text:
    Barry Lee FAIRCHILD v. STATE of Arkansas
    CR 83-145
    690 S.W.2d 355
    Supreme Court of Arkansas
    Opinion delivered June 6, 1985

      Joe O’Bryan, for appellant.

      Steve Clark, Att’y Gen., by: Jack Gillean, Asst. Att’y Gen., for appellee.
   Per Curiam.

Petitioner Barry Lee Fairchild was found guilty by a jury of capital murder and sentenced to death by electrocution. We affirmed. Fairchild v. State, 284 Ark. 289, 681 S.W.2d 380 (1984). The United States Supreme Court denied certiorari. Fairchild v. Arkansas, No. 84-6284 (United States Supreme Court May 13, 1985). Execution is set for June 21, 1985. Petitioner seeks a stay of execution and permission to proceed in circuit court for postconviction relief pursuant to A.R.Cr.P. Rule 37. The sole ground for relief is that it is cruel and unusual punishment for him to die by electrocution when other prisoners condemned to death are entitled to be executed by lethal injection pursuant to Act 774 of 1983. Ark. Stat. Ann. § 41-1352 et seq. (Supp. 1983). Petitioner does not otherwise question the legality of the judgment or . sentence.

Petitioner concludes that he is excluded from execution by lethal injection because he interprets Ark. Stat. Ann. § 41-1353 to provide that the provisions allowing for death by lethal injection apply only to capital offenses committed after July 4, 1983, the effective date of the law. He contends also that § 41-1354, which permitted defendants under sentence of death by electrocution at the time the Act was passed or any defendant sentenced to death by electrocution prior to the effective date of the Act to elect to be executed by lethal injection, does not apply to him because he committed capital murder on February 26, 1983 but was not sentenced until August 2, 1983.

Petitioner has misconstrued the intent of Act 774. Even though a literal reading of the Act might lead to the conclusion he has reached, we have long held that the basic rule of statutory construction, to which all other interpretative guides are subordinate, is to give effect to the legislative intention. Hice v. State, 268 Ark. 57, 593 S.W.2d 169 (1980); Holt v. Howard, 206 Ark. 337, 175 S.W.2d 384(1943). Penal statutes are not to be so strictly construed as to produce a result which would lead to consequences which do not reflect the obvious intent of the legislature. Merrit v. No Fence Dist. No. 2, Jefferson County, 205 Ark. 1129, 172 S.W.2d 684 (1943). Common sense must prevail where the result of a literal application of a statute would be to single one person out for disparate treatment as to the method of execution. Since a reasonable interpretation of Act 774 is that the legislature intended to give all condemned persons who would otherwise be sentenced to death by electrocution a choice between death by electrocution and lethal injection, we conclude that petitioner is entitled to elect to be executed by lethal injection in accordance with Ark. Stat. Ann. § 41-1354. In all other respects the petition is denied.

Petition granted; stay of execution denied.


source: Caselaw Access Project

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

license: Public Domain

text:
    J.D. WESTBROOK v. STATE of Arkansas
    CR 85-59
    691 S.W.2d 123
    Supreme Court of Arkansas
    Opinion delivered June 10, 1985
    [Rehearing denied July 15, 1985.]

      Fulkerson & Todd, P.A., by: Andrew Fulkerson, for appellant.

      Steve Clark, Att’y Gen., by: Clint Miller, Asst. Att’y Gen., for appellee.

       Purtle, J., would grant rehearing. Dudley, J., not participating.

   George Rose Smith, Justice.

The appellant Westbrook was found guilty of possession of marihuana with intent to deliver and was sentenced to a term of four years and a $10,000 fine. For reversal he questions the sufficiency of the evidence and the court’s rulings upon two other matters. The case was transferred to us by the Court of Appeals as presenting an issue of statutory construction. Rule 29(l)(c).

First, the sufficiency of the evidence. In considering this point we view the evidence in the light most favorable to the jury’s verdict and do not weigh it against other conflicting proof favorable to the accused. When the testimony is so considered, this verdict is supported by substantial evidence.

Westbrook owned his home and shared its occupancy with Jim Vick. The two men each had a bedroom, with the other areas being jointly occupied. Vick signed the affidavit for a search warrant that led to a search of the house by police officers. They found a total of 9.1 ounces of marihuana in the kitchen area, and none elsewhere. The marihuana was in various containers in a china cabinet. Possession of more than an ounce of marihuana creates a presumption of intent to deliver. Ark. Stat. Ann. § 82-2617(d) (Supp. 1983).

The appellant relies upon Ravellette v. State, 264 Ark. 344, 571 S.W. 2d 433 (1978), and like cases, for the rule that where there is joint occupancy of the premises there must be some factor in addition to the joint control to link the accused with the controlled substance. In Ravellette there was no such evidence. There the codefendant admitted that the marihuana was his and exonerated the appellant of any knowledge of its presence or control. Here Vick, the joint occupant, was not available to testify at the trial.

In this case there were several facts connecting West-brook with the marihuana. He owned the house and had the superior right to its control. When the officers entered to make the search he was alone. In the area where he was sitting there was a glass that contained burned marihuana residue. The glass was so warm to the touch as to indicate that the marihuana had been smoked or burned in it. In the kitchen there were several items of drug paraphernalia. In Westbrook’s bedroom were a magazine featuring marihuana paraphernalia and another magazine entitled “Marijuana Growers Guide.” In the bathroom was a kit containing two partially burned marihuana cigarettes. While an officer was searching the bathroom Westbrook came in, picked up a jewelry box, and started out. When the officer retrieved the box it was found to contain $3,700 wrapped in three brown paper bags. Upon being taken into custody Westbrook asked: “I would just like to know which whore in town turned me in.” All this evidence is amply sufficient to satisfy the Ravellette requirement.

Second, it is argued that a juror, Sherry Long, gave misleading answers to questions put to her on voir dire. Those proceedings were not recorded. After the trial the interrogation of Juror Long was reconstructed by counsel in connection with a motion for new trial. Only two questions and answers were included in the reconstruction. The first was during the voir dire of the jury panel as a whole:

Judge Brown: Do any of you know, have any acquaintanceship or relationship by blood or marriage to any of the following witnesses, whose names are . . . Andy Foster. . .?
Sherry Long: I know Andy Foster, but only because he is the County Sheriff.

During the questioning of individual jurors defense counsel asked one question of Ms. Long:

Mr. Fulkerson: Mrs. Long, I believe that you said you knew Andy Foster but only because he is the County Sheriff; is that right?
Sherry Long: Yes, I work for Lee Gatlin at the Paragould Collection Bureau and we deliver papers to the SherifTs office. That’s how I know Sheriff Foster.

At the hearing on the motion for new trial the defendant’s sister-in-law testified that she saw a political ad for the sheriff’s re-election, signed by Sherry Long. The witness telephoned Ms. Long at home, learned that she had run the ad, and “I asked her if she was accepting political contributions, and she said: ‘Well, yes.’ ” The defense had subpoena’d Ms. Long for the hearing, but the trial judge refused to allow her to be questioned. There was no proffer of what she might have testified, only a request to question her at the hearing.

No reversible error is shown. To begin with, the juror’s answers are not shown to have been untrue or evasive. She was asked about her “acquaintanceship” with Foster and replied that she knew him only as sheriff. There is no proof to the contrary. Ms. Long, although having delivered papers to his office for service, may have never even met the man and may have urged his re-election on the basis of the efficiency of his office. The defendant had the burden of proof at the hearing, but the proof is just not there. Moreover, although the sheriff had been listed as a witness, he did not testify at the trial. It is argued that some of his deputies did testify, but the assumption that Ms. Long may have been readily inclined to believe their testimony is hollow. The credibility of the State’s witnesses was not even challenged, the defense being not that the State’s testimony was false but that Westbrook had no connection with the marihuana found in his home.

On this point counsel also argue that “there is absolutely no foundation” for the court’s ruling that Sherry Long could not be questioned and that “there are no decisions” saying jurors cannot be questioned about whether they withheld information on voir dire. Perhaps so, but on precisely the same premise there was no reason why defense counsel could not have questioned Ms. Long before the hearing and proffered whatever favorable testimony was elicited. That was not done, nor is it indicated that Ms. Long had refused to be interviewed, so that the court’s assistance had to be invoked. The rule that one who seeks a new trial must make a showing of diligence is too familiar to need supporting authority. We cannot reverse the trial court’s decision and grant a new trial without any showing that an interrogation of the juror would have disclosed testimony impeaching her candor on voir dire.

Third, it is argued that the governing statute fails to classify the offense in question as either a felony or a misdemeanor; so it must be treated as a misdemeanor. That objection, however, was not raised below, and we have held that this point cannot be raised for the first time on appeal. Toland v. State, 285 Ark. 415, 688 S. W. 2d 718 (1985). It is also stated by counsel that in any event Westbrook should be allowed to petition the trial court for postconviction relief under Rule 37. That rule requires that the petitioner be in custody and that the petition be verified by the petitioner. Neither requirement is shown, nor would we in any case grant such a request for permission to proceed before our own decision has become final.

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. My first disagreement is with the third point in the majority opinion where the majority refuses to construe Ark. Stat. Ann. § 82-2617 (a)(l)(iv) (Supp. 1983) as to whether possession of marijuana is a felony or a misdemeanor. We have refused to construe this statute several times because the issue was not considered preserved for appeal. When construction of a statute is holding up a large number of cases like this one is, we should construe it at the first opportunity.

