the entire authorization for the collection of the hospital’s charges in cases of civil commitment. The repealing statute, Act 817 of 1979, took effect on April 10, 1979. By Acts 34 and 61 of 1980 the legislature found that the repeal had been inadvertent, re-enacted Sections 2 and 3 of Chapter 3 of Act 433, and made the re-enactment retroactive to April 10,1979. Ark. Stat. Ann.§§ 59-1425 and-1426 (Supp. 1981). The Hospital argues that the 1980 re-enactment nullified the effect of the 1979 repeal and there is therefore a continuing right in the Hospital to collect its charges for Mrs. Boxer’s maintenance ever since 1971.

We are not persuaded by this argument. It does not appear that the hospital’s Business Office made any investigation of Mrs. Boxer’s estate or any computation of maintenance charges until just before the present claim was presented on January 10, 1980. That was during the interim when the statutes had not been re-enacted; so there was not even a colorable statutory basis for the collection of charges from patients committed in criminal proceedings. A vested right could not arise at a time when there was no possibility of enforcing the claim under existing law. Moreover, the assertion of the vested right must ultimately rest upon the Fourteenth Amendment, with its prohibition against the State’s taking of property without due process of law. The State Hospital, however, was created by the State as a state agency. An agency or political subdivision of the State cannot invoke the protection of the Fourteenth Amendment against the State itself. Alexander Milburn Co. v. Davis-Bournonville, 270 U.S. 390 (1926); City of Trenton v. New Jersey, 262 U.S. 182 (1923); City of New York v. Richardson, 473 F. 2d 923 (2d Cir. 1973), cert. den. 412 U.S. 950 (1973). The Hospital’s claim to a vested right cannot be sustained.

Affirmed.

Adkisson, C.J., and Hickman and Hays, JJ., dissent.

Steele Hays, Justice,

dissenting. I disagree with the result reached in this case, as I believe our statutes intend that all persons committed to the State Hospital should bear a reasonable portion of the cost of such maintenance, above the needs of their own dependents, if they have the means of doing so. I can find no basis in Act 433 to support the conclusion reached by the majority that Section 2 Chapter 3 of Act 433 (Ark. Stat. Ann. § 59-402) (Repl. 1971) was intended to apply only to patients committed by civil proceedings and not to those committed as a result of criminal proceedings. The plain wording of the statute (§ 59-402) is to the contrary:

. . . [I]f any patient admitted to the State Hospital be found ... to possess an estate, over and above all indebtedness more than sufficient for the support of his or her dependents . . . (Emphasis supplied.)

such patient shall pay an amount of maintenance as fixed by the State Hospital Board. That language should not be construed to mean less than it says by interpreting it as applying only to civil commitments.

Any doubts as to the intent of § 59-402 to apply, as it says, to all patients, must be dispelled when it is recognized that this Section is not a new provision of Act 433, but is a verbatim reiteration of Section 2 of Act 241 of 1943 which, like Act 433, was a comprehensive revision of laws affecting the State Hospital and was clearly intended to apply to persons committed under criminal proceedings. (See Section 13). This same provision (§ 59-402) can be found in almost identical form in Section 9412 of Crawford ¿r Moses Digest (Act of April 13, 1893) and even in similar form as early as Act of April 19, 1873 (Section 4555, Chap. 99, Mansfield’s Digest).

The case should be reversed and remanded with instructions to the trial court to fix an amount of maintenance charges in accordance with provisions of Act 433.

Adkisson, C.J., and Hickman, J., join in this dissent.