My real disagreement is with the court’s holding that the evidence was sufficient to sustain a conviction for possession with intent to deliver. The snake in the grass in this case is Jim Vick. It was he who informed the sheriff, who himself was in the midst of a campaign for re-election, that marijuana was in appellant’s house. I have no doubt about his reliability on this point because the evidence unmistakably reveals that he was the culprit who placed it there. Several witnesses observed Vick smoking marijuana and even saw him take dishes out of the trunk of his car that appeared to be the same dishes in which the marijuana was found. Vick shared appellant’s house except that each maintained his own bedroom. No contraband was found in appellant’s bedroom. Several ounces of marijuana were found in the kitchen area which was shared by the two men. The only evidence found in appellant’s bedroom was an article or two about growing marijuana. He may have been curious about how such plants are grown but the evidence lends no credence to a charge of possession. A lustful thought in a man’s mind will not support a charge of rape. Neither will reading about marijuana support a possession charge.

Two “roaches” were found in the bathroom but Vick may well have planted them there. This evidence might be incriminating of each occupant of the house and of each recent visitor to either Vick or appellant. The officers claim to have found a warm glass in the area where appellant was seated when they arrived with the search warrant supported by the now disappeared ungrateful Mr. Vick. I have no idea of how a warm glass points to possession of marijuana for sale. If it in any manner indicates the presence of marijuana, it was obviously for smoking it.

The appellant is a 62 year old farmer with no prior record. There was not even a rumor that he was trafficking in contraband. No one testified he was a dealer or even a user. The crime lab found the marijuana, exhibit 19, to contain 1.2 ounces of marijuana.

With a known user in the house, and the complete absence of direct evidence that appellant ever used, sold, manufactured or dealt in marijuana, I cannot find substantial evidence to support a verdict that appellant was guilty of possession with intent to deliver beyond a reasonable doubt.

I would reverse and dismiss.


author: Darrell Hickman, Justice.

text:
    Lonnie OLIVER v. STATE of Arkansas
    CR 85-72
    691 S.W.2d 842
    Supreme Court of Arkansas
    Opinion delivered June 10, 1985

      William R. Simpson, Jr., Public Defender, by: Arthur L. Allen, Deputy Public Defender, for appellant.

      Steve Clark, Att’y Gen., by: Joyce Rayburn Greene, Asst. Att’y Gen., for appellee.
   Darrell Hickman, Justice.

Lonnie Oliver’s conviction of burglary was affirmed by the Court of Appeals in a three-to-three decision. Oliver v. State, 14 Ark. App. 240, 687 S.W.2d 850 (1985).

On review we find the decision of the Court of Appeals should be reversed for two reasons. First, the trial judge failed, over a specific objection, to give the jury a copy of the instructions. This was an error for which we find no justification. A.R.Cr.P. Rule 33.3 clearly states it is the duty of the judge to deliver to the jury a typewritten copy of the oral instructions. This is to be done upon the request of either party or any juror. In Parker v. State, 270 Ark. 897, 606 S.W.2d 740 (1980), we reversed the trial court for refusing to send all the instructions to the jury room, saying “we interpret Rule 33.3 to mean exactly what it says.”

In finding no error the Court of Appeals gave four reasons which we find unconvincing. First, it found that the defense never actually requested the instructions be sent to the jury. We do not read the record that way. The decision to give the instructions to the jury did, apparently, originate with the trial judge, but when he changed his mind, the defense objected immediately. We find that that objection constituted the request necessary under A.R.Cr.P. Rule 33.3. Second, the defense asked that the penalty forms be removed and this was found to be a waiver of any error since that was an effort by the defense to emphasize some of the instructions over others. The record does not justify that conclusion. All of the parties, including the trial judge, were taking part in omitting parts of the instructions before the judge changed his mind about supplying them to the jury. Third, the Court of Appeals indicated that the trial judge had the right to keep the jury from seeing the copy of the instructions with his notes on it and that it was the duty of counsel to present the court with a clean set of instructions. The Court of Appeals’ conclusion was based on the trial judge’s statement that he would prefer to omit “some cursory notes I had made.” Although it is the duty of counsel to present the court with instructions it wants given at trial, that rule has no application in this situation. The court did not indicate in any manner that if a clean copy was available it would be given to the jury. Finally, in a footnote, the Court of Appeals recognizes that a transcript note reflects that the jury asked for a copy of the instructions almost an hour after it had retired. The Court of Appeals decided that Rule 33.3 would not apply at that point since the rule provides that the instructions must be given to the jury prior to their retirement. Such a narrow reading would frustrate the rule’s purpose. We find that the action by the trial court contravened A.R.Cr.P. Rule 33.3.

The other reason we find error, while not addressed by the Court of Appeals, is the refusal to fill in the offense or offenses that have to be used with AMI Criminal, 2002. That instruction form reads:

_is charged with the offense of burglary.
To sustain this charge the State must prove the following things beyond a reasonable doubt:
First: that_[entered] [or] [remained (defendant(s))
unlawfully in_ (describe occupiable structure of another person):
and
Second: That [he] [they] did so with the purpose of committing therein_ (offense(s) punishable by imprisonment)

The defense argued that a specific offense or offenses must be inserted; however, the state maintained it did not have to specifically choose an offense. The trial judge agreed with the state and filled in the second part of the instruction: “an offense punishable by imprisonment.”

The drafters of the model instructions contemplated that the offense or offenses intended would be inserted. In the section of the AMI Criminal entitled “How to Use This Book,” it is noted: “Blanks are to be filled in as indicated,. . .” Furthermore, the “Note on Use” following AMI Criminal, 2002 indicates that the elements of the supplied offense should be given in certain instances. The offense intended is an element of the charge of burglary and some offense or offenses must be inserted in the blank in AMI Criminal, 2002. Otherwise, the jury would be at a loss regarding an essential element of the charge of burglary. Of course, the state is not limited to one offense but may elect to prosecute on the theory that the accused intended to commit more than one offense or any of several offenses, whatever the evidence justifies. See Sumlin v. State, 266 Ark. 709, 587 S.W.2d 571 (1979).

The issue of substantial evidence was properly addressed by the Court of Appeals and we agree with their decision. The argument concerning improper remarks made by the prosecuting attorney need not be addressed since it is unlikely that the remarks will occur upon retrial.

Reversed and remanded.


text:
    UNITED FASTENERS, INC., et al. v. FIRST STATE BANK OF CROSSETT
    85-8
    691 S.W.2d 126
    Supreme Court of Arkansas
    Opinion delivered June 10, 1985
    [Rehearing denied July 15, 1985.]

      Johnson & Harrod, by: William E. Johnson, for appellant.

      Griffin, Rainwater & Draper, by: Paul S. Rainwater, for appellee.

       George Rose Smith, and Dudley, JJ., not participating.

   Darrell Hickman, Justice.

The First State Bank of Crossett had been doing business with United Fasteners, Inc., for some time, and on June 15,1979, a $56,500 promissory note was issued to consolidate prior loans. The note was secured by second mortgages on the residences of the principal parties to the corporation and their wives: Robert and Joyce Carter, Buddy and Lennie Stephens, and Michael and Wanda Jenkins. It was a corporate note executed on the front by all the principals and on the reverse side of the note was three signature lines for the corporation principals and sole shareholders fo sign individually. Robert Carter and Michael Jenkins signed the back side of the note but Buddy Stephens did not.

About a year later, in August of 1980, the bank loaned the corporation $17,000. The appellant corporation, United Fasteners, was the maker of the note, and it was signed by Buddy Stephens and Michael Jenkins, who were the sole shareholders and officers of the corporation at that time. This note was secured by accounts receivable, inventory, furniture, and fixtures of the corporation. This security interest was evidenced by a financing statement and security agreement.

The appellant corporation defaulted on both notes, and the bank took possession of the collateral and proceeded to dispose of and liquidate it. The bank brought an action to foreclose on the mortgages which secured the first note and the security interest for the second note. Both notes were found valid and in default, and the indorsers were found jointly and severally liable. The chancellor ordered the sale of the mortgaged realty to satisfy the first note. The Carters and Lennie Stephens attempted to challenge the foreclosure of the collateral securing the second note on the basis that they had not received reasonable notification of the time and place of the sale or disposition of the collateral under both the Commercial Code and our cases.

The main issue is whether appellants Robert Carter and his wife, Joyce, and Lennie Stephens have standing to raise certain defenses under Ark. Stat. Ann. § 85-9-504 (3) (Supp. 1983) in a foreclosure action instituted by the First State Bank of Crossett, Arkansas, on the promissory note issued by United Fasteners, Inc., on August 18,1980. The trial court held that the Carters and Lennie Stephens did not have standing to raise these defenses. We affirm.

The Carters and Lennie Stephens were not debtors or parties on the second note. Their signatures did not appear on it. The corporation was the debtor. The loan was made to the corporation, the proceeds of the loan accrued to the corporation, and the principals of the corporation at that time, Michael Jenkins and Buddy Stephens, signed the note. Since the Carters and Lennie Stephens were not parties or debtors to the second note, they were not entitled to notice prior to disposition of the collateral. Ark. Stat. Ann. § 85-9-504 (3).

The appellants attempt to get around these facts by arguing that the language of the security agreement executed with the second note incorporates both notes and gives them standing to raise defenses as to the second note. The clause they rely upon concerns the application of the proceeds received from the sale of the collateral; but that language clearly refers to advances as a result of the second note and there is no language which pledges any collateral used for the second note as security for the first note. The first note is not a part of the security agreement and does not confer standing on the Carters and Lennie Stephens. Because their parties have no standing, we do not address their other arguments pertaining to the second note.

Buddy Stephens argues that he signed the first note in his representative capacity as an officer of the corporation and is, therefore, not personally liable on the note. Stephens points out that he did not sign the reverse side of the note as an individual indorser. We disagree with his arguments. A signature is only in a representative capacity if the name of the organization is preceded or followed by the name and office of an authorized individual. Ark. Stat. Ann. § 85-3-403 (3) (Add. 1961). Although the name of the corporation precedes Stephens’ name, the office held by Stephens is not indicated. Furthermore, there was other evidence of Stephens’ individual liability. First, he executed a second mortgage on his home. Second, the parties to the note testified that all the parties had agreed that each principal would be personally liable on the note. Hence, Stephens is personally liable on the $56,500 note even though he did not sign in the individual guaranty space.

Finally, the Carters and the Stephenses argue that the judicial sale of the Stephenses’ home for $20,000 was grossly inadequate and should be set aside. The Stephenses did offer testimony that the market value of the house was more than double the amount which was received at the sale. In Arkansas it is well settled that mere inadequacy of price is not alone a sufficient ground for setting aside the judicial sale. George v. Norwood, 77 Ark. 216, 91 S.W. 557 (1905). The inadequacy of price must be coupled with fraud, unfairness, irregularity, mistake, or other inequitable conduct in connection with the judicial sale. Robbins v. Guy, 244 Ark. 590, 426 S.W.2d 393 (1968); Free v. Harris, 181 Ark. 644, 27 S.W.2d 519 (1930); Union Planters’ Bank & Trust Co. v. Pope, 176 Ark. 1023, 5 S.W.2d 330 (1928). There is no evidence or allegation of fraud, irregularity, unfairness, mistake or inequitable conduct with regard to the judicial sale. After a hearing the trial court found that the price was not so inadequate as to shock the conscience of the court, and we cannot say on appeal that the trial court was clearly wrong in that finding.

Affirmed.

       Buddy Stephens had notice of the planned disposition and does not argue this point'.


author: Robert H. Dudley, Justice. Darrell Hickman, Justice,

text:
    Ronnie DAVID, a/k/a/, Ronny DAVID v. STATE of Arkansas
    CR 84-200
    691 S.W.2d 133
    Supreme Court of Arkansas
    Opinion delivered June 10, 1985

      John H. Bradley, Deputy Public Defender, for appellant.

      Steve Clark, Att’y Gen., by: Velda P. West, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

The appellant was charged with the murder of Dennis Johnson. The evidence showed that appellant and Johnson had a fight four days before the fatal shooting. Appellant told others that he was going to kill Johnson. On the night of the murder, Johnson drove his truck to the front of the mobile home where appellant was staying, got out, and started walking toward appellant, who was in the middle of the front yard. In graphic street language, the appellant told Johnson to leave him alone. Johnson advanced two more steps, and appellant shot him in the chest. Johnson, who was 7 or 8 feet away, turned, took one step and collapsed. He died on the way to the hospital. The jury found appellant guilty of murder in the first degree and fixed the sentence at thirty-five years. We affirm. Jurisdiction is in this Court because of the length of the sentence. Rule 29(l)(b).

One witness, Keith Roberts, testified that the last sound made by Johnson took place in route to the hospital at a point one and one-half miles from the scene of the shooting. Appellant contends the trial court erred in admitting the testimony. He argues that he had already admitted that Johnson died from the shot. From that, he argues that the sole purpose for introducing evidence of the last sound was to inflame the jury. The argument is without merit. The testimony corroborated the medical examiner’s testimony that the gunshot wound was the cause of death and it tended to establish the time and place of death. It was relevant. See Love v. State, 281 Ark. 379, 664 S.W.2d 457 (1984). A defendant is not empowered to prevent the introduction of relevant evidence by stipulating to the fact which such evidence tends to prove. The admission of evidence to prove matters already stipulated is within the discretion of the court. Where a trial court has discretion to admit evidence, we will not reverse that ruling unless there is a clear abuse of discretion. Gruzen v. State, 267 Ark. 380, 591 S.W.2d 342 (1979). Here, the trial judge did not abuse his discretion in ruling that the probative value of the relevant evidence outweighed the slight possibility of unfair prejudice.

By a motion in limine, the appellant sought to prevent the State from attacking his credibility on cross-examination. The trial court denied the motion, and appellant assigns the point as error. The ruling was correct.

The appellant had previously pleaded guilty to two counts of forgery in the second degree. On the first count he was fined and given a suspended imposition of sentence. Ark. Stat. Ann. § 41-1201(3) (Repl. 1977) provides:

(3) When the court suspends the imposition of sentence on a defendant or places him on probation, the court shall enter a judgment of conviction only if:
(a) it sentences the defendant to pay a fine and suspends imposition of sentence as to imprisonment or places defendant on probation; or
(b) it sentences the defendant to a term of imprisonment and suspends imposition of sentence as to an additional term of imprisonment.

The commentary following this statute effectively explains the legislative intent:

Subsection (3) excepts two situations from the general rule that a judgment of conviction is not to be entered when a court orders suspension or probation. The first is when the court fines the defendant and suspends or probates him only as to imprisonment. The court must enter a judgment of conviction if it is to have a basis for imposing a fine. Furthermore, the defendant who is found guilty of an offense and sentenced to pay a fine only has clearly been “convicted” of the offense. The result should not be different when the court fines the defendant and suspends imposition of sentence or places him on probation as to imprisonment.
The court that wishes to enter a judgment of conviction in conjunction with a suspension or probation may simply enter judgment and sentence defendant to a $1 fine or one day prison term, thus complying with the requirements of subsection (3). This course of action might be desirable, for example, if a “conviction” is a prerequisite to an ancillary civil sanction such as revocation of a license. Though requiring the judge to impose a nominal sentence when he enters a judgment of conviction appears to elevate form over substance, the procedure does have the advantage of encouraging the judge to consider whether the defendant deserves a conviction of record and should prevent the routine entry of judgments of conviction when suspension or probation is appropriate.

Clearly a plea of guilty, coupled with a fine and a suspension of imposition of sentence constitutes a conviction.

Rule 609(a) of the Arkansas Uniform Rules of Evidence provides that a witness’s credibility can be attacked by proving certain prior convictions, and if the prior convictions involve false statement or dishonesty, the trial court does not determine whether the prejudicial effect of the prior convictions outweighs their probative value. Floyd v. State, 278 Ark. 86, 643 S.W.2d 555 (1982). Forgery is a crime involving dishonesty. United States v. Field, 625 F.2d 862 (9th Cir. 1980). Thus, the trial court correctly ruled that the State would be allowed to attack the credibility of the appellant on cross-examination by asking if he had been convicted of the first crime of forgery.

Appellant argues that his plea of guilty to the second forgery did not amount to a conviction because he was only given a suspended imposition of sentence. That is correct, but it does not prevent the State from cross-examining about the act. Specific instances of misconduct which are clearly distinguished from dishonesty, may be inquired into on cross-examination of a defendant. Unif. R. Evid. 608(b); Rhodes v. State, 276 Ark. 203, 634 S.W.2d 107 (1982). Most forms of forgery in the second degree are probative of truthfulness or untruthfulness. See Ark. Stat. Ann. § 41-2302(3). The issue of admissibility of evidence came up in the appellant’s threshold motion, and it was incumbent upon the appellant to demonstrate that the evidence was not admissible. The appellant did not put on any evidence to prove that his act of forgery was not probative of untruthfulness. Therefore, the court correctly refused to grant the motion.

At trial, immediately after taking the stand, on direct examination, in contradiction to his assertions in the motion in limine, the appellant testified that he had been twice convicted of forgery. He did not state whether the convictions were for felonies or misdemeanors. On cross-examination, over appellant’s objection, the prosecutor asked if the convictions were for felonies. He admitted they were. Appellant assigns the point as error. The trial judge was correct. Once the appellant took the stand and admitted he had been twice convicted for forgery, he waived any objection to the state inquiring about whether the convictions were felonies. The State did not seek to inquire into irrelevant matters such as whether he had spent time in the penitentiary. See Campbell v. State, 264 Ark. 372, 571 S.W.2d 597 (1978).

Appellant’s next assignment of error is that his spousal privilege was violated. The court allowed appellant’s wife to testify that after he shot Johnson he told her to tell the police that Johnson had attacked her and that he killed Johnson in an effort to rescue her.

Rule 504(a) of the Arkansas Uniform Rules of Evidence provides that a spousal communication is privileged only if it is not intended to be disclosed to any other person. Roleson v. State, 277 Ark. 148, 640 S.W.2d 113 (1982). Here the fabricated story was intended to be disclosed to the police and therefore was not privileged. Appellant counters that, even though he intended for the fabricated story to be disclosed to the police, he did not intend for his wife to disclose the fact that he told her to fabricate it. We find no merit in the argument under the facts of this case. The fact that the appellant told his spouse to tell the story must be allowed into evidence, or else, as a practical matter, the spousal communication remains privileged, even though it is intended for communication. To illustrate, the distinction in this case is the difference between “I told the police. . .’’and “He told me to tell the police. . . .’’The statement “I told the police. . ./’standing alone, is not a spousal communication, and is not subject to the privilege under any condition. The statement “He told me to tell . . .” is the predicate or the foundation by which the witness establishes that the remainder of the statement is exempt from the privilege since it establishes the intention to disclose to third persons.

The appellant next contends that the trial court-erred, for a number of reasons, in instructing the jury on the enhanced penalty for the use of a firearm in the commission of a crime. Ark. Stat. Ann. § 41-1004 (Supp. 1983) provides:

(1) If a defendant is convicted of a felony and the trial court finds that the person so convicted employed a firearm in the course of or in furtherance of the felony,... the maximum permissible sentence otherwise authorized by Section 901 (§ 41-901) or Section 1001 (§41-1001) shall be extended by fifteen (15) years.

Murder in the first degree is a class Y felony which carries the penalty of 10 to 40 years, or life. Ark. Stat. Ann. § 41-901 (Supp. 1983). Therefore, under § 41-1004 the maximum term would be increased from 40 to 55 years.

Appellant contends that the enhancement statute violates several of his constitutional rights. First, he argues that the statute deprives him of the right to a jury trial. The statute does provide that the use of a firearm must be determined by the trial court. See Shockley v. State, 282 Ark. 281, 668 S.W.2d 22 (1984). The trial judge made a preliminary ruling that there was sufficient evidence to instruct on the issue and then submitted three verdict forms to the jury — guilty of murder in the first degree with the use of a firearm, guilty of murder in the first degree without the use of a firearm, and not guilty. The jury returned the verdict form guilty of murder in the first degree with the use of a firearm. Thus, the jury reached the determination on the use of the firearm, and the appellant was not deprived of the right to a jury trial.

Appellant next contends that the trial court unconstitutionally commented on the evidence when it instructed the jury that it could consider the use of a firearm for enhancement purposes. The challenged instruction merely set out the law applicable to the issue, and it did not advise the jury that any presumption had been established by the evidence adduced. It was not a charge with regard to a matter of fact. See Dawson v. Pay Less Shoes #904 Co., 269 Ark. 23, 598 S.W.2d 83 (1980).

Appellant’s third contention is that the statute violated the equal protection clause because the trial judge could present the issue to the jury in different ways which would result in variations of treatment among similarly situated defendants. In Rawls v. State, 260 Ark. 430, 431, 541 S.W.2d 298 (1976), we stated that “in view of the ever-increasing number of felonies committed by means of firearms, the legislature was justified in specifying an additional penalty for those offenses.” Therefore, there is a rational basis for different classes created under the statute, and it does not violate the equal protection clause.

The appellant next contends that the pleadings gave him no notice of enhancement. This argument was meritless because the information alleged appellant killed Johnson with a .38 caliber revolver. Appellant had notice of the firearm issue and that the State could ask for an enhancement.

Appellant also contends that the enhancement statute is void for vagueness. We have already ruled that that argument is without foundation. Jordon v. State, 214 Ark. 572, 626 S.W.2d 947 (1982).

Appellant’s last contention is that a life sentence cannot be enhanced. Since appellant received a 35 year sentence, not life, he does not have standing to argue the point.

Appellant’s next point of appeal is that the trial court erred in refusing to grant a directed verdict. A motion for a directed verdict is a challenge to the sufficiency of the evidence, not the nature or character of the evidence. Glick v. State, 275 Ark. 34, 627 S.W.2d 14 (1982). It is proper only when no issue of fact exists. Coleman v. State, 283 Ark. 359, 676 S.W.2d 736 (1984). On appeal, this court reviews the evidence in the light most favorable to the appellee and affirms if there is any substantial evidence to support the verdict. Coleman v. State, supra. Only the testimony in support of the verdict need be considered. Brown v. State, 278 Ark. 604, 648 S.W.2d 67 (1983).

There was evidence that appellant shot Johnson. Several witnesses testified that they saw the shooting and appellant admitted doing it. Premeditation and deliberation can be inferred from the circumstances, such as the character of the weapon used, the manner in which it was used, the nature, extent and location of the wounds inflicted, and the conduct of the accused. McLemore v. State, 274 Ark. 527, 529, 626 S.W.2d 364 (1982). There was testimony that before he shot Johnson appellant stated that he intended to kill him. At the time of the shooting, Johnson was 7 to 8 feet from the appellant. Appellant shot Johnson in the chest with a .38 caliber revolver. Johnson was unarmed. Appellant admitted that Johnson was not threatening him. The trial judge correctly denied the motion for a directed verdict.

Appellant’s next point is that the court erred in allowing a layman, who had been drinking beer, to give his opinion about appellant’s state of intoxication. He recognizes that lay persons and police officers have been allowed for some time to give an opinion regarding intoxication. See Unif. R. Evid. 701 and Berry v. City of Springdale, 238 Ark. 328, 381 S.W.2d 745 (1964). He argues, however, that this particular witness’s powers of observation were distorted by his consumption of beer. The fact that the witness had consumed some beer goes to the weight to be given his testimony and not to its admissibility. The trial judge was correct.

Appellant next contends that the trial court erred in refusing to give one of his proposed instructions. The appellant offered a modification of AMCI 4105 which would have read in pertinent part:

A person is not justified in using deadly physical force if he knows that the use of deadly physical force can be avoided by retreating. However, he is not required to retreat if he is in his dwelling or on his curtilage and was not the original aggressor. (Emphasis added to show modification.)

AMCI 4105 is based upon Ark. Stat. Ann. § 41-507(2)(a), which provides in part:

(2) A person may not use deadly physical force in self defense if he knows that he can avoid the necessity of using that force with complete safety:
(a) by retreating, except that a person is not required to retreat if he is in his dwelling and was not the original aggressor, or if he is a law enforcement officer or a person assisting at the direction of a law enforcement officer;

Ark. Stat. Ann. § 41-501(2) defines “dwelling” as an enclosed space that is used or intended to be used, on a temporary or permanent basis, as a human habitation, home or residence. The AMCI instruction represents an accurate statement of the Arkansas law.

Last, appellant contends that the trial court erred in allowing the results of a breathalyzer test into evidence. He asserted the defense of voluntary intoxication. We have held that voluntary intoxication is a defense to specific intent crimes if the defendant’s drunkenness negated the required intent. Varnedare v. State, 264 Ark. 596, 573 S.W.2d 57 (1978). Murder requires culpability. Ark. Stat. Ann. § 41-1502(1)(b) (Repl. 1977). Hence, the defense would be available for this charge.

The breathalyzer test was given lVz to 2Vi hours after the shooting. The result was .0% blood alcohol content. The longer the period of time between drinking and taking the test, the more the blood alcohol content decreases. Munn v. State, 257 Ark. 1057, 521 S.W.2d 535 (1975). Appellant contends that the breath test was administered over two hours after the shooting, and therefore, was inadmissible as a matter of law. We do not consider the argument since no objection to the evidence was made on the basis of a statutory time limitation. See Ark. Stat. Ann. § 75-1031.1 (Supp. 1983) and Elam v. State, 286 Ark. 174, 690 S.W.2d 352 (1985). Where the issue raised by an appellant was not preserved with an objection at trial, we will not consider the point on appeal. Warren v. State, 272 Ark. 231, 613 S.W.2d 97 (1981).

An objection was raised to the admission of the test because the examining officer did not observe appellant for a full 20 minutes before administering the test. There was some evidence, however, indicating that the officers collectively observed appellant for more than 20 minutes. Substantial compliance with this health department regulation is all that is required. Collective observation is sufficient. See Sparrow v. State, 284 Ark. 396, 683 S.W.2d 218 (1985). Further, even if appellant had been observed only while being tested, and even if it were error to admit the result of such a test, the error would not be prejudicial in this case. That is because the expert witness testified that the reason for the 20 minute observation period is to make certain that the person taking the test has not ingested any alcohol or other substance which would cause the breathalyzer to register a distortedly high result. The expert witness was not aware of any substance which would cause the machine to register a distortedly low result. The test result was .0% alcohol content. Thus, the appellant could not possibly have ingested any substance which caused the test to register too high. The 20 minute observation period is therefore immaterial.

Affirmed.

Hickman, J., concurs.

Darrell Hickman, Justice,

concurring. I agree with the result but not with the treatment of the prior conviction. David pleaded guilty to the crime of forgery; the plea was accepted but the court suspended imposition of a sentence. The majority holds that that is not a conviction but may be used for impeachment purposes under Rule 609. I find it is a conviction.

The purpose of Ark. Stat. Ann. § 41-1201 is to allow expungement or a clean record for persons worthy of suspension or probation. See Commentary to Ark. Stat. Ann. § 41-1201. To fulfill that purpose the statute prohibits a judge from entering a judgment of conviction under certain circumstances. See Ark. Stat. Ann. § 41-1201 (3). The statute does not purport to determine what is and what is not a conviction for all purposes. See e.g. Finley v. State, 282 Ark. 146, 666 S.W.2d 701 (1981), which holds that a determination , that a persons committed a felony is a conviction under Ark. Stat. Ann. § 41-3103 (Repl. 1977).

The question before us is whether this is a conviction for purposes of Rule 609. It undoubtedly is since provision is made in the rules to prevent the use of convictions which have been the subject of pardons, annulments or certificates of rehabilitation. See Unif. R. Evid. 609(c). The conviction in this case has not been expunged so it remains one for purposes of impeachment.


author: Robert H. Dudley, Justice. John I. Purtle, Justice,

text:
    Andrew HEGLER v. STATE of Arkansas
    CR 84-185
    691 S.W.2d 129
    Supreme Court of Arkansas
    Opinion delivered June 10, 1985
    [Rehearing denied July 15, 1985.]

      Gibson Law Firm, by: John F. Gibson, Jr., for appellant.

      Steve Clark, Att’y Gen., by: Velda P. West, Asst. Att’y Gen., for appellee.

       Purtle, J., would grant rehearing. George Rose Smith, J., not participating.

   Robert H. Dudley, Justice.

The appellant was found guilty of a second violation of the Omnibus DWI Act of 1983. The judgment of the prior conviction does not reveal whether appellant was represented by counsel. Appellant contends that the trial court should not have admitted the judgment of prior conviction into evidence. He is correct. A prior conviction cannot be used collaterally to impose enhanced punishment unless the misdemeanant was represented by counsel or validly waived counsel, and waiver of counsel may not be presumed from a silent record. Lovell v. State, 283 Ark. 425, 678 S.W.2d 318 (1984). Accordingly, we reverse and remand.

We also address the second point of appeal since it will arise again upon retrial. Appellant contends that the officer administering the breath test did not adequately warn him of his right to have a test in addition to the one administered by the police, and therefore, he argues the test result must be excluded from evidence. The argument is without merit and, upon retrial, the trial court should again allow the result of the test into evidence.

Ark. Stat. Ann. § 75-1045(c)(3) (Supp. 1983) provides:

The person tested may have a physician, or a qualified technician, registered nurse, or other qualified person of his own choice administer a complete chemical test or tests in addition to any test administered at the direction of the law enforcement officer. The law enforcement officer shall advise such person of this right. The refusal or failure of a law enforcement officer to advise such person of this right and to permit and assist the person to obtain such test or tests shall preclude the admission of evidence relating to the test or tests taken at the direction of a law enforcement officer.

The police advised appellant of his right to additional tests with the following written statement:

You will be administered a breath test to determine your blood alcohol content. If you take the test you may, at your expense, have a physician, registered nurse, lab technician, or other qualified person administer a blood or urine test. This department will assist you in obtaining such a test or tests.

The appellant contends that the advice was fatally defective and the exclusionary rule must be invoked, because it states only that he may have an additional blood or urine test, but it does not mention an additional breath test. We do not find the argument persuasive. The police substantially complied with the requirements of the statute. Substantial compliance with Ark. Stat. Ann. § 75-1045(c)(3) (Supp. 1983) is all that is required for the result of the test to be admitted into evidence. Spicer v. City of Fayetteville, 284 Ark. 315, 681 S.W.2d 369 (1984); Sparrow v. State, 284 Ark. 396, 683 S.W.2d 218 (1985).

Reversed and remanded.

Purtle and Newbern, JJ., concur in part, dissent in part.

John I. Purtle, Justice,

concurring. I concur in the first point but dissent from the second one. The appellant was convicted of a second offense DWI over his objection that the breathalyzer test was improperly admitted. The warning and test conducted in this case do not strictly follow the law or even substantially comply with the rules and regulations relating to the subject matter herein.

Appellant, who was suspected of DWI, was taken to the police station for a breathalyzer test. He was given the following warning: “You will be administered a breath test to determine your blood alcohol content. If you take the test you may, at your expense, have a physician, registered nurse, lab technician, or other qualified person administer a blood or urine test. This department will assist you in obtaining such a test or tests.”

He appealed from his municipal court conviction of second offense DWI to the circuit court where he was found guilty by a jury. The breath test result was admitted over appellant’s objection that he was not given a proper warning.

The warning is set out verbatim above. The warning did not inform the appellant he had the right to take another breath test. Arkansas Stat. Ann. § 75-1045 (Supp. 1983) describes the conditions and procedures for administering the chemical tests for alcohol or controlled substances. The tests are used to determine the extent, if any, of controlled substances or alcohol in the blood. Paragraph (c)(3) of the statute states:

The person tested may have a physician, or a qualified technician, registered nurse, or other qualified person of his own choice administer a complete chemical test or tests in addition to any test administered at the direction of the law enforcement officer. The law enforcement officer shall advise such person of this right. The refusal or failure of a law enforcement officer to advise such person of this right and to permit and assist the person to obtain such test or tests shall preclude the admission of evidence relating to the test or tests taken at the direction of a law enforcement officer.

The warning given to appellant omitted the breath test but offered to assist the appellant in obtaining a blood or urine test. According to the words used in the statute the officer “shall” advise the accused of his right to have these tests performed by another qualified person. The statute, in more than one place, mentions tests of blood, breath and urine as the authorized tests. Another part of the statute mentions testing of “other bodily substance.” Failure to advise an accused of these rights, in the terms of the statute, “shall preclude the admission of evidence relating to the test or tests taken at the direction of the law enforcement officer.” The record in this case does not show any additional information was given to appellant relating to the other tests which the statute provides for.

A very similar type of challenge to a warning document was presented to us in the case of Spicer v. City of Fayetteville, 284 Ark. 315, 681 S.W.2d 369 (1984). Unfortunately the opinion in Spicer only stated the accused was advised of his right to a “subsequent or different test.” The warning in Spicer apparently was in general terms in that it did not mention the specific test or tests to which the accused was entitled. In the opinion it was stated: “We do not believe the [warning] precluded the appellant from requesting another breathalyzer test and he could have done so but he did not.” The implication was that he was adequately notified that he could have any of the tests mentioned in the statute conducted at his own expense. I do not find that this court or the Court of Appeals has squarely decided this issue. Therefore, it is necessary to construe the statute as it relates to the contents of the warning to be given an accused under the circumstances here presented.

The basic rule of statutory construction is to give effect to legislative intent. All other rules of construction are subordinate to this rule. Hice v. State, 268 Ark. 57, 593 S.W.2d 169 (1980). Another rule of construction is that courts must construe a statute in such a manner, if possible, that all parts of it will be effective. Town of Wrightsville v. Walton, 255 Ark. 523, 501 S.W.2d 241 (1973). A statute should be construed just as it reads. City of North Little Rock v. Montgomery, 261 Ark. 16, 546 S.W.2d 154 (1977). The policy and purpose of the statute are matters to be considered in determining legislative intent. Garrett v. Cline, 257 Ark. 829, 520 S.W.2d 281 (1975), Logan v. State, 150 Ark. 486, 234 S.W. 493 (1921). In construing a statute the policy and purpose of the statute must be considered as well as the language used, the desired objective, the remedy provided, the legislative history, and any other matter which sheds light on the subject. Gibbons v. Bradley, 239 Ark. 816, 394 S.W.2d 489 (1965). When construing criminal law, the statute must be strictly construed and nothing will be taken as intended which is not clearly expressed. All doubts will be resolved in favor of the defendant. Breakfield v. State, 263 Ark. 398, 566 S.W.2d 729 (1978); Stuart v. State, 222 Ark. 102, 257 S.W.2d 372 (1953).

The State of Georgia has a DWI statute very closely resembling our own statute in the matter of warning or notifying an accused of his right to other chemical tests. In Garrett v. Department of Public Safety, 237 Ga. 413, 228 S.E.2d 812 (1976), the Supreme Court of Georgia considered subsection (a)(4) of Ga. Code Ann. § 68A-902.1 which stated: “The arresting officer at the time of the arrest shall advise the person arrested of his rights. . .” The rights spoken of were these: “The person tested may have a physician, or a qualified technician, chemist, registered nurse, or other qualified person of his own choosing administer a chemical test or tests in addition to any administered at the direction of a law enforcement officer.” The opinion in Garrett concluded as follows:

This cannot be interpreted to mean sometime in the future. One cannot make an intelligent choice to submit to a chemical test without the knowledge of the right to have an independent test made in order to contest the validity of the state’s test. The language of the statute makes it clear that a person must be advised of his right to have an additional test administered by a qualified person of his own choosing in addition to the one administered by the arresting officer. As held in Nelson, supra, the failure to so inform invalidates the result of any test and also justifies the refusal to submit to a test.

The Nelson case referred to in the above opinion is cited as Nelson v. State, 135 Ga. App. 212, 217 S.E.2d 450 (1975). In Nelson, the accused was not advised at the time of his arrest that he had the right to have other tests made by persons of his own choosing. The result of the test administered by the officer was admitted in the lower court. The question presented in Nelson was whether the result of the breath test was rendered inadmissible by the failure of the arresting officer to advise the appellant of the right to have other tests administered. At the hearing to suppress the intoxime-ter test result, the officers testified that the appellant was advised only of his right to have either a blood test or a breath test, “which one he preferred.” It was conceded by the state that the appellant was not advised at the time of the arrest that he could have another qualified person of his own choosing administer a chemical test in addition to the intoximeter test administered by the officers. The Nelson opinion held that in the absence of the required advice the intoximeter result was inadmissible.

The recent case of Carswell v. State, 171 Ga. App. 455, 320 S.E.2d 249 (1984), dealt with the admissibility of blood alcohol tests and the advice about the right to take other chemical tests. The Georgia statute under consideration gave the accused the right to other tests. The statute in pertinent part

requires that the officer inform him at the time of arrest of his right to an independent chemical analysis . . . [or] the results of the state-administered test will not be admissible at trial . . . Not even “substantial compliance with the provision as to additional tests [will] compensate for the total failure to advise the defendant at any time of his right . . .” Admission of the results here, showing a level of alcohol creating a legal presumption of intoxication, was harmful to appellant and, in view of the absence of statutory compliance, was reversible error. [320 S.E.2d 249, 253; emphasis in original.]

Although Garrett, Carswell, and Nelson dealt with failure to advise of the right to additional test or tests, the reasoning is the same here where there was a partial failure. The officers in Nelson told the defendant he was entitled to a “blood test or a breath test.” However, he was not advised that he could have qualified persons of his own choosing run other tests. In the case before us the officers advised the appellant he was entitled to a “blood or urine test.” Both the Arkansas and Georgia statutes provide for testing of blood, breath, urine, or other bodily substances. Arkansas Stat. Ann. § 75-1045 (c)(1) (Supp. 1983). Although appellant was informed of his right to additional tests of his blood or urine, there was a complete failure to inform him of his right to additional testing of his breath or other bodily substance.

I believe it was the intent of the legislature to require law enforcement officers to inform an accused of the right to have a breath, blood, urine or other bodily substance test administered by a qualified person, at the accused’s expense, in addition to the test administered by the officer or at his request. The statute states: “The law enforcement officer shall advise such person of this right.” [My emphasis]. The language is mandatory, and following commonly accepted rules of statutory construction we give the word “shall” its ordinary and accepted meaning. Although there was only a partial failure here, I agree with the Georgia court that even substantial compliance is insufficient to render the state’s test admissible. To allow a 50% compliance in this case might well open the door to a 25% compliance or even a zero compliance later on. Substantial compliance with the rules and regulations promulgated by the Health Department in the administration of blood alcohol tests is sufficient. St. Paul Insurance Company v. Touzin, 267 Ark. 539, 592 S.W.2d 447 (1980). However, strict compliance with statutory provisions is required. Breakfield v. State, supra.

It is readily apparent that unless a suspect is allowed to have a second breath test he might be convicted upon the reading of a malfunctioning machine or operator. Too, it is highly probable that some will be convicted because of a mistake in reading a machine. The majority opinion makes any old test given by a good or bad machine or good or bad operator conclusive as to testing the breath. By no stretch of the imagination can I believe that the legislature intended that only one opportunity should be allowed to obtain a truthful and reliable test of the breath when one is accused of DWI. Justice and fair play, along with a common sense reading of the statute, demand that the suspect be advised of his full rights under the statute and such rights include a second opportunity to have a reliable breath test administered. Therefore, I would exclude the test results in this case.

Newbern, J., joins.


author: Robert H. Dudley, Justice.

text:
    Richard Allan TISDALE and Renae Lynn TISDALE, his wife, v. Jon Robert SEAVEY
    85-70
    691 S.W.2d 144
    Supreme Court of Arkansas
    Opinion delivered June 10, 1985

      Sanford, Pate & Marschewski, by: Jon R. Sanford, for appellants.

      Swindell & Bradley, by: Benny E. Swindell, for appellee.
   Robert H. Dudley, Justice.

Appellant Renae Tisdale and appellee Jon Seavey are the biological parents of two minor boys, Christopher and Anthony, who are the subjects of this adoption case. In January, 1977, Renae was granted a divorce from Jon by the Court of Common Pleas of Ashtabula County, Ohio. In the same action, she was granted custody of the boys. The next month she married appellant Richard Tisdale. In August, 1979, Richard and Renae joined in a petition in the Ohio court by which Richard, the step-father, sought to adopt the boys. Jon, the biological father, contested the petition. The Ohio court, in dismissing the petition, found:

. . . the Petitioners have not met the burden of showing that Jon Robert Seavey, the natural father, has failed, without justifiable cause, to communicate with the minor children or to provide for the maintenance and support of the minor children as required by law or judicial decree for a period of at least one year immediately preceding the filing of the adoption. The Court determines that the evidence indicates that the father has met minimally the requirement of law concerning maintenance and support. The record is clear regarding the natural father’s many attempts to see the children and to use the legal process of requiring visitation even to the point of filing two Contempt charges against his former wife for violation of the visitation rights permitted by the Court.

Meanwhile, Renae and Jon had filed numerous post-judgment motions against each other in the original divorce action. The Ohio court, with both parties before it, heard two days of testimony in June 1984, consolidated the motions, and in July, 1984, held in part:

The Court finds and the original plaintiff, Renae Seavey, now known as Renae Tisdale, has admitted under oath that she took the two minor children of the parties and moved to the State of Arkansas in October of 1979; that from 1979 until June of 1984, she neglected and failed to contact the defendant, Jon Seavey, as to their whereabouts; and at no time did she ever encourage the children to send nor did she send cards, letters, photographs or make telephone calls to the defendant. The Court further finds that the plaintiff did not conceal her whereabouts, and that her family and many relatives of the defendant were aware of her current address in Arkansas. However, the defendant has a strained relationship with most of his relatives, and therefore, was never given his children’s current address, even by his relatives. The plaintiff, upon moving, did not notify the Bureau of Support nor did she notify the Welfare Department of her new location. It further appears that in 1980 and 1982, the plaintiff visited Ashtabula County with the minor children, but failed on each of these occasions to notify the defendant or inform him that the children would be in Ashtabula County and available for visitation. Obviously, the problem that has now developed is that the minor children now of the age of eight and nine years are nearly total strangers to their natural father, the defendant herein.
On the issue of the defendant’s Motion to Modify Custody, the Court is of the opinion that said Motion should not be granted due to the fact that the children have had absolutely no contact with their father for nearly four years, and it would not be in their emotional and psychological interests to transfer custody to a person who is in effect a total stranger to them. Therefore, with the best interests of the children in mind, the Court denies the defendant’s Motion for the change of custody. The Court also denies the defendant’s Motion for immediate possession of the minor children, and his Motion for the return of the children to the jurisdiction of Ohio, and his Motion to restrain the plaintiff from further concealment of the children’s whereabouts. Although the Court is of the opinion that it is in the best interests of the children to deny these motions at this time, the Court does acknowledge that in effect the plaintiff is being rewarded for having concealed the children for a period of four years from the defendant, and the Court is of the further opinion that if the plaintiff should again in the future attempt to conceal the children from their natural father, at that time the Court would have no other alternative but to change custody to the natural father.
On the issue of the plaintiff’s Motion to defer jurisdiction of the minor children to the State of Arkansas, the Court finds that the natural father, the defendant, resides in this county, that the parties were married in Ashtabula County, lived in this county during the time of their marriage, and were divorced in this jurisdiction. The Court further finds that the plaintiff, the natural mother, left this jurisdiction without notice to the Court or the defendant, and in the interests of justice, the Court is of the opinion that this Court should retain jurisdiction over the minor children. It is, therefore, ordered that the plaintiff’s Motion to defer jurisdiction to the State of Arkansas is hereby denied.

In addition, in 1980, the Ohio court had relieved the father of making child support payments to the mother. That court made a finding of fact and ordered as follows:

Upon the evidence presented, the Court herein finds that there is presently due and owing by Defendant, the sum of $454.70 to the Ashtabula County Welfare Department. That on or about February 1,1980, Plaintiff left the state of Ohio with the minor children of the parties and Defendant has been unable to determine the whereabouts of the Plaintiff and his minor children.
It is therefore Ordered, Adjudged, and Decreed that Defendant’s obligation of support of his minor children is hereby terminated as of February 1, 1980, however, Defendant is to pay the sum of $454.70 payable $51.00 each month, through the Clerk of Courts, Ashtabula County Court of Common Pleas, commencing August 1, 1980 and each month thereafter. Forthwith, upon receipt of the same, the said Clerk, through its Bureau of Support, will remit the same to the Ashtabula County Welfare Department. All of the aforementioned are subject to further order or modification of this Court. The costs of this proceeding are adjudged against the Defendant.

After the Ohio adoption petition had been denied, but before the Ohio post-judgment motions were heard, the appellants, Renae and Richard, the mother and the step-father, joined in a petition in the Probate Court of Johnson County, Arkansas, by which Richard again sought to adopt the boys. Again, the biological father contested the petition.

The Arkansas Court granted a motion to dismiss upon a finding that:

1. No consent to this proposed adoption by the Court of Common Pleas, Ashtabula County, Ohio, which granted the divorce of petitioner from respondent has been filed herein, and said Ohio Court has specifically retained jurisdiction over the minor children of the parties.
2. Section 56-206(4) of Arkansas Statutes Annotated states that an adoption may be granted only if written consent to the adoption has been executed by the Court having jurisdiction to determine custody of the minor.

The reason given by the Arkansas Court for the dismissal was an erroneous one. Ark. Stat. Ann. § 56-206(a) (Supp. 1983) provides:

(a) Unless consent is not required under Section 7 [§ 56-207], a petition to adopt a minor may be granted only if written consent to a particular adoption has been executed by:
(1) the mother of the minor;
(2) the father of the minor if the father was married to the mother at the time the minor was conceived or at any time thereafter, the minor is his child by adoption, he has custody of the minor at the time the petition is filed, or he has otherwise legitimated the minor according to the laws of the place in which the adoption proceeding is brought;
(3) any person lawfully entitled to custody of the minor or empowered to consent;
(4) the Court having jurisdiction to determine custody of the minor, if the legal guardian or custodian of the person of the minor is not empowered to consent to the adoption;
(5) the minor, if more than ten (10) years of age, unless the Court in the best interest of the minor dispenses with the minor’s consent; and
(6) the spouse of the minor to be adopted.

By the time of the Arkansas adoption petition the mother, Renae, had been granted lawful custody of the boys and so, § 56-206(a)(4) (Supp. 1983) was not applicable. As stated in Pender v. McKee, 266 Ark. 18, 582 S.W.2d 929 (1979):

We have concluded that the consent of the Juvenile Court of Cross County was not necessary. The adoption proceedings were governed by the Revised Uniform Adoption Act [Ark. Stat. Ann. § 56-201 et. seq. (Supp. 1977)]. Consent of the juvenile court would have been necessary only if there was no person lawfully entitled to custody of Belinda or empowered to consent to her adoption. Ark. Stat. Ann. § 56-207(a)(3) and (4). The paternal grandparents were lawfully entitled to custody of the child. The requirements of Ark. Stat. Ann. § 56-206(a)(3) are alternatives. The use of the disjunctive “or” makes the legislative intent quite clear that consent can be given either by (1) any person lawfully entitled to custody of the minor or (2) any person lawfully empowered to consent to her adoption. That person clearly need not be both lawfully entitled to custody and lawfully empowered to consent. The purpose of the legislature to authorize one who has been empowered to consent to do so, without also being lawfully entitled to custody, is clear. Thus, it is clear that the paternal grandparents had the power to consent to this adoption, because they were lawfully entitled to her custody, so Ark. Stat. Ann. § 56-206(a)(4) never came into play.

The trial court erred in ruling that consent of the Ohio court was necessary, but we do not reverse because the court reached the right result, even if it did not enunciate the right reason. After the petition for adoption was filed in Arkansas in March, 1984, but before it was dismissed in October, 1984, the Ohio court ruled that appellant Renae “from 1979 until June of 1984,. . . neglected and failed to contact. . . Jon Seavey, as to their whereabouts; and at no time did she send cards, letters, photographs or make telephone calls. . . .” Additionally, “. . . in 1980 and 1982 . . . [she] visited Ashtabula County with the minor children, but failed on each of the occasions to notify . . . [the father].” In addition, by the 1980 decree, the Ohio court had relieved the father of the duty of making child support payments to the mother. That decree is not shown to have been modified. These decrees were before the Arkansas Court on the motion to dismiss.

The Arkansas court must give full faith and credit to the Ohio decrees. Those decrees did not require the father to pay child support to the mother, and they further found that the father was justified in not communicating with the children at the time the Arkansas petition was filed since he did not know where they were. Therefore, consent of the father was not waived under § 56-207(a)(2) (Supp. 1983), and the Probate Judge was correct in dismissing the petition.

Affirmed.


text:
    Don VENHAUS, Pulaski County Judge, and PULASKI COUNTY, ARKANSAS v. Darrell F. BROWN
    84-309
    691 S.W.2d 141
    Supreme Court of Arkansas
    Opinion delivered June 10, 1985
    [Rehearing denied July 15, 1985.]

      Henry & Duckett, by: Stephen L. Curry, for appellants.

      House, Wallace, Nelson & Jewell, P.A., by: David M. Hargis, for appellee.

       George Rose Smith, J., not participating.

   Robert H. Dudley, Justice.

The issue on appeal is whether a circuit judge has the inherent authority to appoint a special prosecuting attorney without the incumbent being legally removed or legally disqualified to act. We hold that the circuit court does not have such authority unless the incumbent Prosecuting Attorney is being investigated for, or charged with, illegal activity.

The circuit judge appointed appellee, Darrell Brown, as Special Counsel to a Special Grand Jury empaneled to investigate whether William McArthur, an attorney, should be charged with complicity in the murder of his wife, Alice. The investigation of Alice McArthur’s death was one of the more notorious events in the history of Pulaski County. It produced daily front page newspaper and prime time television and radio coverage. It was compounded by dissension between the Sheriffs office, the Police Department, and the Prosecuting Attorney’s office. The Sheriff claimed that McArthur received favored treatment because he was a lawyer. The Prosecuting Attorney believed McArthur was innocent and refused to file an information. The Sheriff arrested McArthur without a warrant of arrest, and the news media published the event statewide. The Sheriff publicly asserted that he had evidence which would convict McArthur. After the warrantless arrest, a preliminary hearing was scheduled in the Pulaski County Municipal Court. The Prosecutor refused to take part in the preliminary hearing which was based upon the warrantless arrest. See Venhaus v. Hale, 281 Ark. 390, 663 S.W.2d 930 (1984). After a hearing, the Municipal Court bound McArthur over to the Circuit Court. The Prosecuting Attorney still was of the opinion that charges should not be filed against McArthur. The Sheriff then publicly called for a Special Grand Jury and a Special Prosecutor. He claimed the Prosecutor was a “suspect of the offense of hindering an investigation” in a different murder. The Prosecutor then wrote the Circuit Judge, in part, as follows:

As an alternative to submission of this matter to a Grand Jury, which would be very costly, I suggest that you review the transcript of the preliminary hearing held in Pulaski County Municipal Court and decide whether the evidence is, in your opinion, sufficient to warrant submission of the matter to a trial jury. If, after reading the transcript, you are of the opinion that this case should be tried, I will disqualify and acquiesce in the appointment of a special prosecutor to file and try it.
Should you determine that a Grand Jury should be called, I will be happy to present the evidence to it. There is no factual or legal basis for my disqualification. The fact that I presently believe that the evidence is not sufficient to warrant charging McArthur would not prevent me from fully and fairly presenting all available evidence to the jury and I would not attempt to unfairly influence the jurors.

The Circuit Judge then determined that a Special Grand Jury should be called and that a Special Prosecutor should be appointed. On February 2, 1983, without entering an order disqualifying the Prosecuting Attorney, the Circuit Judge appointed Darrell Brown as Special Counsel to the Special Grand Jury. On February 4, he empaneled the Special Grand Jury. Brown, by all indications effective in his undertaking, devoted approximately four months of his time to the jury. The jury returned a no true bill against McArthur. Afterwards, Brown submitted his bill for services rendered to the Circuit Judge who, in turn, ordered appellant Venhaus, the County Judge, to pay $70,770.00 to Brown.

The office of Prosecuting Attorney is a constitutional office which operates in a quasi-judicial capacity. Const. of Ark. art. 7, sec. 24; amend. 21, sec. 1; Weems & Owen v. Anderson, Spl. Judge, 257 Ark. 376, 516 S.W.2d 895 (1974).

The framers of our constitution have charged an incumbent prosecutor with the grave responsibility of filing informations against those he deems guilty and refusing to file against those he believes to be innocent. He is also charged with the duty of acting as attorney for a grand jury who, like the prosecutor, should return an indictment against those it deems guilty and return a no true bill against those it deems innocent. The office of Prosecuting Attorney calls for sound judgment and a knowledge of the law in the exercise of discretion.

The judgment of the prosecutor in the case at bar was to not file an information against McArthur but to act as attorney for the grand jury while that body determined whether to return an indictment or a no true bill.

Incumbent prosecuting attorneys, like all Constitutional officers, have the right and the duty to perform the functions of their office until they are legally removed from office or legally disqualified to act. Here, the Circuit Judge sought neither to remove nor disqualify the incumbent before he appointed the special prosecutor.

The appellee contends that the Circuit Judge did not have to remove or disqualify the incumbent because the Circuit Court possesses the inherent power to appoint a special prosecuting attorney in order to preserve the integrity of the courts. The contention inherently contains the tacit admission that the Circuit Court acted without statutory authority. Even so, in limited circumstances, a circuit court does not have the authority, outside of statutory authority, to appoint a special prosecutor, without the removal or disqualification of the incumbent. Those limited circumstances exist when the incumbent prosecuting attorney is being investigated or charged with an illegal activity. Weems & Owen v. Anderson, supra. See also 84 A.L.R.3d 115. Upon the occurrence of such a circumstance there is in a very real sense a vacancy in the representation of the public, and the circuit court is constitutionally vested with the authority to fill that temporary vacancy with the appointment of a special prosecutor. Weems & Owen v. Anderson, supra.

In the case at bar the Special Grand Jury was not empaneled to investigate some illegal act by the prosecutor. It was charged with hearing and considering evidence against William McAr-thur. The Prosecuting Attorney remained in office and was not found disqualified to act as attorney for the grand jury.

The Prosecutor steadfastly refused to file criminal charges against a man he thought innocent but he would have presented the evidence to the grand jury. Under these circumstances it was not within the inherent authority of the circuit courts to interfere with that lawful exercise of discretion to refuse to file charges or to present evidence to the jury. Only the people in an election have the right to remove a prosecuting attorney from office due to objections to use of discretion.

Since the Circuit Judge did not have the authority to appoint the Special Prosecutor, he did not have the authority to order compensation for him.

Reversed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. I again respectfully dissent. It is my opinion that the elected prosecuting attorney did in fact disqualify himself in this case. True, there was no formal pronouncement that he could not in good conscience prosecute the case against the named defendant. The defendant had previously been charged in the same matter and bound over by the municipal court. The prosecuting attorney had refused to prosecute. I think the prosecutor was right from what the record reveals in the case. He also stated he would not prosecute if the grand jury returned a true bill. His position was not contrary to the law and justice. After all, it is the duty of the prosecutor to protect the innocent as well as to prosecute the guilty or those who at least appear from the circumstances to be guilty. Perhaps the circuit judge should have made a definite determination about the matter before appointing a special prosecutor but he did not. I think he was so closely associated with the facts of the case that he took it for granted that the prosecutor had in fact disqualified in the particular case.

The action of the grand jury vindicated the prosecutor’s position that the whole affair was based upon the antithetical conduct of a certain political figure. The injustice to the subject of the grand jury investigation and the enormous expenses to the citizens and taxpayers are matters to be regretted. The prosecuting attorney stated he was not going to prosecute the subject if he were indicted. He could hardly be expected to press vigorously for an indictment. As a result of the appointment the matter was thoroughly investigated and laid to rest insofar as possible. I believe we should, in the limited circumstances of this case, affirm the trial court.


author: Steele Hays, Justice. Robert H. Dudley, Justice,

text:
    Harold ST. JOHN v. A.L. LOCKHART, Director, Arkansas Department of Correction; Melba SMITH, Records Supervisor, Cummins Unit, Arkansas Department of Correction
    CR 84-210
    691 S.W.2d 148
    Supreme Court of Arkansas
    Opinion delivered June 10, 1985

      Moses, McCellan & McDermott, by: Harry E. McDermott, III, for appellant.

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

Appellant was convicted of five felonies and sentenced to the Department of Correction for fifteen years, the sentences to be served concurrently. Appellant had three earlier convictions in California and pursuant to the provisions of Act 93 of the 1977 Acts of Arkansas [Ark. Stat. Ann. § 43-2828 et seq. (Repl. 1977)], he was notified by the Department of Correction that as a fourth offender he was ineligible for parole, though still entitled to credit for good time. Appellant brought this action for declaratory judgment and mandamus and the trial court found he was not entitled to the relief requested. On appeal we affirm.

Appellant submits his felony conviction in Contra Costa County, California, in 1966 should not be considered for purposes of parole eligibility because he was convicted on a guilty plea entered without counsel. The record contains a certified abstract of a judgment of the Superior Court of Contra Costa, California, certifying that on October 24,1966 a judgment of conviction was entered in Case No. 10082 on a plea of guilty of “completed check with intent to defraud” in violation of the California Penal Code. The judgment is dated October 24,1966 and states that Wesley Helm was counsel for the defendant. The appellant was committed to the Director of Corrections of California to serve an unspecified term of imprisonment.

The record also contains a “Minute Order Decision” of the same California Court, dated July 1, 1982, which reads:

The Petitioner, who was the defendant in this criminal proceeding, has requested a copy of his trial transcript. A review of the records discloses that the defendant on or about September 19, 1966, entered a plea of Guilty to a charge of Penal Code Section 475(a). He was thereafter committed to the Department of Correction for the term prescribed by law. Thus, there was no trial. No transcript of the proceedings are in existence and the reporter’s notes have long since been destroyed as provided for by statute.

The request is denied.

Appellant submits that because the Minute Order Decision states he entered a plea of guilty on September 19,1966, whereas the judgment is dated October 24, 1966, this corroborates his claim that he was without counsel when his plea was entered, rendering it constitutionally infirm.

We attach no significance to the difference in dates, as the judgment does not disagree with the Minute Order Decision. The judgment does not reflect when the plea was entered, only that “judgment of conviction was entered on October 24,1966.” The appellant may have entered his plea on September 19,1966 and the sentencing occurred on October 24, 1966. Or the plea and sentence may have occurred on September 19, but the entry of the judgment delayed until the later date. In any event, it is not the date of the appellant’s plea that is the issue, but whether or not he was represented by counsel, and the certified abstract of the judgment states that he was. It even identifies the individual who represented him, a Mr. Wesley Helms.

We dealt with a similar argument in Hill v. State, 275 Ark. 1, 628 S.W.2d 285(1982), where the right of the state to enhance a sentence because of prior convictions was challenged. Hill argued that one of the convictions should not be used because there was no proof he was represented by an attorney. We rejected the argument because the record reflected he was represented by counsel and our enhancement statute only requires proof of a prior conviction, not proof of the underlying elements of the conviction. The same may be said of the applicable statute in this case.

Nothing in the cases appellant has cited suggests that in determining parole eligibility a state must look behind a valid judgment of conviction upon a guilty plea where the record shows the defendant to have been represented by counsel. If one convicted of a felony can require a state to prove the underlying elements of a conviction nearly twenty years after the fact simply by alleging that the facts are other than as stated in a facially valid judgment, then sentence enhancement and parole ineligibility because of previous convictions would be effectively eliminated from the penal system.

The dissenting view would hold that because the appellees did not move the trial court for judgment on the pleadings, or for dismissal for failure to state facts on which relief could be granted, we should reverse for procedural error. But we have said if a complaint fails to state facts sufficient to afford relief an appellate court may recognize that flaw, Ratliff v. Moss, 284 Ark. 16, 678 S.W.2d 369 (1984), and we will sustain the trial court if it is right in the result. Armstrongs. Harrell, 279 Ark. 24, 648 S.W.2d 450 (1983). We find the rule permitting an appellate court to dismiss a complaint which fails to state a cause of action to be preferred in other states, based either on concepts of jurisdiction, or on a common sense approach that appellate review is of no purpose where a complaint does not state a cause of action in the first place. Bonner Building Supply v. Standard Forest, 682 P.2d 635 (Idaho App. 1984); Midwest Bank & Trust v. Village of Lakewood, 447 N.E.2d 1358 (Ill. App. 2 Dist. 1983); Burchfield v. State, 432 So.2d 1149 (La. App. 3 Cir. 1983); Shooshanian v. Wagner, 672 P.2d 455 (S.Ct. Alaska 1983).

We recognize that this proceeding is civil, which presumes the truth of the allegations of the complaint in determining whether a cause of action has been stated. But that does not mean that a bare allegation of lack of counsel can overcome a certified copy of the judgment which plainly refutes the allegation. Hill v. State, supra. By way of analogy, our post conviction remedies under A.R.Cr.P. 37 require more than bare allegations and must be supported by clear substantiation of fact. Gilbert v. State, 282 Ark. 504, 669 S.W.2d 454 (1984); Swindlers. State, 272 Ark. 340, 617 S.W.2d 1 (1981). Here, the only substantiation appellant offers for disallowing the 1966 felony conviction is the variance in dates, which, as we have said, is without substance.

The order appealed from is affirmed.

Purtle, J., and Dudley, J., dissent.

Robert H. Dudley, Justice,

dissenting. The majority, in accepting the arguments of the defendant, stray from our rules of procedure as well as from our substantive law.

The plaintiff, now appellant, filed his complaint for declaratory judgment and mandamus. The defendant answered, stating the complaint was “incorrect,” and asked that the complaint be denied without a hearing. The defendant did not move for a dismissal for failure to state facts upon which relief can be granted, ARCP Rule 12(b) (6), nor did he move for a judgment on the pleadings, ARCP Rule 12(c), nor did he move for summary judgment, ARCP Rule 56. No affidavits were submitted. No briefs were allowed. Immediately after the answer was filed, the trial court ruled that the “allegations of the petitioner do not correctly state the facts and the petitioner is not entitled to the relief requested.”

The plaintiff alleged that he pleaded guilty on September 19, 1966, without assistance of counsel. In testing the sufficiency of the complaint the allegations must be accepted as true. In addition, an exhibit indicates the allegation is true. Next, he alleged that on October 24, five days after he pleaded guilty, counsel was appointed and he was sentenced. The Supreme Court has ruled that it is reversible error to admit, for purposes of enhancing a sentence, evidence of a prior conviction by a guilty plea entered by a defendant unrepresented by counsel at the time of the plea. Burgett v. Texas, 389 U.S. 109 (1967). Therefore, the complaint substantively stated a cause of action and should not have been dismissed.

Purtle, J., joins in this dissent.


author: Steele Hays, Justice.

text:
    TRUSTEES OF FIRST BAPTIST CHURCH, 606 North Porter Street, Stuttgart; Julius LONDON, Joe SCOTT, Moses WATSON, I.L. FERGUSON, Ronald HOLD, Stanford CUNNINGHAM, Leroy HILL, Columbus OSBY and J.D. REED v. Austin WARD
    85-37
    691 S.W.2d 151
    Supreme Court of Arkansas
    Opinion delivered June 10, 1985
    [Rehearing granted in part; denied in part July 8, 1985.]

      Marion A. Humphrey, for appellant.

      Malcolm R. Smith, P.A., for appellee.

       George Rose Smith, J., not participating. Remanded on rehearing.

   Steele Hays, Justice.

This case involves the sufficiency of notice under Ark. Stat. Ann. § 84-1201.1 (Repl. 1980) to redeem property sold by tax sale. The property in question was conveyed on October 5,1976 by James Johnson to Oreaner Sales, reserving a life estate with the power to sell. Taxes were not paid for the year of 1976 (due in 1977) resulting in the forfeiture of the property pursuant to Ark. Stat. Ann. § 84-1101 et seq. Austin Ward, appellee, purchased the property at a tax sale on November 23, 1977.

On February 20, 1979, James Johnson conveyed the property to appellants, Trustees of the First Baptist Church on a deed prepared by the pastor of the church. No attorney handled the transaction and no inspection of the records for delinquent taxes was made. There was no redemption of the property within two years of the tax sale as allowed by § 84-1201 and on December 4, 1979 the clerk issued a tax deed to Ward.

Subsequent to the issuance of the tax deed the church discovered Ward’s interest in the property and brought this suit to quiet title, claiming the tax sale was void due to insufficient notice to the church to redeem. A notice was published under Ark. Stat. Ann. § 84-1201.1, however, appellants claim the notice was void as it was listed in the name of Oreaner Sales, and was published less than thirty days prior to the redemption expiration date, contrary to the requirements of the statute. We reach only the issue of publication of notice, as the other point was not raised below.

The statute in question reads:

§ 84-1201.1 — Publication of list of real property not yet redeemed. — The County Clerk in each county shall, not less than thirty (30) days nor more than forty (40) days prior to the expiration of the two (2) year period allowed by law for the redemption of real property sold for taxes, cause to be published in a newspaper of general circulation in the county, a list of all such real property not previously redeemed, the names of the owners of record, the amount of the taxes, penalties and costs necessary to be paid to redeem the property, the date upon which such period of redemption expires, and notice that unless such property is redeemed prior to the expiration of the period of redemption, the lands sold to the State will be certified to the State and lands sold to other purchasers will be deeded to such purchasers upon request therefor and the surrender of the certificate of purchase. [Acts 1969, No. 44, § 1, p. 53]

The two year period allowed for redemption under §84-1201 would have expired on November 23, 1979. The notice in the newspaper was published on November 9 and November 16, 1979, stating the owner had until November 28,1979, to redeem.

The trial court upheld the tax deed to appellee and found no merit in appellant’s challenge to the redemption notice. The holding is in error.

We have not yet construed this 1969 statute, but in other jurisdictions such statutes are considered mandatory and must be strictly construed. Failure to comply with the requirements of the statute renders the notice and the sale ineffective. 72 Am.Jur.2d §§ 1010, 1011; 85 C.J.S. §§ 859, 860, 862. This general rule is applied with equal force to when notice must be given. A notice of the time when the right to redeem property from a tax sale will expire must be given within the period provided by statute, and a notice is of no effect if it is tardily given. Schmitt v. Sapp, 71 Ariz. 48, 223 P.2d 403 (1950); City of New Rochelle, 68 N.Y.S.2d 31, 271 App. Div. 977 (1947).

Our case law on tax forfeitures is consistent with the general rule. We have required strict compliance with the notice of the tax sales themselves before an owner can be deprived of his property, Edwards v. Lodge, 195 Ark. 470, 113 S.W.2d 94 (1938); Brown v. Wall, 206 Ark. 576, 176 S.W.2d 707 (1949) and we have given a liberal construction to redemption laws favoring the redemption of property from tax sales, Brasch v. Mumey, 99 Ark. 324, 138 S.W. 458 (1911); Little v. McGuire, 113 Ark. 497, 168 S.W. 1084 (1914). The notice in this case was not given within the time required by the statute, and is therefore void.

Appellee’s contentions to appellants’ challenge are without merit. He first argues appellant is prevented from bringing this action by the two year statute of limitations under §84-1118 that starts running from the date of the tax sale. The cases are clear, however, that this section does not bar a meritorious defense to a tax deed. Townsend v. Martin, 55 Ark. 192, 17 S.W. 875 (1891); Standard Sec. Co. v. Republic Mining & Mfg., 207 Ark. 335, 180 S.W.2d 575 (1944). This defective notice is a patently meritorious defense. See Radcliffe v. Scruggs, 46 Ark. 96, (1885). This section would be inapplicable in any case, as the cause of action for failure to properly notify to redeem would arise at the time the notice should have been published and not at the time of the sale. § 84-1118 was enacted in 1885, long before the enactment of § 84-1201.1 in 1969 and would not have contemplated including the notice provision.

Appellee also urges appellants did not meet their burden of proof under §84-1313. Although we think such burden was met, as with §84-1118, our cases consistently hold this statute will not cut off a meritorious defense. Cooper v. Freeman, 61 Ark. 36 (1895). Standard Sec. Co. v. Republic Mining & Mfg., supra.

Reversed and remanded.